Termination by the Company Without Cause after a Change in Control. The Company may terminate the employment of Executive hereunder without Cause, simultaneously with or at any time after a Change in Control, upon at least 90 days' written notice to Executive. The foregoing notwithstanding, the Company may elect, by written notice to Executive, to terminate Executive's positions specified in Sections 1 and 3 and all other obligations of Executive and the Company under Section 3 at a date earlier than the expiration of such 90-day notice period, if so specified by the Company in the written notice, provided that Executive shall be treated as an employee of the Company (without any assigned duties) for all other purposes of this Agreement, including for purposes of Sections 4 and 5, from such specified date until the expiration of such 90-day period. An election by the Company not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of Executive's employment by the Company without Cause at the date of expiration of the Term and shall be subject to this Section 7(e) if the date of such termination coincides with or is after a Change in Control; provided, however, that, if Executive has attained age 65 at such date of termination, such termination shall be deemed a Retirement of Executive. At the time Executive's employment is terminated by the Company (i.e., at the expiration of such notice period), the Term will terminate, all remaining obligations of the Company and Executive under Sections 1 through 5 of this Agreement will immediately cease (except as expressly provided below), and the Company will pay Executive, and Executive will be entitled to receive, the following: (i) Executive's Compensation Accrued at Termination; (ii) Cash in an aggregate amount equal to three times the sum of (A) Executive's Base Salary under Section 4(a) immediately prior to termination plus (B) an amount equal to the greater of (x) the portion of Executive's annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination or (y) the portion of Executive's annual incentive compensation that became payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the latest year preceding the year of termination based on performance actually achieved in that latest year. The amount determined to be payable under this Section 7(e)(ii) shall be paid by the Company not later than 15 days after Executive's termination; (iii) In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive's employment terminated, an amount equal to the portion of Executive's annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination, multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination; (iv) Stock options held by Executive at termination, if not then vested and exercisable, will become fully vested and exercisable at the date of such termination, and any such options granted on or after the date hereof shall remain outstanding and exercisable until the stated expiration date of the Option as though Executive's employment did not terminate, and, in other respects, such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted; (v) Any performance objectives upon which the earning of performance-based restricted stock and deferred stock awards, including outstanding PERS awards, and other long-term incentive awards is conditioned shall be deemed to have been met at target level at the date of termination, and restricted stock and deferred stock awards, including outstanding PERS awards, and other long-term incentive awards (to the extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at the date of such termination, and, in other respects, such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted; (vi) All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferral; (vii) For purposes of the SERP, Executive will be credited with additional years of age and/or years of Service (as defined in the SERP) if and to the extent required so that Executive's termination will qualify as a "Retirement" within the meaning of the SERP and so that Executive will be entitled the maximum "Retirement Benefit" in accordance with Section 3.1 of the SERP. In addition, the provisions of the SERP notwithstanding, the term "Average Final Compensation" as used in the SERP shall mean the greatest of (A) Average Final Compensation as defined in the SERP, (B) the sum of (x) Executive's Base Salary plus (y) Executive's annual target incentive opportunity for the year in which the Change in Control occurred (if not yet determined, then such opportunity shall be deemed to equal the greater of the minimum annual target incentive opportunity that would be required by this Agreement or the actual annual incentive earned for the year immediately preceding the year in which the Change in Control occurred), or (C) $1,971,755;
Appears in 1 contract
Termination by the Company Without Cause after a Change in Control. The Company may terminate the employment of Executive hereunder without Cause, simultaneously with or at any time within two years after a Change in Control, upon at least 90 days' ’ written notice to Executive. The foregoing notwithstanding, the Company may elect, by written notice to Executive, to terminate Executive's ’s positions specified in Sections 1 and 3 and all other obligations of Executive and the Company under Section 3 at a date earlier than the expiration of such 90-day notice period, if so specified by the Company in the written notice, provided that Executive shall be treated as an employee of the Company (without any assigned duties) for all other purposes of this Agreement, including for purposes of Sections 4 and 5, from such specified date until the expiration of such 90-day period. An election by the Company not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of Executive's ’s employment by the Company without Cause at the date of expiration of the Term and shall be subject to this Section 7(e) if the date of such termination coincides with or is within two years after a Change in Control; provided, however, that, if Executive has attained age 65 at such date of termination, such termination shall be deemed a Retirement of Executive. At the time Executive's ’s employment is terminated by the Company (i.e., at the expiration of such notice period), the Term will terminate, all remaining obligations of the Company and Executive under Sections 1 through 5 of this Agreement will immediately cease (except as expressly provided below), and the Company will pay ExecutiveExecutive at the time specified in Section 7(g), and Executive will be entitled to receive, the following:
(i) Executive's ’s Compensation Accrued at Termination;
(ii) Cash in an aggregate amount equal to three times the sum of (A) Executive's ’s Base Salary under Section 4(a) immediately prior to termination plus (B) an amount equal to the greater of (x) the portion of Executive's ’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination or (y) the portion of Executive's ’s annual incentive compensation that became payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the latest year preceding the year of termination based on performance actually achieved in that latest year. The amount determined to be payable under this Section 7(e)(ii) shall be paid by the Company not later than 15 days after Executive's terminationin a lump sum;
(iii) In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive's ’s employment terminated, an a lump sum amount equal to the portion of Executive's ’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination, multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;
(iv) Stock options and stock appreciation rights held by Executive at termination, if not then vested and exercisable, will become fully vested and exercisable at the date of such termination, and any such options or stock appreciation rights granted on or after the date hereof Effective Date shall remain outstanding and exercisable until the stated expiration date of the Option option or stock appreciation right as though Executive's ’s employment did not terminate, and, in other respects, such options and stock appreciation rights shall be governed by the plans and programs and the agreements and other documents pursuant to which such options and stock appreciation rights were granted;
(v) Any The performance period under any long-term incentive plan pursuant to which equity or other awards have been granted shall be treated as satisfied and any performance objectives upon which the earning of performance-based restricted stock and deferred stock awards, including outstanding PERS awards, awards and other long-term incentive awards is conditioned shall be deemed to have been met at target level at the date of termination, . PERS for the year of termination shall be awarded which match the dollar value pro-rata amount of annual incentive compensation payable pursuant to Section 7(e)(iii) above and restricted stock and deferred stock awards, including such PERS awards together with all outstanding PERS awards, restricted stock, deferred stock awards and other long-term incentive awards (to the extent then or previously earned, in the case or earned as a result of performance-based awardsthis Section) shall become fully vested and non-forfeitable at the date of such termination, and, in other respects, such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted;
(vi) All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferral;
(vii) For purposes of the SERP, Executive will be credited with additional years of age and/or years of Service (as defined in the SERP) if and to the extent required so that Executive's termination will qualify as a "Retirement" within the meaning of All rights under the SERP and so that Executive will any other benefit plan shall be entitled the maximum "Retirement Benefit" in accordance with Section 3.1 of the SERP. In additiongoverned by such plan, as modified by this Agreement, except that, the provisions of the SERP notwithstanding, the term "“Average Final Compensation" ” as used in the SERP shall mean the greatest greater of (A) Average Final Compensation as defined in the SERP, SERP or (B) the sum of (x) Executive's Base Salary plus (y) Executive's annual target incentive opportunity for the year in which the Change in Control occurred (if not yet determined, then such opportunity shall be deemed to equal the greater of the minimum annual target incentive opportunity that would be required by this Agreement or the actual annual incentive earned for the year immediately preceding the year in which the Change in Control occurred), or (C) $1,971,755;1,650,000; and
Appears in 1 contract
Termination by the Company Without Cause after a Change in Control. The Company may terminate the employment of Executive hereunder without Cause, simultaneously with or at any time after within 24 months following a Change in Control, upon at least 90 days' written notice to Executive. The foregoing notwithstanding, the Company may elect, by written notice to Executive, to terminate Executive's positions specified in Sections 1 and 3 and all other obligations of Executive and the Company under Section 3 at a date earlier than the expiration of such 90-day notice period, if so specified by the Company in the written notice, provided that Executive shall be treated as an employee of the Company (without any assigned duties) for all other purposes of this Agreement, including for purposes of Sections 4 and 5, from such specified date until the expiration of such 90-day period. An election by the Company not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of Executive's employment by the Company without Cause at the date of expiration of the Term and shall be subject to this Section 7(e) if the date of such termination coincides with or is after a Change in Control or Potential Change in Control; provided, however, that, if Executive has attained age 65 at such date of termination, such termination shall be deemed a Retirement of Executive. At the time Executive's employment is terminated by the Company (i.e., at the expiration of such notice period), the Term will terminate, all remaining obligations of the Company and Executive under Sections 1 through 5 of this Agreement will immediately cease (except as expressly provided below), and the Company will pay Executive, and Executive will be entitled to receive, the following:
(i) Executive's Compensation Accrued at Termination;
(ii) Cash in an aggregate amount equal to three times the sum of (A) Executive's Base Salary under Section 4(a) immediately prior to termination plus (B) an amount equal to the greater of (x) the portion of Executive's annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination or (y) the portion of Executive's annual incentive compensation that became payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the latest year preceding the year of termination based on performance actually achieved in that latest year. The amount determined to be payable under this Section 7(e)(ii) shall be paid by the Company not later than 15 days after Executive's termination;
(iii) In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive's employment terminated, an amount equal to the portion of Executive's annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination, multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;
(iv) Stock options held by Executive at termination, if not then vested and exercisable, will become fully vested and exercisable at the date of such termination, and any such options granted on or after the date hereof shall remain outstanding and exercisable until the stated expiration date of the Option as though Executive's employment did not terminate, and, in other respects, such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;
(v) Any performance objectives upon which the earning of performance-based restricted stock and deferred stock awards, awards including outstanding PERS awards, and other long-term incentive awards is conditioned shall be deemed to have been met at target level at the date of termination, and restricted stock and deferred stock awards, including outstanding PERS awards, and other long-term incentive awards (to the extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at the date of such termination, and, in other respects, such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted;
(vi) All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferraldeferral and all rights under the SERP and any other benefit plan shall be governed by such plan, as modified by this Agreement;
(vii) For purposes of the SERP, Executive will be credited with additional years of age and/or years of Service (as defined in the SERP) if and to the extent required so that Executive's termination will qualify as a "Retirement" within the meaning of the SERP and so that Executive will be entitled the maximum "Retirement Benefit" in accordance with Section 3.1 of the SERP. In addition, the provisions of the SERP notwithstanding, the term "Average Final Compensation" as used in the SERP shall mean the greatest of (A) Average Final Compensation as defined in the SERP, (B) the sum of (x) Executive's Base Salary plus (y) Executive's annual target incentive opportunity for the year in which the Change in Control occurred (if not yet determined, then such opportunity shall be deemed to equal the greater of the minimum annual target incentive opportunity that would be required by this Agreement or the actual annual incentive earned for the year immediately preceding the year in which the Change in Control occurred), or (C) $1,971,755;
Appears in 1 contract
Termination by the Company Without Cause after a Change in Control. The Company may terminate the employment of Executive hereunder without Cause, simultaneously with or at any time after within 24 months following a Change in Control, upon at least 90 days' written notice to Executive. The foregoing notwithstanding, the Company may elect, by written notice to Executive, to terminate Executive's positions specified in Sections 1 and 3 and all other obligations of Executive and the Company under Section 3 at a date earlier than the expiration of such 90-day notice period, if so specified by the Company in the written notice, provided that Executive shall be treated as an employee of the Company (without any assigned duties) for all other purposes of this Agreement, including for purposes of Sections 4 and 5, from such specified date until the expiration of such 90-day period. An election by the Company not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of Executive's employment by the Company without Cause at the date of expiration of the Term and shall be subject to this Section 7(e) if the date of such termination coincides with or is after a Change in Control or Potential Change in Control; provided, however, that, if Executive has attained age 65 at such date of termination, such termination shall be deemed a Retirement of Executive. At the time Executive's employment is terminated by the Company (i.e., at the expiration of such notice period), the Term will terminate, all remaining obligations of the Company and Executive under Sections 1 through 5 of this Agreement will immediately cease (except as expressly provided below), and the Company will pay Executive, and Executive will be entitled to receive, the following:
(i) Executive's Compensation Accrued at Termination;
(ii) Cash in an aggregate amount equal to three times the sum of (A) Executive's Base Salary under Section 4(a) immediately prior to termination plus (B) an amount equal to the greater of (x) the portion of Executive's annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination or (y) the portion of Executive's annual incentive compensation that became payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the latest year preceding the year of termination based on performance actually achieved in that latest year. The amount determined to be payable under this Section 7(e)(ii) shall be paid by the Company not later than 15 days after Executive's termination;
(iii) In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive's employment terminated, an amount equal to the portion of Executive's annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination, multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;
(iv) Stock options held by Executive at termination, if not then vested and exercisable, will become fully vested and exercisable at the date of such termination, and any such options granted on or after the date hereof shall remain outstanding and exercisable until the stated expiration date of the Option as though Executive's employment did not terminate, and, in other respects, such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;
(v) Any performance objectives upon which the earning of performance-based restricted stock and deferred stock awards, including outstanding PERS awards, and other long-term incentive awards is conditioned shall be deemed to have been met at target level at the date of termination, and restricted stock and deferred stock awards, including outstanding PERS awards, and other long-term incentive awards (to the extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at the date of such termination, and, in other respects, such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted;
(vi) All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferraldeferral and all rights under the SERP and any other benefit plan shall be governed by such plan, as modified by this Agreement;
(vii) For purposes of the SERP, Executive will be credited with additional years of age and/or years of Service (as defined in the SERP) if and to the extent required so that Executive's termination will qualify as a "Retirement" within the meaning of the SERP and so that Executive will be entitled the maximum "Retirement Benefit" in accordance with Section 3.1 of the SERP. In addition, the provisions of the SERP notwithstanding, the term "Average Final Compensation" as used in the SERP shall mean the greatest of (A) Average Final Compensation as defined in the SERP, (B) the sum of (x) Executive's Base Salary plus (y) Executive's annual target incentive opportunity for the year in which the Change in Control occurred (if not yet determined, then such opportunity shall be deemed to equal the greater of the minimum annual target incentive opportunity that would be required by this Agreement or the actual annual incentive earned for the year immediately preceding the year in which the Change in Control occurred), or (C) $1,971,755;2,000,000; and
Appears in 1 contract
Termination by the Company Without Cause after a Change in Control. The Company may terminate the employment of Executive hereunder without Cause, simultaneously with or at any time after within 24 months following a Change in Control, upon at least 90 days' ’ written notice to Executive. The foregoing notwithstanding, the Company may elect, by written notice to Executive, to terminate Executive's ’s positions specified in Sections 1 and 3 and all other obligations of Executive and the Company under Section 3 at a date earlier than the expiration of such 90-day notice period, if so specified by the Company in the written notice, provided that Executive shall be treated as an employee of the Company (without any assigned duties) for all other purposes of this Agreement, including for purposes of Sections 4 and 5, from such specified date until the expiration of such 90-day period. An election by the Company not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of Executive's ’s employment by the Company without Cause at the date of expiration of the Term and shall be subject to this Section 7(e) if the date of such termination coincides with or is after a Change in Control or Potential Change in Control; provided, however, that, if Executive has attained age 65 at such date of termination, such termination shall be deemed a Retirement of Executive. At the time Executive's ’s employment is terminated by the Company (i.e., at the expiration of such notice period), the Term will terminate, all remaining obligations of the Company and Executive under Sections 1 through 5 of this Agreement will immediately cease (except as expressly provided below), and the Company will pay Executive, and Executive will be entitled to receive, the following:
(i) Executive's ’s Compensation Accrued at Termination;
(ii) Cash in an aggregate amount equal to three times the sum of (A) Executive's ’s Base Salary under Section 4(a) immediately prior to termination plus (B) an amount equal to the greater of (x) the portion of Executive's ’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination or (y) the portion of Executive's ’s annual incentive compensation that became payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the latest year preceding the year of termination based on performance actually achieved in that latest year. The amount determined to be payable under this Section 7(e)(ii) shall be paid by the Company not later than 15 days after Executive's ’s termination;
(iii) In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive's ’s employment terminated, an amount equal to the portion of Executive's ’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination, multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;
(iv) Stock options held by Executive at termination, if not then vested and exercisable, will become fully vested and exercisable at the date of such termination, and any such options granted on or after the date hereof shall remain outstanding and exercisable until the stated expiration date of the Option as though Executive's ’s employment did not terminate, and, in other respects, such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;
(v) Any performance objectives upon which the earning of performance-based restricted stock and deferred stock awards, including outstanding PERS awards, awards and other long-term incentive awards is conditioned shall be deemed to have been met at target level at the date of termination, and restricted stock and deferred stock awards, including outstanding PERS awards, and other long-term incentive awards (to the extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at the date of such termination, and, in other respects, such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted;
(vi) All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferral;deferral and all rights under the SERP and any other benefit plan shall be governed by such plan, as modified by this Agreement; and
(vii) For purposes a period of the SERPthree years after such termination (but not after Executive attains age 65), Executive will shall continue to participate in those employee and executive benefit plans and programs under Section 5(b) to the extent such plans and programs provide medical insurance, disability insurance and life insurance benefits (but not other benefits, such as pension and retirement benefits, provided under Section 5(b)) in which Executive was participating immediately prior to termination, the terms of which allow Executive’s continued participation, as if Executive had continued in employment with the Company during such period, and on terms no less favorable than the terms applicable to Executive before the Change in Control; provided, however, that such participation shall terminate, or the benefits under such plans and programs shall be credited with additional years of age and/or years of Service (as defined in the SERP) reduced, if and to the extent required so that Executive's termination will qualify as Executive becomes covered (or is eligible to become covered) by plans of a "Retirement" within subsequent employer or other entity to which Executive provides services during such period providing comparable benefits. If the meaning terms of the SERP Company plans and so programs referred to in this Section 7(e)(viii) do not allow Executive’s continued participation, Executive shall be paid a cash payment equivalent on an after-tax basis to the value of the additional benefits described in this Section 7(e)(viii) Executive would have received under such plans or programs had Executive continued to be employed during such period, with such benefits provided by the Company at the same times and in the same manner as such benefits would have been provided to Executive under such plans and programs (it being understood that the value of any insurance-provided benefits will be based on the premium cost to Executive, which shall not exceed the highest risk premium charged by a carrier having an investment grade or better credit rating); provided, however, that Executive will must continue to satisfy the conditions set forth in Section 10 in order to continue receiving the benefits provided under this Section 7(e)(viii). Executive agrees to promptly notify the Company of any employment or other arrangement by which Executive provides services during the benefits-continuation period and of the nature and extent of benefits for which Executive becomes eligible during such period which would reduce or terminate benefits under this Section 7(e)(viii); and the Company shall be entitled to recover from Executive any payments and the maximum "Retirement Benefit" in accordance with fair market value of benefits previously made or provided to Executive hereunder which would not have been paid under this Section 3.1 of 7(e)(viii) if the SERP. In addition, the provisions of the SERP notwithstanding, the term "Average Final Compensation" Company had received adequate prior notice as used in the SERP shall mean the greatest of (A) Average Final Compensation as defined in the SERP, (B) the sum of (x) Executive's Base Salary plus (y) Executive's annual target incentive opportunity for the year in which the Change in Control occurred (if not yet determined, then such opportunity shall be deemed to equal the greater of the minimum annual target incentive opportunity that would be required by this Agreement sentence. If any payment or benefit under this Section 7(e) is based on Base Salary or other level of compensation or benefits at the actual annual incentive earned for time of Executive’s termination and if the year immediately preceding Company has purported to reduce Base Salary or other level of compensation or benefits prior to such termination in a manner that would constitute Good Reason, then the year Base Salary or other level of compensation in which the Change in Control occurredeffect before such reduction shall be used to calculate payments or benefits under this Section 7(e), or (C) $1,971,755;.
Appears in 1 contract
Termination by the Company Without Cause after a Change in Control. The Company may terminate the employment of Executive hereunder without Cause, simultaneously with or at any time after within 24 months following a Change in Control, upon at least 90 days' ’ written notice to Executive. The foregoing notwithstanding, the Company may elect, by written notice to Executive, to terminate Executive's ’s positions specified in Sections 1 and 3 and all other obligations of Executive and the Company under Section 3 at a date earlier than the expiration of such 90-day notice period, if so specified by the Company in the written notice, provided that Executive shall be treated as an employee of the Company (without any assigned duties) for all other purposes of this Agreement, including for purposes of Sections 4 and 5, from such specified date until the expiration of such 90-day period. An election by the Company not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of Executive's employment by the Company without Cause at the date of expiration of the Term and shall be subject to this Section 7(e) if the date of such termination coincides with or is after a Change in Control; provided, however, that, if Executive has attained age 65 at such date of termination, such termination shall be deemed a Retirement of Executive. At the time Executive's ’s employment is terminated by the Company (i.e., at the expiration of such notice period), the Term will terminate, all remaining obligations of the Company and Executive under Sections 1 through 5 of this Agreement will immediately cease (except as expressly provided below), and the Company will pay Executive, and Executive will be entitled to receive, the following:
(i) Executive's ’s Compensation Accrued at Termination;
(ii) Cash in an aggregate amount equal to three times the sum of (A) Executive's ’s Base Salary under Section 4(a) immediately prior to termination plus (B) an amount equal to the greater of (x) the portion of Executive's ’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination or (y) the portion of Executive's ’s annual incentive compensation that became payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the latest year preceding the year of termination based on performance actually achieved in that latest year. The amount determined to be payable under this Section 7(e)(ii) shall be paid by the Company not later than 15 days after Executive's ’s termination;
(iii) In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive's ’s employment terminated, an amount equal to the portion of Executive's ’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination, multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;
(iv) Stock options held by Executive at termination, if not then vested and exercisable, will become fully vested and exercisable at the date of such termination, and any such options granted on or after the date hereof shall remain outstanding and exercisable until the stated expiration date of the Option as though Executive's ’s employment did not terminate, and, in other respects, such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;
(v) Any performance objectives upon which the earning of performance-based restricted stock and deferred stock awards, including outstanding PERS awards, awards and other long-term incentive awards is conditioned shall be deemed to have been met at target level at the date of termination, and restricted stock and deferred stock awards, including outstanding PERS awards, and other long-term incentive awards (to the extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at the date of such termination, and, in other respects, such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted;
(vi) All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferraldeferral and all rights under the SERP and any other benefit plan shall be governed by such plan, as modified by this Agreement;
(vii) For purposes of the SERP, Executive will be credited with additional years of age and/or years of Service (as defined in the SERP) if and to the extent required so that Executive's ’s termination will qualify as a "“Retirement" ” within the meaning of the SERP and so that Executive will be entitled the maximum "“Retirement Benefit" ” in accordance with Section 3.1 of the SERP. In addition, the provisions of the SERP notwithstanding, the term "“Average Final Compensation" ” as used in the SERP shall mean the greatest of (A) Average Final Compensation as defined in the SERP, (B) the sum of (x) Executive's ’s Base Salary plus (y) Executive's ’s annual target incentive opportunity for the year in which the Change in Control occurred (if not yet determined, then such opportunity shall be deemed to equal the greater of the minimum annual target incentive opportunity that would be required by this Agreement or the actual annual incentive earned for the year immediately preceding the year in which the Change in Control occurred), or (C) $1,971,755;2,000,000; and
Appears in 1 contract
Termination by the Company Without Cause after a Change in Control. The Company may terminate the employment of Executive hereunder without Cause, simultaneously with or at any time after within 24 months following a Change in Control, upon at least 90 days' ’ written notice to Executive. The foregoing notwithstanding, the Company may elect, by written notice to Executive, to terminate Executive's ’s positions specified in Sections 1 and 3 and all other obligations of Executive and the Company under Section 3 at a date earlier than the expiration of such 90-day notice period, if so specified by the Company in the written notice, provided that Executive shall be treated as an employee of the Company (without any assigned duties) for all other purposes of this Agreement, including for purposes of Sections 4 and 5, from such specified date until the expiration of such 90-day period. An election by the Company not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of Executive's ’s employment by the Company without Cause at the date of expiration of the Term and shall be subject to this Section 7(e) if the date of such termination coincides with or is after a Change in Control or Potential Change in Control; provided, however, that, if Executive has attained age 65 at such date of termination, such termination shall be deemed a Retirement of Executive. At the time Executive's ’s employment is terminated by the Company (i.e., at the expiration of such notice period), the Term will terminate, all remaining obligations of the Company and Executive under Sections 1 through 5 of this Agreement will immediately cease (except as expressly provided below), and the Company will pay Executive, and Executive will be entitled to receive, the following:
(i) Executive's ’s Compensation Accrued at Termination;
(ii) Cash in an aggregate amount equal to three times the sum of (A) Executive's ’s Base Salary under Section 4(a) immediately prior to termination plus (B) an amount equal to the greater of (x) the portion of Executive's ’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination or (y) the portion of Executive's ’s annual incentive compensation that became payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the latest year preceding the year of termination based on performance actually achieved in that latest year. The amount determined to be payable under this Section 7(e)(ii) shall be paid by the Company not later than 15 days after Executive's ’s termination;
(iii) In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive's ’s employment terminated, an amount equal to the portion of Executive's ’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination, multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;
(iv) Stock options held by Executive at termination, if not then vested and exercisable, will become fully vested and exercisable at the date of such termination, and any such options granted on or after the date hereof shall remain outstanding and exercisable until the stated expiration date of the Option as though Executive's ’s employment did not terminate, and, in other respects, such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;
(v) Any performance objectives upon which the earning of performance-based restricted stock and deferred stock awards, including outstanding PERS awards, awards and other long-term incentive awards is conditioned shall be deemed to have been met at target level at the date of termination, and restricted stock and deferred stock awards, including outstanding PERS awards, and other long-term incentive awards (to the extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at the date of such termination, and, in other respects, such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted;
(vi) All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferral;
(vii) For purposes of the SERP, Executive will be credited with additional years of age and/or years of Service (as defined in the SERP) if and to the extent required so that Executive's termination will qualify as a "Retirement" within the meaning of All rights under the SERP and so that Executive will any other benefit plan shall be entitled the maximum "Retirement Benefit" in accordance with Section 3.1 of the SERP. In additiongoverned by such plan, as modified by this Agreement, except that, the provisions of the SERP notwithstanding, the term "“Average Final Compensation" ” as used in the SERP shall mean the greatest greater of (A) Average Final Compensation as defined in the SERP, SERP or (B) the sum of (x) Executive's Base Salary plus (y) Executive's annual target incentive opportunity for the year in which the Change in Control occurred (if not yet determined, then such opportunity shall be deemed to equal the greater of the minimum annual target incentive opportunity that would be required by this Agreement or the actual annual incentive earned for the year immediately preceding the year in which the Change in Control occurred), or (C) $1,971,755;1,650,000; and
Appears in 1 contract
Termination by the Company Without Cause after a Change in Control. The Company may terminate the employment of Executive hereunder without Cause, simultaneously with or at any time after a Change in Control, upon at least 90 days' written notice to Executive. The foregoing notwithstanding, the Company may elect, by written notice to Executive, to terminate Executive's positions specified in Sections 1 and 3 and all other obligations of Executive and the Company under Section 3 at a date earlier than the expiration of such 90-day notice period, if so specified by the Company in the written notice, provided that Executive shall be treated as an employee of the Company (without any assigned duties) for all other purposes of this Agreement, including for purposes of Sections 4 and 5, from such specified date until the expiration of such 90-day period. An election by the Company not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of Executive's employment by the Company without Cause at the date of expiration of the Term and shall be subject to this Section 7(e) if the date of such termination coincides with or is after a Change in Control; provided, however, that, if Executive has attained age 65 at such date of termination, such termination shall be deemed a Retirement of Executive. At the time Executive's employment is terminated by the Company (i.e., at the expiration of such notice period), the Term will terminate, all remaining obligations of the Company and Executive under Sections 1 through 5 of this Agreement will immediately cease (except as expressly provided below), and the Company will pay Executive, and Executive will be entitled to receive, the following:
(i) Executive's Compensation Accrued at Termination;
(ii) Cash in an aggregate amount equal to three times the sum of (A) Executive's Base Salary under Section 4(a) immediately prior to termination plus (B) an amount equal to the greater of (x) the portion of Executive's annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination or (y) the portion of Executive's annual incentive compensation that became payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the latest year preceding the year of termination based on performance actually achieved in that latest year. The amount determined to be payable under this Section 7(e)(ii) shall be paid by the Company not later than 15 days after Executive's termination;
(iii) In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive's employment terminated, an amount equal to the portion of Executive's annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination, multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;
(iv) Stock options held by Executive at termination, if not then vested and exercisable, will become fully vested and exercisable at the date of such termination, and any such options granted on or after the date hereof shall remain outstanding and exercisable until the stated expiration date of the Option as though Executive's employment did not terminate, and, in other respects, such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;
(v) Any performance objectives upon which the earning of performance-based restricted stock and deferred stock awards, including outstanding PERS awards, and other long-term incentive awards is conditioned shall be deemed to have been met at target level at the date of termination, and restricted stock and deferred stock awards, including outstanding PERS awards, and other long-term incentive awards (to the extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at the date of such termination, and, in other respects, such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted;
(vi) All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferral;
(vii) For purposes of the SERP, Executive will be credited with additional years of age and/or years of Service (as defined in the SERP) if and to the extent required so that Executive's termination will qualify as a "Retirement" within the meaning of the SERP and so that Executive will be entitled the maximum "Retirement Benefit" in accordance with Section 3.1 of the SERP. In addition, the provisions of the SERP notwithstanding, the term "Average Final Compensation" as used in the SERP shall mean the greatest of (A) Average Final Compensation as defined in the SERP, (B) the sum of (x) Executive's Base Salary plus (y) Executive's annual target incentive opportunity for the year in which the Change in Control occurred (if not yet determined, then such opportunity shall be deemed to equal the greater of the minimum annual target incentive opportunity that would be required by this Agreement or the actual annual incentive earned for the year immediately preceding the year in which the Change in Control occurred), or (C) $1,971,755;2,000,000; and
Appears in 1 contract
Termination by the Company Without Cause after a Change in Control. The Company may terminate the employment of Executive hereunder without Cause, simultaneously with or at any time after within 24 months following a Change in Control, upon at least 90 days' written notice to Executive. The foregoing notwithstanding, the Company may elect, by written notice to Executive, to terminate Executive's positions specified in Sections 1 and 3 and all other obligations of Executive and the Company under Section 3 at a date earlier than the expiration of such 90-day notice period, if so specified by the Company in the written notice, provided that Executive shall be treated as an employee of the Company (without any assigned duties) for all other purposes of this Agreement, including for purposes of Sections 4 and 5, from such specified date until the expiration of such 90-day period. An election by the Company not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of Executive's employment by the Company without Cause at the date of expiration of the Term and shall be subject to this Section 7(e) if the date of such termination coincides with or is after a Change in Control or Potential Change in Control; provided, however, that, if Executive has attained age 65 at such date of termination, such termination shall be deemed a Retirement of Executive. At the time Executive's employment is terminated by the Company (i.e., at the expiration of such notice period), the Term will terminate, all remaining obligations of the Company and Executive under Sections 1 through 5 of this Agreement will immediately cease (except as expressly provided below), and the Company will pay Executive, and Executive will be entitled to receive, the following:
(i) Executive's Compensation Accrued at Termination;
(ii) Cash in an aggregate amount equal to three times the sum of (A) Executive's Base Salary under Section 4(a) immediately prior to termination plus (B) an amount equal to the greater of (x) the portion of Executive's annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination or (y) the portion of Executive's annual incentive compensation that became payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the latest year preceding the year of termination based on performance actually achieved in that latest year. The amount determined to be payable under this Section 7(e)(ii) shall be paid by the Company not later than 15 days after Executive's termination;
(iii) In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive's employment terminated, an amount equal to the portion of Executive's annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination, multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;
(iv) Stock options held by Executive at termination, if not then vested and exercisable, will become fully vested and exercisable at the date of such termination, and any such options granted on or after the date hereof shall remain outstanding and exercisable until the stated expiration date of the Option as though Executive's employment did not terminate, and, in other respects, such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;
(v) Any performance objectives upon which the earning of performance-based restricted stock and deferred stock awards, including outstanding PERS awards, awards and other long-term incentive awards is conditioned shall be deemed to have been met at target level at the date of termination, and restricted stock and deferred stock awards, including outstanding PERS awards, and other long-term incentive awards (to the extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at the date of such termination, and, in other respects, such awards shall be governed by the plans and programs and the agreements and other documents pursuant to which such awards were granted;
(vi) All deferral arrangements under Section 5(d) will be settled in accordance with the plans and programs governing the deferral;deferral and all rights under the SERP and any other benefit plan shall be governed by such plan, as modified by this Agreement; and
(vii) For purposes a period of the SERPthree years after such termination (but not after Executive attains age 65), Executive will shall continue to participate in those employee and executive benefit plans and programs under Section 5(b) to the extent such plans and programs provide medical insurance, disability insurance and life insurance benefits (but not other benefits, such as pension and retirement benefits, provided under Section 5(b)) in which Executive was participating immediately prior to termination, the terms of which allow Executive's continued participation, as if Executive had continued in employment with the Company during such period, and on terms no less favorable than the terms applicable to Executive before the Change in Control; provided, however, that such participation shall terminate, or the benefits under such plans and programs shall be credited with additional years of age and/or years of Service (as defined in the SERP) reduced, if and to the extent Executive becomes covered (or is eligible to become covered) by plans of a subsequent employer or other entity to which Executive provides services during such period providing comparable benefits. If the terms of the Company plans and programs referred to in this Section 7(e)(viii) do not allow Executive's continued participation, Executive shall be paid a cash payment equivalent on an after-tax basis to the value of the additional benefits described in this Section 7(e)(viii) Executive would have received under such plans or programs had Executive continued to be employed during such period, with such benefits provided by the Company at the same times and in the same manner as such benefits would have been provided to Executive under such plans and programs (it being understood that the value of any insurance-provided benefits will be based on the premium cost to Executive, which shall not exceed the highest risk premium charged by a carrier having an investment grade or better credit rating); provided, however, that Executive must continue to satisfy the conditions set forth in Section 10 in order to continue receiving the benefits provided under this Section 7(e)(viii). Executive agrees to promptly notify the Company of any employment or other arrangement by which Executive provides services during the benefits-continuation period and of the nature and extent of benefits for which Executive becomes eligible during such period which would reduce or terminate benefits under this Section 7(e)(viii); and the Company shall be entitled to recover from Executive any payments and the fair market value of benefits previously made or provided to Executive hereunder which would not have been paid under this Section 7(e)(viii) if the Company had received adequate prior notice as required so that by this sentence. If any payment or benefit under this Section 7(e) is based on Base Salary or other level of compensation or benefits at the time of Executive's termination will qualify as a "Retirement" within and if the meaning of the SERP and so that Executive will be entitled the maximum "Retirement Benefit" in accordance with Section 3.1 of the SERP. In addition, the provisions of the SERP notwithstanding, the term "Average Final Compensation" as used in the SERP shall mean the greatest of (A) Average Final Compensation as defined in the SERP, (B) the sum of (x) Executive's Company has purported to reduce Base Salary plus (y) Executive's annual target incentive opportunity for the year or other level of compensation or benefits prior to such termination in which the Change in Control occurred (if not yet determineda manner that would constitute Good Reason, then the Base Salary or other level of compensation in effect before such opportunity reduction shall be deemed used to equal the greater of the minimum annual target incentive opportunity that would be required by calculate payments or benefits under this Agreement or the actual annual incentive earned for the year immediately preceding the year in which the Change in Control occurredSection 7(e), or (C) $1,971,755;.
Appears in 1 contract
