Severance. (a) In the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below): (i) You shall receive the Termination Payments (as defined in Section 5(b) below); (ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”); (iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and (iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows: (1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or (2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date. (b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement). (c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 3 contracts
Samples: Employment Agreement (SFX Entertainment, INC), Employment Agreement (SFX Entertainment, INC), Employment Agreement (SFX Entertainment, INC)
Severance. (a) In the event your employment with the Company is terminated either If (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your Employee's employment is terminated by the Company for Cause without "cause,"
(ii) the Company does not agree to extend the Employment Term upon the expiration thereof, (iii) Employee terminates his employment because the Company reduces his responsibilities or compensation in a manner which is tantamount to termination of Employee's employment, or (iv) within two years following a Sale of the Company (as defined in Section 5(c) below9 of this Agreement), or (iii) the Employee gives notice to the Company elects of his resignation for "Good Reason" (as defined in Section 8(b) hereof) setting forth in reasonable detail the circumstances claimed to constitute Good Reason and stating that it constitutes notice pursuant to this Section 8(a), and the stated basis for Good Reason has not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than been fully corrected within sixty (60) days from the date of such notice, the Employee shall be entitled to (x) receive an amount equal to his total cash compensation (base salary plus bonus, excluding, however, any Change in Control Bonus paid pursuant to Section 9 hereof) for the year preceding the date of the Employee's termination or the date on which the Employment Term expires, as the case may be, such amount to be payable in a lump sum on the date of termination or the date on which the Employment Term expires, as the case may be, and (y) continue to receive the benefits referred to in Section 4(c) during the one year period following the Termination Datedate of termination or expiration (the "Severance Period"); provided, however, if any such event occurs prior to the extension of the initial Employment Term, the Employee shall be entitled to (A) an amount equal to his then current salary, payable in a lump sum on the date of termination, (iB) all earned but unpaid Base Salary through an amount equal to his target annual bonus, payable in a lump sum on the Termination Date; (ii) any previously awarded and unpaid bonus; date of termination, and (iiiC) all unpaid reimbursable expenses incurred continue to receive the benefits referred to in Section 4(c) during the Severance Period. If the Employee's employment is terminated by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company "for cause", the Employee shall not be entitled to severance compensation. The Employee covenants and agrees that he will not, during the one year period following the termination of the Employee's employment by the Company, within any jurisdiction or marketing area in connection which the Company or any of its Affiliates (as defined below) is doing business or is qualified to do business, directly or indirectly own, manage, operate, control, be employed by or participate in the ownership, management, operation or control of, or be connected in any manner with, any business of the type and character engaged in and competitive with that conducted by the Company or any of its Affiliates at the time of such termination; provided, however, that ownership of securities of 2% or less of any class of securities of a public company shall not be considered to be competition with the performance Company or any of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) its Affiliates. For the purposes of this Agreement, “Cause” the term "Affiliate" shall mean, with respect to the Company, any person or entity which, directly or indirectly, owns or is owned by, or is under common ownership with, the Company. The term "own" (including, with correlative meanings, "owned by" and "under common ownership with") shall mean that you have:the ownership of 50% or more of the voting securities (or their equivalent) of a particular entity.
Appears in 3 contracts
Samples: Employment Agreement (North Shore Agency Inc), Employment Agreement (North Shore Agency Inc), Employment Agreement (North Shore Agency Inc)
Severance. (a) In the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below)that, (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without CauseRenewal Term, (ii1) your employment is terminated by the Company without Cause or by non-renewal of this Agreement or (2) you voluntarily terminate your employment for Cause Good Reason, the Company shall pay you an amount equal to one times the sum of (i) your then Annual Base Salary, (ii) the average of the annual bonuses actually paid or payable to you with respect to the three completed fiscal years (beginning on May 1, 2016) preceding the date of your termination of employment (or such lesser number of completed fiscal years beginning on May 1, 2016 and ending on the date of your termination of employment) and (iii) the aggregate annual dollar amount of the payments made or to be made to you or on your behalf for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Severance Amount”); provided that (x) you execute and deliver to the Company, and do not revoke, a release of all claims against the Company substantially in the form attached hereto as Exhibit A (“Release”) and (y) you have not materially breached as of the date of such termination any provisions of this Agreement. If your employment terminates on or before April 29, 2017, the amount determined under clause (ii) above for purposes of calculating the Severance Amount shall be equal to the 2017 Bonus. The Company’s obligation to make such payment shall be cancelled upon the occurrence of any material breach of any provisions of this Agreement , and, in the event such payment has already been made, you shall repay to the Company such payment within 30 days after demand therefrom. The Severance Amount shall be paid in cash in a single lump sum on the later of (1) the first day of the month following the month in which such termination occurs and (2) the date the Revocation Period (as defined in Section 5(cthe Release) belowhas expired. Notwithstanding anything in this paragraph to the contrary, if a Release is not executed and delivered to the Company within 60 days of such termination of employment (or if such Release is revoked in accordance with its terms), or (iii) the Company elects Severance Amount shall not to renew be paid. Upon the termination of your employment at the end hereunder for Cause or by your death or Disability, or by your voluntary termination of the Initial Term or an applicable Renewal Termyour employment hereunder without Good Reason, you shall be paid, as soon as practicable but no later than sixty (60) days following entitled only to the Termination Date, (i) all earned but unpaid payment of such installments of your Annual Base Salary that have been earned through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either date of such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)expiration and/or termination.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Employment Agreement, Employment Agreement (Barnes & Noble Inc)
Severance. In the event that this Agreement is terminated by the Employee for Employee Cause, then the Employer shall pay Employee the following:
(a) In A severance bonus from the event your employment with general funds of the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below)Employer, (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):consisting of:
(i) You shall receive The present value of the Termination Payments (as defined Employee's salary, less amounts the Employee would have paid for under the benefits set forth in Section 5(b8 hereof for the greater of the unexpired term of this Agreement or two (2) below)years;
(ii) You shall also be paid At the Employee's election, either the payment of the present value as a lump sum by sum, or payment in any form and manner provided for in the CompanyEmployer's or DCI's retirement plan, of the pension benefits which shall be paid as soon as practicable but not later than sixty (60) days following the Termination DateEmployee would have received at the end of the term hereof, equal to calculated on the lesser assumptions of (1) twelve (12) months full vesting and compensation for the unexpired portion of your Base Salary or (2) the Base Salary payments remaining under this Agreement (term hereof at the “Post Termination Salary Payment”)rate in effect at the time of termination;
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by The present value of payments the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal Employer or DCI would have made during the unexpired portion of the term hereof to any ESOP and Thrift Plan for the prior year’s bonus, if any, pro-ratedEmployee; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Commissions earned per the Agreement shall vest as follows:
(1) If termination is will continue to be paid by the Company without Cause or Employer for sales generated by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest Employee but unpaid as of the Termination Date; or
termination date. The severance bonus due under this paragraph 11(a) shall be paid to the Employee in a single lump sum within thirty (230) If days after the termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.Employee;
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid The Employee's then-effective Base Salary through the Termination Date; for a period of six (ii6) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either months or until such eventsooner time as Employee obtains new employment, you shall have no further obligation or liability to be paid to the Company in connection with Employee on the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).dates when such salary would have been payable had such employment not been terminated; and
(c) For In addition to any COBRA rights, reasonable expenses pursuant to Paragraph 8 of this Agreement for health and life insurance in the purposes amounts and coverages existing at the time of termination (i) for a period of the longer of six months or the remainder of the year in which Employee terminates this Agreement, “Cause” shall mean that you have:or (ii) until such sooner time as Employee obtains new coverage in the course of new employment.
Appears in 2 contracts
Samples: Employment Agreement (Muller Media Inc), Employment Agreement (Muller Media Inc)
Severance. (a) In the event your employment with the Company is completely terminated either (i) on account of your death or Disability (as defined in Section 5(e5(f) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below), or (iv) in the event of a Change of Control (as defined in Section 5(e) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum of Two Million Dollars ($2,000,000.00) by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement such termination date (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Datetermination date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any Any stock options and/or restricted stock previously granted under Sections 3(c) and and/or 3(d) of this Agreement shall vest as follows:
(1A) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, or if there is a Change of Control (as hereinafter defined) (1) in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Datedate of termination and (2) in the case of an election by the Company not to renew your employment, all unvested stock options and/or restricted stock granted to you shall vest; or
(2B) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Datedate of termination.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) or your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Datesuch termination, (i) all earned but unpaid Base Salary through the Termination Datedate of termination; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date date of termination (the “Termination Payments”). In either such eventthe event your employment is terminated for Cause, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Employment Agreement (SFX Entertainment, INC), Employment Agreement (SFX Entertainment, INC)
Severance. In lieu of any severance pay or severance benefits otherwise payable to the Employee under any plan, policy, program or arrangement of the Company or its subsidiaries, the following shall apply:
(a) In If there is a Termination (as herein defined) of the event your Employee’s employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) at any time within twelve (12) months after the occurrence of your Base Salary or a Change of Control (2as herein defined), such Employee shall be entitled to receive a lump-sum severance payment equal to (i) one hundred percent (100%) of such employee’s then current salary plus (ii) the Base Salary payments remaining under this Agreement amount of such employee’s target bonus for the current calendar year (or, if higher, the amount of the bonus attributable to a calendar year’s service which was paid to the Employee immediately prior to the Change of Control). All outstanding Stock Options granted to the Employee which are not vested and exercisable as of the date of Termination shall become vested and exercisable as of such date and shall remain exercisable for the periods prescribed in the Stock Option Plan. The Employee, such Employee’s spouse and eligible dependents will continue to be provided with medical and dental benefits for the twelve (12)-month period following such Employee’s Termination on the same basis as provided to active employees of the Company. Following such twelve (12)-month period, the Employee, such Employee’s spouse and eligible dependents will begin eligibility for continuation of medical and dental coverage in accordance with Section 4980B of the Internal Revenue Code of 1986, as amended (the “Post Termination Salary PaymentCode”);
(iii) You . The Employee shall also be paid a pro-rated annual bonus, in a lump sum have no duty to mitigate damages by seeking other employment. The Company shall have no right to offset hereunder with respect to any compensation or benefits received by the Employee from or in connection with any employment subsequent to such Employee’s Termination of employment with the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In If the event you (i) Employee voluntarily terminate your terminates employment with the Company for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause “Good Reason” (as defined herein defined) during the twelve (12)-month period following a Change of Control as described in Section 5(c2(a) below), the Employee will not be entitled to any severance payment or (iii) the Company elects not to renew your employment at the end acceleration of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) vesting of any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)unvested Stock Options.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Employment Agreement (Dice Holdings, Inc.), Employment Agreement (Dice Holdings, Inc.)
Severance. (a) In the event your employment with during the Company is terminated either Employment Period (i) on account of your death Company terminates Employee’s employment without Cause pursuant to Section 4.1(c) or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Employee terminates her employment for Good Reason pursuant to Section 5(c) below4.1(d), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal subject to the lesser execution and non-revocation of a release and waiver of all claims described below, Company shall continue her base salary in accordance with its regular payroll practices for a period of (1A) twelve (12) months, commencing on the date that is thirty (30) days after the termination in the case of a termination of employment either prior to a Change in Control or following a period of twenty-four (24) months of your Base Salary after a Change in Control or (2B) eighteen (18) months, commencing on the Base Salary date that is thirty (30) days after the termination in the case of a termination of employment during the twenty-four (24) month period immediately following a Change in Control. Notwithstanding anything herein to the contrary, receipt of any payment in connection with a termination of employment shall be conditioned on Employee signing a release and waiver of all claims against Company and its affiliates within thirty (30) days after her termination of employment, in such form and manner as Company shall reasonably prescribe, which release shall become effective and irrevocable within thirty (30) days after Employee’s termination of employment. Employee shall accept these payments remaining in full discharge of all obligations of any kind which Company has to her except obligations, if any (i) for post-employment benefits expressly provided under this Agreement and/or at law, (ii) to repurchase any capital stock of Company owned by Employee (as may or may not be set forth in the applicable stock agreement); or (iii) for indemnification under separate agreement by virtue of Employee’s status as a director/officer of Company. Employee shall also be eligible to receive a bonus with respect to the year of termination to the extent provided in Section 3(b). For purposes of these severance pay provisions and any other term of this Agreement which provides for a payment upon termination of employment, Employee shall be considered as having terminated employment only if such termination constitutes a “separation from service” within the meaning of Section 409A of the Code, and any proposed or final regulations and guidance promulgated thereunder. Notwithstanding anything herein to the contrary, in the event that Employee is determined to be a specified employee within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Post Termination Salary PaymentCode”);
(iii, for purposes of any payment on termination of employment hereunder, payment(s) You shall also be paid a promade or begin, as applicable, on the first payroll date which is more than six months following the date of separation from service, to the extent required to avoid any adverse tax consequences under Section 409A of the Code. Any payments that would have been made during such 6-rated annual bonus, month period shall be made in a lump sum by on the first payroll date which is more than six months following the date Employee separates from service with Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted . Each payment under Sections 3(c) and 3(d) of this Agreement shall vest be treated as follows:
(1) If termination is by the Company without Cause or by you a separate payment for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end purposes of Section 409A of the TermCode. In no event may Employee, directly or indirectly, designate the calendar year of any payment to be made under this Agreement. This Agreement shall be interpreted and administered in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end manner consistent with Section 409A of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination DateCode.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Employment Agreement (Build a Bear Workshop Inc), Employment Agreement (Build a Bear Workshop Inc)
Severance. (a) In the event your If Employee’s employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company Employer without Cause (as defined in Section 5(c9(b)(ii) below), hereof) or (iii) by you due to Constructive Termination without Cause Employee for Good Reason (as defined in Section 5(d9(b)(i) below):
hereof), subject to Employee’s compliance with the obligations in Sections 3(c), 4, 6 and 7 hereof, and subject to Section 15(c) hereof in the case of amounts in excess of the Separation Pay Limit to the extent that the Separation Pay Limit is applicable, Employee shall receive payment of an amount equal to the quotient obtained by dividing (i) You shall receive Employee’s Base Salary and Target Cash Incentive (as defined below) for the Termination Payments year of termination (less any salary and incentive award payments paid to Employee for employment during any period following the delivery or receipt of a written notice of termination), by (ii) twelve (12) (but not as an employee), for each month in the Severance Period (as defined in Section 5(b3(b) belowhereof) following such termination of employment (the “Basic Severance”);
(ii) You shall also be paid a lump sum by , payable in accordance with the Companyregular payroll practices of Employer, which but not less frequently than monthly, provided that the first payment shall be paid made on the first payroll period after the sixtieth (60th) day following such termination and shall include payment of any amounts that would otherwise be due prior thereto. Notwithstanding the foregoing, if Employee’s employment is terminated by Employer without Cause or by Employee for Good Reason within twenty-four (24) months after a Change in Control (as soon as practicable but not later than sixty defined in the Markit Ltd. 2014 Equity Incentive Award Plan (60) days following the Termination Date“Plan”)), Employee shall receive additional monthly severance payments equal to the lesser quotient obtained by dividing (i) Employee’s Base Salary and Target Cash Incentive for the year of termination (1less any salary and incentive award payments paid to Employee for employment during any period following the delivery or receipt of a written notice of termination), by (ii) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in as an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) belowemployee), or for twelve (iii12) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:months,
Appears in 2 contracts
Samples: Employment Agreement (IHS Markit Ltd.), Employment Agreement (IHS Markit Ltd.)
Severance. (a) In the event your employment with the Company that Employee is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below)subject to an Other Involuntary Termination, (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which Employee shall be paid entitled to receive severance benefits as soon as practicable but not later than sixty follows: (60A) days following the Termination Date, equal to the lesser of (1) severance payments for [twelve (12) months (if Employee is a SVP)] [eighteen months (18) (if Employee is the CEO)] after the effective date of your Base Salary or the termination (2) the Base Salary payments remaining under for purposes of this Agreement (Section 2(b)[(i)][(ii)], the “Post Termination Salary PaymentSeverance Period”);
(iii) You equal to the base salary which Employee was receiving immediately prior to the Other Involuntary Termination, which payments shall also be paid a pro-rated annual bonusduring the Severance Period in accordance with the Company’s standard payroll practices; and (B) payment by the Company of the full cost of the health insurance benefits provided to Employee and Employee’s spouse and dependents, as applicable, immediately prior to the Other Involuntary Termination pursuant to the terms of COBRA or other applicable law through the earlier of the end of the Severance Period or the date upon which Employee is no longer eligible for such COBRA or other benefits under applicable law. The benefits to be provided under Section 2(b)(i)[ and 2(b)(ii)] shall be paid or commence to be paid on the sixtieth (60th) day following Employee’s termination of employment (subject to Employee’s release of claims against the Company as set forth in Section 1(a)). Notwithstanding the foregoing, in the event the Board of Directors concludes in its reasonable judgment that the provision of subsidized COBRA benefits to Employee could cause the Company to become subject to excise tax as a lump sum result of the Patient Protection and Affordable Care Act, as amended by the Healthcare Reform Act, the Company shall pay Employee a monthly amount in cash equal to the amount of the COBRA subsidy during the period the Company is obligated to provide subsidized COBRA benefits to Employee. In addition, Employee shall receive payment(s) for all salary, bonuses and unpaid vacation accrued as of the date of Employee’s termination of employment and up to three (3) months of outplacement services not to exceed $5,000 per month (with a provider and in a program selected by the Company, which shall be paid as soon as practicable but not later than sixty provided Employee commences such services within ninety (6090) days following such of Employee’s Other Involuntary Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreementdate).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Management Continuity Agreement (Assertio Holdings, Inc.), Management Continuity Agreement (Depomed Inc)
Severance. (a) In the event your that the Executive’s employment with the Company hereunder is terminated either during the Term (i) on account of your death by the Corporation other than for Cause, or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause Executive for Good Reason (as defined in Section 5(chereinafter defined) belowpursuant to a Notice of Termination (as hereinafter defined), then the Corporation shall continue the Executive’s participation (including participation by his spouse and other dependents) on the same basis as other senior officers in its medical and dental plans or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Companyarrangements, which plans and arrangements shall be paid not include any life insurance or disability plans or arrangements (“Medical and Dental Plans”), and the Corporation will continue to pay the costs of coverage of the Executive and his spouse and other dependents under the Medical and Dental Plans on the same basis as soon as practicable but not later than sixty (60) days following other active officers of the Termination DateCorporation covered under such Medical and Dental Plans, equal to for the lesser greater of (1) twelve (12) months or the remainder of your Base Salary or (2) the Base Salary payments remaining under this Agreement Term (the “Post Termination Salary PaymentSeverance Period”);
; provided that if the Executive’s employment hereunder is terminated during the Term (iiii) You shall also be paid a pro-rated annual bonus, in a lump sum by the CompanyCorporation other than for Cause, which shall be paid as soon as practicable but not later than sixty or (60ii) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you Executive for Constructive Good Reason pursuant to a Notice of Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Termand, in the case of clause (i) or (ii), such termination occurs after a Change of Control, then the “Severance Period” shall be eighteen (18) months); provided, however, that if such continued participation in the Medical and Dental Plans is not possible under the terms thereof, the Corporation will provide the Executive with substantially identical benefits for the remainder of such period or an amount in cash equal to the cost to the Corporation for providing such benefits, paid in accordance with Section 10(e) of this Agreement. Notwithstanding the foregoing, the Corporation’s obligations pursuant to the first sentence of this Section 10(a) shall cease and terminate in the event that the Executive is, or becomes, eligible for coverage under a medical plan of a successor employer or a spouse’s employer. The Corporation shall also pay to the Executive severance payments in cash equal to the sum of (x) the amount of the Executive’s then current base annual salary and (y) the Target Bonus for the fiscal year in which the termination occurs (or, if the Target Bonus for such fiscal year has not yet been established, the Target Bonus for the immediately preceding fiscal year), multiplied by the quotient obtained by dividing the number of days during the Severance Period, by three hundred sixty-five (365). In addition, the Executive shall be entitled to the payment of any accrued and unpaid salary (including accrued and unused vacation) through the date of termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end any accrued and unpaid bonuses in respect of prior fiscal years, any bonus, determined under Section 5, in respect of the Initial Term fiscal year in which the termination occurs, prorated through the date of termination. Further, the Executive shall vest be provided with outplacement assistance commensurate with the Executive’s position with the Corporation during the Severance Period following the Executive’s termination of employment. Except as set forth in Sections 2, 7(b), 8 and Section 10(a), 10(b)(iv) and 10(f) hereof, the Corporation shall have no further obligations under this Agreement in the event of the Termination Date; or
(2) If Executive’s termination is due of employment under this Section 10. The Executive shall have the obligations provided under Section 12 hereof, to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted the extent applicable pursuant to retain those stock options and/or restricted shares which have vested as of the Termination Dateits terms.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes purpose of this Agreement, “CauseGood Reason” shall mean that you havethe occurrence, without the Executive’s express written consent, of any of the following circumstances unless, in the case of paragraphs (i), (v), (vi) or (vii) below, such circumstances are fully corrected prior to the Date of Termination (as defined below) specified in the Notice of Termination (as defined below) given in respect thereof:
Appears in 2 contracts
Samples: Employment Agreement (Factory Card Outlet Corp), Employment Agreement (Factory Card Outlet Corp)
Severance. (a) In If the event your Executive's employment with hereunder is terminated during the Employment Term by the Company or is terminated either due to expiration of the Employment Term following notice by the Company not to extend the Employment Term in accordance with Section 3, in each case other than for Cause or due to disability (as determined in the good faith discretion of the Board) or death, the Executive shall be entitled to receive as severance: (i) on account if such termination occurs prior to expiration of your death or Disability the two (as defined in Section 5(e2) belowyear period following the Commencement Date, the severance pay and benefits payable under the terms of Sections 3(b), 3(c), 3(d), 3(e), 3(f) and 3(g) of the severance agreement attached as Exhibit B hereto (iipursuant to which, the calendar year in which the "Change in Control" occurred, for purposes of Sections 3(d) by the Company without Cause (as defined in Section 5(cand 3(e) belowthereunder, shall be 2002), or (iiiii) by you due to Constructive Termination without Cause (if such termination occurs other than as defined described in Section 5(d) below):
clause (i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Companyimmediately preceding, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, an amount equal to the lesser Executive's base salary as in effect immediately prior to the date of (1) the Executive's termination of employment for the longer period of twelve (12) months of your Base Salary or the remaining Employment Term (2) payable, at the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonusCompany's option, in a lump lump-sum or in equal installments in accordance with the Company's payroll procedures during the applicable period described immediately above in this clause (ii) following the date of the Executive's termination), and a pro rata portion (based on the number of days the Executive was employed by the CompanyCompany during the calendar year of termination) of any incentive bonus otherwise payable in accordance with Section 4(b) for the year of termination of the Executive's employment, payable no earlier than the date on which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted would have been paid under Sections 3(c) and 3(d) the applicable plan or policy of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or absent such termination of employment. If the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your Executive's employment is terminated by otherwise than as described in this Section 7, the Executive shall not be entitled to any severance, termination pay or similar compensation or benefits, provided that the Executive shall be entitled to any benefits then due or accrued in accordance with the applicable employee benefit plans of the Company or applicable law, including "continuation coverage" under the Company's group health plans for Cause purposes of Section 4980B of the Internal Revenue Code of 1986, as amended (as defined in "COBRA"). As a condition of receiving any severance for which he otherwise qualifies under this Section 5(c) below)7, or (iii) the Executive agrees to execute a general release of the Company elects not to renew your employment at and the end Affiliates and their respective officers, directors and employees from any and all claims, obligations and liabilities of the Initial Term any kind whatsoever arising from or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance Executive's employment or termination of employment with the Company or this agreement Agreement (including, without limitation, civil rights claims), in such form as is requested by the Company. The Executive acknowledges and agrees that, except the continuing obligations specified as specifically described in Sections this Section 7, 8 all of the Executive's rights to any compensation, benefits (other than base salary earned through the date of termination of employment and 10 any benefits due or accrued prior to termination of this Agreementemployment in accordance with the applicable employee benefit plans of the Company or applicable law), bonuses or severance from the Company or any Affiliate after termination of the Employment Term shall cease upon such termination.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Employment Agreement (AMH Holdings, Inc.), Employment Agreement (Associated Materials Inc)
Severance. (a) In If, during the event your Employment Term and any Renewal Term and either prior to the occurrence of a Change in Control or more than 12 months after a Change in Control, the Executive’s employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (Cause, then, the Company shall have no liability or further obligation to the Executive except as defined in follows: the Executive shall be entitled to receive, subject to Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below6(f):
(i) You shall receive within 30 days of such termination of employment, any earned but unpaid Base Salary for the Termination Payments period prior to termination and any earned but unpaid bonuses, in cash, for prior periods which have ended at the time of such termination (as defined in Section 5(b) below“Entitlements”);
(ii) You shall also be paid a lump sum by at the Companytime provided in such plan, any rights to which he is entitled in accordance with such applicable plan or program provisions under any employee benefit plan, program or arrangement, fringe benefit or incentive plan (“Rights”); and
(iii) severance pay in an amount that is equal to one year’s Base Salary, less applicable withholdings and deductions, which shall be paid payable in accordance with the Company’s standard payroll practices over a period of one year from the termination of Executive’s employment pursuant to this Section 6(a); provided, however, such amounts payable under this section 6(a)(iii) shall be subject to set off by the Company for any amounts received by Executive during the one year period following his termination of employment with the Company as soon an employee, consultant, partner, owner or other similar capacity (such amounts shall be referred to herein as practicable the “Initial Severance Pay”). Additionally, upon a termination of the Executive’s employment without Cause under this Section 6(a), (x) all non-vested time based Long-Term Incentive Awards and all non-vested but not later than sixty earned performance based Long-Term Incentive Awards shall accelerate, become fully earned and vested, and (60y) the end of the performance period for all non-vested but unearned performance based Long-Term Incentive Awards shall be the date of such termination and a pro rata amount of any of such awards then deemed to be earned awards (determined by the number of completed days following of the Termination Dateperformance period for such award divided by the total number of days in such performance period) shall accelerate, equal become fully earned and vested; provided, that all unexercised share option awards shall terminate within six months of such termination of employment. As a condition of and upon receiving the severance pay under Section 6(a)(iii) and the acceleration of vesting of non-vested Long-Term Incentive Awards set forth in the immediately preceding paragraph, the Executive agrees to execute a release thereby releasing the Company and its affiliates from any and all obligations and liabilities to the lesser Executive arising from or in connection with the Executive’s employment or termination of employment with the Company and its affiliates and any disagreements with respect to such employment, except that such release shall not apply with respect to any rights of the Executive to indemnification under the Company’s Declaration of Trust, By-Laws or a separate agreement, or to any rights of the Executive to indemnification or directors’ and officers’ liability insurance coverage of the Company and its affiliates. If the Executive does not execute the release and the release does not become irrevocable within 60 days of his termination of employment, the Executive shall forfeit his right to the severance pay under Section 6(a)(iii) and the acceleration of vesting of his non-vested Long-Term Incentive Awards.
(1b) twelve If, during the Employment Term and any Renewal Term, the Executive’s employment is terminated in a Double Trigger Termination, then, the Company shall have no liability or further obligation to the Executive except as follows: the Executive shall be entitled to receive, subject to Section 6(f):
(12i) months within 30 days of your such termination of employment, any earned but unpaid Base Salary for the period prior to termination and any earned but unpaid bonuses, in cash, for prior periods which have ended at the time of such termination (“Entitlements”);
(ii) at the time provided in such plan, any rights to which he is entitled in accordance with such applicable plan or program provisions under any employee benefit plan, program or arrangement, fringe benefit or incentive plan (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary PaymentRights”);
(iii) You shall also be paid a prowithin 60 days of such termination of employment, severance pay (the “Post-rated annual bonus, CoC Severance Pay”) in a lump sum cash payment equal to two and one half (2.5) times the sum of: (x) the Executive’s Base Salary at termination (disregarding a reduction in Base Salary that constitutes Good Reason), and (y) the average of the last two annual cash bonuses the Company has paid to or agreed to pay to (if such payment has not yet been made) the Executive (the “Average Bonus”);
(iv) within 60 days of such termination of employment, a lump sum cash payment of a pro rata annual bonus, without duplication of any Entitlements, determined by (x) the number of days the Executive was employed by the Company during the fiscal year divided by 365, and multiplied by (y) the Average Bonus (the “Pro Rata Cash Bonus”); and Additionally, upon a termination of the Executive’s employment in a Double Trigger Termination under this Section 6(b), (x) all non-vested time based Long-Term Incentive Awards and all non-vested but earned performance based Long-Term Incentive Awards shall accelerate, become fully earned and vested, and (y) the end of the performance period for all non-vested but unearned performance based Long-Term Incentive Awards shall be the date of such termination and a pro rata amount of any of such awards then deemed to be earned awards (determined by the number of completed days of the performance period for such award divided by the total number of days in such performance period) shall accelerate, become fully earned and vested; provided, that all unexercised share option awards shall terminate within six months of such termination of employment. Additionally, medical, dental, disability, life insurance and other employee welfare benefits (the “Welfare Plans”) then provided to senior executives of the Company shall be continued following the date of termination for a period of two and one half (2.5) years and, if the Executive is precluded from participating in any Welfare Plan by its terms or applicable law during such period, the Company shall reimburse expenses actually incurred by the Executive during such period to obtain similar Welfare Plan coverage, but only to the extent Executive’s requested reimbursement of expenses for similar Welfare Plan coverage does not exceed the Company’s premiums or contributions that the Company would otherwise pay under the terms of this Agreement as of the date of the Executive’s termination, or date of payment if later, to continue Executive’s participation in the underlying Welfare Plan for the period the expenses were incurred by the Executive. Expenses reimbursable under this paragraph shall be reimbursed within thirty (30) days following Executive’s submission to the Company of the reimbursement request and supporting documentation reasonably requested by the Company and in no event later than the end of the calendar year following the calendar year in which the expenses were incurred by Executive. The expenses eligible for reimbursement under this paragraph during any calendar year shall not affect the expenses eligible for reimbursement under this paragraph in any other calendar year.
(c) If during the Employment Term, the Executive’s employment is terminated on account of death or Disability, the Company shall have no liability or further obligation to the Executive except as follows: the Executive (and his estate or designated beneficiaries under any Company-sponsored employee benefit plan in the event of his death) shall be entitled to receive, subject to Section 6(f):
(i) any Entitlements within 30 days of such termination of employment or, if later, the date such Entitlement would otherwise be paid to active employees of the Company, and any Rights at the time provided in the relevant plans; and
(ii) Initial Severance Pay, which shall be paid as soon as practicable payable in accordance with the Company’s standard payroll practices over a period of one year from the date of the termination of Executive’s employment pursuant to this Section 6(c). Additionally, (x) all non-vested time based Long-Term Incentive Awards and all non-vested but not later than sixty earned performance based Long-Term Incentive Awards shall accelerate, become fully earned and vested, and (60y) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Termperformance period for all non-vested but unearned performance based Long-Term Incentive Awards shall be the date of such termination and a pro rata amount of any of such awards then deemed to be earned awards (determined by the number of completed days of the performance period for such award divided by the total number of days in such performance period) shall accelerate, become fully earned and vested; provided, that all unexercised share option awards shall terminate within six months of such termination of employment. Additionally, the group health plan then provided to senior executives of the Company shall be continued following the date of termination for a period of one year and, during such period, if the Executive is precluded from participating in such group health plan by its terms or applicable law at any time during such period, the Company shall reimburse expenses actually incurred by the Executive during such period to obtain similar coverage, but only to the extent Executive’s requested reimbursement of expenses for such similar coverage does not exceed the Company’s premiums or contributions that the Company would otherwise pay as of the date of the Executive’s termination to continue the Executive’s participation in the case group health plan for the period the expenses for similar coverage are incurred by Executive. Expenses reimbursable under this paragraph shall be reimbursed within thirty (30) days following Executive’s submission to the Company of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the reimbursement request and supporting documentation reasonably requested by the Company and in no event later than the end of the Initial Term calendar year following the calendar year in which the expenses were incurred by Executive. The expenses eligible for reimbursement under this paragraph during any calendar year shall vest as not affect the expenses eligible for reimbursement under this paragraph in any other calendar year. Notwithstanding the foregoing, the continuation period for group health benefits under Section 4980B of the Termination Date; or
Internal Revenue Code of 1986, as amended (2the “Code”) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as reason of the Termination DateExecutive’s termination of employment with the Company shall be measured from his actual date of termination of employment. As a condition of receiving the Initial Severance Pay under Section 6(c)(ii), the Executive, or the representative of his estate if he has died, agrees to execute a release thereby releasing the Company and its affiliates from any and all obligations and liabilities to the Executive arising from or in connection with the Executive’s employment or termination of employment with the Company and its affiliates and any disagreements with respect to such employment, except that such release shall not apply with respect to any rights of the Executive to indemnification under the Company’s Certificate of Incorporation, By-Laws or a separate agreement, or to any rights of the Executive to indemnification or directors’ and officers’ liability insurance coverage of the Company and its affiliates. If the Executive or the representative of his estate does not execute the release and the release does not become irrevocable within 60 days of his termination of employment or death, the Executive or the estate shall forfeit the right to the Initial Severance Pay under Section 6(c)(ii) and the acceleration of vesting of his non-vested Long-Term Incentive Awards.
(bd) In If during the event you (i) voluntarily terminate your employment for Employment Term and any reason other than Constructive Termination without CauseRenewal Term, (ii) your the Executive’s employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) by the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination DateExecutive for any reason, (i) all earned but unpaid Base Salary through the Termination Date; non-vested and/or unexercised Long-Term Incentive Awards shall be forfeited, terminated and cancelled and (ii) the Company shall have no liability or further obligation to the Executive except as follows: the Executive shall be entitled to receive any previously awarded Entitlements within 30 days of such termination of employment or, if later, the date such Entitlement would otherwise be paid to active employees of the Company, and unpaid bonus; any Rights at the time provided in the relevant plans.
(e) The payments made pursuant to this Section 6 shall be excluded from all pension and benefit calculations under the employee benefit plans of the Company and its affiliates, except as otherwise provided in the applicable employee benefit plan.
(iiif) all unpaid reimbursable expenses incurred Notwithstanding anything in this Section 6 to the contrary, if any amounts or benefits payable under this Agreement in the event of Executive’s termination of employment constitute “nonqualified deferred compensation” within the meaning of Code Section 409A, payment of such amounts and benefits shall commence when the Executive incurs a “separation from service” within the meaning of Treasury Regulation 1.409A-1(h), without regard to any of the optional provisions thereunder, from the Company and any entity that would be considered a single employer with the Company under Code Section 414(b) or 414(c) (“Separation from Service”). Such payments or benefits shall be provided in accordance with the timing provisions of this Agreement by you through substituting the Termination Date Agreement’s references to “termination of employment” or “termination” with Separation from Service. Notwithstanding the foregoing, if at the time of Executive’s Separation from Service the Executive is a “specified employee” within the meaning of Code Section 409A(a)(2)(B)(i), any amount or benefits that the constitutes “nonqualified deferred compensation” within the meaning of Code Section 409A that becomes payable to Executive on account of the Executive’s Separation from Service will not be paid until after the earlier of (i) first business day of the seventh month following Executive’s Separation from Service, or (ii) the date of the Executive’s death (the “Termination Payments409A Suspension Period”). In either Within 14 calendar days after the end of the 409A Suspension Period, the Executive shall be paid a cash lump sum payment equal to any payments (including interest on any such eventpayments, you shall have no further obligation or liability at an interest rate of not less than the prime interest rate, as published in the Wall Street Journal, over the period such payment is restricted from being paid to the Executive) and benefits that the Company would otherwise have been required to provide under this Section 6 but for the imposition of the 409A Suspension Period delayed because of the preceding sentence. Thereafter, the Executive shall receive any remaining payments and benefits due under this Section 6 in connection accordance with the performance terms of this agreement Section (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreementas if there had not been any Suspension Period beforehand).
(c) . For the purposes of this Agreement, “Cause” each payment that is part of a series of installment payments shall mean that you have:treated be as a separate payment for purposes of Code Section 409A.
Appears in 2 contracts
Samples: Employment Agreement (Four Springs Capital Trust), Employment Agreement (Four Springs Capital Trust)
Severance. At the Effective Time, the Executive shall be paid in a lump sum in cash the amount described in Section 6(d)(i) of the Employment Agreement, calculated if he had exercised his right to terminate his employment for Good Reason at the Effective Time. In consideration of the foregoing payment, the Executive shall cease to be entitled to receive the 2 payment described in Section 6(d)(i) of the Employment Agreement upon the subsequent termination of his employment for any reason. However, in the event of the termination of the Executive's employment during the period of one year following the Effective Time by Parent other than for Cause or Disability, or by the Executive for Good Reason, the Executive shall be entitled to receive a lump sum in cash within 30 days after the Date of Termination equal to the aggregate of the following amounts: (a) In the event your employment with the Company is terminated either product of (i) on account of your death or Disability the Multiplier (as defined in Section 5(ebelow) below), and (ii) by the Company without Cause sum of (A) the Annual Base Salary, (B) the Highest Annual Bonus and (C) the Greater Long-Term Bonus; and (b) all Accrued Obligations (except to the extent previously paid); and (c) a lump-sum retirement benefit equal to the difference between (I) the actuarial equivalent of the benefits under the Retirement Plans which the Executive would receive if the Executive's employment continued at the compensation level provided for in Sections 4(b)(i) and 4(b)(ii) of the Employment Agreement for a period equal to one year times the Multiplier, assuming for this purpose that all accrued benefits are fully vested, and (II) the actuarial equivalent of the Executive's actual benefit (paid or payable), if any, under the Retirement Plans; provided, that for purposes of this sentence the term "Good Reason" shall only relate to events occurring after the Effective Time and shall mean "Good Reason" as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined of the Employment Agreement except that the reference in Section 5(d) below):
clause (i) You shall receive to Section 4(a) of the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which Employment Agreement shall be paid deemed to refer to said Section 4(a) as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum amended by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) Section 2 of this Agreement shall vest as follows:
(1) If termination is by Amendment, and the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end last two sentences of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in said Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later disregarded. The Executive shall also remain entitled to receive the other payments and benefits provided for in the Employment Agreement (other than sixty Section 6(d)(i) thereof) in the event of a termination of his employment during the Employment Period (60) days following it being acknowledged that any such termination by the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”Executive will be for Good Reason for such purposes). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of this AgreementSection 3, “Cause” the "Multiplier" shall mean that you have:a fraction, the numerator of which is the number of days from the Date of Termination through the first anniversary of the Effective Time, and the denominator of which is 365.
Appears in 2 contracts
Samples: Employment Agreement (Morton International Inc /In/), Employment Agreement (Morton Acquisition Corp)
Severance. (a) In the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below)that, (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without CauseRenewal Term, (ii1) your employment is terminated by the Company without Cause or (2) you voluntarily terminate your employment for Cause Good Reason, in addition to the Accrued Obligations (as described in Section 3.8(b)), the Company shall pay you an amount equal to two times the sum of (i) your then Annual Base Salary, (ii) the average of the annual bonuses actually paid or payable to you with respect to the three completed fiscal years preceding the date of your termination of employment (or such lesser number of completed fiscal years) and (iii) the aggregate annual dollar amount of the payments made or to be made to you or on your behalf for purposes of providing you with the benefits set forth in Sections 3.3 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Severance Amount”); provided that (x) you execute and deliver to the Company, and do not revoke, a release of all claims against the Company substantially in the form attached hereto as Exhibit A (“Release”) and (y) you have not materially breached as of the date of such termination any provisions of this Agreement and do not materially breach such provisions at any time during the Relevant Period (as defined below). The Company’s obligation to make such payment shall be cancelled upon the occurrence of any such material breach and, in the event such payment has already been made, you shall repay to the Company such payment within 30 days after demand therefore; provided, however, such repayment shall not be required if the Company shall have materially breached this Agreement prior to the time of your breach. The Severance Amount shall be paid in cash in a single lump sum on the later of (1) the first day of the month following the month in which such termination occurs and (2) the date the Revocation Period (as defined in Section 5(cthe Release) belowhas expired. Notwithstanding anything in this paragraph to the contrary, if a Release is not executed and delivered to the Company within 60 days of such termination of employment (or if such Release is revoked in accordance with its terms), or the Severance Amount shall not be paid, but the Accrued Obligations nevertheless shall be paid.
(iiib) Upon the Company elects not to renew termination of your employment at the end of hereunder for any reason other than as set forth in Section 3.8(a) above, during the Initial Term or an applicable any Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you Company shall have no further obligation or liability to you other than: (1) to pay Annual Base Salary through the effective date of termination (the “Effective Termination Date”); (2) to pay any bonus (as described in Section 3.2) for any fiscal year which has ended prior to the Company fiscal year in connection which the Effective Termination Date occurs that has been earned but not yet paid as of the Effective Termination Date; and (3) with respect to any benefits to which you may be entitled pursuant to any insurance or other benefit plans or arrangements of the Company, such benefits shall be payable in accordance with the performance terms of this agreement such plans or arrangements (except the continuing obligations specified items described in Sections 7clauses (1), 8 (2) and 10 of this Agreement(3) collectively, the “Accrued Obligations”).
(c) . For the purposes of this AgreementSection 3.8, “Cause” except as may be required under Section 6.10, payment under clause (1) shall mean that you have:be made in cash in a single lump sum not later than 60 days following the Effective Termination Date and payment under clause (2) shall be made in cash in a single lump sum not later than the fifteenth day of the third month following the end of the fiscal year of the Company with respect to which the applicable bonus was earned.
Appears in 2 contracts
Samples: Employment Agreement (Barnes & Noble Education, Inc.), Employment Agreement (Barnes & Noble Education, Inc.)
Severance. (ai) In the event your Executive's employment with the Company is hereunder shall be terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause Executive for Good Reason or by the Employer for other than Cause, Death or Disability: (a) the Executive shall thereupon receive as defined severance pay in Section 5(ca lump sum the amount of Salary and Retirement Contribution which the Executive would have received for the remaining term of this Agreement had there been no termination, provided however, that in no event shall such lump sum payment be less than two years' Salary and Retirement Contribution; and (b) below)the Executive's (and his dependents') participation in any and all life, disability, medical and dental insurance plans shall be continued, or equivalent benefits provided to him or them by the Employer, at no cost to him or them, for a period of two years from such termination; and (iiic) any options granted to Executive which have not, by you due the terms of the options, vested shall be deemed to Constructive Termination without Cause have vested at the termination and shall thereafter be exercisable for the maximum period of time allowed for exercise thereof under the terms of such options; and (as defined in Section 5(dd) below):
(i) You the Executive shall receive the Termination Payments (amount credited to the Executive's non-qualified deferred compensation account as defined set forth in Section 5(b4(F) below);hereof.
(ii) You An election by Executive to terminate his employment under the provisions of this Section 8 shall also not be paid deemed a lump sum by voluntary termination of employment of Executive for the Companypurpose of interpreting the provisions of any of the Employer's employment benefit plans, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary programs or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);policies.
(iii) You In the event of a sale of substantially all of the assets or stock of ESG to any nonaffiliated purchaser or purchasers in an arm's length transaction, the Executive shall also be paid a pro-rated annual bonus, entitled to receive as severance pay in a lump sum by six months' Salary and the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal credited to the prior year’s bonusExecutive's non-qualified, if anynon-interest bearing and non-income earning deferred compensation account, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined set forth in Section 5(c4(F) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)hereof.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Employment Agreement (Eagle Supply Group Inc), Employment Agreement (Eagle Supply Group Inc)
Severance. In the event that, prior to the end of the Specified Period, (a) In the event Succession Plan does not occur in accordance with the Merger Agreement and you resign in accordance with the notice and timing procedures for Constructive Discharge in your Employment Agreement or (b) you experience a termination of your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(cyour Employment Agreement) below), or (iii) by you due to reason of Constructive Termination without Cause Discharge (as defined in Section 5(dyour Employment Agreement, but subject to the section entitled “Waiver of Constructive Discharge” below) below):
(each such termination of employment in clauses (a) and (b), a “Qualifying Termination”), you will be entitled to receive (i) You shall receive the Termination Payments (as defined in Section 5(b) below);
any annual bonus or long-term incentive award earned or accrued for a prior performance period that has not yet been paid, (ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser greater of (1A) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s sum of (x) your then applicable base salary through the remainder of the Specified Period and (y) annual performance bonuses (based on your then most recent annual performance bonus) that would have been earned or accrued during the remainder of the Specified Period and (B) an amount equal to the sum of your then applicable annual base salary and then most recent annual performance bonus, if any, pro-rated; and
(iii) payment for the value of the contributions that would have been made to you or for your benefit under all applicable retirement and other employee benefit plans had your employment continued through December 31 of the year in which your termination of employment occurs and (iv) The Initial Option continuing coverage under all existing life, health and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If disability programs for one year following your termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) date. In the event you experience a termination of employment due to your death or disability (as described in your Employment Agreement), you will be entitled to receive the amounts specified in (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause), (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) belowii)(B), or (iii) and (iv). All amounts under this section will be payable in equal bi-weekly installments commencing on the Company elects not to renew your employment at first regular pay date immediately following the end date on which the Release Requirements are satisfied, for the greater of the Initial Term remainder of the Specified Period or an applicable Renewal Term12 months. In order to satisfy the “Release Requirements”, you shall must: (1) execute and deliver to the Corporation a separation agreement which includes a release of all claims in such form as requested by the Corporation within 22 days following your termination date (or any such longer period if required by applicable law and communicated to you) and do not revoke the release during the seven-day period following the execution date (or any such longer period if required by applicable law and communicated to you) and (2) remain in compliance with the restrictive covenants described in the section entitled “Non-Competition” below. Amounts under this letter agreement that are conditioned on the satisfaction of the Release Requirements will be paidpaid or will commence, as soon as practicable if at all, in accordance with the terms of this letter agreement but in no event later than sixty (60) 75 days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded your termination date and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”)only if such Release Requirements have been satisfied prior to such date. In either the event that the 29-day period (or any such eventlonger period if required by applicable law and communicated to you) described in the Release Requirements begins in one calendar year and ends in a second calendar year, you any payment that is conditioned on the satisfaction of the Release Requirements shall have no further obligation or liability to commence in the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) second calendar year. For the purposes of Code Section 409A, each payment made under this Agreement, “Cause” shall mean that you have:letter agreement will be treated as a separate payment.
Appears in 2 contracts
Samples: Employment Agreement (Crossfirst Bankshares, Inc.), Employment Agreement (First Busey Corp /Nv/)
Severance. Except as otherwise specifically provided in this Section 17 or otherwise required by law, all compensation and benefits to be provided to the Employee under this Agreement shall terminate on the date of the termination of the Employee's employment hereunder. Notwithstanding the foregoing, (a) In in the event your the Employee voluntarily terminates his employment with hereunder for any reason, the Company Employee shall be entitled to the continued payment of the Employee's salary for a period of two (2) weeks from the date of termination and (b) in the event the Employee's employment hereunder is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below)cause, or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which Employee shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal entitled to the lesser continued payment of the Employee's salary for a period of one (1) twelve (12) months year from the date of your Base Salary or (2) the Base Salary termination. Any payments remaining under of salary pursuant to this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which Section 15 shall be paid at the Employee's salary rate in effect at the time of termination and shall be made on the same periodic dates as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal salary payments would have been made to the prior year’s bonus, if any, pro-rated; and
(iv) Employee had the Employee not been terminated. The Initial Option Employee and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, acknowledge and agree that in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at event the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your Employee's employment for any reason other than Constructive Termination without Cause, (ii) your employment hereunder is terminated by the Company for Cause (as defined in Section 5(c) below)cause, or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability with respect to the Company in connection with Employee and all compensation and benefits to the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) Employee shall immediately terminate. For the purposes of this Agreement, “Cause” the term "cause" shall mean only: (a) theft or embezzlement of the Company's property, (b) commission of a crime or act involving moral turpitude, (c) fraud, intentional misrepresentation to the Company, breach of Section 6, or material breach of any of the Sections of this Agreement, (d) death or disability, and (e) repeated failure by the Employee to dutifully and faithfully perform his duties as set forth herein; provided, the Company has notified the Employee of its belief that you have:-------- the Employee has not performed his duties hereunder and the Employee has failed to take such action as would reasonably be required to cure such non-performance within ten (10) days.
Appears in 2 contracts
Samples: Employment Agreement (Voyager Net Inc), Employment Agreement (Voyager Net Inc)
Severance. (a) In the event your employment with of the Company is terminated either (i) on account early termination of your death the Initial Term or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) Renewal Term of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due with Good Reason, the Company will pay you an amount equal to your Death or Disabilitythen Annual Base Salary, or less all applicable withholding and other applicable taxes and deductions (“Severance Amount”), provided that (a) you execute and deliver to the Company elects a release of all claims against the Company substantially in the form annexed hereto as Exhibit A (“Release”) and (b) you have not to renew your employment at the end materially breached as of the Termdate of such early termination any provisions of this Agreement and do not materially breach such provisions at any time during the 12-month period following the date of termination. The Company’s obligation to make the severance payment will be cancelled upon the occurrence of any such material breach during such period and, in the case of event such payment has already been made, you shall repay to the Company such payment under this paragraph within 30 days after demand therefor. The Severance Amount shall be paid in cash in a terminationsingle lump sum, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at on the end later of the Initial Term shall vest as first day of the Termination Date; or
(2) If month following the month in which early termination referred to in this paragraph occurs or the date the Release is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of returned and the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause Revocation Period (as defined in the Release) has expired; provided, however, that if such termination occurs on or prior to the Prior Agreement End Date, the Severance Amount shall be paid in 12 approximately equal monthly installments as provided in Section 5(c) below3.5 of the Prior Agreement commencing on the date on which such installments would have commenced under Section 3.5 of the Prior Agreement. Notwithstanding anything in this paragraph to the contrary, if a Release is not executed and delivered within 60 days of such early termination of employment (or if such Release is revoked in accordance with its terms), or (iii) no severance payment under this Section 3.5 shall be paid. Notwithstanding the Company elects not foregoing, in the event you are determined to renew be a “Specified Employee” as defined in Section 409A of the Code, such severance pay otherwise payable before the day that is six months following your termination of employment at shall be delayed and paid on the end first day of the seventh month following your termination of employment, but only to the extent necessary to prevent adverse tax consequences to you under Code Section 409A. Upon the expiration of the Initial Term or an applicable any Renewal TermTerm of this Agreement, or upon the early termination of either such Term of this Agreement for Cause or by your death or Disability, or by your voluntary termination of your employment without Good Reason, you shall be paid, as soon as practicable but no later than sixty (60) days following entitled only to the Termination Date, (i) all earned but unpaid payment of your Annual Base Salary that have been earned through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either date of such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)expiration and/or early termination.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Employment Agreement (Barnes & Noble Education, Inc.), Employment Agreement (Barnes & Noble Education, Inc.)
Severance. (a) In the event your employment with during the Company is terminated either Employment Period (i) on account of your death Company terminates Employee’s employment without Cause pursuant to Section 4.1(c) or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Employee terminates her employment for Good Reason pursuant to Section 5(c) below4.1(d), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal subject to the lesser execution and non-revocation of a release and waiver of all claims described below, Company shall continue her base salary in accordance with its regular payroll practices for a period of (1A) twelve (12) months, commencing on the date that is thirty (30) days after the termination in the case of a termination of employment either prior to a Change in Control or following a period of twelve (12) months of your Base Salary after a Change in Control or (2B) eighteen (18) months, commencing on the Base Salary date that is thirty (30) days after the termination in the case of a termination of employment during the twelve (12) month period immediately following a Change in Control. Notwithstanding anything herein to the contrary, receipt of any payment in connection with a termination of employment shall be conditioned on Employee signing a release and waiver of all claims against Company and its affiliates within thirty (30) days after her termination of employment, in such form and manner as Company shall reasonably prescribe, which release shall become effective and irrevocable within thirty (30) days after Employee’s termination of employment. Employee shall accept these payments remaining in full discharge of all obligations of any kind which Company has to her except obligations, if any (i) for post-employment benefits expressly provided under this Agreement and/or at law, (ii) to repurchase any capital stock of Company owned by Employee (as may or may not be set forth in the applicable stock agreement); or (iii) for indemnification under separate agreement by virtue of Employee’s status as a director/officer of Company. Employee shall also be eligible to receive a bonus with respect to the year of termination to the extent provided in Section 3(b). Notwithstanding anything herein to the contrary, in the event that Employee is determined to be a specified employee within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Post Termination Salary PaymentCode”);
(iii, for purposes of any payment on termination of employment hereunder, payment(s) You shall also be paid a promade or begin, as applicable, on the first payroll date which is more than six months following the date of separation from service, to the extent required to avoid any adverse tax consequences under Section 409A of the Code. Any payments that would have been made during such 6-rated annual bonus, month period shall be made in a lump sum by on the first payroll date which is more than six months following the date Employee separates from service with Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted . Each payment under Sections 3(c) and 3(d) of this Agreement shall vest be treated as follows:
(1) If termination is by the Company without Cause or by you a separate payment for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end purposes of Section 409A of the TermCode. In no event may Employee, directly or indirectly, designate the calendar year of any payment to be made under this Agreement. This Agreement shall be interpreted and administered in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end manner consistent with Section 409A of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination DateCode.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Employment Agreement (Build a Bear Workshop Inc), Employment Agreement (Build a Bear Workshop Inc)
Severance. Provided (ai) In the event your Executive executes and delivers to the Company, within twenty-one (21) days (or forty-five (45) days if such longer period is required under applicable law) after the Effective Date of Termination, a written release in substantially the form attached hereto as Exhibit B (the “Release”) and (ii) the Executive does not revoke such Release during any applicable revocation period, the Company shall cause the payments and benefits described in this Section 6 (the “Severance Payments”) to be made in connection with the termination of the Executive’s employment with the Company is terminated either during the Employment Term, unless such termination (i) on account of your death or Disability (as defined in Section 5(e) below)is by the Company for Cause, (ii) occurs by reason of the Company without Cause (as defined in Section 5(c) below), Executive’s death or Disability or (iii) is by you the Executive under circumstances that do not constitute a Resignation for Good Reason. Severance Payments due and payable to Constructive Termination without Cause (the Executive by the Company in accordance with this Section 6 shall be determined as defined in Section 5(d) below):follows:
(i) You In lieu of any further salary payments to the Executive for periods subsequent to the Effective Date of Termination, the Company shall receive cause cash severance payment to be made to the Termination Executive in an aggregate amount equal to two (2) times such Executive’s Annual Base Salary (the “Cash Severance Payments”). Such Cash Severance Payments shall be made in twenty-four (24) successive equal monthly installments on the fifteenth day of each month beginning with the fifteenth day of the first calendar month, within the sixty (60) day period following the date of the Executive’s Separation from Service by reason of such termination of employment, that is coincident with or next following the date on which the required Release first becomes effective following the expiration of all applicable revocation periods, but in no event shall such initial payment be made later than the last business day of such sixty (60)-day period on which the Release is so effective. Should the fifteenth day of any such calendar month not be a business day, then the payment for that month shall be made on the first business day thereafter. The monthly Cash Severance Payments to which Executive becomes entitled in accordance with this Section 6(c)(i) shall be treated as defined in a right to a series of separate payments for purposes of Section 5(b) below);409A of the Code.
(ii) You shall also be paid a lump sum by Provided the Executive and his or her spouse and eligible dependents elect to continue medical care coverage under the Company’s group health care plans pursuant to their COBRA rights, the Company shall reimburse the Executive for the costs the Executive incurs to obtain such continued coverage (collectively, the “Coverage Costs”), to the extent those Coverage Costs exceed the amount payable at the time by a similarly-situated active employee for the same level of coverage, until the earlier of (x) twenty-four (24) months after the Effective Date of Termination or (y) the first date on which the Executive is covered under another employer’s health benefit program without exclusion for any pre-existing medical condition. During the COBRA continuation period, such coverage shall be paid as soon as practicable but not later than obtained under the Company’s group health care plans. Following the completion of the COBRA continuation period, such coverage shall continue under the Company’s group health plans or one or more other plans providing equivalent coverage. In order to obtain reimbursement for the reimbursable portion of the Coverage Costs under the applicable plan or plans, the Executive must submit appropriate evidence to the Company of each periodic payment within sixty (60) days following after the Termination Daterequired payment date for those Coverage Costs, equal and the Company shall within thirty (30) days after such submission reimburse the Executive for the reimbursable portion of that payment. To the extent the Executive incurs any other medical care expenses reimbursable pursuant to the lesser coverage obtained hereunder, the Executive shall submit appropriate evidence of (1) twelve (12) months of your Base Salary or (2) each such expense to the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than plan administrator within sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option after incurrence of that expense and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end receive reimbursement of the Termdocumented expense within thirty (30) days after such submission or after any additional period that may be required to perfect the claim. During the period such medical care coverage remains in effect hereunder, the following provisions shall govern the arrangement: (a) the amount of Coverage Costs or other medical care expenses eligible for reimbursement in the case any one calendar year of such a termination, all unvested stock options and/or restricted stock granted coverage shall not affect the amount of Coverage Costs or other medical care expenses eligible for reimbursement in any other calendar year for which such reimbursement is to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Dateprovided hereunder; (ii) any previously awarded and unpaid bonusno Coverage Costs or other medical care expenses shall be reimbursed after the close of the calendar year following the calendar year in which those Coverage Costs or expenses were incurred; and (iii) all unpaid reimbursable the Executive’s right to the reimbursement of such Coverage Costs or other medical care expenses incurred cannot be liquidated or exchanged for any other benefit. To the extent the reimbursed Coverage Costs are treated as taxable income to the Executive, the Company shall report the reimbursement as taxable W-2 wages and collect the applicable withholding taxes, and the resulting tax liability shall be the Executive’s sole responsibility. As a condition to the foregoing medical care coverage, the Executive hereby agrees to provide prompt written notice to the Company of any medical care coverage to which he or she becomes entitled under another employer’s health benefit plan.
(iii) The Executive shall also be entitled to continued coverage, for a period of twenty-four (24) months following the Effective Date of Termination, under the Company’s employee group term life insurance and disability insurance plans at the level in effect for the Executive on the Effective Date of Termination. The Company shall, prior to the last day of each month during such twenty-four (24)-month period, pay to the applicable insurance companies the amount by you through which the aggregate premium required to provide Executive with such coverage for the month exceeds the monthly amount that a similarly-situated active employee is required to pay in order to obtain such coverage, as measured as of the Effective Date of Termination Date (the “Termination Monthly Benefit Payments”); provided, however, that the Company’s obligation to make such Monthly Benefit Payments shall cease in the event Executive fails to pay his or her portion of the aggregate monthly premium for such coverage. In either such event, you shall have no further obligation or liability Except to the Company in connection with the performance extent a later payment date is otherwise required pursuant to Section 6(h)(i) of this agreement Restated Agreement, the Company shall make the initial Monthly Benefit Payment on the earlier of (except A) the continuing obligations specified in Sections 7fifteenth day of the first calendar month, 8 within the sixty (60) day period following the date of the Executive’s Separation from Service, that is coincident with or next following the date on which the required Release first becomes effective following the expiration of all applicable revocation periods or (B) the last business day of such sixty (60)-day period on which the Release is so effective. Each Monthly Benefit Payment shall be treated as a right to a separate payment for purposes of Code Section 409A and 10 of shall constitute taxable income to Executive The Company shall collect the applicable withholding taxes from the Cash Severance Payments or any other amounts due Executive under this Restated Agreement).
(civ) For All unvested long-term incentive grants, if any, outstanding on the purposes Effective Date of this AgreementTermination shall immediately vest. To the extent any of the grants are stock options, “Cause” each of those options shall mean remain exercisable for the underlying shares of Common Stock until the expiration or sooner termination of that you have:option in accordance with the terms of the applicable stock option agreement. To the extent any of the grants are restricted stock unit awards, the shares of Common Stock underlying each such award shall be issued at the time or times specified in the applicable award agreement, subject to any required deferral pursuant to the provisions of Section 6(g)(i).
Appears in 2 contracts
Samples: Employment Agreement (PharmaNet Development Group Inc), Employment Agreement (PharmaNet Development Group Inc)
Severance. (a) In If the event your employment with the Company Employment Period is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due Good Reason (as defined in Section 5(h) below), you will be entitled to receive (i) your Death or Disability, or the Company elects not to renew your employment Base Salary as in effect at the end of the Term, in the case time of such a terminationtermination to the extent such amount has accrued through the Termination Date (as defined in Section 5(e) below) and remains unpaid, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest (ii) any fully earned and declared but unpaid Performance Bonus as of the Termination Date; or, (iii) an amount equal to the sum of Base Salary you would have received from the date of such termination through the then applicable Expiration Date, which shall be payable in the same amounts and at the same intervals as if the Employment Period had not ended and (iv) any unpaid Expenses as of the Termination Date. Upon delivery of the payments and benefits described in this Section 5(a), the Company shall have no further obligation to you under this letter agreement or otherwise with respect to your employment with the Company. The Company’s obligation to make the payments to you described in clause (iv) of this Section 5(a) is conditioned upon your executing and delivering, no later than 14 days following the Termination Date, a release relating to your employment by the Company in favor of the Company, its Affiliates and their respective stockholders, officers, members, managers, directors, employees, subsidiaries and affiliates substantially in the form attached as Exhibit A.
(2b) If termination the Employment Period is due to terminated by the Company for Cause or by you not other than for Good Reason, the Company will pay you (i) your Base Salary as a result in effect at the time of Constructive such termination to the extent such amount has accrued through the Termination without CauseDate and remains unpaid, then (ii) any fully earned and declared but unpaid Performance Bonus as of the Termination Date, and (iii) any unpaid Expenses as of the Termination Date. Upon delivery of the payment described in this Section 5(b), the Company will have no further obligation to you shall only be permitted under this letter agreement or otherwise with respect to retain those stock options and/or restricted shares which have vested your employment with the Company.
(c) If the Employment Period is terminated upon your Disability (as defined in Section 5(g) below) or death, the Company will pay you or your estate or succession, whichever is applicable, (i) your Base Salary as in effect at the time of such termination to the extent such amount has accrued through the Termination Date and remains unpaid, (ii) any fully earned and declared but unpaid Performance Bonus as of the Termination Date, and (iii) any unpaid Expenses as of the Termination Date.
(bd) Except as otherwise required by law or as specifically provided herein, all of your rights to salary, severance, fringe benefits, bonuses and any other amounts hereunder (if any) accruing after the termination of the Employment Period will cease upon the earlier of the date of such termination and your last day of active service. In the event the Employment Period is terminated, your sole remedy, and the sole remedy of your successors, assigns, heirs, representatives and estate, will be to receive the payments described in this letter agreement.
(e) Any termination of the Employment Period by the Company (other than termination upon your death) or by you must be communicated by written notice (in either case, a “Notice of Termination”) to you. For purposes of this letter agreement, “Termination Date” means (i) voluntarily terminate if the Employment Period is terminated by your employment for any reason other than Constructive Termination without Causedeath, the date of your death, (ii) your employment if the Employment Period is terminated upon your Disability, by the Company for Cause or by you, the date specified in the Notice of Termination (as defined in Section 5(c) belowwhich may not be earlier than the date of such Notice). Notwithstanding anything contained herein to the contrary, or (iii) the Company elects not to renew your employment at the end any termination of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred Employment Period by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability must be communicated to the Company in connection with no less than 30 days prior to the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)intended Termination Date.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Employment Agreement (Tyme Technologies, Inc.), Employment Agreement (Tyme Technologies, Inc.)
Severance. (a) In addition to any accrued but unpaid base salary and bonus earned through the event your employment with the Company is terminated either (i) on account date of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Companytermination of employment, which shall be paid as soon as practicable but not later than sixty (60) days following payable to Employee regardless of the Termination Datereasons for such termination, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining if Employee’s employment under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below)other than Cause, or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you then Employee shall be paid, as soon as practicable but no later than sixty (60) days following entitled to receive his salary until the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 scheduled expiration of this Agreement; provided, however, that during such time Employee shall seek other employment (the "Severance Benefit").
(cb) Notwithstanding anything in this Agreement to the contrary, Employee shall not be entitled to any of the Severance Benefit described herein if (i) in the event of a Change of Control (A) Employee is offered Comparable Employment by a Successor Company (as defined below); or (B) Employee accepts employment with a Successor Company (other than transition services that may be requested of Employee by the Successor Company), regardless of whether that employment constitutes Comparable Employment or (ii) if Employee accepts employment with another company on comparable terms following termination for other than Cause. The term “Successor Company” means, upon a Change of Control, a successor to the Company as a result of the acquisition of securities, a merger, liquidation, reorganization, consolidation or sale of assets of the Company, or otherwise a successor to the Company as a result of the Change of Control. Severance benefits shall be payable only upon Employee’s termination of employment with the Company as provided herein. In no event shall the Company have any liability for severance with respect to Employee’s termination of employment with a Successor Company. For the purposes of this Agreement, “Cause” "Comparable Employment" shall mean that you have:an offer to continue this Agreement for the remaining term, or an offer for a new contract incorporating substantially all of the terms of this Agreement as they would apply as of the date of the closing of a transaction which constitutes a Change of Control, including, at least, Employee’s then current base salary, formula bonus, perquisites and benefits.
Appears in 2 contracts
Samples: Employment Agreement (Priviam, Inc.), Employment Agreement (Priviam, Inc.)
Severance. (a) In the event your employment with If the Company is terminated either (i) on account terminates the employment of your death or Disability (as defined in Section 5(e) below), (ii) by the Company Employee without Cause (as provided in Section 4(b)), provided that such termination of employment constitutes a “separation from service” with the Company as such term is defined in Treasury Regulation Section 5(c1.409A-1(h) and any successor provision thereto (“Separation from Service”), and only in such event, Employee shall be eligible to receive his then-current Base Salary payable in the form of salary continuation (“Severance”) for the longer of (a) three (3) months, or (b) the balance of the Initial Period (as defined below), so long as Employee does not violate any of the terms of Section 7 or Section 8. Employee’s eligibility for Severance is subject to and conditioned on Employee’s execution of and compliance with the terms of a general release and waiver in the form acceptable to the Company (the “Separation and Release Agreement”). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) (including, without limitation, for purposes of Treasury Regulation Section 1.409A-2(b)(2)(iii)), each payment of Severance that Employee may be eligible to receive under this Agreement shall be treated as a separate and distinct payment. Should the Company learn that Employee has violated any of the terms of Section 7 or Section 8 during the salary continuation period (the “Severance Period”), then the Company may immediately cease such payments and Employee must, on demand, repay to the Company the payments for each month in which Employee breached any of the terms of Section 7 or Section 8. Furthermore, such Severance shall be reduced by any remuneration paid to Employee because of Employee’s employment or self-employment during the Severance Period. Employee shall promptly report all such remuneration to the Company in writing. Employee shall not be entitled to any Severance if: (i) Employee’s employment is terminated for Cause (in accordance with Section 4(c)), by death (as provided in Section 4(d)) or by disability (as provided in Section 4(e)), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by Employee chooses not to sign the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option Separation and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or DisabilityRelease Agreement, or chooses to revoke the Company elects not to renew your employment at the end of the Term, Separation and Release Agreement in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection accordance with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) terms thereof once signed. For the purposes of this AgreementSection 5, the term “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Employment Agreement (Activecare, Inc.), Employment Agreement (Activecare, Inc.)
Severance. (a) In the event your employment with that the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your Employee's employment is terminated by the Company for Cause any reason other than the Employee's breach of the Confidentiality or Non-Compete Agreements, the Employee's breach of any material term of this Agreement or pursuant to Sections 5(a), 5(b), 5(c), or (5)(e) (unless his voluntary termination is for Good Reason as defined in Section 5(c5(f) belowhereof), the Employee shall receive:
(A) a severance payment in an amount equal to six (6) months base salary; and
(B) accrued but unpaid vacation time, to the extent Company policy or applicable law requires such payment. Sums paid to the Employee pursuant to this Section 3(c)(viii) are referred to herein as (iiithe "Severance Payment"). The Severance Payment will be made in the form of salary continuation. The Severance Payment will be made minus applicable taxes and withholdings, and is contingent upon the Employee's executing (and not revoking such signature) a Release Agreement (including a mutual non-disparagement clause) in a form mutually agreeable to the parties. None of the Severance Payments shall be considered in calculating pension or related benefits, if any.
(C) After termination of the Employee's employment, the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation severance or liability other obligations to the Employee as an employee other than those set forth in this Section 3(c)(viii), Section 5(a) and Section 5(b) or as required by applicable law. The Employee waives any rights to receive any other severance benefits from the Company under any severance plan or arrangement in connection with existence prior to the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)Effective Date.
(cD) For The Employee shall be under no obligation to seek other employment and there shall be no offset against any amounts due the purposes Employee under this Agreement on account of any remuneration attributable to any subsequent employment that the Employee may obtain.
(E) In the event the Employee violates his obligations under the agreements referred to in Section 7 of this AgreementAgreement and does not cure such violation within ten (10) business days after receipt by the Employee of written notice from the Company specifying such violation, “Cause” in addition to any other remedies available to the Company, any amounts due under this Section 3(c)(viii)(A) shall mean that you have:immediately cease to be payable by the Company to the Employee.
Appears in 2 contracts
Samples: Employment Agreement (Republic Companies Group, Inc.), Employment Agreement (Republic Companies Group, Inc.)
Severance. (a) In Employee shall be entitled to receive from the event your Company severance benefits in the amount provided in subsection b. below, if in connection with a Change in Control or within one year after a Change in Control, Employee's employment with the Company is terminated either terminated; provided, however, that Employee will not be entitled to any severance benefit if Employee's termination of employment is (i) on account of your death for Cause, or Disability (as defined in Section 5(e) below), (ii) initiated by Employee for other than Good Reason. Notwithstanding any other provision of this Agreement, the consummation of a Transaction in itself shall not be deemed a termination of employment entitling Employee to severance benefits hereunder even if such event results in Employee being employed by a different entity which assumes the Company's obligations under this Agreement.
b) If Employee's services are terminated, entitling Employee to severance benefits pursuant to subsection a. above, Employee shall be entitled to the following benefits:
i) During the Severance Period, the Company without Cause shall continue to pay to Employee the annual base salary payable to Employee at the rate and according to the payment schedule in place immediately prior to the termination of employment, subject to federal and state withholding, FICA, FUTA and withholding for all other applicable taxes;
ii) During the Severance Period, the Company shall continue on behalf of Employee (as defined in Section 5(c) belowand Employee's dependents and beneficiaries), or (iii) by you due life insurance, disability insurance, medical and dental benefits and any/all other benefits which were being provided to Constructive Termination without Cause (Employee at the time of termination of employment and the expense shall be allocated between the Company and Employee on the same basis as defined in Section 5(d) below):
(i) You shall receive prior to the Termination Payments (as defined in Section 5(b) below);
date of termination of employment. The benefits provided pursuant to this subsection (ii) You shall also be paid no less favorable to Employee than the coverage provided to Employee under the plans providing such benefits at the time notice of termination was given to Employee. The obligation of the Company under this subsection (ii) shall be limited to the extent that Employee obtains any such benefits pursuant to a lump sum by subsequent employee's benefit plans, in which case the Company may reduce the coverage of any benefit it is required to provide Employee under this subsection (ii) as long as the aggregate coverage of the combined benefit plans is no less favorable to Employee, in terms of amounts and deductibles and costs to Employee, than the coverage required to be provided under this subsection (ii) as long as the aggregate coverage of the combined benefit plans is no less favorable to Employee, in terms of amounts and deductibles and costs to Employee, than the coverage required to be provided under this subsection (ii). This subsection (ii) shall not be interpreted so as to limit any benefits to which Employee (or Employee's dependents or beneficiaries) are entitled under any of the Company's employee benefit plans, which shall be paid as soon as practicable but not later than sixty (60) days programs or practices following the Termination Date, equal Employee's date of termination of employment. The provision of continued benefits to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining Employee under this Agreement subsection (ii) shall not deprive Employee of any independent statutory right to continue benefits coverage pursuant to Sections 601 through 606 of the “Post Termination Salary Payment”);Employee Retirement Income Security Act of 1974, as amended; and
(iii) You On the date of termination of employment, the Company shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in pay Employee an amount equal to the prior year’s bonusbonus(es), if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is Employee would have received had Employee remained in the Company's employment during the Severance Period, calculated using the targeted bonus rate established by the Company without Cause under any applicable employment agreement or in its bonus plan then in effect (or, if no rate was established for the period in question, the targeted bonus rate established for the prior period) and assuming that all performance criteria would have been met, provided, however, that if the targeted bonus rate is based on performance over a period of time which ends after the Severance Period, then the amount paid to Employee under this subsection (iii) shall be prorated based on the number of days Employee was employed by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at during the end applicable bonus period plus the number of the Term, days in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination DateSeverance Period.
(biv) In the event you (i) voluntarily terminate your the Employee is employed under any employment agreement with the Company which also provides for any reason other than Constructive Termination without Causeseverance payments upon termination of Employee's employment under certain circumstances, (ii) your employment and if Employee is terminated entitled to receive severance payments and/or benefits thereunder, then the severance payments and/or benefits provided hereunder shall be reduced on a dollar-for-dollar basis by the Company for Cause (as defined in Section 5(c) below), or (iii) severance payments and/or benefits provided under the Company elects not to renew your employment at agreement; it being the end intention of the Initial Term or an applicable Renewal Term, you parties hereto that the Employee shall only be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) entitled to receive "one" set of severance payments and benefits under any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)circumstances.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Retention Agreement (Golf Galaxy, Inc.), Retention Agreement (Golf Galaxy, Inc.)
Severance. (a) 6.1 In the event your of a termination of the Executive’s employment with by the Company is terminated either for Cause, by the Executive without Good Reason, due to the expiration of the Term or as a result of the Executive’s death, the Executive shall be entitled to (i) on account his Base Salary earned but unpaid through and including the date of your death or Disability (as defined in Section 5(e) below)the termination of his employment, (ii) any unpaid bonus that is earned and accrued for any completed Fiscal Year, and (iii) any benefits or payments to which the Executive is entitled under any Company plan, program, agreement, or policy (collectively, “Accrued Amounts”).
6.2 In the event the Executive’s employment is terminated as a result of a Change in Control (as defined below) as determined by the Board in its sole discretion, by the Company without Cause (as defined which does not include termination due to expiration of the Term) or by the Executive for Good Reason during the Term, the Executive shall be entitled to the Accrued Amounts and, subject to the Executive’s signing, returning to the Company and not revoking a release of claims for the benefit of the Company, in Section 5(c) belowthe form provided by the Company (the “Release”), or (iii) by you due the Executive shall be entitled to Constructive Termination without Cause (as defined in Section 5(d) below):
receive, and the Company shall be obligated to provide, the following severance benefits; provided, that, if the Executive should fail to execute such Release within 45 days following the later of (i) You shall receive the Termination Payments (as defined in Section 5(b) below);
Executive’s date of termination or (ii) You the date the Executive actually receives an execution copy of such Release (which shall also be paid delivered to the Executive within five (5) calendar days following the Executive’s termination date), the Company shall not have any obligations to provide the severance payments contemplated under this Section 6.2:
(a) Payment to the Executive of an amount equal to the lesser of (i) 2.99 times the Base Salary in the year of such termination or (ii) the amount of Base Salary owed to the Executive for the remainder of the Term, in a lump sum by the Company, which shall be paid as soon as practicable but not later than within sixty (60) days following the Termination Date, termination date;
(b) Payment to the Executive of an amount equal to one hundred percent (100%) of the lesser Bonus opportunity actually earned for the year prior to the year of termination, if any; this amount shall be paid in a lump sum within sixty (60) days following the termination date;
(c) The same level of health (i.e. medical, vision and dental) coverage and benefits as in effect for the Executive on the day immediately preceding the day of termination of employment; provided, however that (i) the Executive constitutes a qualified beneficiary, as defined in Section 4980B(g)(1) of the Code; and (ii) the Executive elects continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), within the time period prescribed pursuant to COBRA. The Company shall continue to provide the Executive with such health coverage until the earlier of (1A) the date the Executive is no longer eligible to receive continuation coverage pursuant to COBRA, or (B) twelve (12) months of your Base Salary or (2) from the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-ratedtermination date; and
(ivd) The Initial vesting of the Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) will accelerate on the date of this Agreement shall vest termination as follows:
(1) If termination is to that number of shares that would have become vested if the Executive had remained employed by the Company without Cause or by you for Constructive Termination without Cause or due until the date twelve (12) months following the termination date. For avoidance of doubt, the Executive shall not be entitled to your Death or Disability, or the Company elects not any severance benefits pursuant to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your this Section 6.2 if his employment is terminated by the Company for Cause (as defined in Section 5(c) below)Cause, by the Executive without Good Reason or (iii) due to the Company elects not to renew your employment at Executive’s death or the end expiration of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Employment Agreement (FriendFinder Networks Inc.), Employment Agreement (FriendFinder Networks Inc.)
Severance. (a) In the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below)that, (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without CauseRenewal Term, (iia) your employment is terminated by the Company without Cause or (b) you voluntarily terminate your employment for Cause Good Reason, the Company shall pay you an amount equal to two times the sum of (i) your then Annual Base Salary, (ii) the average of the annual bonuses actually paid to you with respect to the three completed years preceding the date of your termination of employment and (iii) the aggregate annual dollar amount of the payments made or to be made to you or on your behalf for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Severance Amount”); provided that (x) you execute and deliver to the Company, and do not revoke, a release of all claims against the Company substantially in the form attached hereto as Exhibit B (“Release”) and (y) you have not materially breached as of the date of such termination any provisions of this Agreement and do not materially breach such provisions at any time during the Relevant Period (as defined below). The Company’s obligation to make such payment shall be cancelled upon the occurrence of any such material breach and, in the event such payment has already been made, you shall repay to the Company such payment within 30 days after demand therefore; provided, however, such repayment shall not be required if the Company shall have materially breached this Agreement prior to the time of your breach. The Severance Amount shall be paid in cash in a single lump sum on the later of (1) the first day of the month following the month in which such termination occurs and (2) the date the Revocation Period (as defined in Section 5(cthe Release) belowhas expired. Notwithstanding anything in this paragraph to the contrary, if a Release is not executed and delivered to the Company within 60 days of such termination of employment (or if such Release is revoked in accordance with its terms), the Severance Amount shall not be paid. Upon the expiration of this Agreement due to non-renewal, or (iii) upon the Company elects not to renew termination of your employment at the end hereunder for Cause or by your death or Disability, or by your voluntary termination of the Initial Term or an applicable Renewal Termyour employment hereunder without Good Reason, you shall be paid, as soon as practicable but no later than sixty (60) days following entitled only to the Termination Date, (i) all earned but unpaid payment of such installments of your Annual Base Salary that have been earned through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either date of such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)expiration and/or termination.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Employment Agreement (Barnes & Noble Inc), Employment Agreement (Barnes & Noble Inc)
Severance. (a) In the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below)that, (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without CauseRenewal Term, (iia) your employment is terminated by the Company without Cause or (b) you voluntarily terminate your employment for Cause Good Reason, the Company shall pay you an amount equal to two times the sum of (i) your then Annual Base Salary, (ii) the average of the annual bonuses actually paid to you with respect to the three completed years preceding the date of your termination of employment and (iii) the aggregate annual dollar amount of the payments made or to be made to you or on your behalf for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Severance Amount”); provided that (x) you execute and deliver to the Company, and do not revoke, a release of all claims against the Company substantially in the form attached hereto as Exhibit A (“Release”) and (y) you have not materially breached as of the date of such termination any provisions of this Agreement and do not materially breach such provisions at any time during the Relevant Period (as defined below). The Company’s obligation to make such payment shall be cancelled upon the occurrence of any such material breach and, in the event such payment has already been made, you shall repay to the Company such payment within 30 days after demand therefor; provided, however, such repayment shall not be required if the Company shall have materially breached this Agreement prior to the time of your breach. The Severance Amount shall be paid in cash in a single lump sum on the later of (1) the first day of the month following the month in which such termination occurs and (2) the date the Revocation Period (as defined in Section 5(cthe Release) belowhas expired. Notwithstanding anything in this paragraph to the contrary, if a Release is not executed and delivered to the Company within 60 days of such termination of employment (or if such Release is revoked in accordance with its terms), the Severance Amount shall not be paid. Upon the expiration of this Agreement due to non-renewal, or (iii) upon the Company elects not to renew termination of your employment at the end hereunder for Cause or by your death or Disability, or by your voluntary termination of the Initial Term or an applicable Renewal Termyour employment hereunder without Good Reason, you shall be paid, as soon as practicable but no later than sixty (60) days following entitled only to the Termination Date, (i) all earned but unpaid payment of such installments of your Annual Base Salary that have been earned through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either date of such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)expiration and/or termination.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Employment Agreement (Barnes & Noble Education, Inc.), Employment Agreement (Barnes & Noble Education, Inc.)
Severance. If Executive's employment is terminated:
(a) In the event your employment with as a result of Sections 6.01(b) and (f), then the Company is terminated either shall pay to Executive his full Base Salary, bonuses for the calendar year (ior employment period) on account prior to the year (or employment period) in which such termination occurs and Benefits prorated through the effective date of your death or Disability (as defined in Section 5(e) below)such termination, (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which and Executive shall be paid as soon as practicable but not later than sixty (60) days following reimbursed for any expenses incurred by him pursuant to Section 4.04 through the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Datedate; or
(2b) If termination is due to Cause or by you not as a result of Constructive Termination without CauseSection 6.01(c), 6.01(d) or 6.01(e), then you the Company shall only be permitted pay to retain those stock options and/or restricted shares Executive or Executive's estate (1) his full Base Salary, bonuses for the calendar year (or employment period) prior to the year (or employment period) in which have vested as such termination occurs, pro-rated bonuses for the current year (or period) and Benefits prorated through the effective date of such termination and (2) additional Base Salary, payable in monthly installments, plus additional Benefits, for the Termination Date.
(b) In period from the event you effective date of such termination until the later of (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, one year after the effective date of such termination and (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) date on which the Company elects not to renew your employment at the end of the then-current Initial Term or an applicable Renewal Term, you as the case may be, would have expired (provided, however, if participation by Executive in any Benefit plan or program after the termination of his employment is not permitted under such plan or program, then the Company will provide him with the equivalent benefits); Executive shall be paid, as soon as practicable but no reimbursed for any expenses incurred by him pursuant to Section 4.04 through the effective date of such termination; Executive shall be paid $700 per month (or a prorated portion thereof) for the automobile to be used by Executive from the effective date of such termination until the later than sixty (60) days following the Termination Date, of (i) all earned but unpaid Base Salary through one year after the Termination Date; effective date of such termination and (ii) any previously awarded and unpaid bonusthe date on which the then-current Initial Term or Renewal Term, as the case may be, would have expired; and (iii) all unpaid reimbursable expenses incurred by you through stock options granted to Executive shall immediately vest and be exercisable as of, and for a period of twelve months after, the Termination Date (the “Termination Payments”). In either effective date of such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)termination.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Employment Agreement (Ashlin Development Corp), Employment Agreement (Ashlin Development Corp)
Severance. If the Company terminates the Employee’s employment for reason other than for Cause, the Employee shall be entitled to the following compensation and benefits:
a. The Company shall pay the Employee a lump sum equal to Employee’s W-2 compensation that would be payable hereunder but for such termination for the Thirty-six (a36) In month period on the event your first day of the month of the Employee’s termination, said sum to be paid within Thirty (30) days after the Employee’s termination of employment.
b. The Company shall pay the Employee all bonus of deferred compensation (whether in the form of cash, stock or otherwise) accrued but unpaid as of the Employee’s termination, said sum to be paid within Thirty (30) days after the Employee’s termination or employment.
c. For a period of Twenty-four (24) months after the Employee’s termination of employment with the Company, the Company shall continue to pay for and provide existing employee welfare benefits which the Employee is receiving as of the date of termination of employment, including life insurance, health, medical, dental, vision and wellness, accidental death and dismemberment and disability benefits; provided, however that the Company’s obligations under this subsection shall terminate from the date that the Employee first becomes eligible after termination of employment with the Company is terminated either for similar coverage under another employer’s plan.
d. Notwithstanding anything to the contrary in any Stock Option Agreement: (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any all unvested shares underlying stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have become fully vested as of the Termination Date.
(b) In date of the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, Employee’s termination and (ii) your employment is terminated by the Employee shall continue to be treated under each Stock Option Agreement as if the Employee was an employee of the Company for Cause until the first to occur of (as defined in Section 5(cx) below), the Twenty-Four (24) month anniversary of the Employee’s termination of employment or (iiiy) the Company elects not to renew your employment at the end expiration of the Initial Term exercise period provided for therein; provided, however, in the event of the Employee’s death or an applicable Renewal TermDisability after the date of the Employee’s termination of employment hereunder, you the time for exercise after death or Disability prescribed in the Stock Option Agreement shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”)apply. In either such event, you shall have no further obligation or liability to the Company in connection with the performance The provisions of this agreement (except subsection shall also apply to all substitute stock options granted to Employee in exchange for the continuing obligations specified in Sections 7, 8 and 10 of Employee’s Company stock options to which this Agreement)subsection applies.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Executive Employment Agreement (Accentia Biopharmaceuticals Inc), Executive Employment Agreement (Accentia Biopharmaceuticals Inc)
Severance. (a) In the event that your term of employment with is terminated for Cause, or if you resign without Good Reason (as hereinafter defined), the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by will pay to you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to your accrued but unpaid base salary through the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case date of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you that your term of employment is terminated (other than upon your death or Disability) during your term of employment (i) voluntarily terminate your employment for any reason by the Company other than Constructive Termination without Cause, for Cause as provided herein or (ii) your employment is terminated by you for Good Reason, then the Company shall pay to you an amount equal to your accrued but unpaid base salary and bonus through the date of such termination and shall also (A) provide you with coverages substantially identical to those provided to you immediately prior to such termination (including without limitation under its medical, dental, long term disability and life insurance programs) for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days 12 months following the Termination Datedate of such termination, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iiiB) all unpaid reimbursable expenses incurred by you through pay to you, in substantially equal monthly installments over the Termination Date period from the date of such termination until the first anniversary of such date, an aggregate amount equal to the aggregate of (1) what your base salary would have been for said period (using for such purpose the “Termination Payments”)base salary rate in effect on the date of termination) plus (2) your maximum bonus for such period, but not less than your highest annual bonus during the preceding five years. In either such event, you shall have no further obligation or liability to the Company agrees that your rights to continued medical coverage pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended (your "COBRA" rights) shall be deemed to commence after the expiration of the 12-month period described in connection with the performance of this agreement clause (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(cA) above. For the purposes purpose of this Agreement, “Cause” termination of employment hereunder by you for "Good Reason" shall mean that your termination of your employment upon notice to the Company following assignment to you have:of duties inconsistent with your position as described in Section 2(a) or your being removed from such position, in either case without
Appears in 2 contracts
Samples: Employment Agreement (Mobius Management Systems Inc), Employment Agreement (Mobius Management Systems Inc)
Severance. (a) In the event your employment with the Company that Employee is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below)subject to an Other Involuntary Termination, (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which Employee shall be paid entitled to receive severance benefits as soon as practicable but not later than sixty follows: (60A) days following the Termination Date, equal to the lesser of (1) severance payments for [twelve (12) months (if Employee is not the CEO)] [eighteen months (18) (if Employee is the CEO)] after the effective date of your Base Salary or the termination (2) the Base Salary payments remaining under for purposes of this Agreement (Section 2(b)[(i)][(ii)], the “Post Termination Salary PaymentSeverance Period”);
(iii) You equal to the base salary which Employee was receiving immediately prior to the Other Involuntary Termination, which payments shall also be paid a pro-rated annual bonusduring the Severance Period in accordance with the Company’s standard payroll practices; and (B) payment by the Company of the full cost of the health insurance benefits provided to Employee and Employee’s spouse and dependents, as applicable, immediately prior to the Other Involuntary Termination pursuant to the terms of COBRA or other applicable law through the earlier of the end of the Severance Period or the date upon which Employee is no longer eligible for such COBRA or other benefits under applicable law. The benefits to be provided under Section 2(b)(i)[ and 2(b)(ii)] shall be paid or commence to be paid on the sixtieth (60th) day following Employee’s termination of employment (subject to Employee’s release of claims against the Company as set forth in Section 1(a)). Notwithstanding the foregoing, in the event the Board of Directors concludes in its reasonable judgment that the provision of subsidized COBRA benefits to Employee could cause the Company to become subject to excise tax as a lump sum result of the Patient Protection and Affordable Care Act, as amended by the Healthcare Reform Act, the Company shall pay Employee a monthly amount in cash equal to the amount of the COBRA subsidy during the period the Company is obligated to provide subsidized COBRA benefits to Employee. In addition, Employee shall receive payment(s) for all salary, bonuses and unpaid vacation accrued as of the date of Employee’s termination of employment and up to three (3) months of outplacement services not to exceed $5,000 per month (with a provider and in a program selected by the Company, which shall be paid as soon as practicable but not later than sixty provided Employee commences such services within ninety (6090) days following such of Employee’s Other Involuntary Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreementdate).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 2 contracts
Samples: Management Continuity Agreement (Assertio Therapeutics, Inc), Management Continuity Agreement (Depomed Inc)
Severance. (a) In the event of your termination of employment with from the Company is terminated either by reason of your death, Disability, voluntary resignation without Good Reason or by the Company for Cause, you will be entitled to receive (i) on account any unpaid Base Salary through the date of your death or Disability (as defined in Section 5(e) below)termination, (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, except in the case of such a your termination by the Company for Cause, any annual bonus earned but unpaid with respect to the fiscal year ending on or preceding the date of termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or payable at the end same time as it would have been paid had you not undergone a termination of employment; (iii) reimbursement in accordance with applicable Company policy for any unreimbursed business expenses incurred through the date of termination; (iv) any accrued but unused vacation time in accordance with Company policy, and (v) all other payments, benefits or fringe benefits to which you are entitled under the terms of any applicable compensation or equity arrangement or employee benefit plan or program of the Initial Term shall vest Company (collectively, Sections 10(a)(i) through 10(a)(v) hereof will be hereafter referred to as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date“Accrued Benefits”).
(b) In the event of your termination of employment from the Company by you for Good Reason or by the Company without Cause, the Company shall pay or provide you with the following severance benefits:
(i) voluntarily terminate the Accrued Benefits;
(ii) subject to your continued compliance with all of your post-termination obligations to the Company, an amount equal 2.00 times the sum of your (A) Base Salary and (B) target Annual Bonus, which sum shall be paid in substantially equal monthly installments for a period of twenty four (24) months following such termination; provided, however, that in the event of your termination of employment from the Company by you for any reason other than Constructive Termination Good Reason or by the Company without Cause, in each case, within twenty four (ii24) your employment is terminated months following a Change in Control (as defined below), then such payment shall be made by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than a lump sum within sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and your termination;
(iii) a prorated Annual Bonus for the calendar year in which your termination occurs, with the amount of such bonus based on the greater of (A) target performance and (B) actual performance results for such year and with the pro-ration determined by multiplying the amount of the Annual Bonus by a fraction, the numerator of which is the number of days during the year of termination that you were employed by the Company and the denominator of which is three hundred sixty-five (365), payable at the same time bonuses for the relevant year are paid to other senior executives of the Company but in no event later than March 15 of the calendar year following the calendar year in which the termination of your employment occurs; and
(iv) subject to (A) your timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), (B) your continued copayment of premiums at the same level and cost to you as if you were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), and (C) your continued compliance with all unpaid reimbursable expenses incurred of your post-termination obligations to the Company, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers you (and your eligible dependents) for a period of eighteen (18) months following such termination at the Company’s expense; provided that you are eligible and remain eligible for COBRA coverage; and provided, further, that in the event that you obtain other employment that offers group health benefits, such continuation of coverage by the Company will immediately cease. Notwithstanding the foregoing, the Company will not be obligated to provide the foregoing continuation coverage if it would result in the imposition of excise taxes on the Company for failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended (to the extent applicable). If you through have not become eligible to be covered under a group health plan sponsored by another employer by the Termination Date date that is eighteen (18) months after the date on which your employment terminates (the “Termination PaymentsCOBRA Payment Trigger Date”). In either such event, you shall have no further obligation or liability to then, on the Company’s first regularly scheduled pay date following the COBRA Payment Trigger, the Company in connection with shall pay you a lump sum cash payment equal to six (6) times the performance of this agreement (except amount you paid to effect and continue coverage for yourself and your spouse and eligible dependents, if any, under the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)Company’s group health plan for the full calendar month immediately preceding the COBRA Payment Trigger.
(c) For the purposes purpose of this Agreement, “CauseChange in Control” shall mean that you have:mean: (A) the consummation of any consolidation or merger of the Company with any third party purchaser where the stockholders of the Company, immediately prior to the consolidation or merger, would not, immediately after the consolidation or merger, beneficially own (as such term is defined in Rule 13d-3 under the Exchange Act), directly or indirectly, shares representing in the aggregate more than fifty percent of the voting shares of the company issuing cash or securities in the consolidation or merger (or of its ultimate parent corporation, if any); (B) any sale, lease, exchange, or other transfer (in one transaction or a series of transactions contemplated or arranged by any party as a single plan) of all or substantially all of the assets of the Company to a third party purchaser; (C) any sale of a majority of the voting shares of the Company to a third party purchaser; (D) the consummation of transaction or series of transactions following which no shares of the Company (or of its ultimate parent corporation) are listed on the New York Stock Exchange or the NASDAQ, on any other United States stock exchange, or are otherwise listed on a public trading market (including the OTC Markets Group, Inc.) (a “Take Private Change of Control”); or (E) any liquidation or dissolution of the Company. Notwithstanding the foregoing, other than with respect to a Take Private Change of Control, a “Change of Control” shall not be deemed to have occurred if the event constituting such “Change of Control” is not (x) a change in the ownership of the corporation, (y) a change in effective control of the corporation, or (z) a change in the ownership of a substantial portion of the assets of the corporation, as those terms are used and defined in Section 409A(a)(2)(A)(v) of the Code, and the regulations thereunder, and where the word “corporation” used above and in such provisions is taken to refer to the Company.
Appears in 1 contract
Samples: Offer Letter (R1 RCM Inc.)
Severance. (a) In the event your employment with that the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior yearEmployee’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause any reason other than the Employee’s breach of the Confidentiality or Non-Compete Agreements, the Employee’s breach of any material term of this Agreement. or pursuant to Sections 5(a), 5(h). 5(c), or (5)e (unless his voluntary termination is for good reason as defined in Section 5(c5(f) belowhereof), the Employee shall receive:
(i) the greater of: (a) a severance payment in an amount equal to twelve months base salary; or (b) a severance payment as would have been due if calculated in accordance with Paragraph 5(a) of the Severance Protection Agreement;
(ii) if the Employee elects to continue medical benefits under COBRA, the Company shall pay the costs of such COBRA coverage for the Employee and his dependents for 18 months; provided however that in the event that the Company’s then current medical benefit provider allows, the Company shall maintain the Employee and his dependents on the Company’s medical plan for 18 months, at the Company’s cost, and thereafter, the Employee and his dependents shall be provided the right to continue medical benefits under COBRA, at the Company’s cost for 18 months; provided farther that the obligation to pay for such coverage, whether continued coverage or COBRA coverage, shall terminate if the Employee becomes eligible for comparable coverage and benefits, without waiting period or pre-existing condition limitations, from another employer;
(iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned accrued but unpaid Base Salary through vacation time, to the Termination Dateextent Company policy or applicable law requires such payment; (iiSums paid to the Employee pursuant to this Section 3(c)(8) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date are referred to herein as (the “Termination Payments”Severance Payment’). In either The Severance Payment will be made in the form of salary continuation or as a lump sum, at the Company’s option. The Severance Payment Will be made minus applicable taxes and withholdings, and is contingent upon the Employee’s executing (and not revoking such event, you shall have no further obligation or liability signature) a Release Agreement in a form mutually agreeable to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)parties.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Samples: Employment Agreement (Republic Companies Group, Inc.)
Severance. In the event that (a) In the event you terminate your employment with the Company is terminated for a Failure by Company to Maintain Employment Conditions occurring within one year after a Change of Control, or (b) either (i) on account before or after a Change of Control the Company terminates your death or Disability (as defined in Section 5(e) below), (ii) by employment with the Company without Cause (as defined in Section 5(c) belowother than by reason of your death or disability), then, in such event, and without abrogating or (iii) by limiting any other rights or remedies you due to Constructive Termination without Cause (as defined or the Company may have under this Agreement or any other agreements or at law or in Section 5(d) below):
equity, and provided that (i) You shall receive you are not directly or indirectly employed by, providing services to, or financially supporting in any manner a direct competitor of the Termination Payments (as defined in Section 5(b) below);
Company and (ii) You you are not in material breach of this Agreement:
(a) the Company shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of pay you your Base Salary or (2) for an additional period of 18 months following the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by last day of your employment with the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.;
(b) In the event Company shall on the last day of your employment with the Company, pay to you (ix) voluntarily terminate your salary and earned and unused vacation pay through the last day of your employment for any reason other than Constructive Termination without Causewith the Company, (iiy) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable business expenses incurred by you through the Termination Date last day of your employment with the Company and properly submitted for reimbursement, and (z) any earned but unpaid annual or periodic bonus compensation for the “Termination Payments”). In either such eventprior calendar year or relevant period; further, following the close of the current calendar year, or applicable period then in progress, the Company shall pay you any bonuses (if any) you would have earned had you remained in the employ of the Company for the calendar year or applicable period then in progress, prorated, as determined by the Board, for the portion of the year or applicable period you were employed and for the level of achievement of the performance criteria of the applicable bonus plan;
(c) for an additional period of 18 months following the last day of your employment with the Company, the Company shall continue medical and dental benefits, life insurance, long term disability, and automobile expenses under the executive automobile program, at its expense, to you and/or your family at least equal to those which would have no further obligation been provided to you and them in accordance with the plans, programs, practices and policies described in Section 5 of this Agreement if your employment had not ended, provided, however, that if you become reemployed with another employer and are eligible to receive medical benefits, other welfare benefits, life american xxxxxxxxx.xxx • xxxxx xxxxxxxx xxxx, xxxxxxxxx, xxxx, 00000-0000 • phone: 000-000-0000 • fax: 000-000-0000 insurance, long term disability, or liability automobile benefits under or from another employer provided plan, the benefits described herein shall cease; and
(d) notwithstanding Section 10(b) of the Company’s stock option plan, the option granted to you pursuant to this agreement shall, to the extent then vested, continue to be exercisable for a period of two years after your termination, subject to the requirement of a Trigger Event and to expiration at end of the term of the option. You acknowledge that your employment is “at will” and may be terminated at any time, subject to the payment of severance benefits as provided herein. The Company in connection may condition its payment to you of severance benefits on your execution of a reasonable mutual general release by you and the Company; provided, however, that such release shall not require you to release, or provide for your release of, any of your rights under this Agreement which survive the termination of your employment with the performance Company, and provided further that such release shall not require the Company to release, or provide for the release of, any of the Company’s rights under this agreement (except Agreement which survive the continuing obligations specified termination of your employment with the Company. You shall not be required to seek other employment or take other action in Sections 7, 8 order to mitigate your damages to be entitled to the benefits and payments under Section 10 of this Agreement).
(c. Except as otherwise specifically provided in Section 10(c) For above with respect to your medical and dental benefits, life insurance, long term disability and automobile benefits, in the purposes event that you become reemployed with another employer, the Company is not entitled to set off against such benefits and payments due or any other amounts of money payable to you under this Agreement any amounts earned by you in other employment after the termination of your employment with the Company or any amounts that you might or could have earned in other employment had you sought such other employment. The amounts of money payable to you under this Section shall not be treated as damages, but as severance compensation to which you are entitled by reason of your service with the Company and the termination of your employment pursuant to the provisions of this Agreement. As used in this Agreement, the term “Causedirect competitor of the Company” shall mean an entity or any affiliate of an entity that you have:is primarily engaged in the business of online distribution of greetings and/or related social expression products.
Appears in 1 contract
Samples: Employment Agreement
Severance. (a) In If the event your employment with the Company Employment Period is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below)cause, or (iii) by you due Executive shall be entitled to Constructive Termination without Cause (as defined in Section 5(d) below):
receive (i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to his Base Salary for the prior year’s bonus, if any, proone-rated; and
year period after such termination and (ivii) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is payment by the Company without Cause or by you for Constructive Termination without Cause or due of all health insurance premiums with respect to your Death or DisabilityExecutive's continuation coverage rights under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, (i.e., "COBRA" payments), or any similar statute or regulation then in effect, for the Company elects one-year period after such termination or such shorter period until Executive obtains coverage under the medical plans of any subsequent employer or otherwise fails to be eligible for continuation coverage with respect to the Company's medical plans under COBRA (for purposes of this Agreement, collectively the "Severance Period"), so long as Executive has not to renew your employment at breached and does not breach the end provisions of any of paragraphs 6, 7, 8, 9, 10, 12, 15, or 16 below during the Term, in time period set forth therein or breached the case provisions of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Dateany agreement referenced thereby.
(b) In If the event you Employment Period is terminated as a result of Executive's Disability, Executive and/or his estate or beneficiaries, as the case may be, shall be entitled to receive benefits under the Company's employee benefit programs as in effect on the date of such termination to the extent permitted thereunder and under applicable law and, in addition, shall be entitled to receive (i) voluntarily terminate your employment an amount equal to Executive's Base Salary at the times set forth in this Agreement for any reason other than Constructive Termination without Cause, the one-year period after the termination of the Employment Period and (ii) your the amount of any Annual Bonus otherwise payable to Executive pursuant to paragraph 3(b) above for the fiscal year in which Executive's employment is terminated, except that the amount of any such Annual Bonus otherwise payable pursuant to this paragraph 5(b) shall be pro rated on the basis of the number of days during such fiscal year that Executive was employed by the Company; provided that in the event the Company establishes and maintains disability insurance providing to Executive pursuant to clauses (i) and (ii) of this paragraph 5(b), the Company shall be relieved of its obligation to make such payments pursuant to this paragraph 5(b).
(c) If the Employment Period is terminated as a result of Executive's death, Executive and/or his estate or beneficiaries, as the case may be, shall be entitled to receive benefits under the Company's employee benefit programs as in effect on the date of such termination to the extent permitted thereunder and under applicable law and, in addition, shall be entitled to receive the amount of any Annual Bonus otherwise payable to Executive pursuant to paragraph 3(b) above for the fiscal year in which Executive's employment is terminated, except that the amount of any such Annual Bonus otherwise payable pursuant to this paragraph 5(c) shall be pro rated on the basis of the number of days during such fiscal year that Executive was employed by the Company; provided that in the event the Company establishes and maintains life insurance providing to Executive and/or his estate or beneficiaries, as the case may be, a benefit at least equal to the amount to be paid to Executive pursuant to this paragraph 5(c), the Company shall be relieved of its obligation to make such payments pursuant to this paragraph 5(c).
(d) If the Employment Period is terminated by the Company for Cause (as defined in Section 5(c) below)or if the Executive resigns for any reason, or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you Executive shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid entitled to receive only his Base Salary through the Termination Date; (ii) any previously awarded date of termination and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you Company shall have no further obligation or liability whatsoever to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)Executive.
(ce) For Except as otherwise expressively provided herein or as expressly required by applicable law (including under Section 4980B of the purposes Internal Revenue Code of this Agreement1986, “Cause” as amended), all of Executive's rights to fringe benefits and bonuses hereunder shall mean that you have:cease upon termination of the Employment Period.
Appears in 1 contract
Severance. The Parties agree to amend Section 5.4 of the Employment Agreement (ato be renumbered Section 5.5) In the event your in its entirety as follows: If Officer’s employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment Bank is terminated by the Company for Cause (as defined in Section 5(c) below)and Bank or its successors during the term Without Cause, or (iii) Officer resigns from his employment with the Company elects and Bank for Good Reason, the Bank or its successors shall: pay to Officer a total Severance payment equal to 2 years base salary at the highest rate in effect during the twelve (12) month period immediately preceding Officer’s last day of employment plus the average cash award paid to Officer over the last three preceding years from the Executive Incentive Plan; (b) pay any Severance due Officer pursuant to Section 5.5 in installments over twenty-four (24) months on the same schedule as he was paid immediately prior to the date of termination, each installment to be the same amount he would have been paid under this Agreement if he had not been terminated. In the event of the Officer’s death during the period of time while he is receiving Severance, Officer’s estate will be paid the remaining component of Severance to renew your which the Officer is entitled under the terms of this Agreement. In the event Officer breaches any provision of Section 6 of this Agreement, Officer’s entitlement to any Severance and benefits, if and to the extent not yet paid, shall thereupon immediately cease and terminate. Notwithstanding anything to the contrary contained herein, if Officer’s termination of employment at occurs less than 21 days prior to the end of the Initial Term or an applicable Renewal Termany calendar year, you no Severance payment shall be paidmade hereunder until after the commencement of the next calendar year; and (c) provide Officer at no charge, during the period that Officer is receiving Severance payments as described in Sections 5.5 (a) and (b), with a continuation of medical benefits at terms no less favorable than the health and medical benefits in effect on the date of termination of the Officer’s employment and including any dependents being covered by the Officer on the date of his termination who remain eligible for medical benefits under the terms of the Bank’s medical plan. To the extent such benefits cannot be provided under a plan because Officer is no longer an employee of the Bank or it is not in the Bank’s best interests to provide such benefits due to the applicable nondiscrimination requirements set forth in Section 1001 of the Patient Protection and Affordable Care Act, as soon as practicable but no later than sixty amended, a dollar amount equal to the after-tax cost (60estimated in good faith by the Bank) of obtaining such benefits, or substantially similar benefits, shall be paid to the Officer within thirty (30) days following the Termination Datedate of termination, (i) all earned but unpaid Base Salary through on a date determined by the Termination DateBank; (ii) provided, however, that Officer shall not be entitled to any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company payments if his employment is terminated in connection accordance with the performance provisions of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)Section 5.3(a) or 5.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Severance. If the conditions set forth in Section 1(a) or 1(b) or 1(c) are met, the following provisions shall be applicable:
(a) In The Company shall pay you salary continuation at your then-current base salary rate for a period of 6 months following the event your employment date of termination in accordance with the Company is terminated either (i) on account of your death or Disability (Company's normal payroll practice, as defined in Section 5(e) below), (ii) may be modified by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due from time to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Datetime.
(b) In the event The Company shall pay you (i) voluntarily terminate a one-time payment equal to your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated targeted bonus amount established by the Company payable for Cause (as defined the year in Section 5(c) below), or (iii) which your date of termination occurs; provided that such payment shall be pro rated to reflect the number of days you have been employed by the Company elects not during such year. (By way of example, if your targeted bonus amount for the year 2000 is equal to renew 40% of your employment base salary of $100,000 and you have worked until June 30, 2000 before leaving the Company, the one-time payment under this subsection (b) would be $20,000.) The payment set forth in this Section 2(b) shall be paid at the end time of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty first regularly-scheduled payroll payment (60in accordance with the Company's normal payroll practice) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance date of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)your termination.
(c) For The Company shall provide you the purposes same benefits to which you are eligible and are receiving at your termination date (to the extent permitted by law and/or the terms and conditions of this Agreementthe applicable plan documents governing such benefits) for a period of 6 months following the date of termination in accordance with the Company's existing policies, “Cause” as may be modified by the Company from time to time.
(d) Receipt by you of the foregoing payments will be conditioned on your execution and delivery of a release in a form acceptable to the Company. Moreover, the Company shall mean terminate all such payments if it determines that you have:have violated any of the provisions contained in your Employee Non-Disclosure and Developments Agreement or Non-Competition Agreement.
(e) If the Company in its discretion determines that it is obligated to withhold any tax in connection with the payments or benefits provided in this Section 2, you hereby agree that the Company may withhold from such payments/benefits the appropriate amount of tax.
Appears in 1 contract
Severance. (a) In To the event extent your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause Good Reason (not including death or Disability) at any time, you will be eligible for benefits under the Company’s Executive Severance Plan (as most recently amended and restated as of November 2, 2015, as amended on July 9, 2021), as such plan may be further amended, restated or replaced from time to time (the “Severance Plan”), subject to satisfaction of the Severance Plan’s relevant requirements (e.g., incurring a qualifying termination and execution of release). Notwithstanding the foregoing, for purposes of determining the benefits due to your Death or Disabilityyou pursuant to the Severance Plan,
(a) the following shall be deemed to be added to the end of Section I.C of the Severance Plan: “For purposes of this Plan, or the Eligible Employee shall be deemed to have been involuntarily terminated by action of the Company elects if the Eligible Employee terminated his employment with the Company for “Good Reason” (as defined in Exhibit B to that certain Amended and Restated Letter Agreement between the Company and the Eligible Individual dated as of January 19, 2022 (the “Amended and Restated Letter Agreement”));”
(b) the definition of “Pay” in Section II.A.1 of the Severance Plan, shall be deemed to be “the sum of (a) two times his or her annual base salary as shown on the Company’s records at the time of termination, and (b) two times the target value of his or her annual incentive under the Company’s applicable annual incentive program (or program of similar effect) for the year in which termination occurs;” and
(c) a new Section II.A.4 shall be deemed to have been added to the Severance Plan, which Section II.A.4 shall be deemed to read as follows: “Prorated Bonus. Subject to compliance with Plan requirements, an Eligible Employee shall receive payment of a pro rata portion of his Annual Bonus (as defined in the Amended and Restated Letter Agreement) for the fiscal year of the Company in his termination occurs, based on the number of days of such fiscal year that elapsed through the date his employment terminated and calculated based on the actual performance results applicable to such fiscal year (with any exercise of negative discretion to be based only on achievement (or lack thereof) of previously-established performance goals and not subjective personal performance), payable at such time as bonuses are paid by the Company to renew your employment at senior executives pursuant to the terms of the AIP (as defined in the Amended and Restated Letter Agreement), but in no event will such amount be paid after March 15th of the calendar year following the end of the Termfiscal year to which the Annual Bonus relates.” January 19, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:2022
Appears in 1 contract
Samples: Amended and Restated Letter Agreement (PERDOCEO EDUCATION Corp)
Severance. (a) In the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below)that, (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without CauseRenewal Term, (iia) your employment is terminated by the Company without Cause or (b) you voluntarily terminate your employment for Cause Good Reason, the Company shall pay you an amount equal to two times the sum of (i) your then Annual Base Salary, (ii) the average of the annual bonuses actually paid or guaranteed to you with respect to the three completed years preceding the date of your termination of employment (or such lesser number of completed years beginning on the Effective Date and ending on the date of your termination of employment) and (iii) the aggregate annual dollar amount of the payments made or to be made to you or on your behalf for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Severance Amount”); provided that (x) you execute and deliver to the Company, and do not revoke, a release of all claims against the Company substantially in the form attached hereto as Exhibit B (“Release”) and (y) you have not materially breached as of the date of such termination any provisions of this Agreement and do not materially breach such provisions at any time during the Relevant Period (as defined below). The Company’s obligation to make such payment shall be cancelled upon the occurrence of any such material breach and, in the event such payment has already been made, you shall repay to the Company such payment within 30 days after demand therefore; provided, however, such repayment shall not be required if the Company shall have materially breached this Agreement prior to the time of your breach. The Severance Amount shall be paid in cash in a single lump sum on the later of (1) the first day of the month following the month in which such termination occurs and (2) the date the Revocation Period (as defined in Section 5(cthe Release) belowhas expired. Notwithstanding anything in this paragraph to the contrary, if a Release is not executed and delivered to the Company within 60 days of such termination of employment (or if such Release is revoked in accordance with its terms), the Severance Amount shall not be paid. Upon the expiration of this Agreement due to non-renewal, or (iii) upon the Company elects not to renew termination of your employment at the end hereunder for Cause or by your death or Disability, or by your voluntary termination of the Initial Term or an applicable Renewal Termyour employment hereunder without Good Reason, you shall be paid, as soon as practicable but no later than sixty (60) days following entitled only to the Termination Date, (i) all earned but unpaid payment of such installments of your Annual Base Salary that have been earned through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either date of such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)expiration and/or termination.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Severance. In lieu of any severance pay or severance benefits otherwise payable to the Employee under any plan, policy, program or arrangement of the Company or its subsidiaries, the following shall apply:
(a) In If there is a Termination (as herein defined) of the event your Employee's employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) at any time within twelve (12) months after the occurrence of your Base Salary or a Change of Control (2as herein defined), such Employee shall be entitled to receive a lump-sum severance payment equal to (i) one hundred percent (100%) of such employee's then current salary plus (ii) the Base Salary payments remaining under this Agreement amount of such employee's target bonus for the current calendar year (or, if higher, the “Post Termination Salary Payment”);
(iii) You shall also be amount of the bonus attributable to a calendar year's service which was paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the Employee immediately prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) to the Change of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock Control). All outstanding Stock Options granted to you that the Employee which are scheduled to vest during or at the end of the Initial Term shall vest not vested and exercisable as of the date of Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have become vested and exercisable as of such date and shall remain exercisable for the periods prescribed in the Stock Option Plan. The Employee, such Employee's spouse and eligible dependents will continue to be provided with medical and dental benefits for the twelve (12)-month period following such Employee's Termination Dateon the same basis as provided to active employees of the Company. Following such twelve (12)-month period, the Employee, such Employee's spouse and eligible dependents will begin eligibility for continuation of medical and dental coverage in accordance with Section 4980B of the Internal Revenue Code of 1986, as amended (the "Code"). The Employee shall have no duty to mitigate damages by seeking other employment. The Company shall have no right to offset hereunder with respect to any compensation or benefits received by the Employee from or in connection with any employment subsequent to such Employee's Termination of employment with the Company.
(b) In If the event you (i) Employee voluntarily terminate your terminates employment with the Company for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause "Good Reason" (as defined herein defined) during the twelve (12)-month period following a Change of Control as described in Section 5(c2(a) below), the Employee will not be entitled to any severance payment or (iii) the Company elects not to renew your employment at the end acceleration of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) vesting of any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)unvested Stock Options.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Samples: Employment Agreement (Earthweb Inc)
Severance. (a) In the event your employment with the Company is terminated either (i) on account of your death or Disability (The parties hereto agree to allocate liability for any Severance Benefits due to Employees as defined follows, except as provided in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below5.5(a)(iv):
(iA) You GE shall receive be responsible for and shall pay and provide any Severance Benefits due to any SC Business Employee as a result of the Termination Payments termination of his or her employment before the Closing Date, and Crompton shall be responsible for and shall pay and provide any Severance Benefits due to any OSi Business Employee as a result of the termination of his or her employment before the Closing Date.
(B) GE shall be responsible for and shall pay and provide (or reimburse, as defined applicable) all Severance Benefits due to OSi Business Employees as a result of (I) the termination of their employment with Crompton and its Affiliates on or after the Closing Date (including as a result of the transactions contemplated by this Agreement) if such termination and/or entitlement to Severance Benefits is due to GE's failure to comply with Section 5.5(a)(iii) or to the failure of such terms and conditions to prevent the right to Severance Benefits from arising, and/or (II) the termination of their employment with GE and its Affiliates on or after the Closing Date; PROVIDED, HOWEVER, that GE shall not be responsible for any Severance Benefits provided under any Crompton Benefit Plan to an OSi Business Employee employed in the United States who received an offer from GE complying with Section 5(b5.5(a)(iii).
(C) belowCrompton shall be responsible for and shall pay and provide (or reimburse, as applicable) all Severance Benefits due to SC Business Employees as a result of (I) the termination of their employment with GE and its Affiliates on and after the Closing Date (including as a result of the transactions contemplated by this 104 Agreement) if such termination and/or entitlement to Severance Benefits is due to Crompton's failure to comply with Section 5.5(a)(iii) or to the failure of such terms and conditions to prevent the right to Severance Benefits from arising, and/or (II) the termination of their employment with Crompton and its Affiliates on or after the Closing Date; PROVIDED, HOWEVER, that Crompton shall not be responsible for any Severance Benefits provided under any GE Benefit Plan to an SC Business Employee employed in the United States who received an offer from Crompton complying with Section 5.5(a)(iii);.
(ii) You shall also be paid For a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days period of one year following the Termination Closing Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or DisabilityGE shall, or shall cause its Subsidiaries to, provide to each OSi Continuing Employee who is terminated under circumstances entitling such OSi Continuing Employee to benefits under the Company elects terms of GE's severance plans and practices generally applicable to similarly situated GE employees severance benefits in accordance with the terms of such severance plans and practices, and Crompton shall, or shall cause its Subsidiaries to, provide to each SC Continuing Employee who is terminated under circumstances entitling such SC Continuing Employee to benefits under the terms of Crompton's severance plans and practices generally applicable to similarly situated Crompton employees severance benefits in accordance with the terms of such severance plans and practices. Notwithstanding the foregoing, this Section 5.5(d)(ii) shall not to renew your employment at the end of the Term, apply in the case of such a termination, all unvested stock options and/or restricted stock granted to you that Severance Benefits which are scheduled to vest during required under applicable Law or at the end provisions of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)collective bargaining agreement.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Severance. (a) In the event your that Executive's employment with the Company hereunder is terminated either during the Initial Term (i) on account of your death by the Corporation other than for Cause or Disability (as defined in pursuant to Section 5(e) below)9 hereof, or (ii) by the Company without Cause Executive for Good Reason (as defined hereinafter defined) pursuant to a Notice of Termination (as hereinafter defined), then the Corporation shall continue Executive's participation (including participation by his spouse and other dependents) on the same basis as other senior officers in its medical, dental, and life insurance and other benefit plans or arrangements ("Benefit Plans"), and the Corporation will continue to pay the costs of coverage of Executive and his spouse and other dependents under the Benefit Plans on the same basis as other active officers of the Corporation covered under such Benefit Plans, for the greater of eighteen (18) months or the remainder of the Initial Term; provided, however, that if such continued participation in any one or more of the Benefit Plans is not possible under the terms thereof, the Corporation will provide Executive with substantially identical benefits for the remainder of such period or an amount in cash equal to the cost to the Corporation for providing such benefits, paid in accordance with Section 5(c10(e) belowof this Agreement. The Corporation shall also pay to Executive severance payments in cash equal to the sum of (x) the amount of Executive's then current base annual salary and (y) the highest annual bonus paid or payable during the three-year period ending on the termination date, multiplied by the quotient obtained by dividing the number of days from Executive's termination date until the greater of the last day of the Initial Term (determined without regard to such termination) or the last day of a period of eighteen (18) months commencing on the termination date, by three hundred sixty-five (365). In the event that Executive's employment hereunder is terminated during the Term subsequent to the Initial Term (i) by the Corporation other than for Cause or pursuant to Section 9 hereof, or (iiiii) by you due to Constructive Termination without Cause the Executive for Good Reason (as defined in Section 5(dhereinafter defined) below):
(i) You shall receive the pursuant to a Notice of Termination Payments (as defined hereinafter defined), then the Corporation shall continue Executive's participation (including participation by his spouse and other dependents) in Section 5(bthe Benefit Plans for eighteen (18) below);
months, and the Corporation will continue to pay the costs of coverage for Executive and his spouse and other dependents under such Benefit Plans on the same basis as other active officers covered under such Benefit Plans, for eighteen (ii18) You months; provided, however, that if such continued participation in any one or more of the Benefit Plans is not possible under the terms thereof the Corporation will provide Executive substantially identical benefits for the remainder of such Period, or the Corporation shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, provide Executive an amount in cash equal to the lesser of (1) twelve (12) months of your Base Salary or (2) cost to the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You Corporation for providing such benefits. The Corporation shall also be paid a pro-rated annual bonus, pay to Executive severance payments in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount cash equal to the sum of (x) the amount of Executive's then current base annual salary and (y) the highest annual bonus paid or payable during the three-year period ending on the termination date, multiplied by the quotient obtained by dividing the number of days from Executive's termination date until the last day of a period of eighteen (18) months commencing on the termination date, by three hundred sixty-five (365). In addition, Executive shall be entitled to the payment of any accrued and unpaid salary (including accrued and unused vacation) through the date of termination, any accrued and unpaid bonuses in respect of prior year’s fiscal years, any bonus, if anydetermined under Section 5, pro-rated; and
(iv) The Initial Option in respect of the fiscal year in which the termination occurs, prorated through the date of termination. Such prorated bonus shall be calculated at Executive's target bonus level and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(dpaid in accordance with Section 10(e) of this Agreement shall vest as follows:
(1) If termination is by Agreement; provided, however, in the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or event the Company elects not to renew your employment at Corporation's actual performance merits a greater bonus had Executive remained employed through the end of the Termyear, such increased amount shall be paid at the same time as other bonuses. Further, Executive shall be provided with outplacement assistance commensurate with Executive's position with the Corporation for a minimum period of eighteen (18) months following Executive's termination of employment. Executive's right to continuation of coverage under the Corporation's "group health plans" within the meaning of Section 4980B of the Code (or any successor section), and Sections 601-609 of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") (or any successor sections) shall commence at the expiration of Executive's continued participation in such "group health plans" for the period following termination of employment, as set forth in this Section 10(a). Except as set forth in Sections 2, 7, 8 and Section 10(a), 10(b)(iv) and 10(f) hereof, the Corporation shall have no further obligations under this Agreement in the event of the Executive's termination of employment under this Section 10. The Executive shall have the obligations provided under Section 12 hereof, to the extent applicable pursuant to its terms.
(b) For the purpose of this Agreement, "Good Reason" shall mean the occurrence, without Executive's express written consent, of any of the following circumstances unless, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you paragraphs (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause), (iiv), (vi) your employment is terminated by or (vii) below, such circumstances are fully corrected prior to the Company for Cause Date of Termination (as defined in Section 5(cbelow) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 the Notice of this Agreement).
Termination (cas defined below) For the purposes of this Agreement, “Cause” shall mean that you havegiven in respect thereof:
Appears in 1 contract
Severance. (a) In If the event your employment with the Company Employment Period is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due Good Reason, you will be entitled to receive (i) your Death or Disability, or the Company elects not to renew your employment Base Salary as in effect at the end of the Term, in the case time of such a terminationtermination to the extent such amount has accrued through the Termination Date (as defined in Section 5(e) below) and remains unpaid, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest (ii) any fully earned and declared but unpaid Performance Bonus as of the Termination Date; or
, (2iii) If termination is due an amount equal to Cause or by the sum of your Base Salary that you would have received from the Termination Date through the then applicable Expiration Date, which shall be payable in the same amounts and at the same intervals as if the Employment Period had not ended, (iv) except as a result set forth in the final sentence of Constructive this Section 5(a), immediate and full vesting of all your equity awards, (v) if you timely elect continued coverage pursuant to COBRA, payment of your share of the premium cost at the same rate as for active employees of the Company for the 18-month period following the Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested Date and (vi) any unpaid Expenses as of the Termination Date. Except as set forth in Section 5(d), upon delivery of the payments and benefits described in this Section 5(a), the Company shall have no further obligation to you under this letter agreement or otherwise with respect to your employment with the Company; provided, however, the Company’s obligation to make the payments to you described in clauses (iii), (iv) and (v) of this Section 5(a) is conditioned upon your executing and delivering, no later than 45 days following the Termination Date (and not revoking), a release relating to your employment by the Company in favor of the Company, the Company Affiliates and their respective stockholders, officers, members, managers, directors, employees, subsidiaries and affiliates substantially in the form attached as Exhibit A; provided, further, that until the period to revoke such release has expired, the Company shall retain any Base Salary installment payment that would otherwise be made pursuant to clause (iii) of this Section 5(a), with such payment being made on the next regularly scheduled payroll date after such revocation period expires. In the event that the Company’s delivers written notice to you that the Board, in its good faith and reasonable judgment, has determined that you have been negligent in the performance of your duties, provided that you have been given an opportunity of no less than 30 days after receipt of such notice to cure any such instances of negligence, if the Company terminates your employment without Cause following the Board’s good faith, reasonable determination that you have failed to cure, any unvested equity awards that you hold will be forfeited.
(b) In If the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment Employment Period is terminated by the Company for Cause or by you other than for Good Reason, the Company will pay you (i) your Base Salary as in effect at the time of such termination to the extent such amount has accrued through the Termination Date and remains unpaid, (ii) any fully earned and declared but unpaid Performance Bonus as of the Termination Date, and (iii) any unpaid Expenses as of the Termination Date. Except as set forth in Section 5(d), upon delivery of the payments described in this Section 5(b), the Company will have no further obligation to you under this letter agreement with respect to your employment with the Company.
(c) If the Employment Period is terminated due to your Disability (as defined in Section 5(c5(g) below)) or death, or (iii) the Company elects not to renew will pay you or your employment estate, whichever is applicable, (i) your Base Salary as in effect at the end time of such termination to the Initial Term or an applicable Renewal Termextent such amount has accrued through the Termination Date and remains unpaid, you shall be paid, (ii) any fully earned and declared but unpaid Performance Bonus as soon as practicable but no later than sixty (60) days following of the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all any unpaid reimbursable expenses incurred by you through Expenses as of the Termination Date (Date. Except as set forth in Section 5(d), upon delivery of the “Termination Payments”payments described in this Section 5(c). In either such event, you shall the Company will have no further obligation to you under this letter agreement or liability otherwise with respect to your employment with the Company.
(d) Except as otherwise required by law or as specifically provided herein, all of your rights to salary, severance, fringe benefits, bonuses and any other amounts hereunder (if any) accruing after the termination of the Employment Period will cease upon the earlier of the Termination Date and your last day of active service. In the event the Employment Period is terminated, your sole remedy, and the sole remedy of your successors, assigns, heirs, representatives and estate, will be to receive the payments described in this letter agreement. Notwithstanding the foregoing, the following rights will survive any termination of the Employment Period: (i) your rights to accrued and vested benefits under any benefit plan of the Company or any of the Company Affiliates, or as set forth in any other agreement between you and the Company or any of the Company Affiliates, (ii) your right to continued participation in the Company’s health and welfare plans, except as otherwise provided in Section 5(a)(v), at your own expense pursuant to COBRA, (iii) your right to indemnification in respect of your service as a director or officer of the Company or any of the Company Affiliates, to the Company maximum extent provided under applicable law, the Company’s Certificate of Incorporation and By-laws (each, as they may be amended from time-to-time), and any other agreement between you and the Company, (iv) your rights in connection with respect of shares of Common Stock that you hold and (v) your rights in respect of any equity-based awards that remain outstanding following the performance Employment Period (subject to the provisions of this Agreement and any equity plan or award agreement (except that governs the continuing obligations specified in Sections 7, 8 and 10 terms of this Agreementsuch equity-based awards).
(ce) Any termination of the Employment Period by the Company (other than termination upon your death) or by you must be communicated by written notice (in either case, a “Notice of Termination”) to you, if the Company is the terminating party, or to the Company, if you are the terminating party. For the purposes of this Agreementletter agreement, “Termination Date” means (i) if the Employment Period is terminated due to your death, the date of your death and (ii) if the Employment Period is terminated due to your Disability, by the Company (for Cause or without Cause” shall mean that ) or by you have:(for Good Reason or without Good Reason), the date specified in the Notice of Termination (which may not be earlier than the date of such Notice of Termination). Notwithstanding anything contained herein to the contrary, any termination of the Employment Period by you must be communicated to the Company no less than 30 days prior to the intended Termination Date.
Appears in 1 contract
Severance. (a) In If, during the event your Employment Term and any Renewal Term and either prior to the occurrence of a Change in Control or more than 12 months after a Change in Control, the Executive’s employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (Cause, then, the Company shall have no liability or further obligation to the Executive except as defined in follows: the Executive shall be entitled to receive, subject to Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below6(f):
(i) You shall receive within 30 days of such termination of employment, any earned but unpaid Base Salary for the Termination Payments period prior to termination and any earned but unpaid bonuses, in cash, for prior periods which have ended at the time of such termination (as defined in Section 5(b) below“Entitlements”);
(ii) You shall also be paid a lump sum by at the Companytime provided in such plan, any rights to which he is entitled in accordance with such applicable plan or program provisions under any employee benefit plan, program or arrangement, fringe benefit or incentive plan (“Rights”); and
(iii) severance pay in an amount that is the greater of one year’s Base Salary and $200,000, less applicable withholdings and deductions, which shall be paid payable in accordance with the Company’s standard payroll practices over a period of one year from the termination of Executive’s employment pursuant to this Section 6(a); provided, however, such amounts payable under this section 6(a)(iii) shall be subject to set off by the Company for any amounts received by Executive during the one year period following his termination of employment with the Company as soon an employee, consultant, partner, owner or other similar capacity (such amounts shall be referred to herein as practicable the “Initial Severance Pay”). Additionally, upon a termination of the Executive’s employment without Cause under this Section 6(a), (x) all non-vested time based Long-Term Incentive Awards and all non-vested but not later than sixty earned performance based Long-Term Incentive Awards shall accelerate, become fully earned and vested, and (60y) the end of the performance period for all non-vested but unearned performance based Long-Term Incentive Awards shall be the date of such termination and a pro rata amount of any of such awards then deemed to be earned awards (determined by the number of completed days following of the Termination Dateperformance period for such award divided by the total number of days in such performance period) shall accelerate, equal become fully earned and vested; provided, that all unexercised share option awards shall terminate within six months of such termination of employment. As a condition of and upon receiving the severance pay under Section 6(a)(iii) and the acceleration of vesting of non-vested Long-Term Incentive Awards set forth in the immediately preceding paragraph, the Executive agrees to execute a release thereby releasing the Company and its affiliates from any and all obligations and liabilities to the lesser Executive arising from or in connection with the Executive’s employment or termination of employment with the Company and its affiliates and any disagreements with respect to such employment, except that such release shall not apply with respect to any rights of the Executive to indemnification under the Company’s Declaration of Trust, By-Laws or a separate agreement, or to any rights of the Executive to indemnification or directors’ and officers’ liability insurance coverage of the Company and its affiliates. If the Executive does not execute the release and the release does not become irrevocable within 60 days of his termination of employment, the Executive shall forfeit his right to the severance pay under Section 6(a)(iii) and the acceleration of vesting of his non-vested Long-Term Incentive Awards.
(1b) twelve If, during the Employment Term and any Renewal Term, the Executive’s employment is terminated in a Double Trigger Termination, then, the Company shall have no liability or further obligation to the Executive except as follows: the Executive shall be entitled to receive, subject to Section 6(f):
(12i) months within 30 days of your such termination of employment, any earned but unpaid Base Salary for the period prior to termination and any earned but unpaid bonuses, in cash, for prior periods which have ended at the time of such termination (“Entitlements”);
(ii) at the time provided in such plan, any rights to which he is entitled in accordance with such applicable plan or program provisions under any employee benefit plan, program or arrangement, fringe benefit or incentive plan (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary PaymentRights”);
(iii) You shall also be paid a prowithin 60 days of such termination of employment, severance pay (the “Post-rated annual bonus, CoC Severance Pay”) in a lump sum cash payment equal to two and one half (2.5) times the sum of: (x) the Executive’s Base Salary at termination (disregarding a reduction in Base Salary that constitutes Good Reason), and (y) the average of the last two annual cash bonuses the Company has paid to or agreed to pay to (if such payment has not yet been made) the Executive (the “Average Bonus”);
(iv) within 60 days of such termination of employment, a lump sum cash payment of a pro rata annual bonus, without duplication of any Entitlements, determined by (x) the number of days the Executive was employed by the Company during the fiscal year divided by 365, and multiplied by (y) the Average Bonus (the “Pro Rata Cash Bonus”); and Additionally, upon a termination of the Executive’s employment in a Double Trigger Termination under this Section 6(b), (x) all non-vested time based Long-Term Incentive Awards and all non-vested but earned performance based Long-Term Incentive Awards shall accelerate, become fully earned and vested, and (y) the end of the performance period for all non-vested but unearned performance based Long-Term Incentive Awards shall be the date of such termination and a pro rata amount of any of such awards then deemed to be earned awards (determined by the number of completed days of the performance period for such award divided by the total number of days in such performance period) shall accelerate, become fully earned and vested; provided, that all unexercised share option awards shall terminate within six months of such termination of employment. Additionally, medical, dental, disability, life insurance and other employee welfare benefits (the “Welfare Plans”) then provided to senior executives of the Company shall be continued following the date of termination for a period of two and one half (2.5) years and, if the Executive is precluded from participating in any Welfare Plan by its terms or applicable law during such period, the Company shall reimburse expenses actually incurred by the Executive during such period to obtain similar Welfare Plan coverage, but only to the extent Executive’s requested reimbursement of expenses for similar Welfare Plan coverage does not exceed the Company’s premiums or contributions that the Company would otherwise pay under the terms of this Agreement as of the date of the Executive’s termination, or date of payment if later, to continue Executive’s participation in the underlying Welfare Plan for the period the expenses were incurred by the Executive. Expenses reimbursable under this paragraph shall be reimbursed within thirty (30) days following Executive’s submission to the Company of the reimbursement request and supporting documentation reasonably requested by the Company and in no event later than the end of the calendar year following the calendar year in which the expenses were incurred by Executive. The expenses eligible for reimbursement under this paragraph during any calendar year shall not affect the expenses eligible for reimbursement under this paragraph in any other calendar year.
(c) If during the Employment Term, the Executive’s employment is terminated on account of death or Disability, the Company shall have no liability or further obligation to the Executive except as follows: the Executive (and his estate or designated beneficiaries under any Company-sponsored employee benefit plan in the event of his death) shall be entitled to receive, subject to Section 6(f):
(i) any Entitlements within 30 days of such termination of employment or, if later, the date such Entitlement would otherwise be paid to active employees of the Company, and any Rights at the time provided in the relevant plans; and
(ii) Initial Severance Pay, which shall be paid as soon as practicable payable in accordance with the Company’s standard payroll practices over a period of one year from the date of the termination of Executive’s employment pursuant to this Section 6(c). Additionally, (x) all non-vested time based Long-Term Incentive Awards and all non-vested but not later than sixty earned performance based Long-Term Incentive Awards shall accelerate, become fully earned and vested, and (60y) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Termperformance period for all non-vested but unearned performance based Long-Term Incentive Awards shall be the date of such termination and a pro rata amount of any of such awards then deemed to be earned awards (determined by the number of completed days of the performance period for such award divided by the total number of days in such performance period) shall accelerate, become fully earned and vested; provided, that all unexercised share option awards shall terminate within six months of such termination of employment. Additionally, the group health plan then provided to senior executives of the Company shall be continued following the date of termination for a period of one year and, during such period, if the Executive is precluded from participating in such group health plan by its terms or applicable law at any time during such period, the Company shall reimburse expenses actually incurred by the Executive during such period to obtain similar coverage, but only to the extent Executive’s requested reimbursement of expenses for such similar coverage does not exceed the Company’s premiums or contributions that the Company would otherwise pay as of the date of the Executive’s termination to continue the Executive’s participation in the case group health plan for the period the expenses for similar coverage are incurred by Executive. Expenses reimbursable under this paragraph shall be reimbursed within thirty (30) days following Executive’s submission to the Company of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the reimbursement request and supporting documentation reasonably requested by the Company and in no event later than the end of the Initial Term calendar year following the calendar year in which the expenses were incurred by Executive. The expenses eligible for reimbursement under this paragraph during any calendar year shall vest as not affect the expenses eligible for reimbursement under this paragraph in any other calendar year. Notwithstanding the foregoing, the continuation period for group health benefits under Section 4980B of the Termination Date; or
Internal Revenue Code of 1986, as amended (2the “Code”) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as reason of the Termination DateExecutive’s termination of employment with the Company shall be measured from his actual date of termination of employment. As a condition of receiving the Initial Severance Pay under Section 6(c)(ii), the Executive, or the representative of his estate if he has died, agrees to execute a release thereby releasing the Company and its affiliates from any and all obligations and liabilities to the Executive arising from or in connection with the Executive’s employment or termination of employment with the Company and its affiliates and any disagreements with respect to such employment, except that such release shall not apply with respect to any rights of the Executive to indemnification under the Company’s Certificate of Incorporation, By-Laws or a separate agreement, or to any rights of the Executive to indemnification or directors’ and officers’ liability insurance coverage of the Company and its affiliates. If the Executive or the representative of his estate does not execute the release and the release does not become irrevocable within 60 days of his termination of employment or death, the Executive or the estate shall forfeit the right to the Initial Severance Pay under Section 6(c)(ii) and the acceleration of vesting of his non-vested Long-Term Incentive Awards.
(bd) In If during the event you (i) voluntarily terminate your employment for Employment Term and any reason other than Constructive Termination without CauseRenewal Term, (ii) your the Executive’s employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) by the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination DateExecutive for any reason, (i) all earned but unpaid Base Salary through the Termination Date; non-vested and/or unexercised Long-Term Incentive Awards shall be forfeited, terminated and cancelled and (ii) the Company shall have no liability or further obligation to the Executive except as follows: the Executive shall be entitled to receive any previously awarded Entitlements within 30 days of such termination of employment or, if later, the date such Entitlement would otherwise be paid to active employees of the Company, and unpaid bonus; any Rights at the time provided in the relevant plans.
(e) The payments made pursuant to this Section 6 shall be excluded from all pension and benefit calculations under the employee benefit plans of the Company and its affiliates, except as otherwise provided in the applicable employee benefit plan.
(iiif) all unpaid reimbursable expenses incurred Notwithstanding anything in this Section 6 to the contrary, if any amounts or benefits payable under this Agreement in the event of Executive’s termination of employment constitute “nonqualified deferred compensation” within the meaning of Code Section 409A, payment of such amounts and benefits shall commence when the Executive incurs a “separation from service” within the meaning of Treasury Regulation 1.409A-1(h), without regard to any of the optional provisions thereunder, from the Company and any entity that would be considered a single employer with the Company under Code Section 414(b) or 414(c) (“Separation from Service”). Such payments or benefits shall be provided in accordance with the timing provisions of this Agreement by you through substituting the Termination Date Agreement’s references to “termination of employment” or “termination” with Separation from Service. Notwithstanding the foregoing, if at the time of Executive’s Separation from Service the Executive is a “specified employee” within the meaning of Code Section 409A(a)(2)(B)(i), any amount or benefits that the constitutes “nonqualified deferred compensation” within the meaning of Code Section 409A that becomes payable to Executive on account of the Executive’s Separation from Service will not be paid until after the earlier of (i) first business day of the seventh month following Executive’s Separation from Service, or (ii) the date of the Executive’s death (the “Termination Payments409A Suspension Period”). In either Within 14 calendar days after the end of the 409A Suspension Period, the Executive shall be paid a cash lump sum payment equal to any payments (including interest on any such eventpayments, you shall have no further obligation or liability at an interest rate of not less than the prime interest rate, as published in the Wall Street Journal, over the period such payment is restricted from being paid to the Executive) and benefits that the Company would otherwise have been required to provide under this Section 6 but for the imposition of the 409A Suspension Period delayed because of the preceding sentence. Thereafter, the Executive shall receive any remaining payments and benefits due under this Section 6 in connection accordance with the performance terms of this agreement Section (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreementas if there had not been any Suspension Period beforehand).
(c) . For the purposes of this Agreement, “Cause” each payment that is part of a series of installment payments shall mean that you have:treated be as a separate payment for purposes of Code Section 409A.
Appears in 1 contract
Severance. (a) In the event your employment with the Company is terminated either Subject to Section 21 hereof, if (i) on account the Company terminates the employment of your death the Executive prior to January 2, 2009 against his will and without Cause, or Disability (as defined in Section 5(e) below), (ii) the Executive terminates his employment prior to January 2, 2009 for Good Reason, then (A) Executive shall be entitled to receive base salary, incentive cash compensation (determined on a pro-rated basis as to the year in which the Termination Date occurs), pay for accrued but unused vacation time, and reimbursement for expenses pursuant to Section 13 hereof through the Termination Date plus a lump sum equal to twelve (12) months of the Executive's specified base salary hereunder at the rate in effect on the Termination Date, and (B) notwithstanding the vesting and exercisability provisions otherwise applicable to Outstanding Options or the New Options and the restrictions applicable to Outstanding Restricted Shares or the New Restricted Shares, all of such options shall be fully vested and exercisable upon such termination and shall remain exercisable for the remainder of their terms, as specified in the option grant agreements, and all of such restricted shares shall thereon become immediately and fully vested. Except to the extent that more time is required to determine any of the incentive compensation amounts, the Company shall pay the cash amounts provided for in this Section within thirty (30) days after the six (6) month anniversary of the date of such termination (but no later than the end of the calendar year in which such six (6) month anniversary occurs). Notwithstanding the foregoing, the Company shall not be required to pay any severance pay for any period following the Termination Date if the Executive shall have materially violated the provisions of Section 18, 19, or 20 of this Agreement and such violation is not cured within thirty (30) days following receipt of written notice from the Company containing a description of the violation and a demand for immediate cure.
(b) Subject to Section 21 hereof, if (A) the Executive voluntarily terminates his employment prior to January 2, 2009 other than for Good Reason or (B) the Executive's employment is terminated by the Company without Cause prior to January 2, 2009 for Cause, then the Executive shall be entitled to receive salary, pay for accrued but unused vacation time, and reimbursement of expenses pursuant to Section 13 hereof through the Termination Date only; vesting of Outstanding Options, the New Options, Outstanding Restricted Shares and the New Restricted Shares shall cease on such Termination Date; any then un-vested Outstanding Options or New Options shall terminate (with the then-vested Outstanding Options and New Options vested and exerciseable for the remainder of their terms in accordance with the grant agreements); and this occurrence shall be a triggering event for purposes of the Forfeiture/Repurchase Right as defined provided in Section 5(c) below7(b)(i), or above. The Company shall pay the cash amounts provided for in this Section within thirty (iii30) by you due to Constructive Termination without Cause days after the six (as defined 6) month anniversary of the date of such termination (but no later than the end of the calendar year in Section 5(dwhich such six (6) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) belowmonth anniversary occurs);
(ii) You shall also be paid a lump sum by the Company; provided, which however, that pay for accrued but unused vacation time shall be paid as soon as practicable following such termination, and that to the extent that Section 409A of the Internal Revenue Code of 1986 and any guidance or regulations issued thereunder, as amended, do not require the effectuation of the six (6) month delay described above with respect to any other cash amounts provided for in this Section, the Company shall pay such cash amounts within thirty (30) days after the date of such termination (but not no later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, calendar year in the case of which such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Dateoccurs).
(bc) In Subject to Section 21 hereof, if the event you Executive's employment is terminated prior to January 2, 2009 due to death or Disability, the Executive (or his estate or legal representative as the case may be) shall be entitled to receive (i) voluntarily terminate your employment salary, reimbursement of expenses pursuant to Section 13 hereof, and pay for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary unused vacation time accrued through the Termination Date; (ii) any previously awarded and unpaid bonusa pro-rated amount of incentive cash compensation for the fiscal year in which the Termination Date occurs; and (iii) all unpaid reimbursable expenses incurred by you through a lump sum equal to base salary at the Termination Date rate in effect on the date of such termination for the lesser of (a) twelve (12) months and (b) the “Termination Payments”)remaining term of this Agreement at the time of such termination. In either such eventcase, you vesting of the Outstanding Options, New Options, Outstanding Restricted Shares and New Restricted Shares shall have no further obligation or liability cease on such Termination Date, and any then un-vested Outstanding Options and New Options shall terminate (with the then-vested Outstanding Options and New Options vested and exerciseable for the remainder of their terms in accordance with the grant agreements); and this occurrence shall be a triggering event for purposes of the Forfeiture/Repurchase Right as provided in Section 7(b)(i), above. Except to the extent that more time is required to determine any of the incentive compensation amounts, the Company shall pay the cash amounts provided for in connection this Section on the thirtieth (30th) day following the Executive's death, or if termination is due to Disability, within thirty (30) days after the six (6) month anniversary of the date of such termination (but no later than the end of the calendar year in which such six (6) month anniversary occurs); provided, however, that to the extent that Section 409A of the Internal Revenue Code of 1986 and any guidance or regulations issued thereunder, as amended, do not require the effectuation of the six (6) month delay described above with respect to any cash amounts provided for in this Section upon termination due to Disability, the performance Company shall pay such cash amounts within thirty (30) days after the date of this agreement such termination (except but no later than the continuing obligations specified end of the calendar year in Sections 7, 8 and 10 of this Agreementwhich such termination occurs).
(cd) For In addition to the purposes provisions of Section 12(a), 12(b), or 12(c), hereof, as the case may be, to the extent COBRA shall be applicable or as provided by law, the Executive shall be entitled to continuation of group health plan benefits for the periods provided by law following the Termination Date if the Executive makes the appropriate election and payments; provided, further, that if the Executive is entitled to severance under Section 12(a) hereof, and the Executive elects COBRA coverage under a group health plan maintained by the Company, the Company shall continue to contribute towards the cost of such coverage for the Executive and his dependents for the six (6) month period following his Termination Date, at the same rate which was in effect upon the date of such termination of employment.
(e) Subject to Section 21 hereof, the Executive acknowledges that, upon termination of his employment, he is entitled to no other compensation, severance or other benefits other than those specifically set forth or referred to in this Agreement, “Cause” shall mean that you have:.
Appears in 1 contract
Samples: Employment Agreement (Nastech Pharmaceutical Co Inc)
Severance. (a) In the event your employment with during the Company is terminated either Employment Period (i) on account of your death the Company terminates Employee’s employment other than for Cause pursuant to Section 4.1(c) or Disability (as defined in Section 5(e) below), (ii) by the Employee terminates her employment for Good Reason pursuant to Section 4.1(d), subject to the execution and non-revocation of a release and waiver of all claims described below, the Company without Cause (as defined shall continue her base salary in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid accordance with its regular payroll practices for a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser period of (1A) twelve (12) months, commencing on the date that is thirty (30) days after the termination in the case of a termination of employment either prior to a Change in Control or following a period of twelve (12) months of your Base Salary after a Change in Control or (2B) twenty-four (24) months, commencing on the Base Salary date that is thirty (30) days after the termination in the case of a termination of employment during the twelve (12) month period immediately following a Change in Control, in each case, such payments remaining to be reduced by the amount of any compensation from a subsequent employer during such period. Notwithstanding anything herein to the contrary, receipt of any payment in connection with a termination of employment shall be conditioned on Employee signing a release and waiver of all claims against the Company and its affiliates within thirty (30) days after her termination of employment, in such form and manner as the Company shall reasonably prescribe, which release shall become effective and irrevocable within thirty (30) days after Employee’s termination of employment. Employee shall accept these payments in full discharge of all obligations of any kind which Company has to her except obligations, if any (i) for post-employment benefits expressly provided under this Agreement and/or at law, (ii) to repurchase any capital stock of Company owned by Employee (as may or may not be set forth in the applicable stock agreement); or (iii) for indemnification under separate agreement by virtue of Employee’s status as a director/officer of the Company. Employee shall also be eligible to receive a bonus with respect to the year of termination as provided in Section 3(b). Notwithstanding anything herein to the contrary, in the event that Employee is determined to be a specified employee within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Post Termination Salary PaymentCode”);
(iii, for purposes of any payment on termination of employment hereunder, payment(s) You shall also be paid a promade or begin, as applicable, on the first payroll date which is more than six months following the date of separation from service, to the extent required to avoid any adverse tax consequences under Section 409A of the Code. Any payments that would have been made during such 6-rated annual bonus, month period shall be made in a lump sum by on the first payroll date which is more than six months following the date Employee separates from service with Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted . Each payment under Sections 3(c) and 3(d) of this Agreement shall vest be treated as follows:
(1) If termination is by the Company without Cause or by you a separate payment for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end purposes of Section 409A of the TermCode. In no event may Employee, directly or indirectly, designate the calendar year of any payment to be made under this Agreement. This Agreement shall be interpreted and administered in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end manner consistent with Section 409A of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination DateCode.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Severance. (a) In the event that your term of employment with is terminated for Cause, or if you resign without Good Reason, the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by will pay to you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to your accrued but unpaid base salary through the prior year’s bonusdate of such termination and, if anysuch termination occurs on or prior to December 31, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement 1997, you shall vest as follows:
(1) If termination is by repay to the Company without Cause or one half of any amount received by you for Constructive Termination without Cause or due pursuant to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination DateSection 3(b)(ii).
(b) In the event you that your term of employment is terminated (other than upon your death or Disability) during your term of employment (i) voluntarily terminate your employment for any reason by the Company other than Constructive Termination without Cause, for Cause or (ii) your employment is terminated by you for Good Reason, then the Company for Cause (as defined in Section 5(c) below)shall pay to you an amount equal to your accrued but unpaid base salary through the date of such termination and, if such termination occurs on or (iii) the Company elects not prior to renew your employment at the end of the Initial Term or an applicable Renewal TermDecember 31, 1997, you shall be paidrepay to the Company one half of any amount received by you pursuant to Section 3(b)(ii). In addition, so long as you shall not have breached your obligations to the Claiborne Group under Sections 6 and 7 hereof, or your representation under Section 11 hereof (without limitation to any other remedy available to the Company), the Company shall pay to you, as soon as practicable but no later than sixty and for a severance payment, (601) upon receipt from you of your duly executed and delivered general release of the Company and the other entities then comprising the Claiborne Group, and their respective officers, directors, agents and representatives, in form and substance reasonably satisfactory to the Company, within 20 days following after being provided with a form thereof ("your General Release"),(A) in substantially equal monthly installments over the Termination Dateperiod from the date of such termination until August 30, 1999, an aggregate amount equal to the greater of (i) all earned but unpaid Base Salary through what your base salary would have been for said period (using for such purpose the Termination Date; base salary rate in effect on the date of termination) or (ii) any previously awarded and unpaid bonus; $1 million and (iiiB) all unpaid reimbursable expenses incurred by the amount of your out-of-pocket costs for your cost of continued medical coverage through August 30, 1999 pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended; or (2) in the event that you through the Termination Date (the “Termination Payments”)do not deliver your General Release as aforesaid, a lump sum payment of $170,000. In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes purpose of this Agreement, “Cause” termination of employment hereunder by you for "Good Reason" shall mean that your termination of your employment upon notice to the Company following assignment to you have:of duties inconsistent with your position as described in Section 2(a) or your being removed from such position, in either case without your consent, which termination shall be effective 30 days after prompt notice of 8 9 such circumstances by you to the Company, if such circumstances have not been cured prior to such date.
Appears in 1 contract
Severance. (a) In the event If your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company Rimage without Cause (as defined other than during the twelve (12) month period following a Change in Control), subject to the condition stated in Section 5(c) below1(c), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):Rimage will:
(i) You shall receive the Termination Payments continue to pay your base salary in accordance with Rimage’s regular payroll practices for a period of twelve (as defined in Section 5(b12) below)months thereafter, or until you have secured other employment, whichever occurs first, subject to applicable tax withholding;
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, pay you an amount equal to the lesser average of the annual bonus amounts you received with respect to the three complete calendar years prior to the date of your termination, such bonus payment, subject to applicable tax withholding, to be made in equal installments consistent with Rimage’s regular payroll practices over a period of twelve (112) months from the date of your termination, provided such installments shall cease at such time as you have secured other employment; and
(iii) if you are eligible for and elect COBRA or state continuation of the Rimage health, dental and group life insurance benefits, Rimage shall pay the portion of such COBRA premium that it pays for active employees until the earlier of: (A) twelve (12) months of your Base Salary from the date COBRA coverage begins; or (2B) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) date COBRA coverage otherwise terminates. You shall also be paid a pro-rated annual bonus, in a lump sum by pay the Company, which shall be paid as soon as practicable but not later than sixty (60) days following remaining portion of the premiums for such Termination Date, in an amount equal to the prior year’s bonusbenefits during such period and, if anyapplicable, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Datefull premium thereafter.
(b) In If you resign (other than for Good Reason during the event you twelve (i12) voluntarily terminate month period following a Change in Control), if Rimage terminates your employment for any reason other than Constructive Termination without Cause, (ii) Cause or if your employment is terminated by the Company for Cause (terminates as defined in Section 5(c) below), a result of your death or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Termdisability, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned entitled to receive your base salary accrued but unpaid Base Salary through as of the Termination Date; (ii) date of termination, but shall not be entitled to receive any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)salary continuation benefit thereafter.
(c) In case of termination without Cause, you shall be entitled to receive the amounts due you under Section 1(a) only upon your execution and delivery to Rimage of a general release with respect to any and all claims against Rimage and its officers, directors, employees, agents and shareholders, acceptable in form and substance to Rimage in all respects, and provided you continue to comply with the terms of the Nondisclosure and Noncompetition Agreement with Rimage.
(d) For the purposes of this Agreement, “Causetermination of employment” shall mean that you have:be interpreted consistent with the term “separation from service” within the meaning of Treas. Reg. §1.409A-1(h), and for purposes of Code §409A, each payment shall be considered a separate payment.
Appears in 1 contract
Samples: Severance Agreement (Rimage Corp)
Severance. (a) In Upon termination of the event your Executive's employment with the Company is terminated either (i) on account of your death or Disability by the Company at any time following a "change in control" (as defined in Section 5(e) belowherein), or (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive Executive during the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months following a "change in control" (as hereinafter defined), the Company shall be obligated to provide to the Executive (or his estate if the Executive shall have died after termination) salary, bonus and benefits in the amount and kind then in effect (and in the case of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, paid during the most recently completed fiscal year) pursuant to Paragraphs 4 and 5(b) hereof, for three years following his discharge. Payment of such salary and bonus to the Executive (or his estate) shall be made in a lump sum by no later than thirty (30) days after the Companydate of such Termination; provided, which however, that the aggregate amount of such payments and benefits shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal reduced to the prior year’s bonus, if any, pro-rated; and
extent necessary to avoid the treatment of such payments as "parachute payments" (ivi) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is not deductible by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end under Section 280G of the TermInternal Revenue Code of 1986, in as amended (the case of such a termination"Code"), all unvested stock options and/or restricted stock granted and (ii) subject to you that are scheduled to vest during or at the end excise tax under Section 4999 of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination DateCode.
(b) In The Company acknowledges and agrees that the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not Executive shall be entitled to renew your employment at the end receive all of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following payments provided for herein regardless of any income which the Termination Date, (i) all earned but unpaid Base Salary through Executive may receive from other sources after the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection termination of his employment with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)Company.
(c) Nothing in this Paragraph 6 shall confer upon the Executive the right to continue in the employ of the Company or any of its subsidiaries or, subject to the terms hereof, shall affect any right which the Company may have to terminate the employment of the Executive. No benefit provided herein is intended or shall be deemed to be granted to the Executive in lieu of any benefits, rights or privileges to which the Executive may be entitled while he is an employee of the Company under any retirement, pension, insurance, hospitalization, stock option, stock purchase, incentive compensation or other plan of the Company which may now be in effect or which may hereafter be adopted, it being understood that the Executive shall have the same rights and privileges to participate in such plans as any other executive employee of the Company.
(d) In the event the Executive commences litigation to enforce his rights under this Paragraph 6 and prevails in such litigation, the Executive shall be entitled to recover his costs and expenses, including reasonable attorneys' fees.
(e) For the purposes of this Agreement, “Cause” "change in control" shall mean that you have:the acquisition, directly or indirectly, by any "person" or "group" of "persons" (as these terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934 and the rules thereunder) of beneficial ownership of securities of the Company or of securities of the Company's ultimate parent corporation, if any, representing 30% or more of the combined voting power of the then outstanding securities of such corporation.
Appears in 1 contract
Severance. (a) In the event your employment with that the Company Period of Employment is terminated either in accordance with Sections 8.a or 8.d hereof and Executive executes a waiver agreement with terms modeled on the General Waiver of Claims, attached hereto as Exhibit D (the "Waiver"), (i) on account of your death or Disability the Company shall continue Executive's then current base salary (so long as defined the then current base salary is no less than the compensation set out in Section 5(e4 of this Agreement) below), (ii) by the Company without Cause (as defined and COBRA premiums in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by accordance with the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser 's normal payroll procedures for a period of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”"Severance Period");
; (ii) to the extent practicable and legally permissible, the Company will transfer Executive's disability and life insurance policies to Executive upon termination; and (iii) You notwithstanding any vesting or termination provisions contained in Executive's applicable Stock Option Grants with the Company Executive's unvested Options shall also be paid a pro-rated annual bonusimmediately vest and Executive shall have two years from the date of Executive's termination of employment to exercise his vested options in accordance with the terms of the applicable Stock Option Agreements with the Company (collectively, "Severance"). In the event the then current base salary is less than the compensation set out in a lump sum by Section 4 of the CompanyAgreement, which Executive shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, entitled to severance calculated on the basis of the compensation set out in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) Section 4 of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination DateAgreement.
(b) In the event you (i) voluntarily terminate your employment for Notwithstanding any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes provision of this Agreement, “Cause” Release I or II, or the Waiver, at any time should Executive engage in or pursue any of the activities described in Section 7 (except where advance consent has been granted, or except where released from Section 7.a (iii) by virtue of a Termination by Company not for Cause or by virtue of a Termination by Executive for Good Reason) or should Executive not fulfill his obligations in Section 10 below, the Company's obligation to pay and Executive's entitlement to any Severance or Non-Renewal Benefits shall mean that you have:immediately and forever cease.
Appears in 1 contract
Samples: Executive Separation and Employment Agreement (Oxis International Inc)
Severance. (a) In Subject to the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined limitations set forth in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus13, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your Employee's employment is terminated by the Company for Subsidiary without Substantial Cause (as defined including, without limitation, upon termination of this Agreement following notice thereof by the Company or the Subsidiary pursuant to Section 3 hereof) or by the Employee for Good Reason, then, without further liability of the Subsidiary or the Company, except for their obligations pursuant to this Section 10(a) and their obligations to pay or provide any salary and expenses accrued to the termination date, any unpaid bonus referred to in Section 5(c4(b) below)hereof, any Closing Bonus (whether payable before or after such termination of employment) pursuant to Section 4(c) hereof, and such rights and benefits of participation of or in respect of the Employee under employee benefit plans, programs and arrangements of the Company, the Subsidiary and their Affiliates, in accordance with the terms and provisions of such plans, programs and arrangements, (i) the Employee shall be entitled to severance compensation for the Severance Period (as hereinafter defined) following any such termination, payable in equal monthly installments, subject to withholding and other applicable taxes, at an annual rate equal to the Employee's base salary for the year of termination, as such annual rate is increased from year to year in accordance with Section 4(a) hereof; (ii) as additional severance compensation following any such termination, the Employee shall be entitled to the bonus compensation referred to in Section 4(b) hereof for the Severance Period, payable as and when ordinarily determined for the applicable year, with a bonus not less than seventy-five percent (75%) of his rate of annual base salary in effect for the year of termination; (iii) the Company elects not Employee and the Employee's spouse and Dependent Children (as hereinafter defined) shall be entitled to renew your employment at medical and dental benefits as provided immediately prior to the end date of termination which shall continue for the Severance Period (which benefits shall be terminated sooner to the extent provided by another employer and shall be subject to coordination with Medicare payments in accordance with the terms of the Initial Term or an applicable Renewal Term, you benefit plan); (iv) the Employee shall be paidentitled to receive, as soon as practicable but no later than sixty (60during the Severance Period, the benefits described in Section 4(d) days following hereof and the Termination Dateautomobile and club membership rights and perquisites described in Section 4(e) hereof, (i) all earned but unpaid Base Salary through the Termination Date; (ii) PROVIDED, HOWEVER, if any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:benefit is
Appears in 1 contract
Severance. (a) In the event your the Executive's employment with the Company is terminated either (i) on account of your death or Disability (as defined set forth in Section 5(e) below), 5.4 (ii) by the Company without Cause (as defined other than for Cause) or in Section 5(c) below), or 5.5 (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60Executive for breach or Good Reason) days following the Termination Date, equal prior to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, then upon the Executive's execution of a legal release in a form equivalent to the reasonable standards for such a release that includes a final, complete and enforceable release of all claims that the Executive has or may have against the Company relating to or arising out of his employment and/or the termination thereof, the Company shall pay Executive the compensation and other benefits set forth in this Section 4.7 (collectively, the "Separation Benefits"). The cash portion of such compensation shall be paid in a lump sum, less legally required withholdings, within ten business days following the Separation Date. Executive shall have no obligation to mitigate in relation to the Separation Benefits, nor shall the Company be entitled to any offset in relation to the Separation Benefits arising from other Employment or business activities in which Executive may engage. The Separation Benefits shall consist of:
4.7.1 all Base Salary and accrued, unused vacation pay earned but unpaid through the Separation Date;
4.7.2 one year of Base Salary (at the rate applicable at the Separation Date); and
4.7.3 reimbursement of any outstanding travel or other out-of-pocket expenses incurred by Executive in doing business on behalf of the Company but unpaid through the Separation Date. The provisions of this Section 4.7 shall not apply in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at event the end of Executive's employment with the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment Company is terminated as set forth in Section 5.1 (retirement or death), Section 5.2 (disability), Section 5.3 (by the Company for Cause (as defined in Section 5(c) belowCause), or Section 5.6 (iii) by the Executive for other than breach or Good Reason). If Executive dies after the Company elects not terminates this Agreement other than for Cause or Executive terminates this Agreement for Good Reason but before all payments hereunder have been made, all remaining payments shall be made to renew your employment a single beneficiary designated on or about the Separation Date (and in the absence of such designation, in the manner provided by law at the end time of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreementhis death).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Severance. In lieu of any severance pay or severance benefits otherwise payable to the Employee under any plan, policy, program or arrangement of the Company or its subsidiaries, the following shall apply:
(a) In If there is a Termination (as herein defined) of the event your Employee’s employment with the Company is terminated either at any time prior to a “Change of Control” (as defined herein) without “Cause” (as defined herein), and (i) on account (X) such Termination occurs before the second anniversary of your death or Disability Employee’s employment with the Company, the Employee shall be entitled to receive a lump-sum severance payment equal to fifty percent (as defined in 50%) of his then current annual base salary and the term of his non-compete pursuant to Section 5(e5 of this Agreement shall be six (6) below)months, (iiY) by such Termination occurs after the Company without Cause second anniversary but prior to the fifth anniversary of Employee’s employment with the Company, the Employee shall be entitled to receive a lump-sum severance payment equal to seventy-five percent (as defined in 75%) of his then current annual base salary and the term of his non-compete pursuant to Section 5(c5 of this Agreement shall be nine (9) below)months, or (iiiZ) by you due to Constructive such Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive occurs after the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by fifth anniversary of Employee’s employment with the Company, which the Employee shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, entitled to receive a lump-sum severance payment equal to one hundred percent (100%) of his then current annual base salary and the lesser term of (1) his non-compete pursuant to Section 5 of this Agreement shall be twelve (12) months of your Base Salary or and (2ii) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You Employee shall also be paid a proentitled to accelerated stock option vesting, effective upon such Termination, with respect to twenty-rated annual bonusfive percent (25%) of the shares of Company common stock underlying each of the Employee’s then unvested outstanding stock options, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Dateother outstanding equity-based awards.
(b) In If there is a Termination of the event you Employee’s Employment with the Company following a Change of Control, the Employee shall be entitled to receive a lump-sum severance payment equal to (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, one hundred percent (100%) of his then current annual salary plus (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below)amount of his then current bonus target, or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through accelerated vesting with respect to one-hundred percent (100%) of the Termination Date (shares of Company common stock underlying each of the “Termination Payments”). In either such eventEmployee’s then unvested outstanding stock options, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 restricted stock and 10 of this Agreement)other outstanding equity-based awards.
(c) For The Employee, such Employee’s spouse and eligible dependents will continue to be provided with medical and dental benefits for the purposes twelve (12)-month period following such Employee’s Termination on the same basis as provided to active employees of this Agreementthe Company. Following such twelve (12)-month period, the Employee, such Employee’s spouse and eligible dependents will begin eligibility for continuation of medical and dental coverage in accordance with Section 4980B of the Internal Revenue Code of 1986, as amended (the “Cause” shall mean that you have:Code”).
Appears in 1 contract
Severance. (a) In the event your If Executive's employment with hereunder is terminated (1) upon a breach by the Company is terminated either of this Agreement; (i) on account of your death or Disability (as defined in Section 5(e) below), (ii2) by the Company without Cause for any reason other than for "Good Cause" (as defined in Section 5(cbelow) below), or (iii) by you due including a refusal to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive renew the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum Agreement by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (23) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as the occurrence of the Termination Datedeath or total disability of Executive (total disability meaning the failure of Executive to perform his normal required services hereunder for a period of three consecutive months during the term hereof by reason of Executive's mental or physical disability, as determined by an independent physician reasonably satisfactory to Executive and the Company) the Company shall pay to Executive as severance pay lump sum cash payments totaling the amount (in each case prorated for any portion of a year less than a full year) of his (i) Base Salary and (ii) Guaranteed Bonus for a Payment Period which is the longer of (x) the balance of the Term of this agreement and (y) twenty four months and (if applicable) (iii) the Supplemental Payment described in sub-paragraph (c) below. Payment of the Base Salary and Guaranteed Bonus components of such severance pay will be made within thirty (30) days of such termination.
(b) Executive shall have the option of receiving the Base Salary and Guaranteed Bonus components of severance pay specified in the preceding sub-paragraph in the form of equal continuation payments for 24 months (the "Severance Period"). In the event you that Executive elects to receive severance pay in the form of continuation payments, Executive shall continue to receive medical, dental and vision coverage for the Severance Period, subject to Executive’s payment of the costs of such benefits to the extent such benefits are paid for by active employees. For purposes of this Agreement, termination for "Good Cause" shall exist upon the occurrence of any of the following: (i) voluntarily terminate your employment for any reason other than Constructive Termination without CauseExecutive is convicted of, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below)pleads guilty to, confesses to, or (iii) the Company elects not to renew your employment at the end enters a plea of the Initial Term nolo contendere to, any felony or an applicable Renewal Termany crime that involves moral turpitude or any act of fraud, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Datemisappropriation or embezzlement; (ii) Executive has wilfully engaged in a fraudulent act to the damage or prejudice of the Company or any previously awarded and unpaid bonusaffiliate of the Company; and (iii) all unpaid reimbursable expenses incurred any act or omission by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation Executive involving malfeasance or liability to the Company gross negligence in connection with the performance of this agreement Executive's duties to the Company; or (except iv) Executive otherwise wilfully fails to comply in any material respect with the continuing obligations specified in Sections 7, 8 and 10 terms of this Agreement)Agreement or deviates in any material respect from any reasonable written policies or reasonable directives of the Board of Directors and, within 30 days after written notice from the Company of such failure or deviation, Executive has not corrected such failure.
(c) For If Executive is entitled to severance payments hereunder, the purposes Company shall pay Executive an additional amount (the "Supplemental Payment") equal to the product of A and B, where A is the Bonus that would have been paid to Executive under the terms of this AgreementAgreement for that fiscal year of the Company that includes Executive's date of termination (which shall be based on the Company's actual performance for that year), “Cause” and B is a fraction, the numerator of which is the number of months in the applicable Payment Period and the denominator of which is 12. The Supplemental Payment, if any, shall mean be made at the time the Company is required to pay Bonus for the fiscal year of the Company that you have:includes Executive's date of termination in accordance with the provisions for payment of Bonus in SECTION 5.
Appears in 1 contract
Samples: Employment Agreement (WRC Media Inc)
Severance. (a) In the event your employment with the Company is terminated either If (i) on account the Company terminates the employment of your death the Executive against his will and without Cause, or Disability (as defined ii) the Executive terminates his employment for Good Reason, then (A) Executive shall be entitled to receive salary, target incentive compensation and vacation accrued through the Termination Date plus the lesser of (x) 1 years' salary computed using the latest applicable salary rate, or (y) the balance of the Executive's compensation hereunder to the end of the term of this Agreement computed using the latest applicable salary rate, and (B) notwithstanding the vesting period provided for in the Company's Stock Option Plan and any related stock option agreements between the Company and the Executive for all stock options granted Executive by the Company pursuant to Section 5(e4 hereof or otherwise, all of such options shall be fully vested and exercisable upon such termination and shall remain exercisable for a period of one year from the date of termination. The Company shall make such termination payment within 30 days of such termination. Notwithstanding the foregoing, the Company shall not be required to pay any severance pay for any period following the Termination Date if the Executive materially violates the provisions of Section 15, Section 16 or Section 17 of this Agreement and such violation is not cured within thirty (30) below)days following receipt of written notice from the Company of such violation.
(b) If (i) the Executive voluntarily terminates his employment other than for Good Reason, (ii) by the Company without Cause (as defined in Section 5(c) below)Executive's employment is terminated due to death or Disability, or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment Executive is terminated by the Company for Cause (as defined in Section 5(c) below)Cause, or (iii) then the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you Executive shall be paidentitled to receive salary, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded accrued vacation and unpaid bonus; and (iii) all unpaid reimbursable reimbursement of expenses incurred by you pursuant ot Section 10 hereof through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)only.
(c) For In addition to the purposes provisions of Section 9(a) and 9(b) hereof, to the extent COBRA shall be applicable to the Company or as provided by law, the Executive shall be entitled to continuation of group health plan benefits for the periods provided by law following the Termination Date if the Executive makes the appropriate conversion and payments.
(d) The Executive acknowledges that, upon termination of his employment, he is entitled to no other compensation, severance or other benefits other than those specifically set forth in this Agreement, “Cause” shall mean that you have:.
Appears in 1 contract
Samples: Employment Agreement (Nastech Pharmaceutical Co Inc)
Severance. (a) In the event Subject to your employment with execution and non-revocation of a release of claims in favor of the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonusGroup, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause any reason other than for Cause, (as defined in Section 5(cx) below)if such termination occurs prior to the expiration of the Initial Term, or (iiiA) the Company elects not will pay you an amount equal to renew your employment at the end balance of any base salary that remains unpaid as of the date of termination that would have otherwise been payable in respect of the Initial Term or an applicable Term, which amount will be paid within 30 days following the date of termination and (B) any portion of the Initial Restricted Stock Grant that has been granted that remains unvested as of the date of termination will become fully vested as of the date of termination, (y) if such termination occurs during any Renewal Term, you shall be paidany portion of any Monthly Restricted Stock Grant that has been granted that remains unvested as of the date of termination will become fully vested as of the date of termination and (z) if such termination occurs at any time during the Term, subject to your timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as soon amended (“COBRA”), continued participation (pursuant to COBRA) in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan), which covers you (and your eligible dependents) at the same premium rate applicable to you as practicable but no of the date of termination until the later of (a) 12 months from date of termination or (b) December 31, 2024 (or, if earlier than sixty either of the foregoing prongs (60a) days following or (b), the Termination Datedate on which you obtain employment that offers group health benefits), provided, that that the Company may modify the continuation coverage contemplated by this Section 9(z) to the extent reasonably necessary to avoid the imposition of any excise taxes on the Company for failure to comply with the nondiscrimination requirements of Section 105(h) of the Internal Revenue Code of 1986, as amended; the Patient Protection and Affordable Care Act of 2010, as amended; and/or the Health Care and Education Reconciliation Act of 2010, as amended, and in each case, the regulations and guidance promulgated thereunder (to the extent applicable) (the entitlements under prongs (x), (iy) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iiiz) all unpaid reimbursable expenses incurred by you through the Termination Date (together, the “Termination PaymentsSeverance Benefit”). In either such eventconsideration for your opportunity to receive the Severance Benefit, you shall have no further obligation hereby acknowledge and agree that you are not eligible to participate in any other severance plans, programs policies or liability to practices of the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)Group.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Samples: Employment Agreement (E2open Parent Holdings, Inc.)
Severance. (aA) In the event your the Company terminates Employee’s employment pursuant to §6(A)(2) or §6(A)(4)(b), or Employee terminates his employment pursuant to§6(A)(3), and Employee provides the Company with a separate, written release (in a form provided by the Company and reasonably satisfactory to Employee and which shall comply with the requirements of the Older Workers Benefit Protection Act and applicable state and federal laws and regulations) which releases the Company from all claims arising from Employee’s employment with the Company is terminated either and the termination thereof, Employee shall receive:
(i1) on account Termination Compensation equal to 24 months of your death or Disability his Base Salary payable ratably over a 24 month period (as defined in Section 5(e) belowthe "Severance Period"), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid such payments will commence as soon as administratively practicable but not later than sixty after the effective date of the release in (60a) days following above and will be paid in accordance with the Company's general policies and procedures for payment of salaries to its executive personnel and subject to all applicable tax withholding requirements to which the Company is subject.
(2) A Termination Date, Bonus equal to 2 times the lesser target payment under the Bonus Plan for the calendar year in which Employee's termination occurs and payable at the time and in the form specified under the terms of the Bonus Plan.
(13) If the date upon which Employee is terminated (the "Date of Termination") is within twelve (12) months after a Change in Control, and provided that Employee either elects to have that Policy described in Employee Split Dollar Agreement assigned to Employee as specified in Section IX of your Base Salary the Split Dollar Agreement or Employee consents to the termination of Employee's rights under the Split Dollar Agreement, Employee will receive a payment (2the “Split Dollar Payment”) in one lump-sum, payable as soon as administratively practicable after the Base Salary payments remaining Date of Termination and otherwise in accordance with the terms of the Split Dollar Agreement, equal to the present value of the death benefit Employee would have received under the Split Dollar Agreement, determined as if Employee last day of work was Employee's Date of Termination, were then eligible to receive a retirement benefit under the early, normal, late, or disability retirement provisions of First Financial Bancorp Employees’ Pension Plan (whether or not this is actually the case), and died at age 75 when the Split Dollar Agreement was still in effect. For purposes of this Section 5, present value will be determined using a discount rate based upon the effective U.S. Treasury securities rate for the applicable discount period (the number reached by subtracting Employee age at Date of Termination from 75), not to exceed 10 years. Notwithstanding the prior two sentences, if Employee elects to receive an assignment of the policy under Section IX of the Split Dollar Agreement, the Split Dollar Payment shall be applied to the cash payment to the Company required under Section IX of the Split Dollar Agreement, and any portion of the Split Dollar Payment in excess of the amount required under Section IX shall be paid to Employee. The provisions of this Paragraph will apply whether or not Employee Split Dollar Agreement is terminated before Employee receives the Split Dollar Payment;
(4) This Agreement is intended to comply with Section 409A of the Internal Revenue Code and shall be considered and interpreted in accordance with such intent. Notwithstanding any other provision of this Agreement and Employee is a "specific employee" as defined by Internal Revenue Code Section 409A(a)(2)(B)(i), Employee's Termination Compensation, Termination Bonus any Additional Bonuses and any Split Dollar Payment (collectively the "Severance Benefits") under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also will be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1a) If termination any portion of Employee’s Severance Benefits that would otherwise be payable during the first six months following the Date of Termination will instead be paid in a lump sum as soon as administratively practicable after six months have elapsed following Employee's Date of Termination (the "Six-Month Anniversary"), and (b) the remainder of Employee's Severance Benefits will be paid in the Severance Period as otherwise provided in this Agreement, beginning as soon as administratively practicable after the Six-Month Anniversary.
(B) Provided Employee elects COBRA coverage, the Company shall pay the premiums for the first twelve months of coverage. Thereafter Employee will be responsible for paying COBRA premiums. Employee is responsible for his premium contribution.
(C) Employee shall be entitled to full executive outplacement assistance with an agency selected by the Company without Cause or with the fee paid by you for Constructive Termination without Cause or due the Company in an amount not to your Death or Disabilityexceed five percent (5%) of Employee's Base Salary.
(D) To the extent any of the expenses reimbursed to Employee under this Agreement are taxable to Employee, or to the extent that this Agreement provides for any direct payment by the Company elects to a third party where such payment is for a taxable benefit for the Employee, the following conditions apply: (i) Employee represents that his tax year is the calendar year and shall continue to be the calendar year until all reimbursements under this Agreement are made; (ii) the amount of expenses eligible for reimbursement during any one calendar year shall not affect the expenses eligible for reimbursement in any other calendar year; (iii) Employee shall present Company with invoices and/or other supporting documentation related to renew your employment at such expenses that are reasonably acceptable to Company and that are provided no later than six months after the end of the Term, calendar year in which they are incurred; (iv) reimbursements shall be made as soon as administratively feasible following the case receipt of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at documentation but in no event later than the end of the Initial Term shall vest as of calendar year following the Termination Datecalendar year in which the expense is incurred; orand (v) this right to reimbursement is not subject to liquidation or exchange for another benefit. These conditions also apply to any direct payments made by the Company to a third party where such payment is for a taxable benefit received by the Employee.
(2E) If termination is due Except as expressly provided in §7(A)-(D), above, Employee shall have no right to Cause receive any compensation or by you not other benefits under this Agreement as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance termination of this agreement (except his employment with the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)Company or for any period after such termination.
(cF) For Notwithstanding any other provision of this Agreement to the purposes contrary, the obligation of the Company to pay Severance Benefits otherwise payable following termination of Employee’s employment with the Company shall automatically and immediately terminate upon the breach by Employee of any of Employee’s duties or obligations under this Agreement, including without limitation those under §5.
(G) Notwithstanding anything in this Section 7 or any other provision in this Agreement to the contrary, as long as the Company is a participant in the Trouble Assets Relief Program (“CauseTARP”), during such time as the U. S. Treasury Department (“Treasury”) holds an equity or debt position in the Company, Employee agrees to modify the terms of this Agreement to comply with any executive compensation requirements of such Program, including (i) an agreement to relinquish to the Company any bonus or incentive compensation paid that is based on statements of earnings, gains, or other criteria that are later proven to be materially inaccurate; and (ii) a reduction, if necessary, in any compensation so as not to receive any “golden parachute” shall mean that you have:payments (based on the applicable Code provision). Executive also agrees to waive any claims he may have against the Company or Treasury as a result of any amendments to this Agreement required by TARP.
Appears in 1 contract
Samples: Employment Agreement (First Financial Bancorp /Oh/)
Severance. (a) In Notwithstanding anything to the contrary contained in --------- this Agreement, in the event your there has been no Change in Control and the Employee's employment with by the Company is terminated either for any reason other than (ix) on account of your for Cause or (y) upon the Employee's death or Disability (as defined in Section 5(e) below), (iiz) by the Employee without Good Reason, the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal pay to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in Employee an amount equal to the sum of (i) the Employee's annual base salary as in effect immediately prior year’s bonusto the termination and (ii) the average of the amounts paid as an annual bonus to the Employee with respect to the last three (3) fiscal years immediately preceding the termination. In the event of termination of the Executive pursuant to this provision, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement the Employee shall vest as follows:
continue to receive continued coverage for one (1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disabilityyear any then existing health, or the Company elects not to renew your employment at the end of the Termmedical, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) and disability insurance. In the event you that the terms of the above- referenced plans do not permit the continuation of Employee thereunder after termination of employment, the Company shall pay to the Employee amounts reasonably calculated to permit the Employee to obtain similar coverage outside of such plans. The severance payment provided for in this Section 14 (i) voluntarily terminate your employment for shall not apply in the event the Employee receives any reason other than Constructive Termination without Causepayment pursuant to Section 5 hereof, (ii) your employment is terminated shall be paid by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) notwithstanding any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes termination of this Agreement, “Cause” (iii) shall mean not be subject to the provisions of Section 5, including the Gross-Up Payment and the reduction in amount based upon obtaining other employment during the Mitigation Period, and (iv) shall be paid in lieu of any further salary payments or severance benefits to the Employee for periods subsequent to termination of employment with the Company."
3. The parties hereby ratify and confirm that you have:they continue to be bound by the terms and provisions of the Original Agreement which, except as expressly modified hereby, shall continue in full force and effect.
4. Any term used herein and not defined shall have the meaning ascribed to such term in the Original Agreement whether or not a Change in Control (which may be referenced in such definition) has occurred.
Appears in 1 contract
Severance. In no way limiting the Company’s policy of employment at will:
(a) In the event your If Employee’s employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due Employee with Good Reason prior to your Death or Disabilitythe Expiration Date (but not in connection with a Change of Control which is subject to Section 5(b)), or and provided that all of the following have occurred within 60 days following the termination of Employee’s employment with the Company: (i) Employee first signs and delivers to the Company elects not a Confidential Severance and Release Agreement in substantially the same form as that attached hereto as Exhibit B (the “Release Agreement”), (ii) any revocation right of the Employee under such Release Agreement shall have expired, and (iii) such Release Agreement shall have become effective (the date that all of the conditions set forth in (i), (ii) and (iii) above are met to renew your employment be referred to as the “Release Date”), Employee shall be entitled to receive:
(i) Severance compensation equal to two-thirds of his annual Base Salary and Target Bonus in effect for the year in which the Termination Date occurs, payable in eight monthly installments equal to one-eighth of such severance compensation, subject to required withholding, payable at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end each of the Initial Term shall vest as next eight (8) full calendar months following the first full calendar month following the Release Date;
(ii) Coverage at Company expense under the employee health insurance plan of the Termination Company for period of twenty-four months following the Release Date; , or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be if less, the maximum time period permitted to retain those stock options and/or restricted shares which have vested as of the Termination Dateunder COBRA.
(b) In If within 3 months before or six months after a Change of Control Employee’s employment with the event you Company is terminated (i) voluntarily terminate your employment for any reason other than Constructive Termination by the Company without Cause, Cause or (ii) your employment is terminated by Employee for any reason, Employee shall be entitled to receive severance compensation equal to the Company for Cause greater of (as defined in Section 5(cA) below), or (iii) the Company elects not to renew your employment at the end two-thirds of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid sum of his annual Base Salary through and Target Bonus in effect for the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through year in which the Termination Date occurs or (B) two-thirds of the sum of his annual Base Salary and Target Bonus in effect for the year in which the Termination Date occurs, annualized over the period from the Termination Date until the Expiration Date, which shall be payable immediately upon such termination. “Termination Payments”). In either such event, you Change of Control” shall have no further obligation or liability the meaning given to such term in the Company in connection with 2010 Long-Term Incentive Plan of the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)Company.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Severance. (aA) In the event your employment with Employee and the Company is terminated either (i) on account agree that his change in title, duties and responsibilities as of your death or Disability (as defined in May 12, 2006 would have constituted “a termination without cause for the convenience of the Company” for purposes of Section 5(e) below)4E of the Employment Agreement, (ii) but the Employee and the Company agree that the Employee will continue to be employed by the Company without Cause in the capacities set forth under Section 2 hereof at his present compensation until such time as the Employee gives the Company thirty (as defined in 30) days notice of termination. Upon such notice and termination, the severance obligations of Section 5(c) below)4E shall commence, or (iii) by you due except that the severance payment, to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also which Employee is otherwise entitled to be paid as a lump sum by payment under Section 4E of the CompanyEmployment Agreement, which shall instead be payable in equal monthly installments, on the first day of each month, over the then-remaining term of the Employment Agreement, as if employment were continuing thereunder. As is now currently provided in Section 4E of the Employment Agreement, the Company confirms that all medical, disability, and insurance benefits payable to Employee at the time of such termination shall continue to be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser Employee for the then-remaining term of (1) twelve (12) months the Employment Agreement as if employment were continuing thereunder. In addition, the Company shall continue to provide the Employee with his present automobile, together with payment of your Base Salary or (2) reimbursement for all related maintenance and operating expenses, over the Base Salary payments then-remaining under this Agreement (term of the “Post Termination Salary Payment”);Employment Agreement.
(iiiB) You shall also be paid a pro-rated annual bonus, in It is further agreed that all provisions of the Employment Agreement that reference a lump sum severance payment are hereby modified such that any severance benefit payable to Employee under the Employment Agreement for any reason shall instead be payable to Employee in equal monthly installments, on the first day of each month, over the then-remaining term of the Employment Agreement.
(C) As further consideration for the agreements and covenants of the Company to the Employee under this Amendment No. 2, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the CompanyEmployee, which as a condition of the receipt of the severance payments contemplated by Section 4E of the Employment Agreement, Employee agrees that he shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal deliver to the prior year’s bonusCompany an executed Agreement and General Release, if any, pro-rated; and
substantially in the form attached hereto as Appendix A (ivwith such changes therein or additions thereto as needed under then applicable law to give effect to its intent and purpose) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) within 21 days of this Agreement shall vest as follows:
(1) If termination is presentation thereof by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disabilitythe Employee, or and concurrently the Company elects not shall deliver to renew your employment at the end Employee an executed release of the Termclaims, substantially in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest form attached hereto as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:Appendix B.
Appears in 1 contract
Severance. (a) In Notwithstanding anything to the contrary contained --------- in this Agreement, in the event your there has been no Change in Control and the Employee's employment with by the Company is terminated either for any reason other than (ix) on account of your for Cause or (y) upon the Employee's death or Disability (as defined in Section 5(e) below), (iiz) by the Employee without Good Reason, the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal pay to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in Employee an amount equal to the sum of (i) the Employee's annual base salary as in effect immediately prior year’s bonusto the termination and (ii) the average of the amounts paid as an annual bonus to the Employee with respect to the last three (3) fiscal years immediately preceding the termination. In the event of termination of the Executive pursuant to this provision, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement the Employee shall vest as follows:
continue to receive continued coverage for one (1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disabilityyear under any then existing health, or the Company elects not to renew your employment at the end of the Termmedical, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) and disability insurance. In the event you that the terms of the above- referenced plans do not permit the continuation of Employee thereunder after termination of employment, the Company shall pay to the Employee amounts reasonably calculated to permit the Employee to obtain similar coverage outside of such plans. the severance payment provided for in this Section 14 (i) voluntarily terminate your employment for shall not apply in the event the Employee receives any reason other than Constructive Termination without Causepayment pursuant to Section 5 hereof, (ii) your employment is terminated shall be paid by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) notwithstanding any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes termination of this Agreement, “Cause” (iii) shall mean that you have:not be subject to the provisions of Section 5, including the Gross-Up Payment and the reduction in amount based upon obtaining other employment during the Mitigation Period, and (iv) shall be paid in lieu of any further salary payments or severance benefits to the Employee for periods subsequent to termination of employment with the Company."
Appears in 1 contract
Severance. (a) In If the event your employment with the Company Employment Period is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below)Cause, or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which Executive shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal entitled to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in receive an amount equal to his Base Salary at the prior year’s bonus, if any, pro-rated; and
times set forth in this Agreement for the remainder of the Term (iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) for purposes of this Agreement shall vest Section 5(a), the "Severance Period"), so long as follows:
(1) If termination is by Executive has not breached and does not breach the Company without Cause provisions of any of paragraphs 6, 7, 8, 9, 10 or by you for Constructive Termination without Cause 12 below during the time period therein or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Dateagreement referenced thereby.
(b) In If the event you Employment Period is terminated as a result of Executive's Disability, Executive and/or his estate or beneficiaries, as the case may be, shall be entitled to receive benefits under the Company's employee benefit programs as in effect on the date of such termination to the extent permitted thereunder and, in addition, shall be entitled to receive (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, an amount equal to Executive's Base Salary at the times set forth in this Agreement of the one-year period after the termination of the Employment Period and (ii) your the amount of any Annual Bonus otherwise payable to Executive pursuant to paragraph 3(b) above for the fiscal year in which Executive's employment is terminated, except that the amount of any such Annual Bonus otherwise payable pursuant to this paragraph 5(b) shall be pro rated on the basis of the number of days during such fiscal year that Executive was employed by the Company.
(c) If the Employment Period is terminated as a result of Executive's death, Executive and/or his estate or beneficiaries, as the case may be, shall be entitled to receive benefits under the Company's employee benefit programs as in effect on the date of as such termination to the extent permitted thereunder and, in addition, shall be entitled to receive the amount of any Annual Bonus otherwise payable to Executive pursuant to paragraph 3(b) above for the fiscal year in which Executive's employment is terminated, except that the amount of any such Annual Bonus otherwise payable pursuant to this paragraph 5(b) shall be pro rated on the basis of the number of days during such fiscal year that Executive was employed by the Company.
(d) If the Employment Period is terminated by the Company for Cause (as defined in Section 5(c) below)or if Executive resigns for any reason, or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you Executive shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid entitled to receive his Base Salary through the Termination Date; (ii) any previously awarded date of termination and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you Company shall have no further obligation or liability whatsoever to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)Executive.
(ce) For Except as otherwise expressly provided herein or as expressly required under Section 4980B of the purposes Internal Revenue Code of this Agreement1986, “Cause” as amended, all of Executive's rights to fringe benefits and bonuses hereunder shall mean that you have:cease upon termination of the Employment Period.
Appears in 1 contract
Severance. (A) In the event that (a) your employment terminates prior to the expiration of the Employment Period or (b) after the expiration of the Employment Period, if your employment continues as provided in Section 1, either you give notice of termination of employment to the Company or the Company gives you notice of termination of employment other than for cause (as defined above) or disability, and provided that (i) within thirty (30) days prior to the expiration of the Employment Period Nabi had not offered to renew this Agreement on terms no less favorable to you than the terms then in effect, and (ii) within ninety (90) days following the expiration of the Employment Period Nabi has not tendered to you a new employment agreement executed on behalf of Nabi and containing such no less favorable terms, you shall receive the benefits set forth in Sections 8B, 8C and 8D. In the event your employment with terminates pursuant to Section 7B (a), or as a result of your death, you shall receive the Company is terminated either benefit set forth in Section 8D. Notwithstanding the foregoing provisions of this Section 8A, in the event your employment terminates under circumstances that entitle you to receive compensation and other benefits pursuant to the September 1, 2005 Change of Control Severance Agreement between you and Nabi (the “Change of Control Severance Agreement”), you shall not receive the benefits set forth in Sections 8B, 8C and 8D.
(B) Based on the effective date of such termination and subject to the following provisions of this Section 8(B), Nabi will pay you severance pay as defined in (i) on account of your death or Disability (as defined in Section 5(e) below), and (ii) by below (“Severance Pay”) and maintain in effect such fringe benefits (including but not limited to medical and dental insurance, auto allowance, SERP contribution, disability and life insurance, financial planning services and reasonable social dues at a single club) are accorded to other similarly situated employees (to the Company without Cause (as defined in Section 5(cextent allowed under, and subject to the limitations of, applicable plans) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
for the following periods: (i) You if at the date of termination you shall have been employed by Nabi for less than twelve months, you shall receive Severance Pay equal to your monthly base salary as in effect at the Termination Payments time of such termination and benefit continuation for nine (as defined in Section 5(b9) below);
months and (ii) You if at the date of termination you shall also have been employed by Nabi for twelve months or more, you shall receive Severance Pay will be paid a lump sum by equal to your monthly base salary as in effect at the Company, which time of such termination and benefit continuation for eighteen (18) months. Severance Pay shall be paid as soon as practicable but not later than sixty made in equal bi-weekly installments. Xxxxxx Agreement April 29, 2006
(60C) days following The Company shall pay for executive outplacement services up to $18,000.00 by an organization selected by Nabi.
(D) Provided that at the Termination Datedate your employment terminates you shall have been employed by Nabi for a period of at least twelve months, equal to the lesser all of your non-vested stock options, restricted stock or similar incentive equity instruments (1“Options”) shall immediately vest. All such “Options” shall be exercisable for twelve (12) months of past your Base Salary or (2) the Base Salary payments remaining under this Agreement (the termination date, except that no “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which Options” shall be paid as soon as practicable but not later than sixty (60) days following such Termination Dateexercisable beyond the original “Option” expiration date. To the extent the terms of any “Options” are inconsistent with this Agreement, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) terms of this Agreement shall vest as follows:control.
(1E) If termination is by the Company without Cause All payments or by benefits to you for Constructive Termination without Cause under this Section 8 (other than payments or benefits already accrued and otherwise due to your Death under Nabi’s employee benefit plans or Disabilityprograms, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Causeyour death) will not be given unless you execute (and do not rescind) a written employment termination agreement in a form prescribed by Nabi, then you shall only be permitted containing terms consistent with this Agreement as well as a general release of all claims against Nabi and related parties with respect to retain those stock options and/or restricted shares which have vested as all matters occurring prior to or on the date of the Termination Daterelease, including (but not limited to) employment matters or matters in connection with your termination.
(bF) In It is the event intent of you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by and Nabi that the Company for Cause (as defined in provisions of this Section 5(c) below), or (iii) 8 and all amounts payable to you hereunder meet the Company elects not to renew your employment at the end requirements of Section 409A of the Initial Term or an Internal Revenue Code of 1986, as amended, to the extent applicable Renewal Termto this Agreement and such payments. Recognizing such intent and the lack of guidance currently available under Section 409A, you shall and Nabi agree to cooperate in good faith in preparing and executing, at such time as sufficient guidance is available under Section 409A and from time to time thereafter, such amendments to this Section 8 as may reasonably be paid, as soon as practicable but no later than sixty (60) days following necessary solely for the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance purpose of assuring that this agreement (except the continuing obligations specified in Sections 7, Section 8 and 10 all amounts payable to you hereunder meet the requirements of this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:Section 409A.
Appears in 1 contract
Severance. (a) In Subject to the event your restrictions set forth below in this Section 5(a), if Employee's employment with the Company Employer is terminated either (i) on account of your death or Disability (as defined in pursuant to Section 5(e) below4(d), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which Employee shall be paid entitled to receive as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary a severance benefit aggregate severance payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonusamount of the Employee's annual salary under this Employment Agreement at the time of termination multiplied by 2 [less any amount paid in lieu of termination notice under Section 4(d)] (the "Severance Payments"). The Severance Payments may be made by the Employer as semi-monthly salary continuation payments or as a lump sum payment within ninety (90) days after termination of Employee's employment with Employer, if anyas determined by the Employer in its sole and absolute discretion. Notwithstanding the foregoing, pro-rated; and
(iv) The Initial Option Employee shall not be entitled to receive any further Severance Payments, and any stock options and/or restricted stock previously granted under Sections 3(cright to such Severance Payments shall be forfeited, upon the occurrence of any of the following events: (i) and 3(d) the second anniversary of this Agreement shall vest as follows:
(1) If the Employee's date of termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disabilityfrom Employer, or (ii) the Company elects not to renew your employment at the end date of Employee's violation of the Termterms of Xxxxxxx 0, in the case of such a termination0, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date0 xx 00 xxxxxx.
(bx) In addition to the event you Severance Payments outlined in paragraph (a), if Employee's employment with Employer is terminated pursuant to Section 4(d), Employee shall be entitled to be reimbursed for the cost of COBRA health insurance continuation benefits until the earlier of (i) voluntarily terminate your employment for any reason other than Constructive Termination without Causeeighteen (18) months from the date of the Employee's termination with Employer, or (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end date of Employee's violation of the Initial Term terms of Section 7, 8, 9 or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”)10 hereof. In either such event, you shall have no further obligation or liability Employee's rights to the Company in connection with the performance foregoing health insurance benefits shall terminate as to any benefit for which he becomes eligible that provides substantially similar benefits on substantially similar terms through a program of this agreement a subsequent employer or otherwise (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreementsuch as through coverage obtained by Employee's spouse).
(c) For If Employee is entitled to severance benefits upon termination of employment under the purposes terms of a Key Employee Change in Control Agreement with the Employer, the Employee shall not be entitled to any severance benefits under this Agreement, “Cause” shall mean that you have:.
Appears in 1 contract
Samples: Employment Agreement (Integrity Inc)
Severance. (a) In the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below)that, (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without CauseRenewal Term, (ii1) your employment is terminated by the Company without Cause or as a result of the Company electing by written notice not to renew the term of this Agreement or (2) you voluntarily terminate your employment for Cause Good Reason, then (i) the Company shall pay you (a) an amount equal to two times the sum of (A) your then Annual Base Salary, (B) the average of the annual bonuses actually paid or payable to you with respect to the three completed fiscal years (beginning on May 1, 2016) preceding the date of your termination of employment (or such lesser number of completed fiscal years beginning on May 1, 2016 and ending on the date of your termination of employment) and (C) the aggregate annual dollar amount of the payments made or to be made to you or on your behalf for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above and (b) any bonus (as described in Section 3.2) for any fiscal year which has ended prior to the fiscal year in which the termination of your employment occurs that has been earned, but not yet paid as of the termination of your employment (such sum, the “Cash Severance Amount”) and (ii) any outstanding unvested equity awards or equity-based awards that vest solely based on your continued employment will vest as though you remained employed through any period you are required to be employed in order for the awards to be fully vested and, less, in each case, all applicable withholding and other applicable taxes and deductions (the “Equity Vesting”); provided that (x) you execute and deliver to the Company, and do not revoke, a release of all claims against the Company substantially in the form attached hereto as Exhibit A (“Release”) and (y) you have not materially breached as of the date of such termination any provisions of this Agreement. The Company’s obligation to pay the Cash Severance Amount and provide the Equity Vesting shall be cancelled upon the occurrence of any material breach of any provisions of this Agreement. In the event such payment has already been made or vesting has occurred, you shall promptly repay to the Company such cash payment and the value as of the vesting date of equity awards and equity-based awards that so vested, as applicable. The Cash Severance Amount shall be paid in cash in a single lump sum and the Equity Vesting shall be provided, in each case, on the later of (1) the first day of the month following the month in which such termination occurs and (2) the date the Revocation Period (as defined in Section 5(cthe Release) belowhas expired. Notwithstanding anything in this paragraph to the contrary, if a Release is not executed and delivered to the Company within 60 days of such termination of employment (or if such Release is revoked in accordance with its terms), the Cash Severance Amount shall not be paid and the Equity Vesting shall not be provided. Upon the termination of your employment hereunder for Cause or by your voluntary termination of your employment hereunder without Good Reason (iii) the Company elects or your termination of your employment as a result of your electing by written notice not to renew your employment at the end term of the Initial Term or an applicable Renewal Termthis Agreement), you shall be paidentitled only to the payment of (1) such installments of your Annual Base Salary that have been earned through the date of such expiration and/or termination and (2) any bonus (as described in Section 3.2) for any fiscal year which has ended prior to the fiscal year in which the termination of your employment occurs that has been earned but not yet paid as of the termination of your employment. Upon the termination of your employment hereunder by your death or Disability, you shall be entitled only to the payment of (1) such installments of your Annual Base Salary that have been earned through the date of such expiration and/or termination, (2) any bonus (as soon described in Section 3.2) for any fiscal year which has ended prior to the fiscal year in which your termination of employment occurs that has been earned but not yet paid as practicable but no later than sixty of the termination of your employment and (603) days as determined in the sole discretion of the Company and unless any applicable award agreement provides for more favorable terms, any outstanding unvested equity awards or equity-based awards shall vest on a pro-rata basis based on your last day of employment relative to the vesting period of the applicable award, and with respect to any performance-based awards subject to the determination of the applicable performance metrics.”
9. The first three sentences of Section 3.10(a) of the Letter Agreement shall be replaced in their entirety with the following: “If at any time during the Initial Term and any Renewal Term (1) there is a Change of Control (as defined below) and (2) your employment is terminated by the Company by non-renewal of this Agreement or without Cause or you voluntarily terminate your employment for Good Reason, in either case, within two years following the Termination DateChange of Control, then (i) all the Company shall pay you (a) an amount equal to three times the sum of (A) your then Annual Base Salary, (B) the average of the annual bonuses actually paid or payable to you with respect to the three completed fiscal years (beginning on May 1, 2016) preceding the date of your termination of employment (or such lesser number of completed fiscal years beginning on May 1, 2016 and ending on the date of your termination of employment) and (C) the aggregate annual dollar amount of the payments made or to be made to you or on your behalf for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above and (b) any bonus (as described in Section 3.2) for any fiscal year which has ended prior to the fiscal year in which your termination of employment occurs that has been earned but unpaid Base Salary through not yet paid as of the Termination Date; termination of your employment (such sum, the “CIC Cash Severance Amount”) and (ii) the Company will provide for the Equity Vesting less, in each case, all applicable withholding and other applicable taxes and deductions. The CIC Cash Severance Amount shall be paid to you in cash in a single lump sum within 30 days after the date your termination of employment and the Equity Vesting shall be provided immediately upon the termination of your employment.”
10. The first sentence of Section 4.1 of the Letter Agreement shall be replaced in its entirety with the following: “As consideration for the Company’s agreements hereunder (including the Company making you eligible for severance pursuant to Sections 3.9 and 3.10), you agree that during the Initial Term and any previously awarded Renewal Term and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through for a period of two years after the Termination Date (the “Termination Payments”). In either such eventtermination for any reason of your employment, you shall have no further obligation not, directly or liability indirectly, (a) employ or retain, or induce or cause any other person or entity to employ or retain, any person who is, or who at any time in the twelve-month period prior to such time had been, employed or retained by the Company or any of its subsidiaries or affiliates; or (b) provide services, whether as principal or as agent, officer, director, employee, consultant, shareholder, or otherwise, alone or in association with any other person, corporation or other entity, to any Competing Business (as defined below); provided, however, that you may provide services to a Competing Business (other than Xxxxxx.xxx, Inc. and its subsidiaries and affiliates and their respective successors (collectively, “Amazon”)) that is engaged in one or more businesses other than the Business Area (as defined below) but only to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean extent that you have:do not provide services, directly or indirectly, to the segment of such Competing Business that is engaged in the Business Area.”
Appears in 1 contract
Severance. (a) In Upon termination of Xx. Xxxxxx'x employment, all payment and benefit obligations of the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You Companies hereunder shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest immediately terminate except as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) A. In the event you of a termination of Xx. Xxxxxx'x employment due to his death or disability, Xx. Xxxxxx, or his estate shall (i) voluntarily terminate your employment continue to receive his Annual Base Salary and benefits (excluding the Specified Benefits) for any reason other than Constructive Termination without Causewhich Xx. Xxxxxx remains eligible under the terms of the Companies' benefit plans (collectively, (ii"Severance Compensation") your employment is terminated for a period commencing on the effective date of Xx. Xxxxxx'x termination determined by the Company for Cause Board (as defined in Section 5(cthe "Termination Date") below), or and ending six (iii6) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days months following the Termination Date, (ii) remain entitled to receive any Project Financing Bonus or Project Completion Bonus in accordance with Section VI.B. hereof and Xx. Xxxxxx'x Equity in accordance with Section VI.C. hereof; and
B. In the event of a Qualifying Termination (defined below) by the Company, Xx. Xxxxxx shall (i) all earned but unpaid Base Salary through receive Severance Compensation for a period commencing on the Termination Date and ending one year following the Termination Date; , and (ii) remain entitled to receive any previously awarded Project Financing Bonus or Project Completion Bonus in accordance with Section VI.B. hereof and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”)Xx. In either such event, you shall have no further obligation or liability to the Company Xxxxxx'x Equity in connection accordance with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) Section VI.C. hereof. For the purposes of this Agreement, “Cause” "Qualifying Termination" shall mean that you have:any termination of Xx. Xxxxxx by the Companies other than for "cause" or any termination by the Employee for "Good Reason". For purposes hereof, "cause" shall be defined as (i) conviction of a felony, other crime involving theft or fraud, or other crime of moral turpitude involving the Companies, and/or (ii) engaging in fraud or conduct with the intent of causing substantial harm to the Companies. In the event the Companies elect to terminate Xx. Xxxxxx'x employment for cause, such termination may be made effective immediately, and no advance notice shall be required.
Appears in 1 contract
Severance. (A) In the event that (a) your employment terminates pursuant to Section 7C or (b) after the expiration of the Employment Period, if your employment continues as provided in Section 1, either you give notice of termination of employment to the Company or the Company gives you notice of termination of employment other than for cause (as defined above) or disability, and provided that (i) within thirty (30) days prior to the expiration of the Employment Period Nabi had not offered to renew this Agreement on terms no less favorable to you than the terms then in effect, and (ii) within ninety (90) days following the expiration of the Employment Period Xxxx has not tendered to you a new employment agreement executed on behalf of Xxxx and containing such no less favorable terms, you shall receive the benefits set forth in Sections 8B, 8C and 8D. In the event your employment with the Company is terminated either terminates pursuant to Section 7B (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) belowa), or (iii) by as a result of your death, you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined benefit set forth in Section 5(b) below8D. Notwithstanding the foregoing provisions of this Section 8A, in the event your employment terminates under circumstances that entitle you to receive compensation and other benefits pursuant to the April 1, 2004 Change of Control Severance Agreement between you and Nabi (the “Change of Control Severance Agreement”);, you shall not receive the benefits set forth in Section 8B, 8C and 8D.
(iiB) You shall also be paid a lump sum by Based on the Companyeffective date of such termination, which Xxxx will continue to pay you your base salary as of the effective date of such termination (“Severance Pay”) and maintain in effect such fringe benefits (including auto allowance) as are accorded to other similarly situated employees (to the extent allowed under, and subject to the limitations of, applicable plans) for eighteen (18) months. Severance Pay shall be paid as soon as practicable but not later than sixty made in equal bi-weekly installments.
(60C) days following the Termination DateThe Company shall pay for executive outplacement services up to $18,000 by an organization selected by Xxxx in its sole discretion.
(D) All of your non-vested stock options, equal to the lesser of restricted stock or similar incentive equity instruments (1“Options”) shall immediately vest. All such “Options” shall be exercisable for twelve (12) months of past your Base Salary or (2) the Base Salary payments remaining under this Agreement (the termination date, except that no “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which Options” shall be paid as soon as practicable but not later than sixty (60) days following such Termination Dateexercisable beyond the original “Option” expiration date. To the extent the terms of any “Options” are inconsistent with this Agreement, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) terms of this Agreement shall vest as follows:control.
(1E) If termination is by the Company without Cause All payments or by benefits to you for Constructive Termination without Cause under this Section 8 (other than payments or benefits already accrued and otherwise due to your Death under Xxxx’s employee benefit plans or Disabilityprograms, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Causeyour death) will not be given unless you execute (and do not rescind) a written employment termination agreement in a form prescribed by Xxxx, then you shall only be permitted containing terms consistent with this Agreement as well as a general release of all claims against Xxxx and related parties with respect to retain those stock options and/or restricted shares which have vested as all matters occurring prior to or on the date of the Termination Date.
release, including (bbut not limited to) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), matters or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company matters in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)your termination.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Severance. (a) In the event If your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment WTAM for any reason other than Constructive Termination without your death, “Disability” (as defined below) or for “Cause” (as defined below), or if you resign from your employment for “Good Reason” (as defined below) (in any event an “Involuntary Termination”), then (i) WTAM will pay to you, within ten (10) business days following termination, all accrued but unpaid Base Salary and any discretionary bonus that has been awarded to you by the Board of Directors or Compensation Committee of WTI but not yet paid, and provided you enter into a fully effective Release Agreement in the form prescribed by the Company, (ii) WTAM will pay, in the manner set forth below, as severance to you (or in the case of your employment is terminated subsequent death, the legal representative of your estate or such other person or persons as you shall have designated by written notice to WTAM), an amount equal to sum of: (A) the annual Base Salary set forth in Paragraph 3; (B) the Guaranteed Minimum Bonus set forth in Paragraph 4; and (C) a pro rated Guaranteed Minimum Bonus for the year in which the termination occurred (collectively the “Severance Amount”), provided however and notwithstanding the foregoing, if the without Cause termination by the Company for Cause or the Good Reason resignation by you occurs during the Notice Period (as defined in Section 5(c) belowParagraph 6 above), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you Severance Amount shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred reduced by you through the Termination Date 50% (the “Termination PaymentsReduced Severance Amount”). In either such eventThe Severance Amount shall be paid out in substantially equal installments in accordance with the Company’s payroll practice over twelve months (or six months if the Reduced Severance is applicable) commencing within 60 days after the Date of Termination; provided, you however, that if the 60-day period begins in one calendar year and ends in a second calendar year, the Severance Amount (or the Reduced Severance Amount, if applicable) shall have no further obligation begin to be paid in the second calendar year, provided further, if the Involuntary Termination occurs within the 24 months of a Change in Control, as that term is defined in the Stock Option Agreements, the Severance Amount (or liability to the Reduced Severance Amount, if applicable) shall be paid in lump sum on the 60th day following the date of the Involuntary Termination in lieu of in installments but only if the Change in Control constitutes a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations promulgated thereunder. Solely for purposes of Section 409A of the Code, each installment payment is considered a separate payment. In addition, if you elect COBRA insurance coverage, WTAM directly will pay to you on a monthly basis 100% of the amount of such premiums for such insurance for a one-year period (or six months if the Reduced Severance Amount is applicable) following the effective date of your termination. Notwithstanding the foregoing, if you breach any of the provisions contained in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes Paragraph 6 of this Agreement, “Cause” all payments of the Severance Amount (or the Reduced Severance Amount, if applicable) and COBRA premiums shall mean that you have:immediately cease.
Appears in 1 contract
Samples: Employment Agreement (WisdomTree Investments, Inc.)
Severance. (a) In the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) If Employee’s employment is terminated by the Company without Cause (as defined in pursuant to Section 5(c4(c)(ii) belowor by the Employee pursuant to Section 4(d)(i), or (iii) the Company shall, subject to Employee’s and Company’s execution of a mutual general release by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive each of Employee and the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser Company of all claims and rights that (1) Employee may have against the Company and its officers, directors, and employees and (2) the Company may have against Employee, including but not limited to all claims and rights relating to Employee’s employment and/or termination, in a form substantially similar to that attached as Attachment A hereto (a “Release”), continue to pay Employee his then current Base Salary (the “Severance”) for a period of twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary PaymentSeverance Period”);. The Severance is expressly understood and agreed not to be salary or payroll compensation to an employee, but rather, severance to a former employee. Notwithstanding anything herein to the contrary, if Employee has breached a provision of Section 3 or 5 or materially breached a provision of Section 6 of this Agreement, and employee has failed to cure such breach within thirty (30) days of notice from the Company describing such breach in reasonable detail, then the Severance payments shall terminate forty-five (45) days after the Company provides such notice to Employee that the Company intends to terminate such payments because of such breach.
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1ii) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at this Agreement upon the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end expiration of the Initial Term shall vest as or upon the expiration of the Termination Date; or
(2second Renewal Term after the expiration of the Initial Term pursuant to Section 4(e) If termination is due to Cause or by you not as a result of Constructive Termination without Causeabove, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined shall provide Employee with Severance benefits on the terms set forth in Section 5(c4(f)(i) below), or (iii) above. If the Company elects not to renew your employment at this Agreement upon the end expiration of the third Renewal Term after the expiration of the Initial Term or an applicable any successive Renewal Term, you it shall be paid, as soon as practicable but under no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and obligation to provide Severance benefits hereunder.
(iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”If Employee terminates his employment pursuant to Section 4(d)(ii). In either such event, you Employee shall have receive no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)Severance benefits.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Samples: Employment Agreement (Biosante Pharmaceuticals Inc)
Severance. (a) In the event your that the Executive's employment with the Company hereunder is terminated either during the Term (i) on account of your death by the Corporation other than for Cause, or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause Executive for Good Reason (as defined in Section 5(chereinafter defined) belowpursuant to a Notice of Termination (as hereinafter defined), then the Corporation shall continue the Executive's participation (including participation by his spouse and other dependents) on the same basis as other senior officers in its medical and dental plans or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Companyarrangements, which plans and arrangements shall be paid not include any life insurance or disability plans or arrangements ("Medical and Dental Plans"), and the Corporation will continue to pay the costs of coverage of the Executive and his spouse and other dependents under the Medical and Dental Plans on the same basis as soon as practicable but not later than sixty (60) days following other active officers of the Termination DateCorporation covered under such Medical and Dental Plans, equal to for the lesser greater of (1) twelve (12) months or the remainder of your Base Salary the Term (the "Severance Period"; provided that if the Executive's employment hereunder is terminated during the Term (i) by the Corporation other than for Cause, or (2ii) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Executive for Good Reason pursuant to a Notice of Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of clause (i) or (ii), such termination occurs after a Change of Control, then the "Severance Period" shall be eighteen (18) months); provided, however, that if such continued participation in the Medical and Dental Plans is not possible under the terms thereof, the Corporation will provide the Executive with substantially identical benefits for the remainder of such period or an amount in cash equal to the cost to the Corporation for providing such benefits, paid in accordance with Section 10(e) of this Agreement. Notwithstanding the foregoing, the Corporation's obligations pursuant to the first sentence of this Section 10(a) shall cease and terminate in the event that the Executive is, or becomes, eligible for coverage under a medical plan of a successor employer or a spouse's employer. The Corporation shall also pay to the Executive severance payments in cash equal to the sum of (x) the amount of the Executive's then current base annual salary and (y) the Target Bonus for the fiscal year in which the termination occurs (or, if the Target Bonus for such fiscal year has not yet been established, the Target Bonus for the immediately preceding fiscal year), multiplied by the quotient obtained by dividing the number of days during the Severance Period, by three hundred sixty-five (365). In addition, the Executive shall be entitled to the payment of any accrued and unpaid salary (including accrued and unused vacation) through the date of termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end any accrued and unpaid bonuses in respect of prior fiscal years, any bonus, determined under Section 5, in respect of the Initial Term fiscal year in which the termination occurs, prorated through the date of termination. Further, the Executive shall vest be provided with outplacement assistance commensurate with the Executive's position with the Corporation during the Severance Period following the Executive's termination of employment. Except as set forth in Sections 2, 7(b), 8 and Section 10(a), 10(b)(iv) and 10(f) hereof, the Corporation shall have no further obligations under this Agreement in the event of the Termination Date; or
(2) If Executive's termination is due of employment under this Section 10. The Executive shall have the obligations provided under Section 12 hereof, to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted the extent applicable pursuant to retain those stock options and/or restricted shares which have vested as of the Termination Dateits terms.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes purpose of this Agreement, “Cause” "Good Reason" shall mean that you havethe occurrence, without the Executive's express written consent, of any of the following circumstances unless, in the case of paragraphs (i), (v), (vi) or (vii) below, such circumstances are fully corrected prior to the Date of Termination (as defined below) specified in the Notice of Termination (as defined below) given in respect thereof:
Appears in 1 contract
Samples: Employment Agreement (Factory Card & Party Outlet Corp)
Severance. If (a) In the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your Employee's employment is terminated by the Company for Cause (as defined in Section 5(c) below), without "cause" or (iiib) the Company elects does not agree to renew your employment at extend the end of Employment Term upon the Initial Term or an applicable Renewal Termexpiration thereof, you the Employee shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, entitled to (i) all earned but unpaid Base Salary through receive an amount equal to his total cash compensation (base salary plus bonus) for the Termination Date; year preceding the date of the Employee's termination or the date on which the Employment Term expires, as the case may be, such amount to be payable, at the Company's option, in a lump sum on the date of termination or the date on which the Employment Term expires, as the case may be, or ratably over the one year period following the date of termination or expiration (the "Severance Period") and (ii) any continue to receive the medical and dental health benefits referred to in Section 4(d) during the Severance Period; provided, however, if either such event occurs prior to the extension of the initial Employment Term, Employee shall be entitled to (i) $260,000, payable in a lump sum on the date of termination, (ii) the guaranteed bonus payments for 1997 and 1998 referred to in Section 4(b) to the extent not previously awarded and unpaid bonus; paid to Employee, payable in a lump sum on the date of termination, and (iii) all unpaid reimbursable expenses incurred continue to receive the medical and dental health benefits referred to in Section 4(d) during the Severance Period. If the Employee's employment is terminated by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company "for cause", the Employee shall not be entitled to severance compensation. The Employee covenants and agrees that he will not, during the one year period following the termination of the Employee's employment by the Company, within any jurisdiction or marketing area in connection which the Company or any of its Affiliates (as defined below) is doing business or is qualified to do business, directly or indirectly own, manage, operate, control, be employed by or participate in the ownership, management, operation or control of, or be connected in any manner with, any business of the type and character engaged in and competitive with that conducted by the Company or any of its Affiliates at the time of such termination; provided, however, that ownership of securities of 2% or less of any class of securities of a public company shall not be considered to be competition with the performance Company or any of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) its Affiliates. For the purposes of this AgreementSection 8, “Cause” the term "Affiliate" shall mean, with respect to the Company, any person or entity which, directly or indirectly, owns or is owned by, or is under common ownership with, the Company. The term "own" (including, with correlative meanings, "owned by" and "under common ownership with") shall mean that you have:the ownership of 50% or more of the voting securities (or their equivalent) of a particular entity.
Appears in 1 contract
Severance. (a) You shall be eligible for the severance benefits described in this Section 8.
a. In the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company terminates your employment without Cause (as defined in Section 5(c) belowbelow and other than due to your death or disability), or (iiiii) by you due to Constructive Termination without Cause terminate your employment for Good Reason (as defined below), and provided in Section 5(d) below):
either case of (i) You shall receive the Termination Payments or (ii) such termination or resignation constitutes a “separation from service” (as defined under Treasury Regulation Section 1.409A-1(h), without regard to any alternative definition thereunder, a “Separation from Service”) (such termination or resignation, an “Involuntary Termination”), then, in Section 5(b) addition to the Accrued Obligations, subject to your obligations below);
(ii) You shall also be paid a lump sum by the Company, which you shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, entitled to receive an amount equal to the lesser of (1) twelve (12) months of your Base Salary or then current base salary (2) ignoring any decrease in base salary that forms the Base Salary payments remaining under this Agreement basis for Good Reason), less all applicable withholdings and deductions, paid on the schedule described below (the “Post Termination Salary PaymentSeverance Pay”);.
b. The Severance Pay is conditional upon (iiii) You shall also be paid a pro-rated annual bonusyour continuing to comply with your obligations under your PIIA (as defined below); and (ii) your delivering to the Company an executed separation agreement and general release of claims in favor of the Company, in a lump sum by form attached hereto as EXHIBIT A, within the Companytime period set forth therein, which becomes effective in accordance with its terms, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date your Separation from Service (the “Termination PaymentsRelease”). In either such eventThe Severance Pay will be paid in equal installments on the Company’s regular payroll schedule over the period outlined above following the date of your Separation from Service; provided, you shall have however, that no further obligation or liability payments will be made prior to the sixtieth (60th) day following your Separation from Service. On the sixtieth (60th) day following your Separation from Service, the Company will pay you in connection a lump sum the amount of the Severance Pay that you would have received on or prior to such date under the original schedule but for the delay while waiting for the sixtieth (60th) day, with the performance balance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)Severance Pay being paid as originally scheduled.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Severance. (ai) In the event your of termination of Executive’s employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (iiA) by the Company without for reasons other than Cause (as defined in Section 5(c) below)or Executive’s death or disability, or (iiiB) by you due Executive for Good Reason, and provided Executive executes and does not revoke a release and settlement agreement (the “Release”) in a form acceptable to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which Executive shall be paid as soon as practicable but not later than sixty (60) days following the Termination Datereceive a severance benefit, equal subject to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Dateany applicable taxes and withholdings, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
one (1) If termination year’s base salary (the “Salary Benefit”) plus the average annual bonus awarded Executive over the previous two (2) years (the Bonus,”) and, together with the Salary Benefit, the “Severance Benefit”); provided however, if Executive is by terminated at any time during the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end first two years of the Term, the amount of the Bonus shall be equal to the average of her target bonuses for the first two years of her employment. Subject to Section 5(d)(ii) below, the Company shall pay the Salary Benefit, in monthly installments, on the fifth business day of each month commencing with the second month following the month in which Executive’s termination of employment occurred. The Company shall pay the Bonus in a lump sum payment within ninety (90) days of the date of termination of Executive’s employment (the “Termination Date”), but in no event later than March 15 of the year following the year in which such termination of employment occurred, or in the case event of such a terminationtermination pursuant to Section 5(e)(iv), all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end no later than March 15 of the Initial Term year following the year in which the Change of Control occurred. Executive shall vest also continue to be entitled to receive (i) the Medical Coverage Subsidy, and all Company other nontaxable employee benefits to which Executive was entitled as of the Termination Date; or
, subject to the terms of all applicable benefit plans and to the extent such benefits can be provided to non-employees (2) If termination is due or to Cause or by you the extent such benefits cannot as a result of Constructive Termination without Causebe provided to non-employees, then you shall only be permitted the amount the Company was paying for those benefits immediately prior to retain those stock options and/or restricted shares which have vested as of the Termination Date), at the same average level and on the same terms and conditions which applied immediately prior to the Termination Date, for the shorter of (i) one year following the date of such Termination Date or (ii) until Executive obtains comparable coverage from another employer (the “Continuing Benefits”).
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment Notwithstanding the foregoing, if Executive is terminated by on the Company for Cause termination date a “specified employee” (as defined in Section 5(c409A of the Internal Revenue Code, as amended (the “Code”) belowand the regulations promulgated under such Section 409A (“Code Section 409A”) and as determined in accordance with the permissible method then in use by the Company, or, if none, in accordance with the applicable default provisions of Code Section 409A, relating to “specified employees”), then if and to the extent required in order to avoid the imposition on Executive of any excise tax under Code Section 409A, the payment of any Severance Benefit, Continuing Benefits or (iii) the Company elects other payments under this Section 5 shall not to renew your employment at the end of the Initial Term or an applicable Renewal Termcommence until, you and shall be paidmade on, as soon as practicable but no later than sixty the first business day after the date that is six (606) days months following the Termination Date, (i) all earned but unpaid Base Salary through and in such event the initial payment shall include a catch-up amount covering amounts that would otherwise have been paid during the six-month period following the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Severance. If Executive’s employment is terminated for any reason whatsoever, then Executive shall be entitled to (ax) accrued and unpaid base salary and benefits (including sick pay, vacation pay and benefits under Section 6) with respect to the period prior to termination, (y) reimbursement for expenses under Section 5 with respect to such period, and (z) any other benefits (including COBRA) required by law to be provided after termination of employment under the circumstances. Except as may otherwise be expressly provided to the contrary in this Agreement, nothing in this Agreement shall be construed as requiring the Executive to be treated as employed by the Company for purposes of any employee benefit plan following the date of the termination of the Executive’s Term of Employment. In the event your Executive’s employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):pursuant to:
(i) You shall receive Sections 4(a)(i) [Death], or 4(a)(ii) [Disability] by the Termination Payments Company, 4(b)(i) [Death], 4(b)(ii) [Disability], 4(b)(iii) [Material Reduction] by the Executive, or 4(c) [Mutual Termination] by the Executive, the Company will also pay to Executive (as defined in Section 5(bor his estate or representative) below);the Executive’s Base Salary for a 12 month period following the actual date the Term of Employment is terminated; provided, however, if the termination of employment occurs after a Change of Control such payment will be the Executive’s Base Salary for a 24 month period; and
(ii) You shall also Section 4(a)(iii) [Cause or Material Breach] by the Company or 4(b)(iv) [Any or No Reason] by the Executive, there will be paid a lump sum no additional amounts owing by the Company to Executive under this Agreement from and after such termination; and
(iii) Section 4(a)(iv) [Any or No Reason] by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination DateCompany will pay to Executive the Executive’s base salary through December 31, equal to 2006, the lesser balance of (1) twelve (12) months the term of your Base Salary the original Agreement, or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid for a pro-rated annual bonus12 month period, in a lump sum by the Companywhichever is longer; provided, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonushowever, if anythe termination of employment occurs after a Change of Control such payment will be through December 31, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) 2006, the balance of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disabilityterm of the original Agreement, or the Company elects not to renew your employment at the end of the Termfor a 24 month period, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination whichever is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Datelonger.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Severance. (a) In If the event your Employee's employment with hereunder shall be terminated by the Company is terminated either (i) on account of your death for any reason other than for Cause or Disability (as defined in Section 5(e) below)it being expressly agreed that termination at the end of the term of this Agreement, (ii) by even if based on a notice not to extend the Company without Cause (as defined in Section 5(c) below)term of this Agreement pursuant to paragraph 1, or (iii) by you due to Constructive Termination without Cause (termination as defined in Section 5(d) below):
(i) You a result of the Employee's death shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also not be paid a lump sum deemed termination by the Company) or by the Employee for Reason, which the Employee shall thereupon be paid entitled to receive as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonusseverance pay, in a lump sum by the Companysum, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the product of: (A) three (or such lesser number as equals the remaining period of the term of this Agreement, rounded to the nearest tenth) and (B) the sum of the Employee's annual salary rate in effect immediately prior year’s bonusto his cessation of employment with the Company (or, if anygreater, prothe highest annual salary rate in effect at any time during the one-rated; and
year period preceding the date of such termination) and the most recent bonuses paid or payable in respect of the Company's most recent fiscal year ended prior to the date of such termination (ivor, if greater, the bonuses paid in respect of the Company's current fiscal year or next most recent fiscal year ended prior to the date of such termination). In addition, the Employee and his dependents shall continue to receive the benefits set forth in subparagraph 5(A) The Initial Option hereof, as well as any additional benefits as may be provided during the two-year period following the date of such termination to executive officers or their dependents during such period in accordance with the Company's policies and practices. Furthermore, any stock options and/or restricted stock previously option granted to the Employee which has not, by its express terms, vested shall be deemed to have vested on the date of such termination of employment, and shall thereafter be exercisable for the maximum period of time allowed for exercise thereof under Sections 3(c) and 3(d) the terms of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disabilitysuch option, or the Company elects not to renew your employment at the end of the Termassuming, in the case of such a termination, all unvested stock options and/or restricted stock granted to you the Employee's termination of employment for Reason that are scheduled to vest during or at the end of Employee's employment with the Initial Term shall vest as of Company had been terminated by the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Company other than for Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for Notwithstanding any reason other than Constructive Termination without Causeprovision of this paragraph 9, (ii) your employment if it is terminated by the Company for Cause (as defined in Section 5(c) below), determined that part or (iii) the Company elects not to renew your employment at the end all of the Initial Term compensation or an applicable Renewal Term, you shall benefits to be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability paid to the Company Employee under this Agreement in connection with the performance Employee's termination of employment, or under any other plan, arrangement or agreement, constitutes a "parachute payment" under section 280G(b)(2) of the Internal Revenue Code of 1986, as amended, then, the amount constituting a parachute payment, which would otherwise be payable to or for the benefit of the Employee, shall be reduced, but only to the extent necessary, so that such amount would not constitute a parachute payment. Any determination that a payment constitutes a parachute payment shall be made as promptly as practicable (but no more than 30 days) following the Employee's termination of employment by the independent public accountants that audited the Company's financial statements for the fiscal year preceding the year in which Employee's employment was terminated, whose determination shall be final and binding in all cases. Unless the Employee receives notice that a payment (or payments) will
constitute a parachute payment within 30 days of the date the Employee's employment terminates hereunder, no payment (or payments) shall be deemed to constitute a parachute payment. If the determination made pursuant to this agreement clause (except b) results in a reduction of the continuing obligations specified payments that would otherwise be paid to the Employee, the Employee may elect, in Sections 7his sole discretion, 8 which and how much of any particular entitlement shall be eliminated or reduced (giving effect to any payments and benefits that may have been received prior to such termination) and shall advise the Company in writing of his election within 10 days of the determination of the reduction in payments. If no such election is made by the Employee within such 10-day period, the Company shall determine which and how much of any entitlement shall be eliminated or reduced and shall notify the Employee promptly of such determination. Within 10 days following such determination and the elections hereunder, the Company shall pay to, or distribute to or for the benefit of, the Employee such amounts as are then due to the Employee under this Agreement and shall timely pay to, or distribute to or for the benefit of, the Employee in the future such amounts as become due to the Employee under this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Severance. Provided (ai) In the event your Executive executes and delivers to the Company, within twenty-one (21) days (or forty-five (45) days if such longer period is required under applicable law) after the Effective Date of Termination, a written release in substantially the form attached hereto as Exhibit B (the “Release”) and (ii) the Executive does not revoke such Release during any applicable revocation period, the Company shall cause the payments and benefits described in this Section 6 (the “Severance Payments”) to be made in connection with the termination of the Executive’s employment with the Company is terminated either during the Employment Term, unless such termination (i) on account of your death or Disability (as defined in Section 5(e) below)is by the Company for Cause, (ii) occurs by reason of the Company without Cause (as defined in Section 5(c) below), Executive’s death or Disability or (iii) is by you the Executive under circumstances that do not constitute a Resignation for Good Reason. Severance Payments due and payable to Constructive Termination without Cause (the Executive by the Company in accordance with this Section 6 shall be determined as defined in Section 5(d) below):follows:
(i) You In lieu of any further salary payments to the Executive for periods subsequent to the Effective Date of Termination, the Company shall receive cause cash severance payment to be made to the Termination Executive in an aggregate amount equal to two (2) times such Executive’s Annual Base Salary (the “Cash Severance Payments”). Such Cash Severance Payments shall be made in twenty-four (24) successive equal monthly installments on the fifteenth day of each month beginning with the fifteenth day of the first calendar month, within the sixty (60) day period following the date of the Executive’s Separation from Service by reason of such termination of employment, that is coincident with or next following the date on which the required Release first becomes effective following the expiration of all applicable revocation periods, but in no event shall such initial payment be made later than the last business day of such sixty (60)-day period on which the Release is so effective. Should the fifteenth day of any such calendar month not be a business day, then the payment for that month shall be made on the first business day thereafter. The monthly Cash Severance Payments to which Executive becomes entitled in accordance with this Section 6(c)(i) shall be treated as defined in a right to a series of separate payments for purposes of Section 5(b) below);409A of the Code.
(ii) You shall also be paid a lump sum by Provided the Executive and his spouse and eligible dependents elect to continue medical care coverage under the Company’s group health care plans pursuant to their COBRA rights, the Company shall reimburse the Executive for the costs the Executive incurs to obtain such continued coverage (collectively, the “Coverage Costs”), to the extent those Coverage Costs exceed the amount payable at that time by a similarly-situated active employee for the same level of coverage, until the earlier of (x) twenty-four (24) months after the Effective Date of Termination or (y) the first date on which the Executive is covered under another employer’s health benefit program without exclusion for any pre-existing medical condition. During the COBRA continuation period, such coverage shall be paid as soon as practicable but not later than obtained under the Company’s group health care plans. Following the completion of the COBRA continuation period, such coverage shall continue under the Company’s group health plans or one or more other plans providing equivalent coverage. In order to obtain reimbursement for the reimbursable portion of the Coverage Costs under the applicable plan or plans, the Executive must submit appropriate evidence to the Company of each periodic payment within sixty (60) days following after the Termination Daterequired payment date for those Coverage Costs, equal and the Company shall within thirty (30) days after such submission reimburse the Executive for the reimbursable portion of that payment. To the extent the Executive incurs any other medical care expenses reimbursable pursuant to the lesser coverage obtained hereunder, the Executive shall submit appropriate evidence of (1) twelve (12) months of your Base Salary or (2) each such expense to the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than plan administrator within sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option after incurrence of that expense and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end receive reimbursement of the Termdocumented expense within thirty (30) days after such submission or after any additional period that may be required to perfect the claim. During the period such medical care coverage remains in effect hereunder, the following provisions shall govern the arrangement: (a) the amount of Coverage Costs or other medical care expenses eligible for reimbursement in the case any one calendar year of such a termination, all unvested stock options and/or restricted stock granted coverage shall not affect the amount of Coverage Costs or other medical care expenses eligible for reimbursement in any other calendar year for which such reimbursement is to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Dateprovided hereunder; (ii) any previously awarded and unpaid bonusno Coverage Costs or other medical care expenses shall be reimbursed after the close of the calendar year following the calendar year in which those Coverage Costs or expenses were incurred; and (iii) all unpaid reimbursable the Executive’s right to the reimbursement of such Coverage Costs or other medical care expenses incurred cannot be liquidated or exchanged for any other benefit. To the extent the reimbursed Coverage Costs are treated as taxable income to the Executive, the Company shall report the reimbursement as taxable W-2 wages and collect the applicable withholding taxes, and the resulting tax liability shall be the Executive’s sole responsibility. As a condition to the foregoing medical care coverage, the Executive hereby agrees to provide prompt written notice to the Company of any medical care coverage to which he becomes entitled under another employer’s health benefit plan.
(iii) The Executive shall also be entitled to continued coverage, for a period of twenty-four (24) months following the Effective Date of Termination, under the Company’s employee group term life insurance and disability insurance plans at the level in effect for the Executive on the Effective Date of Termination. The Company shall, prior to the last day of each month during such twenty-four (24)-month period, pay to the applicable insurance companies the amount by you through which the aggregate premium required to provide Executive with such coverage for the month exceeds the monthly amount that a similarly-situated active employee is required to pay in order to obtain such coverage, as measured as of the Effective Date of Termination Date (the “Termination Monthly Benefit Payments”); provided, however, that the Company’s obligation to make such Monthly Benefit Payments shall cease in the event Executive fails to pay his portion of the aggregate monthly premium for such coverage. In either such event, you shall have no further obligation or liability Except to the Company in connection with the performance extent a later payment date is otherwise required pursuant to Section 6(h)(i) of this agreement Restated Agreement, the Company shall make the initial Monthly Benefit Payment on the earlier of (except A) the continuing obligations specified in Sections 7fifteenth day of the first calendar month, 8 within the sixty (60) day period following the date of the Executive’s Separation from Service, that is coincident with or next following the date on which the required Release first becomes effective following the expiration of all applicable revocation periods or (B) the last business day of such sixty (60)-day period on which the Release is so effective. Each Monthly Benefit Payment shall be treated as a right to a separate payment for purposes of Code Section 409A and 10 of shall constitute taxable income to Executive The Company shall collect the applicable withholding taxes from the Cash Severance Payments or any other amounts due Executive under this Restated Agreement).
(civ) For All unvested long-term incentive grants, if any, outstanding on the purposes Effective Date of this AgreementTermination shall immediately vest. To the extent any of the grants are stock options, “Cause” each of those options shall mean remain exercisable for the underlying shares of Common Stock until the expiration or sooner termination of that you have:option in accordance with the terms of the applicable stock option agreement. To the extent any of the grants are restricted stock unit awards, the shares of Common Stock underlying each such award shall be issued at the time or times specified in the applicable award agreement, subject to any required deferral pursuant to the provisions of Section 6(h)(i).
Appears in 1 contract
Samples: Employment Agreement (PharmaNet Development Group Inc)
Severance. In addition to all other amounts due hereunder, if Employer terminates, or is deemed to have terminated, Employee's employment other than for Cause pursuant to Section 4(b) or (a) In the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) belowc), or this Agreement expires and is not renewed by Employer, then Employer shall continue to pay to Employee, as severance, at his rate of Base Salary over the twenty-four (iii24) by you due month period following the date of such termination or expiration, or for the remaining term of this Agreement, whichever is longer; provided that if such termination, deemed termination or expiration occurs upon or after a Change in Control, then Employer shall instead pay to Constructive Termination without Cause Employee, as severance, an m amount equal to two and ninety-nine one-hundredths (as defined 2.99) times his Base Salary, which severance amount shall payable in equal installments over the aforesaid twenty-four (24) month period, in respect of which Employer shall, immediately upon such event, deposit a sum sufficient to discharge such installment payment obligation into a "rabbi trust" providing for the payment of such installments to Employee subject to the provisions of Section 5(d6(b) below):
(i) You shall receive provided that if a further Change in Control occurs after such termination, deemed termination or expiration, Employee shall, upon the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also occurrence thereof, be paid a entitled to an immediate lump sum payment of all installment amounts not theretofore received, with any shortfall in the amounts then remaining in the "rabbi trust" from the total accelerated installment payments then due Employee being paid by Employer), except that in the Companycase of a termination, which deemed termination or expiration occurring following a Hostile Change in Control, such severance amount shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, Employee in a lump sum by immediately upon the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case occurrence of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Dateevent .
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Samples: Employment Agreement (Telxon Corp)
Severance. (a) In Upon termination of the event your Employee’s employment with the Company is terminated either for any reason (including by reason of death or disability of the Employee) other than a termination by the Company for “Cause” or by the Employee without “Good Reason,” (i) the Employee shall be entitled to retain all vested portions of equity awards as provided for in the relevant plans and agreements pursuant to which such awards were granted; (ii) all equity awards theretofore granted to the Employee under the Company’s incentive plans shall immediately vest (and the restrictions thereon lapse) on account the day immediately prior to the date of your termination (except in the event of termination due to Employee’s death or Disability disability); (iii) the Company shall pay to the Employee all accrued or vested compensation, including salary and bonus through the date of termination; and (iv) the Company shall pay to the Employee (or his estate, as defined the case may be) a payment equal to EIGHT HUNDRED THOUSAND DOLLARS ($800,000.00) (less any required deductions or withholding) (the “Severance”). As a condition to receiving the Severance, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within forty-five (45) days following the date of termination. Subject to Section 17 hereof, the Severance will be paid one-half (1/2) within ten (10) days of the effective date of the Release Agreement (provided that the Release Agreement shall not have been revoked by the Employee prior thereto), and one-half (1/2) in Section 5(eequal payments over the six (6) below)month period following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates.
(b) For purposes of this Agreement, the Company shall have “Cause” to terminate the Employee’s employment hereunder (i) upon the Employee’s indictment or conviction for the commission of an act or acts constituting a felony under the laws of the United States or any State thereof, (ii) by upon the Company without Cause (as defined in Section 5(c) below)Employee’s commission of fraud, embezzlement or gross negligence, (iii) upon the Employee’s willful or continued failure to perform an act permitted by you due the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics (the “Code of Conduct”) that is within his material duties hereunder (other than by reason of physical or mental illness or disability) or directives of the CEO, Chairman or Board after written notice has been delivered to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum Employee by the Company, which shall be paid as soon as practicable but notice specifically identifies the manner in which the Employee has not later than sixty substantially performed his duties, and the Employee’s failure to substantially perform his duties is not cured within fifteen (6015) business days following the Termination Date, equal after notice of such failure has been given to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-ratedEmployee; and
(iv) The Initial Option and upon any stock options misrepresentation by the Employee of a material fact to or concealment by the Employee of a material fact from the Board, the CEO, the Chairman, and/or restricted stock previously granted under Sections 3(cthe general counsel of the Company; or (v) and 3(d) upon any material violation of the Company’s rules, policies or procedures, including without limitation, the Code of Conduct. For purposes of this Agreement Section 6(b), no act or failure to act on the Employee’s part shall vest as follows:
(1) If termination is be deemed “willful” unless done or omitted to be done, by the Company Employee not in good faith and without Cause or by you for Constructive Termination without Cause or due to your Death or Disabilityreasonable belief that the Employee’s act, or failure to act, was in the Company elects not to renew your employment at the end best interest of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)Company.
(c) For the purposes of this Agreement, the Employee shall have “CauseGood Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a material reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company or a substantial adverse alteration in the nature or status of the Employee’s responsibilities; (iv) a substantial diminution of the Employee’s responsibilities as the Chief Operating Officer of the Company; (v) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current New Jersey location or outside of the New York City metropolitan area; (vi) removal of the Employee from the position of Chief Operating Officer of the Company; (vii) the assignment of duties substantially inconsistent with the Company’s rules, policies or procedures, including without limitation, the Code of Conduct; or (viii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean that you have:and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, securities representing more than 50% of the voting power of all outstanding voting securities of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company (other than for purposes of reforming the entity in another entity or jurisdiction). Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee intends to terminate his employment, within ninety (90) days (fifteen (15) days in the event of Change in Control) of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective on the thirty-first (31st) business day following such notice from the Employee. If the Company terminates the Employee’s employment without Cause, the Company shall provide the Employee with at least ninety days’ written notice (which time may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause.
Appears in 1 contract
Samples: Employment Agreement (Idt Corp)
Severance. (a) In the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined In addition to the payments specified in Section 5(e) below5(b), (ii) if Employee’s employment is terminated by the Company without Cause (as defined in Section 5(c) below5(d)), or (iii) by you due to Constructive Termination without Cause Employee resigns for Good Reason (as defined in Section 5(d) below):)), then, subject to Section 5(c)(iii), the Company shall pay the following severance payments and benefits to Employee:
(iA) You The Company shall receive pay a severance payment in the aggregate to Employee equal to the greater of (1) $400,000 and (2) the sum of (x) Employee’s Base Salary as of the Termination Payments Date plus (y) the amount of the most recent Bonus earned by Employee prior to the Termination Date, in either case payable in installments over the one-year period commencing on the Termination Date in accordance with the Company’s customary payroll practices currently in effect; and
(B) all unvested Management Incentive Units issued to Employee under the Grant Agreement (or any unvested equity interests in the Company and/or PubCo issued in exchange for such Management Incentive Units in any recapitalization of the Company) then held by Employee shall become fully vested on such Termination Date. For the avoidance of doubt, this Section 5(c)(i)(B) does not apply to any other outstanding equity-based compensation awards then held by Employee, and those awards shall be governed solely by the applicable award agreement and related plan.
(ii) In addition to the payments specified in Section 5(b), if a Change in Control (as defined in Section 5(b5(d)) below);
occurs during the Employment Period, and either (iiA) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior yearEmployee’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for without Cause within six (as defined 6) months after the closing of the Change in Section 5(c) below)Control, or (B) Employee elects to resign from the Company for any reason within six (6) months after the closing of the Change in Control, then, subject to Section 5(c)(iii), the Company shall pay the severance payments and benefits described in Section 5(c)(i)(A) and (B).
(iii) The severance payments under Section 5(c)(i) or (ii) shall be paid to Employee if, and only if, Employee has executed and delivered to the Company elects not a general release of all claims in form and substance satisfactory to renew your employment at the end of Company (which shall apply to the Initial Term or an applicable Renewal TermCompany Group, you shall be paidits owners, as soon as practicable but no later than officers and employees and other related persons and affiliates) and the general release has become effective and non-revocable within sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through after the Termination Date (the “Termination PaymentsRequired Release Date”). In either The payments under Section 5(c)(i) or (ii) shall not commence until the first payroll date following the date that such eventgeneral release becomes effective and non-revocable (the “Release Effective Date”); provided, you however, that such first payment shall include all amounts that otherwise would have no further obligation or liability been paid prior to the Company date the first payment was made had such payments commenced immediately upon the Termination Date. Notwithstanding the preceding sentence, to the extent necessary to comply with Section 409A of the Code, if the Termination Date and Required Release Date are in connection with two separate calendar years, any payments of amounts under Section 5(c)(i) or (ii) that constitute deferred compensation within the performance meaning of this agreement Section 409A of the Code shall be payable on the later of (except A) the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of date such payment is otherwise payable under this Agreement, “or (B) the first payroll date in such second calendar year. In any event, if such general release is not effective and non-revocable by the Required Release Date, Employee shall forfeit all rights to receive the severance payments under Section 5(c)(i) or (ii). For the avoidance of doubt, (x) the severance payments under Section 5(c)(i) shall not be paid if Employee’s employment is terminated by reason of his death or disability, or his resignation without Good Reason, or if the Company terminates his employment for Cause” , and (y) the severance payments under Section 5(c)(ii) shall mean that you have:not be paid if Employee’s employment is terminated during the applicable period following a Change in Control by reason of his death or disability, or if the Company terminates his employment for Cause.
Appears in 1 contract
Severance. (a) In the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your Employee's employment is terminated by the Company without "cause," the Company does not agree to extend the Employment Term upon the expiration thereof, or Employee terminates his employment because the Company reduces his responsibilities or compensation in a manner which is tantamount to termination of Employee's employment, Employee shall be entitled to (i) receive an amount equal to his base salary for Cause the year preceding the date of the Employee's termination or the date on which the Employment Term expires, as the case may be, such amount to be payable, at the Company's option, in a lump sum on the date of termination or the date on which the Employment Term expires, as the case may be, or ratably over the one year period following the date of termination or expiration (the "Severance Period"), (ii) continue to receive the medical and dental health benefits referred to in Section 4(c) during the Severance Period, and (iii) reasonable outplacement services during the Severance Period provided by an outplacement firm designated by Employee; provided, however, if any such event occurs prior to the extension of the initial Employment Term, Employee shall be entitled to (i) $175,000, payable, in a lump sum on the date of termination, (ii) continue to receive the medical and dental health benefits referred to in Section 4(c) during the Severance Period, and (iii) reasonable outplacement services during the Severance Period provided by an outplacement firm designated by Employee.
(b) If, prior to September 14, 2000, there is a Sale of the Business (as defined in Section 5(c) below)2.4 of the Amended and Restated Stockholders Agreement dated as of February 16, or (iii) 1996 by and among the Company elects not to renew your employment at the end and various stockholders of the Initial Term Company) or an applicable Renewal TermTimothy G. Beffa no longer sxxxxx xx Xxxxx Xxxcutive Officer of the Company, you then Employee may elect to terminate his employment with the Company and he shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability entitled to the Company severance set forth in connection with Section 8(a) and relocation assistance to the performance of this agreement (except Washington D.C. metropolitan area, equivalent to the continuing obligations specified assistance set forth in Sections 7Section 5(b); provided, 8 and 10 of this Agreement).however, Employee may elect to relocate to an area other than Washington D.C., in which case such assistance shall be no greater than the assistance that would have been provided to relocate Employee to Washington D.C.
(c) If the Employee's employment is terminated by the Company "for cause", the Employee shall not be entitled to severance compensation.
(d) The Employee covenants and agrees that he will not, during the one year period following the termination of the Employee's employment by the Company, within any jurisdiction or marketing area in which the Company or any of its Affiliates (as defined below)is doing business or is qualified to do business, directly or indirectly own, manage, operate, control, be employed by or participate in the ownership, management, operation or control of, or be connected in any manner with, any business of the type and character engaged in and competitive with that conducted by the Company or any of its Affiliates at the time of such termination; provided, however, that ownership of securities of 2% or less of any class of securities of a public company shall not be considered to be competition with the Company or any of its Affiliates. For the purposes of this AgreementSection 8, “Cause” the term "Affiliate" shall mean, with respect to the Company, any person or entity which, directly or indirectly, owns or is owned by, or is under common ownership with, the Company. The term "own" (including, with correlative meanings, "owned by" and "under common ownership with") shall mean that you have:the ownership of 50% or more of the voting securities (or their equivalent) of a particular entity.
Appears in 1 contract
Samples: Employment Agreement (Accelerated Bureau of Collections Inc)
Severance. Upon termination of the Employee’s employment or expiration of the Employment Period the Employee shall be entitled to the following severance benefits:
(aA) In the event your employment The Employee shall be promptly paid (1) any earned but unpaid salary through his date of termination, and (2) all accrued and unused vacation, if any, and shall be promptly reimbursed for any expenses incurred in connection with the Company is terminated either business of the Company, for which he would otherwise be entitled to reimbursement in accordance with Section 3(c)(vii) of this Agreement.
(iB) The Employee shall receive any benefits that are payable under any benefit plans or programs based exclusively on account the terms and conditions set forth in such plans or programs, except to the extent expressly modified by this Agreement.
(C) If the termination of your death or Disability (as defined in Section 5(e) below)the Employment Period occurs by reason of the Employee’s death, (ii) by the Company without Cause (as defined in pursuant to Section 5(c)) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments Employee’s disability (as defined in Section 5(b)) belowor the Company’s non-extension of the Agreement (pursuant to Section 1(c);
(ii) You shall also be paid a lump sum ), or by the CompanyEmployee for Good Reason pursuant to Section 5(f), which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of Company shall:
(1) twelve continue to pay the Employee an amount equal to his then current Salary, subject to Section 3(c)(viii)(F) below, for a period eighteen (1218) months after the date of your Base Salary or such termination (2) the Base Salary payments remaining under this Agreement (such applicable period, the “Post Termination Salary PaymentSeverance Period”);
(iii2) You if the termination date occurs after January 1 of any year, but on or before the date of payment of the Performance Bonus in respect of the Company’s performance for the preceding fiscal year (the “Bonus Payment Date”), the Company shall also be paid a pro-rated annual bonuspay to the Employee the full amount of the Performance Bonus based on the performance goals for such preceding fiscal year, in a lump sum by the Companyamount and at the time set forth in Section 3(c)(ii), which above;
(3) if the termination date occurs after June 30 of any fiscal year, the Company shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal pay to the prior year’s bonusEmployee a prorated portion of the Performance Bonus, if any, pro-rated; to which the Employee would have been entitled based on the performance goals relating to the fiscal year in which such termination occurs, which Performance Bonus, if any, shall be (I) prorated based on the number of days in the fiscal year occurring prior to the date of termination divided by the actual number of days in such fiscal year and (II) otherwise calculated and paid following completion of such fiscal year in the amount, if any, and at the time set forth in Section 3(c)(ii), above, and
(iv4) The Initial Option pay the Employee’s applicable COBRA coverage premiums for the Employee and any stock options and/or restricted stock previously granted under Sections 3(chis dependents for the Severance Period. Sums paid to the Employee pursuant to this Section 3(c)(viii) are referred to herein as the “Severance Payment” and 3(d) of this Agreement shall vest as follows:
will be made minus applicable taxes and withholdings, and are contingent upon the Employee’s (1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Termor, in the case of the Employee’s death, the Employee’s legal representative’s) executing (and not revoking such signature) a termination, all unvested stock options and/or restricted stock granted Release Agreement that is reasonable in content (including a mutual non-disparagement clause) and is in a form mutually agreeable to you that are scheduled to vest during or at the end parties. None of the Initial Term Severance Payments shall vest as be considered in calculating pension or related benefits, if any.
(D) After termination of the Termination Date; or
(2Employee’s employment, the Company shall have no severance or other obligations to the Employee as an employee other than those set forth in this Section 3(c)(viii), Section 5(a) If termination is due and Section 5(b) or as required by applicable law. The Employee waives any rights to Cause receive any other severance benefits from the Company under any severance plan or by you not as a result of Constructive Termination without Cause, then you shall only be permitted arrangement in existence prior to retain those stock options and/or restricted shares which have vested as of the Termination Effective Date.
(bE) The Employee shall be under no obligation to seek other employment and there shall be no offset against any amounts due the Employee under this Agreement on account of any remuneration attributable to any subsequent employment that the Employee may obtain.
(F) In the event you the Employee violates his obligations under the agreements referred to in Section 7 of this Agreement and does not cure such violation within ten (i10) voluntarily terminate your employment for business days after receipt by the Employee of written notice from the Company specifying such violation, in addition to any reason other than Constructive Termination without Causeremedies available to the Company, (iiany amounts due under Section 3(c)(viii)(C) your employment is terminated shall immediately cease to be payable by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)Employee.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Samples: Employment Agreement (Republic Companies Group, Inc.)
Severance. (a) In Subject to Employee's execution of a Release of Claims pursuant to Section 6 of this Agreement, if, during the event your employment with Term, the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below)terminates Employee's employment without Cause, (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid pay Employee a lump sum by amount equal to twelve (12) months of Employee's Base Salary at the Companyaverage rate in effect over the term of this agreement (the "Severance Payment"). If Employee becomes entitled to the Severance Payment, which the Company shall be paid pay the Severance Payment to Employee as soon as administratively practicable following the date on which the Release of Claims (described in Section 6 of this Agreement) becomes effective and irrevocable, but not in no event later than sixty sixty-five (6065) days following the date on which Employee's Termination Date, equal of Employment occurs. In addition to the lesser Severance Payment, if Employee is enrolled in the Company's medical insurance plan on the date of termination and provided that Employee is entitled to continue such participation under applicable law and plan terms, the Company shall reimburse the cost of Employee's and his eligible dependents' participation in such plan pursuant to any rights he (or his dependents) may have under COBRA (the "COBRA Reimbursements") until the earlier of (1a) twelve (12) months from the date of your Base Salary Employee's Termination of Employment; or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment date Employee becomes eligible for similar benefits from a subsequent employer. Notwithstanding any reason other than Constructive Termination without Causeprovision in this Agreement to the contrary, (ii) your employment is terminated by the Company for Cause if, as of Employee's "separation from service" (as defined in Section 5(c) below409A), Employee is a "specified employee" (within the meaning of Section 409A) and if any payment, reimbursement and/or in-kind benefit that constitutes nonqualified deferred compensation (within the meaning of Section 409A) is deemed to be triggered by Employee's separation from service, then, to the extent one or more exceptions to Section 409A are inapplicable, all payments, reimbursements, and in-kind benefits that constitute nonqualified deferred compensation (iiiwithin the meaning of Section 409A) to Employee shall not be paid or provided to Employee during the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Termsix-month period following Employee's separation from service, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, and (i) all earned but unpaid Base Salary through such postponed payment and/or reimbursement/in-kind amounts shall be paid to Employee in a lump sum within thirty (30) days after the Termination Datedate that is six (6) months following Employee's separation from service; and (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through amounts payable to Employee after the Termination Date (the “Termination Payments”). In either expiration of such event, you six-month period shall have no further obligation or liability continue to the Company be paid to Employee in connection accordance with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 terms of this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Samples: Employment Agreement (Hickok Inc)
Severance. (a) In the event your employment with the Company is terminated either Except in situations where (i) on account the employment of your death Executive is terminated For Cause, By Death or By Disability (each as defined in Section 5(e4 below) below), or (ii) by the Company without Cause Executive terminates his employment (other than for Good Reason (as defined in Section 5(c) below)), in the event that (A) the Company terminates the employment of Executive at any time prior to the end of the Term or (iiiB) by you due Executive terminates his employment for Good Reason at any time prior to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in then (I) Executive will be eligible to receive an amount equal to (y) that portion of the case of then-current Base Salary that would be payable to Executive from such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at termination date through the end of the Initial Term shall vest as Term, plus (z) that percentage of the Termination Date; or
Target Bonus that would be payable to Executive from such termination date through the end of the Term assuming Executive would receive the applicable percentage of the Target Bonus, on an annual basis, equal to the average percentage of the Target Bonus actually paid to Executive during the Term, in each case payable in cash and in accordance with the Company’s payroll practices for the remainder of the Term, and (2II) If termination vesting for all then outstanding incentive awards (including, without limitation, stock options and restricted stock awards) issued by the Company to Executive shall fully accelerate such that such incentive awards shall become fully vested. For purposes of clarity, the Company shall pay to Executive the cash value of any portion of the bonus payable under Section 3(b)(II) that the Company would issue in the form of equity. Executive’s eligibility for the benefits described above in Section 3(b)(I) and (b)(II) (the “Severance Benefits”) is due conditioned on Executive having first signed a release agreement in the form attached as Exhibit A. Executive shall not be entitled to Cause or by you not as a result of Constructive Termination without the Severance Benefits if Executive’s employment is terminated For Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your By Death or By Disability or if Executive’s employment is terminated by the Company Executive (other than for Cause (as defined in Section 5(c) belowGood Reason), or (iii) upon the Company elects not to renew your employment at the end expiration of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of this Agreement, Executive shall have “CauseGood Reason” shall mean to terminate his employment and receive the Severance Benefits if one or more of the following occurs: (A) the Company reduces Executive’s Base Salary below Three Hundred Seventy-One Thousand Five Hundred Twenty Dollars ($371,520) per year; (B) the Company reduces Executive’s Target Bonus below Two Hundred Twenty-Seven Thousand Four Hundred Dollars ($227,400) per year (reflecting the cash and equity components); (C) the Company requires Executive to regularly work in an office; (D) a material diminution in Executive’s authority, responsibilities or duties as Executive Chairman of the Board; or (E) a change in the reporting structure so that you have:Executive does not report solely and directly to the Boards.
Appears in 1 contract
Samples: Executive Employment Agreement (Research Solutions, Inc.)
Severance. (a) In the event your employment with The Employee shall be entitled to receive a cash severance payment from the Company is terminated either (ithe “Severance Payment”) on account if within the first 18 month period after the occurrence of your death or Disability (as defined a Change in Section 5(e) below)Control, (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):either:
(i) You shall receive The Employee resigns his or her employment for Good Reason within ninety-one (91) days after the Termination Payments (as defined Employee becomes aware of the occurrence of an event specified in Section 5(b) below1(e);; or
(ii) You shall also be paid a lump sum by The Company terminates the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior yearEmployee’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Just Cause, death or Total Disability. The occurrence of either Section 2(a)(i) or 2(a)(ii) is a “Qualifying Termination”. For all purposes under this Agreement, the amount of the Severance Payment shall be equal to three times the sum of the Employee’s annual base salary and annual target bonus, as in effect on the date of the termination of the Employee’s employment (iior if the Employee’s salary or annual target bonus, were greater, on the date of the Announcement). The Severance Payment shall be made to the Employee in a single lump sum cash payment not later than fifteen (15) your business days following the date that the Employee becomes entitled to a Severance Payment. In the event of a Qualifying Termination and notwithstanding anything to the contrary herein or in the Employment Agreement, Employee may elect to receive either (x) the Severance Payment under this Section 2(a) or (y) the cash severance under Item 8(a) of the Employment Agreement, but not both. Employee must provide his written election to the Company within seven (7) business days following termination of his employment and if no such written election is terminated timely received by the Company for Cause (as defined in then the Severance Payment under this Section 5(c2(a) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred deemed to have been elected by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)Employee.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Samples: Change in Control Severance Agreement (Icos Corp / De)
Severance. (a) In the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest Effective as of the Termination Closing Date; or
(2) If termination is due , Buyer shall have in effect a severance plan covering Continued Non-Union Employees that contains terms identical in all material respects to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested under Seller's Severance Pay Plan for Management Employees as of the Termination Closing Date.
(b) Buyer shall, subject to any applicable laws, provide a special separation allowance for any Continued Employee whose employment with Buyer is terminated involuntarily by Buyer other than for cause on or prior to, in the case of Continued Non-Union Employees, three years after the Closing Date and, in the case of Continued Union Employees, the expiration date of the Collective Bargaining Agreement. Such allowance shall be not less than the sum of four weeks pay plus one week pay for each completed year of service (as determined by aggregating each affected individual's respective service with Seller and Buyer) and shall be payable by Buyer (to the extent not paid pursuant to any Buyer severance plan referenced in Section 9.08(a)) in a lump sum within 30 days after termination of employment. In addition, in the event you case of each Continued Non-Union Employee described in the first sentence of this Section 9.08(b), Buyer shall pay (to the extent not paid pursuant to any Buyer severance plan referenced in Section 9.08(a)) the Continued Non-Union Employee a lump sum equal to the excess of (i) voluntarily terminate your the actuarial equivalent of the Employee's "potential benefit" under the applicable Buyer's Pension Plans, which such Employee would receive if such Employee's employment continued until three years after the Closing Date and such Employee's base and incentive compensation for any reason other than Constructive Termination without Causesuch deemed additional period was the same as in effect on the date of such Employee's termination of employment with Buyer, over (ii) the actuarial equivalent of such Employee's "actual benefit" under the applicable Buyer's Pension Plans, as of the date of such Employee's termination of employment from Buyer. For the purpose of the foregoing sentence, (i) the term "potential benefit" shall refer to the monthly pension that would have been payable to the applicable Employee commencing on the first day of the month following the latest of (A) the last day of the deemed additional period, (B) Employee's attainment of age 55, or (C) the earlier of (l) the first date as of which the sum of such Employee's age and years of service, as taken into account in determining the actuarial reduction for commencement prior to normal retirement age that is to be applied to his accrued benefit under the applicable Buyer's Pension Plans, equals 75 or (2) such Employee's attainment of age 65, (ii) your employment is terminated by the Company for Cause term "actual benefit" shall refer to the monthly pension payable to such Employee under the applicable Buyer's Pension Plans commencing as of the date determined in accordance with clause (as defined in Section 5(ci) below)of this sentence, or and (iii) the Company elects not actuarial equivalent of the "potential benefit" and the "actual benefit" shall each be a lump sum payable as of the date of such Employee's termination of employment from Buyer, determined on the basis of the interest rate used to renew your employment determine the amount of lump sum distributions and, to the extent applicable, other actuarial assumptions then in effect under the applicable Buyer's Pension Plans. Buyer shall also provide outplacement services to such terminated Continued Non-Union Employee appropriate to the level of the Employee's position and job responsibilities. Buyer shall also continue to provide or cause to be provided to any such terminated Continued Employee health insurance coverage and group term and universal life insurance coverage at the end same rates as for active Continued Employees for a period equal to the number of weeks of separation allowance which any such terminated Continued Employee is entitled to from Buyer. Buyer shall have the right to require a release in form reasonably satisfactory to Buyer as a condition for eligibility to receive such separation allowance. The allowance shall not apply to Continued Employees whose employment is terminated due to death or expiration of sick allowance or other authorized leave of absence or who terminate employment voluntarily. If at any time during the three-year period following the Closing Date, Buyer shall assign a Continued Non-Union Employee to work on a regular basis at a location that is more than fifty miles from the location to which such Employee is assigned as of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Closing Date, (iBuyer shall offer such Employee the option to terminate employment and receive the severance benefits set forth in this Section 9.08(b) all earned but unpaid Base Salary through in lieu of the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)reassignment.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Samples: Asset Purchase Agreement (Consolidated Edison Co of New York Inc)
Severance. (a) In the event your employment with If the Company is terminated either (i) on account terminates Xxxxxxxx'x employment other than for Cause pursuant to Section 1.3(d), and other than by reason of your death or Disability (as defined in pursuant to Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below)3.8, or if Xxxxxxxx resigns within ten (iii10) by you due days following a material diminution in his title within six (6) months following a Change of Control, then subject to Constructive Termination without Cause (as defined Xxxxxxxx'x continuing obligations under Sections 2.4 and 2.5 and in Section 5(d) below):
(i) You shall receive consideration of the Termination Payments (as defined execution, delivery and effectiveness of a general release of claims in Section 5(b) below);
(ii) You shall also be paid a lump sum standard form approved by the Company, the Company shall pay to Xxxxxxxx a lump sum of two (2) times Xxxxxxxx'x current Base Salary in cash within fifteen (15) days after the date of termination (or, if later, upon the effectiveness of the general release following any applicable revocation period) and shall vest 100% of Xxxxxxxx'x then remaining unvested options granted in accordance with this Agreement, in addition to other amounts payable from qualified plans, nonqualified retirement plans, and deferred compensation plans, which amounts shall be paid as soon as practicable but not later than sixty (60) days following in accordance with the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case terms of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Dateplans.
(b) In the event you If Xxxxxxxx resigns within ten (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (6010) days following a material diminution in his title by the Termination DateBoard of Directors of the Company, other than in connection with a termination of his employment for Cause or as a result of death or Disability pursuant to Section 3.8, then subject to Xxxxxxxx'x continuing obligations under Sections 2.4 and 2.5 and in consideration of the execution, delivery and effectiveness of a general release of claims in a standard form approved by the Company, the Company shall vest 50% of Xxxxxxxx'x then remaining unvested options granted in accordance with this Agreement, and Xxxxxxxx'x entitlement to other amounts payable from qualified plans, nonqualified retirement plans, and deferred compensation plans shall be determined in accordance with the terms of such plans.
(ic) all earned but If the Company terminates Xxxxxxxx'x employment for Cause, or if Xxxxxxxx resigns (other than pursuant to Section 3.9(b) above), then Xxxxxxxx shall only be entitled to be paid his accrued, unpaid Base Salary through the Termination Date; (ii) any previously awarded effective date of his termination of employment and unpaid bonus; his entitlement to other amounts payable from qualified plans, nonqualified retirement plans, and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you deferred compensation plans shall have no further obligation or liability to the Company be determined in connection accordance with the performance terms of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)such plans.
(cd) For the purposes No severance benefits shall be provided pursuant to Sections 3.9(a) or (b) if Xxxxxxxx'x employment is terminated by reason of expiration or non-renewal of this Agreement, “Cause” shall mean that you have:Agreement for any reason.
Appears in 1 contract
Severance. (a) In If, within twelve months after a Change in Control, as defined in Section 11(b), the event your Employer terminates or Constructively Terminates Employee's employment other than in accordance with Section 10,
(b) the Company amount of Employee's severance pay will be 200% of his base salary at the rate in effect at the time of his termination or Constructive Termination, plus 200% of the amount of any full year bonus awarded to Employee in the prior year (or the maximum target bonus if no bonus was awarded in the prior year). If Employee's employment is terminated either subject to this paragraph, the Employer will provide the Employee and his family health insurance coverage, including, if applicable, COBRA reimbursement, and will provide Employee disability insurance coverage under the applicable Employer plans and all other executive benefits then in effect for a period of 12 months following termination or until Employee starts other full time employment, whichever is earlier.
(c) A Change in Control of the Employer shall occur upon the happening of the earliest to occur of the following:
1. Any "person" as such term is used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (other than (i) on account the Employer, (ii) any trustee or other fiduciary holding securities under an employee benefit plan of your death the Employer, (iii) any corporations owned, directly or Disability indirectly, by the stockholders of the Employer in substantially the same proportions as their ownership of stock, (iv) Xxxxxxx Xxxxxx, his wife, their lineal descendants and their spouses (so long as they remain spouses) and the estate of any of the foregoing persons, and any partnership, trust, corporation or other entity to the extent shares of common stock (or their equivalent) are considered to be beneficially owned by any of the persons or estates referred to in the foregoing provisions of this subsection 11(b) or any transferee thereof, or (v) the Baron Entities, unless such entities, in the aggregate, beneficially own more than 19,715,000 shares of the Employer's common stock) becomes the "beneficial owner" (as defined in Section 5(e) belowRule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Employer representing 33% or more of the combined voting power of the Employer's then outstanding voting securities;
2. Individuals constituting the Board on the Effective Date and the successors of such individuals (ii"Continuing Directors") cease to constitute a majority of the Board. For this purpose, a director shall be a successor if and only if he or she was nominated by a Board (or a Nominating Committee thereof) on which individuals constituting the Board on the Effective Date and their successors (determined by prior application of this sentence) constituted a majority.
3. The stockholders of the Employer approve a plan of merger or consolidation ("Combination") with any other corporation or legal person, other than a Combination which would result in stockholders of the Employer immediately prior to the Combination owning, immediately thereafter, more than sixty-five percent (65%) of the combined voting power of either the surviving entity or the entity owning directly or indirectly all of the common stock, or its equivalent, of the surviving entity; provided, however, that if stockholder approval is not required for such Combination, the Change in Control shall occur upon the consummation of such Combination.
4. The stockholders of the Employer approve a plan of complete liquidation of the Employer or an agreement for the sale or disposition by the Company without Cause (as defined in Section 5(c) below)Employer of all or substantially all of the Employer's stock and/or assets, or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid accept a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you tender offer for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end substantially all of the TermEmployer's stock (or any transaction having a similar effect); provided, however, that if stockholder approval is not required for such transaction, the Change in the case Control shall occur upon consummation of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)transaction.
(c) For the purposes of this AgreementSection 11(b), “Cause” Baron Entities shall mean that you have:Baron Capital Group, Inc., BAMCO, Inc., Baron Capital Management, Inc., Baron Asset Fund and Xxxxxx Xxxxx.
Appears in 1 contract
Samples: Employment Agreement (Choice Hotels International Inc /De)
Severance. (a) In Subject to the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined limitations set forth in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus13, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your Employee's employment is terminated by the Company for Subsidiary without Substantial Cause (as defined including, without limitation, upon termination of this Agreement following notice thereof by the Company or the Subsidiary pursuant to Section 3 hereof) or by the Employee for Good Reason, then, without further liability of the Subsidiary or the Company, except for their obligations pursuant to this Section 10(a) and their obligations to pay or provide any salary and expenses accrued to the termination date, any unpaid bonus referred to in Section 5(c4(b) below)hereof, any Closing Bonus (whether payable before or after such termination of employment) pursuant to Section 4(c) hereof, and such rights and benefits of participation of or in respect of the Employee under employee benefit plans, programs and arrangements of the Company, the Subsidiary and their Affiliates, in accordance with the terms and provisions of such plans, programs and arrangements, (i) the Employee shall be entitled to severance compensation for the Severance Period (as hereinafter defined) following any such termination, payable in equal monthly installments, subject to withholding and other applicable taxes, at an annual rate equal to the Employee's base salary for the year of termination, as such annual rate is increased from year to year in accordance with Section 4(a) hereof; (ii) as additional severance compensation following any such termination, the Employee shall be entitled to the bonus compensation referred to in Section 4(b) hereof for the Severance Period, payable as and when ordinarily determined for the applicable year, with a bonus not less than seventy-five percent (75%) of his rate of annual base salary in effect for the year of termination; (iii) the Company elects not Employee and the Employee's spouse and Dependent Children (as hereinafter defined) shall be entitled to renew your employment at medical and dental benefits as provided immediately prior to the end date of termination which shall continue for the Severance Period (which benefits shall be terminated sooner to the extent provided by another employer and shall be subject to coordination with Medicare payments in accordance with the terms of the Initial Term or an applicable Renewal Term, you benefit plan); (iv) the Employee shall be paidentitled to receive, as soon as practicable but no later than sixty during the Severance Period, the benefits described in Section 4(d) hereof and the automobile rights and perquisites described in Section 4(e) hereof, provided, however, if any such benefit is not available to the Employee under applicable law or the terms of any plan, program or arrangement because he is not an employee, or otherwise, the Subsidiary shall pay the Employee, within ten (6010) days following such termination, a lump-sum cash payment equal to the Termination Datevalue of such benefits, and the types, terms and conditions of the benefits, rights and perquisites provided to the Employee under clauses (iii) and (iv) of this Section 10(a) shall be not less favorable than the most favorable of (x) those provided to the Employee as of the date of this third amendment and restatement of this Agreement and (y) those provided to the Employee immediately prior to the date of termination of his employment; and (v) the Employee shall be entitled to reasonable outplacement services selected by the Employee at the Subsidiary's expense. Following expiration of the period within which the Employee is entitled to receive medical and dental benefits pursuant to clause (iii) of the first sentence of this Section 10(a), other than by reason of receiving such benefits from another employer or coordination of such benefits with Medicare payments, the Employee shall be entitled to elect to further continue any such benefits for himself, his spouse and his Dependent Children until the Employee's death so long as the Employee pays the applicable premiums otherwise payable by former employees of the Subsidiary generally for continuation coverage under the applicable plans. If a Change in Control occurs, and (I) at the time of such occurrence, any such severance compensation is being paid or required to be paid in the future to the Employee or (II) such termination of employment occurs following the Change in Control, the aggregate gross severance compensation payable under clauses (i) all earned but unpaid Base Salary through the Termination Date; and (ii) of this Section 10(a) for the Severance Period, or the previously unpaid portion thereof, as the case may be, shall be paid by the Company or the Subsidiary in a lump-sum cash payment, as of the date of the Change in Control (in the case of clause (I) immediately preceding) or such termination of employment (in the case of clause (II) immediately preceding) and no provision shall be made for any previously awarded future increases in base salary pursuant to Section 4(a) hereof nor shall any discount be taken with regard to payment pursuant to Section 4 because of payment in a lump sum rather than as specified in clauses (i) through (iv) of this Section 10(a); provided, however, that, for purposes of determining the bonus compensation payable under clause (ii) of this Section 10(a), (a) if the termination occurs during the calendar year in which the Change in Control occurs, the bonus compensation with respect to such calendar year shall be determined in accordance with Section 4(b) hereof, except that the actual EBITDA achieved shall be deemed to be the EBITDA for the portion of the calendar year through the date of the transaction giving rise to the Change in Control, and unpaid bonus; such EBITDA shall be annualized if necessary by multiplying such EBITDA by a factor of 365 divided by the number of days of the calendar year elapsed as of the date of the transaction giving rise to the Change in Control, and (iiib) in all unpaid reimbursable expenses incurred by you through other cases, the Termination Date bonus shall be equal to seventy-five percent (75%) of the “Termination Payments”). In either such event, you shall have no further obligation or liability greater of (x) the Employee's rate of annual base salary in effect immediately prior to the Company date of such termination and (y) his rate of annual base salary in connection with effect during the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:calendar year immediately
Appears in 1 contract
Severance. (a) In the event your employment with the Company is terminated either (i) on account If Executive has a Separation from Service as a result of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior yearExecutive’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is discharge by the Company without Cause or by you reason of Executive’s resignation for Constructive Termination without Cause Good Reason or due to your Death as a result of Executive’s death or Permanent Disability, in any case within eighteen (18) months following a Change in Control, Executive shall be entitled to receive, in lieu of any severance benefits to which Executive may otherwise be entitled under any severance plan or program of the Company, the benefits provided below, which, with respect to clause (ii) and the last sentence of clause (iii) below, if applicable, will be payable in a lump sum within ten (10) days following the effective date of the Release (as defined below):
(i) The Company elects not shall pay to renew your employment Executive (or his or her estate, if applicable) his or her fully earned but unpaid base salary, when due, through the date of Executive’s Separation from Service at the end rate then in effect, plus all other benefits, if any, under any Company group retirement plan, nonqualified deferred compensation plan, equity award plan or agreement (other than any such plan or agreement pertaining to Stock Awards whose treatment is prescribed by Section 3(a)(iii) below), health benefits plan or other Company group benefit plan to which Executive (or his or her estate, if applicable) may be entitled pursuant to the terms of such plans or agreements at the Termtime of Executive’s Separation from Service;
(ii) Subject to Section 3(c) and, other than in the case of Executive’s death, Executive’s continued compliance with Section 4, Executive shall be entitled to receive severance pay in an amount equal to one hundred percent (100%) multiplied by Executive’s annual base salary as in effect immediately prior to the date of Executive’s Separation from Service as well as payment of any amount equal to any annual bonus to which Executive would have been entitled to receive as of the date of Executive’s Separation from Service based on the Company’s and/or Executive’s performance through such date, to be determined by the Board or the Compensation Committee thereof in good faith in accordance with the terms of the applicable bonus program (for the avoidance of doubt, any bonus or part thereof that relates to goals or objectives covering a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at full calendar year will not be paid unless Executive’s Separation from Service occurs after the end of such calendar year);
(iii) Subject to Section 3(c) and, other than in the Initial Term case of Executive’s death, Executive’s continued compliance with Section 4, for the period beginning on the date of Executive’s Separation from Service and ending on the date which is twelve (12) full months following the date of Executive’s Separation from Service (or, if earlier, the date on which the applicable continuation period under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) expires) (the “COBRA Coverage Period”), the Company shall vest arrange to provide Executive and/or his or her eligible dependents who were covered under the Company’s health insurance plans as of the Termination Date; or
date of Executive’s Separation from Service with health (2including medical and dental) insurance benefits substantially similar to those provided to Executive and his or her dependents immediately prior to the date of such Separation from Service. If termination the Company is due not reasonably able to Cause or by you not as a result continue health insurance benefits coverage under the Company’s insurance plans, the Company shall provide substantially equivalent coverage under other third-party insurance sources. If any of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested the Company’s health benefits are self-funded as of the Termination Date.date of Executive’s Separation from Service, or if the Company cannot provide the foregoing benefits in a manner that is exempt from or otherwise compliant with applicable law (including, without limitation, Section 409A of the Code and Section 2716 of the Public Health Service Act), instead of providing continued health insurance benefits as set forth above, the Company shall instead pay to Executive (or his or her estate, if applicable) an amount equal to the monthly premium payment for Executive and/or his or her eligible dependents who were covered under the Company’s health plans as of the date of Executive’s Separation from Service (calculated by reference to the premium as of the date of Separation from Service) as currently taxable compensation in substantially equal monthly installments over the COBRA Coverage Period (or the remaining portion thereof);
(biv) In the event you (iSubject to Section 3(c) voluntarily terminate your employment for any reason and, other than Constructive Termination without Causein the case of Executive’s death, Executive’s continued compliance with Section 4, the vesting of each of Executive’s Stock Awards shall be accelerated in full (iiprovided that any Stock Awards that vest upon achievement of any performance-based goals or targets shall be accelerated as to the “target” number of shares subject to such Stock Awards) your employment is terminated effective as of the date of Executive’s Separation from Service. Nothing in this Section 3(a)(iv) shall be construed to limit any more favorable vesting applicable to Executive’s Stock Awards in the Company’s equity plan(s) and/or the stock award agreements under which the Stock Awards were granted. The foregoing provisions are hereby deemed to be a part of each Stock Award and to supersede any less favorable provision in any agreement or plan regarding such Stock Award; and
(v) Notwithstanding any other provision of this Agreement to the contrary, any severance benefits payable to Executive under this Agreement shall be reduced by any severance benefits payable by the Company for Cause (as defined in Section 5(c) below), or (iii) an affiliate of the Company elects not to renew your employment at the end of the Initial Term such individual under any other policy, plan, program, agreement or an applicable Renewal Termarrangement, you shall be paidincluding, as soon as practicable but no later than sixty (60) days following the Termination Datewithout limitation, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded severance agreement between such individual and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)any entity.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Samples: Change in Control Severance Agreement (Tessera Technologies Inc)
Severance. (a) In the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below)that, (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without CauseRenewal Term, (ii1) your employment is terminated by the Company without Cause or (2) you voluntarily terminate your employment for Cause Good Reason, in addition to the Accrued Obligations (as described in Section 3.9(b)), the Company shall pay you an amount equal to two times the sum of (i) your then Annual Base Salary, (ii) the average of the annual bonuses actually paid or payable to you with respect to the three completed fiscal years (beginning on May 2, 2015) preceding the date of your termination of employment (or such lesser number of completed fiscal years beginning on May 1, 2015 and ending on the date of your termination of employment) and (iii) the aggregate annual dollar amount of the payments made or to be made to you or on your behalf for purposes of providing you with the benefits set forth in Sections 3.3, 3.6 and 3.7 above, less all applicable withholding and other applicable taxes and deductions (“Severance Amount”); provided that (x) you execute and deliver to the Company, and do not revoke, a release of all claims against the Company substantially in the form attached hereto as Exhibit A (“Release”) and (y) you have not materially breached as of the date of such termination any provisions of this Agreement and do not materially breach such provisions at any time during the Relevant Period (as defined below). If your employment terminates on or before April 30, 2016, the amount determined under clause (ii) above for purposes of calculating the Severance Amount shall be equal to the 2016 Bonus. The Company’s obligation to make such payment shall be cancelled upon the occurrence of any material breach of any provisions of this Agreement and, in the event such payment has already been made, you shall repay to the Company such payment within 30 days after demand therefore; provided, however, such repayment shall not be required if the Company shall have materially breached this Agreement prior to the time of your breach. The Severance Amount shall be paid in cash in a single lump sum on the later of (1) the first day of the month following the month in which such termination occurs and (2) the date the Revocation Period (as defined in Section 5(cthe Release) belowhas expired. Notwithstanding anything in this paragraph to the contrary, if a Release is not executed and delivered to the Company within 60 days of such termination of employment (or if such Release is revoked in accordance with its terms), the Severance Amount shall not be paid, but the Accrued Obligations nevertheless shall be paid. Notwithstanding the foregoing, any then-unvested portion of any time-based restricted stock units that are part of a Stock Grant shall vest immediately in the event that, during the Initial Term or any Renewal Term, (A) your employment is terminated by the Company without Cause or (iiiB) you voluntarily terminate your employment for Good Reason.
(b) Upon the termination of your employment hereunder for Cause or by your voluntary termination of your employment hereunder without Good Reason, in each case, during the Initial Term or any Renewal Term, the Company elects shall have no further obligation to you other than: (1) to pay Annual Base Salary through the effective date of termination (the “Effective Termination Date”); (2) to pay any bonus (as described in Section 3.2) for any fiscal year which has ended prior to the fiscal year in which the Effective Termination Date occurs that has been earned but not yet paid as of the Effective Termination Date; and (3) with respect to renew your employment at any benefits to which you may be entitled pursuant to any insurance or other benefit plans or arrangements of the Company, such benefits shall be payable in accordance with the terms of such plans or arrangements (the items described in clauses (1), (2) and (3) collectively, the “Accrued Obligations”). For purposes of this Section 3.9, except as may be required under Section 6.10, payment under clause (1) shall be made in cash in a single lump sum not later than 60 days following the Effective Termination Date and payment under clause (2) shall be made in cash in a single lump sum not later than the fifteenth day of the third month following the end of the fiscal year of the Company with respect to which the applicable bonus was earned.
(c) Upon the termination of your employment hereunder by your death or Disability, in each case, during the Initial Term or an applicable any Renewal Term, you shall be paid, as soon as practicable but no later than sixty entitled to receive: (601) days following the Termination Date, Accrued Obligations; (i2) all earned but unpaid Annual Base Salary through the Termination Datelast day of the month in which such termination occurs; (ii3) bonus compensation as described in Section 3.2 (at the time bonuses are paid to the executive officers of the Company generally) determined based on your target bonus, any previously awarded applicable performance goals and unpaid bonusactual achievement of such performance goals (as certified by the Compensation Committee) for the fiscal year in which such termination occurs, but prorated according to the number of months that elapsed in such fiscal year through the last day of the month in which such termination occurs (the “Pro-Rata Bonus”); and (iii4) all unpaid reimbursable expenses incurred unless the vesting provisions for equity awards granted to executive officers of the Company for the applicable year are more favorable, in which case such provisions shall apply, a pro-rata portion of any then-outstanding equity compensation award made to you by you the Company, determined based on a fraction, the numerator of which is the number of months that elapsed from the grant date of such award through the Termination Date last day of the month in which such termination occurs and the denominator of which is the number of total months in the period from such grant date to the final vesting date of such equity compensation award, shall vest to the extent not already vested and any remaining portion of such award shall be forfeited; provided that, with respect to any equity awards subject to performance goals, such determination shall be made following the end of the relevant performance period based on actual achievement of such performance goals (as certified by the Compensation Committee) for the applicable performance period, at which time the pro-rata portion of such awards shall vest and the remaining portion of such award shall be forfeited (the “Termination PaymentsSpecial Equity Vesting”). In either such eventPayment under clause (2) shall be made in cash in a single lump sum not later than 60 days following the earlier of the termination of your employment due to your Disability or the date of your death and, if and to the extent applicable, settlement of any equity awards under clause (4) shall occur not later than 60 days following the later of the termination of your employment due to your Disability or death and the settlement date provided for in the applicable equity award agreement. 4
(d) Upon the expiration of the term of this Agreement or due to non-renewal by the Company, you shall have no further obligation be entitled to receive: (1) the Accrued Obligations (determined as though your employment terminated on the date of such expiration); (2) continued Annual Base Salary through the last day of the month in which such expiration occurs, whether or liability not your employment is terminated upon or after such expiration; and (3) provided that you executed and delivered a Release to the Company Company, which has become irrevocable in connection accordance with its terms, within 60 days of such expiration, (x) the performance Pro Rata Bonus (calculated as though your employment terminated on the last day of this agreement the month in which such expiration occurs) and (except y) the continuing obligations specified Special Equity Vesting (calculated as though your employment terminated on the last day of the month in Sections 7which such expiration occurs). Payment under clause (2) shall be made in cash in a single lump sum not later than 60 days following the date of such expiration and, 8 if and 10 to the extent applicable, settlement of this Agreement)any equity awards under clause (3)(y) shall occur not later than 60 days following the later of the date of such expiration and the settlement date provided for in the applicable equity award agreement.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Samples: Employment Agreement
Severance. Upon termination of the Employment Period pursuant to Sections 4(b) or 4(d) (but in any event not upon termination of the Employment Period pursuant to Sections 4(a), 4(c), 4(e), 6 or upon expiration of the Employment Period on the third anniversary of the Effective Date) and, subject to Section 7, so long as the Executive executes a mutual general release with the Company in the form attached hereto as Exhibit B (with such changes therein as independent outside counsel selected by the Company and approved by the Executive, which approval shall not be unreasonably withheld, reasonably determines at the time of termination are required to comply with applicable law, a “Release”) in accordance with Section 7 and has not breached any of his representations set forth in Section 9, the Company shall pay or provide to the Executive:
(a) In an amount equal to the event your employment with the Company is terminated either greater of (i) on account the amount of your death or Disability Base Salary that would have otherwise been due to Executive through the expiration of the Employment Period (as defined in Section 5(e) belowsuch amount to be calculated based upon his then current Base Salary), and (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or two (2) times his then applicable Base Salary (or in the event a reduction in Base Salary is the basis for the Executive’s resignation, then the Base Salary payments remaining under this Agreement in effect immediately prior to such reduction) (the “Post Termination Salary Severance Payment”);
(iiib) You shall also be paid a proany Special Bonus payable as set forth in Sections 2(b)(ii)(A) or (B), as applicable;
(c) reimbursable expenses pursuant to Section 2(b)(vi), and
(d) subject to the Executive’s and/or his covered dependents’, as applicable, timely election of continuation coverage under COBRA, and the Executive’s or his covered dependent’s, as applicable, continued copayment of premiums at the same level and cost as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-rated annual bonustax dollars), continued participation in the Company’s (or its successors) health and medical insurance plans for the Executive and his covered dependents, in a lump sum by manner intended to avoid any excise tax under Section 4980D of the CompanyCode, which shall be paid as soon as practicable but not later than sixty for a period though the earlier of (60x) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Termapplicable period that the Executive and/or his covered dependents, in the case of such a terminationas applicable, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
eligible for continuation coverage under COBRA and (2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iiiy) the Company elects not to renew your employment at Executive becoming eligible for coverage under the end health and medical insurance plans of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date a subsequent employer (the “Termination PaymentsCOBRA Coverage”). In either such eventSubject to Section 12(b), you all amounts payable pursuant to Section 5(a) shall have no further obligation or liability be paid to the Company Executive in connection with a single lump sum in cash on the performance sixtieth (60th) day after the date of this agreement termination and the Special Bonus shall be paid to the Executive as provided in Section 2(b)(ii)(A) or (except B), as applicable. In addition, the continuing obligations specified Executive will also receive any Base Salary, reimbursable expenses and benefits earned for actual services rendered prior to such date payable to the Executive in Sections 7, 8 and 10 a single lump sum in cash not later than five (5) days after the date of this Agreement)termination or as otherwise provided in the applicable plan or program.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Severance. (a) In the event your employment connection with the Company is terminated either (i) on account termination of your death or Disability Employee’s employment upon the Termination Date or, if earlier, as a result of Employee’s Involuntary Termination (as defined in the Employment Agreement), and subject to Employee’s continued compliance with Section 5(e) 3 and Employee’s execution and non-revocation of the Release (as defined below), (ii) by Employee shall be entitled to receive, in lieu of any severance benefits to which Employee may otherwise be entitled under any plan or program of the Company without Cause or any agreement providing for severance or termination payments or benefits (as defined in Section 5(c) belowincluding the Employment Agreement), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) the benefits provided below)::
(i) You A cash severance payment in the amount of $167,375, which shall receive be paid in a lump sum within five (5) days following the Termination Payments (as defined in Section 5(b) below)date Employee’s Release becomes effective and irrevocable;
(ii) You shall also be paid a lump sum by A cash severance payment in the Companyamount of $264,875, which shall be paid as soon as practicable but not later than sixty (60) days following in a lump sum on the Termination Date, equal to the lesser earlier of (1A) twelve the date on which a Change in Control (12as defined in the Employment Agreement) months occurs, (B) the filing of your Base Salary any Petition For Relief in a Bankruptcy Court or Under the Bankruptcy Laws, including any Petition or request seeking a reorganization and/or liquidation under the Bankruptcy laws, or the filing of any Petition seeking relief from creditors, or (2C) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”)December 31, 2017;
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum Full acceleration of the vesting of all equity awards held by Employee on the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal including any options, restricted stock, restricted stock units or other awards and such Employee shall have the ability to the prior year’s bonusexercise her stock options until December 31, if any, pro-rated2016; and
and (iv) The Initial Option and any stock options Reimbursement for the cost of continuation of health insurance benefits provided to Employee immediately prior to the Termination Date pursuant to the terms of COBRA or other applicable law through the earliest to occur of (A) six (6) months following the Involuntary Termination, (B) the date Employee becomes eligible for coverage under health and/or restricted stock previously granted under Sections 3(c) and 3(d) dental plans of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disabilityanother employer, or (C) the Company elects not to renew your employment at date upon which Employee is no longer eligible for such COBRA or other benefits under applicable law (the end “COBRA Coverage Period”). If any of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that Company’s health benefits are scheduled to vest during or at the end of the Initial Term shall vest self-funded as of the Termination Date; or
, or if the Company cannot provide the foregoing benefits in a manner that is exempt from Section 409A of the Code or that is otherwise compliant with applicable law (2) If termination is due including, without limitation, Section 2716 of the Public Health Service Act), instead of providing the reimbursements as set forth in the immediately preceding sentence, the Company shall instead pay to Cause or by you not Employee the foregoing monthly amount as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as taxable monthly payment for the COBRA Coverage Period (or any remaining portion thereof). Employee acknowledges that the foregoing cash payments and benefits will represent full satisfaction of the Termination Date.
(b) amounts payable to her under the Employment Agreement and any other plan, program, policy or agreement providing for severance or termination payments or benefits. In the event you (i) voluntarily terminate your of Employee’s termination of employment prior to May 31, 2016 for any reason other than Constructive Termination without Causean Involuntary Termination, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects Employee shall not be entitled to renew your employment at the end receive any of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”benefits described in this Section 2(d). In either such event, you shall have no further obligation The benefits set forth hereinabove will be paid regardless of how any press release or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)public document or filing characterizes Employee’s termination or separation from employment.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Samples: Employment Transition Agreement (Apricus Biosciences, Inc.)
Severance. (A) In the event that (a) your employment terminates pursuant to Section 7C or (b) after the expiration of the Employment Period, if your employment continues as provided in Section 1, either you give notice of termination of employment to the Company or the Company gives you notice of termination of employment other than for cause (as defined above) or disability, and provided that (i) within thirty (30) days prior to the expiration of the Employment Period Nabi had not offered to renew this Agreement on terms no less favorable to you than the terms then in effect, and (ii) within ninety (90) days following the expiration of the Employment Period Xxxx has not tendered to you a new employment agreement executed on behalf of Xxxx and containing such no less favorable terms, you shall receive the benefits set forth in Sections 8B, 8C and 8D. In the event your employment with the Company is terminated either terminates pursuant to Section 7B (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) belowa), or (iii) by as a result of your death, you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined benefit set forth in Section 5(b) below8D. Notwithstanding the foregoing provisions of this Section 8A, in the event your employment terminates under circumstances that entitle you to receive compensation and other benefits pursuant to the May 3, 2004 Change of Control Severance Agreement between you and Nabi (the “Change of Control Severance Agreement”);, you shall not receive the benefits set forth in Section 8B, 8C and 8D.
(iiB) You shall also be paid a lump sum by Based on the Companyeffective date of such termination, which Xxxx will pay you your base salary as of the effective date of such termination (“Severance Pay”) and maintain in effect such fringe benefits (including auto allowance) as are accorded to other similarly situated employees (to the extent allowed under, and subject to the limitations of, applicable plans) for eighteen (18) months. Severance Pay shall be paid as soon as practicable but not later than sixty made in equal bi-weekly installments.
(60C) days following the Termination DateThe Company shall pay for executive outplacement services up to $18,000 by an organization selected by Xxxx in its sole discretion.
(D) All of your non-vested stock options, equal to the lesser of restricted stock or similar incentive equity instruments (1“Options”) shall immediately vest. All such “Options” shall be exercisable for twelve (12) months of past your Base Salary or (2) the Base Salary payments remaining under this Agreement (the termination date, except that no “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which Options” shall be paid as soon as practicable but not later than sixty (60) days following such Termination Dateexercisable beyond the original “Option” expiration date. To the extent the terms of any “Options” are inconsistent with this Agreement, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) terms of this Agreement shall vest as follows:control.
(1E) If termination is by the Company without Cause All payments or by benefits to you for Constructive Termination without Cause under this Section 8 (other than payments or benefits already accrued and otherwise due to your Death under Xxxx’s employee benefit plans or Disabilityprograms, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Causeyour death) will not be given unless you execute (and do not rescind) a written employment termination agreement in a form prescribed by Xxxx, then you shall only be permitted containing terms consistent with this Agreement as well as a general release of all claims against Xxxx and related parties with respect to retain those stock options and/or restricted shares which have vested as all matters occurring prior to or on the date of the Termination Date.
release, including (bbut not limited to) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), matters or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company matters in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)your termination.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Severance. In no way limiting the Company’s policy of employment at will:
(a) In the event your If Employee’s employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined but not in Section 5(c) below), or (iii) by you due connection with a Change of Control which is subject to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b)) below);
(ii) You shall also be paid a lump sum or by Employee with Good Reason prior to the CompanyExpiration Date, which shall be paid as soon as practicable but not later than and provided that within sixty (60) days following the Termination Date, equal termination of Employee’s employment with the Company Employee signs and delivers to the lesser of (1) twelve (12) months of your Base Salary or (2) Company a Confidential Severance and Release Agreement in substantially the Base Salary payments remaining under this Agreement same form as that attached hereto as Exhibit A (the “Post Termination Salary PaymentRelease Agreement”) (the effective date of the Release Agreement is referred to herein as the “Release Date”), Employee shall be entitled to receive:
(i) Severance compensation equal to 75% of the sum of her annual Base Salary and Target Bonus in effect for the year in which the Termination Date occurs, payable in nine monthly installments equal to one-ninth of such severance compensation, subject to required withholding, payable at the end of each of the next nine full calendar months following the first full calendar month following the Release Date;
(iiiii) You shall also be paid a pro-rated annual bonus, in a lump sum by Coverage at Company expense under the Company, which shall be paid as soon as practicable but not later than sixty (60) days employee health insurance plan of the Company for the period of eight months following such Termination the Release Date, in an amount equal to the prior year’s bonusor, if anyless, pro-rated; andthe maximum time period permitted under COBRA.
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1b) If termination within 3 months before or six months after a Change of Control Employee’s employment with the Company is terminated (i) by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by Employee for any reason, Employee shall be entitled to receive severance compensation equal to the Company for Cause greater of (as defined in Section 5(c) below), or (iiiA) the Company elects not to renew your employment at the end sum of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid her annual Base Salary through and Target Bonus in effect for the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through year in which the Termination Date occurs or (B) the sum of her annual Base Salary and Target Bonus in effect for the year in which the Termination Date occurs, annualized over the period from the Termination Date until the Expiration Date, which shall be payable immediately upon such termination. “Termination Payments”). In either such event, you Change of Control” shall have the meaning given to such term in the 2010 Plan and shall also mean Xxxx Xxxxxxxx no further obligation or liability to longer serving as President of the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)Company.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Severance. Subject to the Executive’s execution of and the effectiveness of a General Release in a form substantially the same as the release attached as Exhibit A hereto (athe “Release”) In within twenty-eight (28) days of the event your employment Date of Termination (if after a Change in Control), or within twenty-eight (28) days of the Change in Control (if during a Potential Change in Control Period), if a Terminating Event occurs within twenty-four (24) months following a Change in Control (or during a Potential Change in Control Period provided that a Change in Control takes place within 24 months thereafter) and during the Term, then the Company shall pay the Executive the amounts, and provide the Executive the benefits, described in this Section 6.1 (“Severance Payments”), in addition to any payments and benefits to which the Executive is entitled under Section 5. Subject to the provisions of Section 6.4 (“Section 409A”), the amounts set forth in subsections (A) and (B) of this Section 6.1 shall be paid in one lump sum payment no later than the thirtieth (30th) day following the Date of Termination provided, however, that if the Terminating Event is during a Potential Change in Control Period, or after the Change in Control but the Change in Control does not constitute a change in the ownership or effective control of the Company, or in the ownership of a substantial portion of the assets of the Company, within the meaning of Section 409A of the Code, and the Executive otherwise has a contractual right to severance that is considered deferred compensation within the meaning of Section 409A of the Code, such amount shall be paid in the same form (e.g., lump sum, salary continuation, etc.) as set forth in such contract beginning with the first payroll date that occurs thirty (30) days after the Date of Termination. Except as described above or in Section 9.1 (“Successors; Binding Agreement”), the Executive shall not be entitled to benefits pursuant to this Section 6.1 unless a Change in Control shall have occurred during the Term.
(A) The Company is terminated either shall pay to the Executive a lump sum severance payment, in cash, equal two (2.0) times the sum of (i) on account of your death or Disability (as defined in Section 5(e) below)the Base Salary, and (ii) by the Company Target Bonus Amount in respect of the fiscal year in which the Date of Termination occurs (without Cause (as defined in Section 5(c) belowgiving effect to any event or circumstance constituting Good Reason), or assuming for this purpose attainment of 100% of any applicable target;
(iiiB) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):Either:
(i) You shall In the case of Executives who do not receive the Termination Payments sales commission-based variable compensation, (as defined in Section 5(ba) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the Executive’s bonus for any fiscal year ended prior to the year of termination, to the extent such bonus has not already been paid (whether due to deferral or otherwise), calculated in accordance with the associated bonus plan (provided that any portion of such bonus that is discretionary shall be paid using the assumption that Executive has satisfied all individual performance requirements necessary for full payment of any discretionary portion of such bonus), plus (b) an amount equal to the Executive’s Target Bonus Amount multiplied by a fraction, the numerator of which is the number of days elapsed between the beginning of such fiscal year and the date of termination reduced by any periods (expressed in days) for which amounts under such incentive bonus arrangement have already been paid in such year, and the denominator of which is 365; or
(ii) In the case of Executives who receive sales commission-based variable compensation, an amount equal to (a) the Executive’s sales commission-based variable compensation for any fiscal year ended prior to the year of termination, to the extent such sales commission-based variable compensation has not already been paid (whether due to deferral or otherwise), plus (b) the target amount of sales commission-based variable compensation that could be earned by such Executive during the current fiscal year multiplied times a fraction, the numerator of which is the number of days elapsed between the beginning of such fiscal year and the date of termination and the denominator of which is 365, reduced by the amount by which such incentive sales commission-based variable compensation is already payable or has already been paid in respect of such fiscal year;
(C) To the extent that the Company’s Annual Executive Bonus Plan or any successor plan in existence on the date the Executive’s employment is terminated calls for the potential payment of an award attributable to “over-achievement” performance goals (i.e., requiring the achievement of goals that exceed or are in addition to the goals required for the Executive to receive the target annual bonus) and the Company pays over-achievement bonuses to executives for the fiscal year in which Executive’s employment terminates, the Company shall pay to Executive a lump sum amount equal to the over-achievement bonus for such fiscal year that would have been paid to Executive had he or she been employed by the Company on the date that such over-achievement bonuses are first paid to other participants in such bonus plan. Said amount shall be paid to Executive not later than the date that such over-achievement bonuses are first paid to other participants in said bonus plan;
(D) For the twenty-four (24) month period immediately following the Date of Termination, the Company shall arrange to provide the Executive and his dependents health and dental insurance benefits comparable in all material respects to those in effect immediately prior to the Change in Control, on the same terms and conditions as though the Executive had remained an active employee. The cost of providing the benefits set forth in this Section 6.1(D) shall be in addition to (and shall not reduce) the Severance Payments; provided, that if the plan or program in question, or applicable law, provides for a longer period of coverage following termination of employment, then the Executive shall receive this additional period of coverage pursuant to the terms and conditions as set forth in the plan or program or as prescribed by applicable law. Notwithstanding the foregoing provisions of this subsection, if anythe Executive becomes reemployed by another employer and is eligible (together with his or her dependents) for medical or dental insurance coverage that is substantially equivalent (as to extent of coverage and Executive’s cost) to the coverage of the same type that he or she (and his or her dependents) were entitled to receive under this subsection, pro-ratedthe Company’s obligation to the Executive and his or her dependents under this subsection shall cease with respect to that type of coverage; and
(ivE) The Initial Option Company shall pay the cost of providing the Executive with outplacement services up to a maximum of $45,000, provided that (i) the Executive begins to utilize such services within six months following the Date of Termination and any stock options and/or restricted stock previously granted under Sections 3(ccompletes the utilization of such services no later than the last day of the calendar year following the calendar year that contains the Date of Termination, and (ii) and 3(d) of this Agreement shall vest as follows:
(1) If termination is such services are provided by an outplacement provider approved by the Company without Cause (which approval shall not be unreasonably withheld, delayed or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term conditioned). Such payment shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated made by the Company for Cause (as defined in Section 5(c) below), or (iii) directly to the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days service provider promptly following the Termination Date, (i) all earned but unpaid Base Salary through provision of such services and the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability presentation to the Company in connection with of documentation of the performance provision of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)such services.
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Samples: Change in Control Severance Agreement (Mercury Computer Systems Inc)
Severance. In consideration of Employee's full waiver and release of all claims as set forth herein, and provided Employee signs and does not revoke this Agreement, Employee returns all company property, including Employee's company laptop, and Employee fully abides by the terms of this Agreement, Company agrees to provide Employee the following severance benefit (the "Severance Benefit"):
(a) In Effective February 25, 2019, the event your employment Company and Employee entered into a Promissory Note whereby the Company loaned Employee Four Hundred Thousand Dollars and Zero Cents ($400,000.00) (the "Loan"). Employee has not made any payments to the Company under the Promissory Note, and Employee currently owes Company the entire balance of the Loan plus interest. As a severance benefit, the Company hereby agrees to forgive the outstanding principal and interest due under the Promissory Note, in the approximate amount of Four Hundred Thousand Dollars and Zero Cents ($400,000.00).
(b) The Company shall provide a grant of public company stock (the "Stock Grant") equal to 429,185 shares of MedMen Enterprises, Inc. ("MME, Inc.") with a deemed issue price of $0.26. Employee's interest in said stock in MME, Inc. shall be deemed to have immediately vested upon issuance of the grant. The grant of said stock shall be subject to full compliance by the parties with the terms, conditions and requirements of the governing documents for that Company. All stock issued hereunder shall contain the standard legend referencing the Securities Act of 1933 that is attached to all shares of the Company's stock that are issued to U.S. residents.
(c) Company is terminated either and Employee acknowledge that Employee was granted certain non-qualified stock options in MedMen Enterprises, Inc. (i) on account of your death or Disability (as defined in Section 5(e) belowthe "Options"), to purchase up to 311,763 Class B Subordinate Voting Shares at $3.20 USD exercise price per share, pursuant to a Board Resolution, effective February 25, 2019 (ii) by the "Board Resolution"). Employee expressly acknowledges and agrees that, as of the Separation Date, his interests in 103,921 of Options have vested and his interests in the remaining 207,842 Options have not vested. As a further severance benefit, the Company without Cause agrees to accelerate the vesting of 103,921 of the unvested options, so as to vest as of the Separation Date (the "Severance Options Award"). The Severance Options Award shall be subject to all of the terms, conditions, and requirements of the governing documents of MedMen Enterprises Inc. and the MedMen Enterprises Inc. 2018 Stock and Incentive Plan and the Board Resolution, as defined in Section 5(c) below), or (iii) modified by you due to Constructive Termination without Cause (as defined in Section 5(d) below):this Section.
(id) You shall receive If Employee elects to continue coverage under COBRA, the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by Company will reimburse Employee for the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal required COBRA premium for continued coverage for up to the lesser of (1) twelve (12) months of your Base Salary or from the Separation Date. If at any time during this twelve (212) month period, Employee obtains health insurance benefits unrelated to the Base Salary payments remaining COBRA benefits herein, the Company's obligations under this Agreement Section 3(d) shall cease, and the Company shall not be responsible for any further COBRA premiums. In order to receive reimbursement, Employee must provide the Company with proof of a COBRA premium payment within thirty (the “Post Termination Salary Payment”);
(iii30) You shall also be paid a pro-rated annual bonus, in a lump sum calendar days of such payment by the Company, which Employee. The Stock Grant shall be paid issued to Employee as soon as practicable but not later than following the Effective Date (as defined below), and in any even within sixty (60) days following such Termination Dateafter the Effective Date of this Agreement, in an amount equal to and the prior year’s bonus, if any, pro-rated; and
(iv) Loan shall be forgiven upon the Effective Date of this Agreement. The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) Effective Date of this Agreement shall vest as follows:
be eight days after the day that Employee signs the Agreement and delivers it to Company, absent revocation (1) If termination is by the "Effective Date"). Employee specifically acknowledges and agrees that the Severance Benefit set forth in this Section 3 constitutes adequate and full consideration for this Agreement. Employee further acknowledges that he would not otherwise be entitled to this Severance Benefit under any employment agreement, Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disabilitypolicy, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end of the Initial Term shall vest as of the Termination Date; or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Dateany law.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:
Appears in 1 contract
Severance. In no way limiting the Company’s policy of employment at will:
(a) In the event your If Employee’s employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2) the Base Salary payments remaining under this Agreement (the “Post Termination Salary Payment”);
(iii) You shall also be paid a pro-rated annual bonus, in a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following such Termination Date, in an amount equal to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due Employee with Good Reason prior to your Death or Disabilitythe Expiration Date, or and provided that all of the following have occurred within 60 days following the termination of Employee’s employment with the Company: (i) Employee first signs and delivers to the Company elects not a Confidential Severance and Release Agreement in substantially the same form as that attached hereto as Exhibit B (the “Release Agreement”), (ii) any revocation right of the Employee under such Release Agreement shall have expired, and (iii) such Release Agreement shall have become effective (the date that all of the conditions set forth in (i), (ii) and (iii) above are met to renew your employment be referred to as the “Release Date”), Employee shall be entitled to receive:
(i) Severance compensation equal to two-thirds of his annual Base Salary and “Target Bonus” for purposes of the MIP in effect for the year in which the Termination Date occurs, payable in eight monthly installments equal to one-eighth of such severance compensation, subject to required withholding, payable at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at the end each of the Initial Term shall vest as next eight (8) full calendar months following the first full calendar month following the Release Date;
(ii) Coverage at Company expense under the employee health insurance plan of the Termination Company for period of twenty-four months following the Release Date; , or
(2) If termination is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall only be if less, the maximum time period permitted to retain those stock options and/or restricted shares which have vested as of the Termination Dateunder COBRA.
(b) In Notwithstanding anything to the event you contrary herein contained, Company shall not be required to pay any amounts under this Section 5 or elsewhere in this Agreement if Employee is in breach of any of its obligations under this Agreement or any other Agreement with the Company, including without limitation, any obligation relating to the treatment of Company confidential information and any non-compete obligation.
(c) If Employee’s employment with the Company is terminated for Cause or death or Disability, or Employee resigns without Good Reason, Employee shall be entitled to receive only: (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Employee’s Base Salary earned and payable through the Termination Date; (ii) any previously awarded and unpaid bonusaccrued but unused vacation/time off to the extent required under applicable law; (iii) reimbursement for all incurred but unreimbursed expenses to the extent Employee is entitled to be reimbursed; and (iiiiv) all any other earned but unpaid reimbursable expenses incurred by you through compensation, if applicable, as of the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)Date.
(cd) For the purposes of this Agreement, “Cause” the following terms shall mean that you havehave the meanings set forth below:
Appears in 1 contract
Severance. (aIn consideration of and in return for the promises contained in this Agreement, and as full and final compensation to Employee for all services as an employee: [OPTION 1: IN THE EVENT THAT EMPLOYEE IS TERMINATED BY EMPLOYER WITHOUT "CAUSE", RESIGNS FOR "GOOD REASON" OR TERMINATED IN CONNECTION WITH OR FOLLOWING A CHANGE OF CONTROL, THEN THE FOLLOWING PARAGRAPH 2(a) In SHALL APPLY]
a. Employee shall receive from Employer following the event your employment termination date, with the Company is terminated either appropriate deductions and withholdings, (i) on account the compensation required by Paragraph 2(a) of your death or Disability the Amended and Restated Employment Agreement dated September __, 2011 (as defined the "Employment Agreement") for the remaining term of the Initial Term, but no less than for a period of twelve (12) months from the termination date (the "Severance Period") payable semi-monthly in Section 5(e) below)accordance with Employer's regular payroll practices, (ii) by the Company without Cause (as defined COBRA premium, if any, set forth in Section 5(cParagraph 2(b) below)of this Agreement, or and (iii) the acceleration by you due to Constructive Termination without Cause (as defined in Section 5(d) below):
(i) You shall receive the Termination Payments (as defined in Section 5(b) below);
(ii) You shall also be paid a lump sum by the Company, which shall be paid as soon as practicable but not later than sixty (60) days following the Termination Date, equal to the lesser of (1) twelve (12) months of your Base Salary or (2Employee's unvested stock options granted under Paragraph 2(c) of the Base Salary payments remaining under this Employment Agreement (the “Post Termination Salary Payment”subsection (i),(ii);
, and (iii) You of this Paragraph shall also be referred to collectively herein as the "Severance"), in addition to all accrued and unused wages and vacation pay and any applicable bonus (if any) which has been earned but not yet paid through the termination date. The first installment will be paid on the first regular semi monthly payroll date following the 30th day after the termination date provided that this Agreement as well as the termination certificate in the form attached as Exhibit A to the Employment Agreement has been signed by Employee and delivered to Employer within 22 days and not revoked within the 7 day revocation period. Notwithstanding anything herein to the contrary, if at the time of Employee's termination of employment with Employer, Employee is a pro-rated annual bonus"specified employee" as defined in Code Section 409A and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then Employer will, if requested by Employee in writing at the time of Employee's termination, defer the commencement of the payment of any such payments or benefits hereunder (without any reduction in such payments or benefits ultimately paid or provided to Employee except as set forth herein) until the date that is between twenty four (24) to twelve (12) months (whichever is applicable) following Employee's termination of employment with Employer (or the earliest date as is permitted under Code Section 409A) (the "Delay Period"). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section (whether they would have otherwise been payable in a single lump sum or in installments in the absence of such delay) shall be paid to Employee in a lump sum by on the Companyfirst business day after the end of the Delay Period, which and any remaining payments and benefits due under this Agreement shall be paid as soon as practicable but not later than sixty or provided in accordance with the normal payment dates specified for them herein. [OPTION 2: IN THE EVENT THAT EMPLOYEE IS TERMINATED BY EMPLOYER FOR FAILING TO ACHIEVE PERFORMANCE TARGETS SET BY THE BOARD OF DIRECTORS OF EMPLOYER, THEN THE FOLLOWING PARAGRAPH 2(a) SHALL APPLY]
a. Employee shall receive from Employer following the termination date, with appropriate deductions and withholdings, (60i) days following such Termination Datethe compensation required by Paragraph 2(a) of the Amended and Restated Employment Agreement dated September__, 2011 (the "Employment Agreement") for a period of six (6) months from the termination date (the "Severance Period") payable semi-monthly in an amount equal to accordance with Employer's regular payroll practices, (ii) the prior year’s bonusCOBRA premium, if any, pro-rated; and
(iv) The Initial Option and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(dset forth in Paragraph 2(b) of this Agreement, and (iii) the acceleration by six (6) months of Employee's unvested stock options granted under Paragraph 2(c) of the Employment Agreement (subsection (i),(ii) and (iii) of this Paragraph shall vest be referred to collectively herein as follows:
the "Severance"), in addition to all accrued and unused wages and vacation pay and any applicable bonus (1if any) If which has been earned but not yet paid through the termination date. The first installment will be paid on the first regular semi monthly payroll date following the 30th day after the termination date provided that this Agreement as well as the termination certificate in the form attached as Exhibit A to the Employment Agreement has been signed by Employee and delivered to Employer within 22 days and not revoked within the 7 day revocation period. Notwithstanding anything herein to the contrary, if at the time of Employee's termination of employment with Employer, Employee is a "specified employee" as defined in Code Section 409A and the deferral of the commencement of any payments or benefits otherwise payable hereunder as a result of such termination of employment is necessary in order to prevent any accelerated or additional tax under Code Section 409A, then Employer will, if requested by Employee in writing at the Company time of Employee's termination, defer the commencement of the payment of any such payments or benefits hereunder (without Cause any reduction in such payments or by you for Constructive Termination without Cause benefits ultimately paid or due provided to your Death or Disability, Employee except as set forth herein) until the date that is six (6) months following Employee's termination of employment with Employer (or the Company elects not earliest date as is permitted under Code Section 409A) (the "Delay Period"). Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to renew your employment at this Section (whether they would have otherwise been payable in a single lump sum or in installments in the absence of such delay) shall be paid to Employee in a lump sum on the first business day after the end of the TermDelay Period, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the case of such a terminationnormal payment dates specified for them herein. [OPTION 1 AND OPTION 2]
b. Employee will continue on Employer's medical plan up to and including Employee's termination date. Employee shall have the right to continue his/her medical and dental insurance, all unvested stock options and/or restricted stock granted to you that are scheduled to vest during or at Employer's expense until the end earlier of the Initial Term shall vest as expiration of the Termination Date; orSeverance Period or until Employee finds another job that provides at least substantially similar health insurance and thereafter at Employee's sole expense, pursuant to the provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA") provided, however, that Employee timely elects COBRA continuation. The COBRA period shall be deemed to have commenced on the first of the month following the date of termination;
(2) If termination c. Employee acknowledges and agrees that the Severance provided for in this Agreement is due to Cause or by you not as a result of Constructive Termination without Cause, then you shall under the Employment Agreement only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Date.
(b) In the event you (i) voluntarily terminate your employment for any reason other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in Section 5(c) below), or (iii) the Company elects not to renew your employment at the end of the Initial Term or an applicable Renewal Term, you shall be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all earned but unpaid Base Salary through the Termination Date; (ii) any previously awarded and unpaid bonus; and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such event, you shall have no further obligation or liability to the Company in connection with the performance of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of if Employee signs this Agreement).
(c) For the purposes of this Agreement, “Cause” shall mean that you have:; and
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Severance. (a) In the event your employment with the Company is terminated either (i) on account of your death or Disability (as defined in Section 5(e) below), (ii) by the Company without Cause (as defined in Section 5(c) below), or (iii) by you due to Constructive Termination without Cause (as defined in Section 5(d) below):If either:
(i) You shall receive the Termination Payments (as defined in Company terminates Xxxxxxxxxx’x employment at any time during the Term other than for Cause pursuant to Section 5(b) below1.3(d);, and other than by reason of death or Disability pursuant to Section 3.6, or
(ii) You shall also be paid a lump sum by Xxxxxxxxxx resigns during the Company, which shall be paid as soon as practicable but not later than Term within sixty (60) days following the Termination Dateoccurrence, equal to the lesser of within six (1) twelve (126) months following a Change in Control as defined in the Company’s 2000 Stock Option Plan, of your Base Salary either a material reduction in his duties (as per Section 2.2) or a material reduction of his base compensation (2) provided Xxxxxxxxxx has given the Base Salary payments remaining Company notice of intent to resign based on such event and at least 30 days opportunity to cure), Then subject to Xxxxxxxxxx’x continuing obligations under this Agreement (Section 2.4 and Section 2.5 and in consideration of the “Post Termination Salary Payment”);
(iii) You shall also be paid execution, delivery and effectiveness of a pro-rated annual bonus, general release of claims in a lump sum standard form approved by the Company, which the Company shall be paid as soon as practicable but not later than pay to Xxxxxxxxxx a lump sum in cash equal to one-half (.5) of Xxxxxxxxxx’x then current Base Salary within sixty (60) days following such Termination Date, in an amount equal after the date of termination. Xxxxxxxxxx shall also be entitled to the prior year’s bonus, if any, pro-rated; and
(iv) The Initial Option receive salary and any stock options and/or restricted stock previously granted under Sections 3(c) and 3(d) of this Agreement shall vest as follows:
(1) If termination is by the Company without Cause or by you for Constructive Termination without Cause or due to your Death or Disability, or the Company elects not to renew your employment at the end of the Term, in the case of such a termination, all unvested stock options and/or restricted stock granted to you that bonuses which are scheduled to vest during or at the end of the Initial Term shall vest earned but unpaid as of the Termination Date; or
(2) If termination is due to Cause or by you not effective date of termination, and such other amounts as a result may be payable from qualified plans, nonqualified retirement plans, and deferred compensation plans, which amounts shall be determined and paid in accordance with the terms of Constructive Termination without Cause, then you shall only be permitted to retain those stock options and/or restricted shares which have vested as of the Termination Datesuch plans.
(b) In If Xxxxxxxxxx’x employment terminates under any circumstance not described in Sections 3.6 or 3.7(a), including the event you (i) voluntarily terminate your Company’s termination of his employment for any reason Cause, or his resignation other than Constructive Termination without Cause, (ii) your employment is terminated by the Company for Cause (as defined in pursuant to Section 5(c) below3.7(a)(ii), or (iii) the Company elects not to renew your employment at the end expiration of the Initial Term or an applicable Renewal Term, you then Xxxxxxxxxx shall only be paid, as soon as practicable but no later than sixty (60) days following the Termination Date, (i) all entitled to be paid salary and bonuses which are earned but unpaid Base Salary through as of the Termination Date; (ii) any previously awarded effective date of termination, and unpaid bonus; such other amounts as may be payable from qualified plans, nonqualified retirement plans, and (iii) all unpaid reimbursable expenses incurred by you through the Termination Date (the “Termination Payments”). In either such eventdeferred compensation plans, you which amounts shall have no further obligation or liability to the Company be determined and paid in connection accordance with the performance terms of this agreement (except the continuing obligations specified in Sections 7, 8 and 10 of this Agreement)such plans.
(c) For No severance benefits shall be provided pursuant to this Section 3.7 if Xxxxxxxxxx’x employment is terminated by reason of the purposes expiration of this Agreement, “Cause” shall mean that you have:Agreement in accordance with Section 1.2.
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