Termination by the Company Without Cause and Termination by Executive for Good Reason. Upon an Executive's Date of Termination prior to the Extension Date without Cause (including non-renewal of the Term of this Termination Agreement without Cause) or voluntarily by the Executive for Good Reason, the Term will terminate and all obligations of the Company and Executive under Sections 1 through 4 of this Termination Agreement and under the Employment Agreement will immediately cease; provided, however, that subject to the provisions of Section 13(c) the Company shall pay to the Executive (or his or her beneficiaries) and Executive (or his or her beneficiaries) shall be entitled to receive the following amounts: (i) the Company shall pay to Executive within, or commencing within, thirty (30) days after the Date of Termination, the following amounts: (A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, and (2) the product of (x) the target Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve (12) full months or during which the Executive was employed for less than twelve (12) full months) for the fiscal year, and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, in each case to the extent not theretofore paid; (B) twenty-four (24) semi-monthly payments during a twelve (12) consecutive month period equal to the Executive's Annual Base Salary divided by twenty-four (24); provided, however, notwithstanding anything to the contrary in the Termination Agreement or in the Employment Agreement, none of such amounts shall qualify Executive for any incremental benefit under any plan or program in which he has participated or continues to participate; (C) a single lump sum amount equal to the actuarial equivalent (determined in accordance with Section 5(b)(iv) of the Employment Agreement) of the benefit under the SERP; (D) a cash amount will be paid equal to the value at the Date of Termination of any phantom shares of Common Stock credited to Executive's deferral accounts under deferral arrangements authorized under the Employment Agreement at the Date of Termination, less applicable withholding taxes under Section 14(i) of the Employment Agreement; provided, however, that the Company may instead settle such accounts by directing the Trustee to distribute the assets of the "rabbi trust" and the Company shall be relieved of its obligation under this Termination Agreement and the Employment Agreement to the extent that assets are so distributed. Such amounts shall be paid or distributed as promptly as practicable following such Date of Termination, without regard to any stated period of deferral otherwise remaining in respect of such amounts, and the payment of such amounts shall be deemed to fully settle such accounts; and (E) to the extent not covered by (A), (B), (C) or (D) above, all vested, nonforfeitable amounts owing and accrued at the Date of Termination under any compensation and benefit plans, programs, and arrangements in which Executive theretofore participated will be paid under the terms and conditions of the plans, programs, and arrangements (and agreements and documents thereunder) pursuant to which such compensation and benefits were granted; and (ii) stock options then held by Executive will be exercisable to the extent and for such periods, and otherwise governed, by
Appears in 3 contracts
Samples: Termination and Change of Control Agreement (Walbro Corp), Termination and Change of Control Agreement (Walbro Corp), Termination and Change of Control Agreement (Walbro Corp)
Termination by the Company Without Cause and Termination by Executive for Good Reason. Upon an Executive's Date In accordance with the provisions of Termination prior to this Section 7(b), the Extension Date Company may terminate the employment of Executive without Cause (as defined in Section 8(a)), including nonafter a Change in Control (as defined in Section 8(b)), upon 90 days' written notice to Executive, and Executive may terminate his employment with the Company for Good Reason (as defined in Section 8(d)) upon written notice to the Company; provided, however, that, (1) in the case of a termination for Good Reason prior to a Change in Control, the Executive must provide 90 days' written notice to the Company and if the basis for such Good Reason is correctable, the Company must not have corrected the basis for such Good Reason within 30 days after receipt of such notice, and (2) in the case of a termination for Good Reason after a Change in Control, the Executive may provide written notice to the Company at any time during the Term, regardless of when the circumstances giving rise to such Good Reason did occur. The foregoing notwithstanding, the Company may, in lieu of providing 90 days' written notice to Executive, pay Executive his then-renewal current annual base salary under Section 4(a) and credit Executive with service for 90 days for all purposes hereunder. An election by the Company not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of this Agreement by the Company without Cause at the date of expiration of the Term Term. Upon a termination of this Termination Agreement Executive's employment by the Company without Cause) , or voluntarily termination of Executive's employment by the Executive for Good Reason, the Term will immediately terminate and all obligations of the Company and Executive parties under Sections 1 through 4 5 of this Termination Agreement and under the Employment Agreement will immediately cease; provided, however, except that subject to the provisions of Section 13(c12(i) the Company shall pay to the Executive (or his or her beneficiaries) Executive, and Executive (or his or her beneficiaries) shall be entitled to receive receive, the following amountsfollowing:
(i) the Company shall pay to Executive within, or commencing within, thirty (30) days after the Date of Termination, the following amounts:
(A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, and (2) the product of (x) the target Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve (12) full months or during which the Executive was employed for less than twelve (12) full months) for the fiscal year, and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, in each case to the extent not theretofore paid;
(B) twenty-four (24) semi-monthly payments during a twelve (12) consecutive month period equal to the Executive's Annual Base Salary divided by twenty-four (24); provided, however, notwithstanding anything to the contrary in the Termination Agreement or in the Employment Agreement, none of such amounts shall qualify Executive for any incremental benefit under any plan or program in which he has participated or continues to participate;
(C) a single A lump sum cash payment in an amount equal to the actuarial equivalent sum of Executive's then-current annual base salary at the rate payable under Section 4(a) immediately prior to termination plus the Severance Annual Incentive Amount (determined as defined below) multiplied by 3 (2 in accordance with the case of a termination of employment prior to a Change in Control), which payment shall be reduced pro rata to the extent the number of full months remaining until Executive attains age 65 is less than 36 months (24 months in the case of a termination of employment prior to a Change in Control). For purposes of this Section 5(b)(iv7(b)(i) and Section 7(b)(iv), the "Severance Annual Incentive Amount" shall be 50% of the Employment Agreement) current annual base salary referred to above. Notwithstanding the foregoing, the lump sum cash payment described in the preceding sentence shall be reduced by 50% in the case of the benefit under the SERP;
(D) a cash amount will be paid equal to the value at the Date termination of Termination of any phantom shares of Common Stock credited to Executive's deferral accounts under deferral arrangements authorized under employment by the Employment Agreement at Executive for Good Reason, if the Date effective date of Terminationsuch termination occurs within 12 months after the date of a Change in Control, less applicable withholding taxes under Section 14(i) of the Employment Agreement; provided, however, that if subsequent to the date the Executive gives written notice of a termination for Good Reason, but prior to the effective date of such termination selected by the Executive, the Company may instead settle terminates the Executive, the reduction shall not apply, but if the Executive terminates employment prior to such accounts by directing effective date and before the Trustee to distribute date which is 12 months after the assets date of Change in Control, the "rabbi trust" and the Company reduction shall be relieved of its obligation under this Termination Agreement and the Employment Agreement to the extent that assets are so distributed. Such amounts shall be paid or distributed as promptly as practicable following such Date of Termination, without regard to any stated period of deferral otherwise remaining in respect of such amounts, and the payment of such amounts shall be deemed to fully settle such accounts; andapply;
(Eii) to The unpaid portion of annual base salary at the extent not covered by rate payable, in accordance with Section 4(a) hereof, at the date of termination of employment, pro rated through such date of termination, will be paid;
(A), (B), (Ciii) or (D) above, all All vested, nonforfeitable amounts owing and or accrued at the Date date of Termination termination of employment under any compensation and benefit plans, programs, and arrangements set forth or referred to in Sections 4(b) and 5(a) and (b) hereof (including any earned annual incentive compensation and long term incentive award) in which Executive theretofore participated participated, and all amounts not vested and nonforfeitable, but owing and accrued at the date of termination of employment, under such benefit plans, programs, and arrangements, shall become vested and nonforfeitable and will be paid under the terms and conditions of the plans, programs, and arrangements (and agreements and documents thereunder) pursuant to which such compensation and benefits were granted; and;
(iiiv) stock In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive's employment terminated (unless otherwise payable under (iii) above), Executive will be paid an amount equal to the Severance Annual Incentive Amount as defined in Section 7(b)(i) which shall be 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;
(v) In lieu of any payment in respect of any long term incentive award granted in accordance with Section 5(a) for any performance and vesting periods not completed at the date Executive's employment terminated (unless otherwise payable under (iii) above), an amount equal to any cash amount plus the value of any shares of Common Stock or other property (valued at the date of termination) assuming achievement of the maximum performance for the performance period;
(vi) Stock options then held by Executive will be exercisable to the extent and for such periods, and otherwise governed, byby the plans and programs and the agreements and other documents thereunder pursuant to which such stock options were granted, provided, however, that for all such purposes Executive shall be deemed to be an Employee for a period of 3 years following the termination of Executive's employment (2 years in the case of a termination of employment prior to a Change in Control);
(vii) All deferral arrangements under Section 5(c) will be settled in accordance with Executive's duly executed Deferral Election Forms or the terms of any mandatory deferral;
(viii) Reasonable business expenses and disbursements incurred by Executive prior to such termination of employment will be reimbursed, as authorized under Section 5(d);
(ix) A lump-sum cash payment will be paid equal to the present value of Executive's accrued benefit, if any, which shall be fully vested at date of termination of employment, under all supplemental (non-qualified) defined benefit pension plans of the Company, unless such benefits are fully funded based on assets held in trust for the benefit of Executive which cannot be reached by creditors of the Company, or such benefits are otherwise funded and secured in an equivalent manner; and
(x) For a period of 3 years after such termination (2 years in the case of a termination prior to a Change in Control), Executive shall continue to participate in all employee, executive, and special individual benefit plans, programs, and arrangements under Section 5(b) (and, in the case of a termination following a Change in Control, the Company's restricted stock grant plan (with all stock issued under such plan being fully vested)), including but not limited to health, medical, disability, life insurance, and pension benefits in which Executive was participating immediately prior to termination (but not including any plan, program or arrangement under which the Executive was entitled to the use of a Company-provided automobile), the terms of which allow Executive's continued participation, as if Executive had continued in employment with the Company during such period (additional years of service creditable under Section 5(b)(iv) shall be credited as a result of such deemed continued participation following termination) or, if such plans, programs, or arrangements do not allow Executive's continued participation, a cash payment equivalent on an after-tax basis to the value of the additional benefits Executive would have received under such employee benefit plans, programs, and arrangements in which Executive was participating immediately prior to termination, as if Executive had received credit under such plans, programs, and arrangements for service and age with the Company during such period following Executive's termination, with such benefits payable by the Company at the same times and in the same manner as such benefits would have been received by Executive under such plans (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 be entitled to the benefit of any terms of plans or agreements applicable to Executive which are more favorable than those specified in this Section 7(b). Amounts payable under (i), (ii), (iii), (iv), (v), (vii), (viii), (ix), and (x) above will be paid as promptly as practicable after termination of Executive's employment, and in no event more than 45 days after such termination; provided, however, that, if such termination is a termination by the Company without Cause and prior to a Change in Control, to the extent that the Company would not be entitled to deduct any such payments under Internal Revenue Code Section 162(m), such payments shall be made at the earliest time that the payments would be deductible by the Company without limitation under Section 162(m) (unless this provision is waived by the Company), but in no event later than 12 months subsequent to the date of termination.
Appears in 3 contracts
Samples: Employment Agreement (Fruit of the Loom Inc /De/), Employment Agreement (Fruit of the Loom Inc /De/), Employment Agreement (Fruit of the Loom Inc /De/)
Termination by the Company Without Cause and Termination by Executive for Good Reason. During the Extended Employment Period --------------------------------------------------------------- Upon an Executive's Date of Termination prior to during the Extension Date Extended Employment Period by the Company without Cause (including non-renewal of the Term of this Termination Agreement without Cause) or voluntarily by the Executive for Good Reason, the Term of this Termination Agreement will immediately terminate and all obligations of the Company and Executive under Sections 1 through 4 of this Termination Agreement and under the Employment Agreement will immediately cease; providedPROVIDED, howeverHOWEVER, that subject to the provisions of Section 13(c) the Company shall pay to the Executive (or his or her beneficiaries) ), and Executive (or his or her beneficiaries) shall be entitled to receive receive, the following:
(a) the Company shall pay to the Executive in a lump sum in cash on the Date of Termination the aggregate of the following amounts:
(i) the Company shall pay to Executive within, or commencing within, thirty (30) days after the Date of Termination, the following amounts:
(A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, and (2) the product of (x) the target higher of (A) the Recent Annual Bonus and (B) the Executive's Annual Bonus paid or payablepayable for the Company's fiscal year in which occurs the Date of Termination, including any bonus or portion thereof which has been earned but deferred assuming Executive and Company satisfy all conditions to Executive's receiving the full Annual Bonus at target (and annualized for any fiscal year consisting of less than twelve (12) full months or during which the Executive was employed for less than twelve (12) full months) for (such higher amount being referred to as the fiscal year, "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, in each case to the extent not theretofore paid;
(Bii) twenty-four (24) semi-monthly payments during a twelve (12) consecutive month period the amount equal to three (3) times the sum of (1) the Executive's Annual Base Salary divided by twenty-four and (242) the Highest Annual Bonus. (Payment of any amount under Section 8(a)(i) shall not constitute a payment or discharge of the Company's obligation under Section 8(a)(ii); provided, however, notwithstanding anything to the contrary in the Termination Agreement or in the Employment Agreement, none of such amounts shall qualify Executive for any incremental benefit under any plan or program in which he has participated or continues to participateand VICE VERSA);
(Ciii) a single lump sum in lieu of any payment in respect of performance shares, or other long term incentive awards granted prior to the Extension Date or in accordance with Section 4(a) hereof, for any performance period not completed at the Executive's Date of Termination, an amount equal to the actuarial equivalent (determined in accordance with Section 5(b)(iv) of the Employment Agreement) of the benefit under the SERP;
(D) a cash amount will be paid equal to payable plus the value at the Date of Termination of any phantom shares of Common Stock credited to Executive's deferral accounts under deferral arrangements authorized under the Employment Agreement shares, dividends or other property (valued at the Date of Termination) payable upon the achievement of the then existing performance in respect of each tranche of such performance shares or awards as if the Date of Termination were the end of the performance period, but in no event less applicable withholding taxes under Section 14(ithan one hundred percent (100%) of target, multiplied by (A) with respect to any tranche as of the Date of Termination for which at least fifty percent (50%) of the Employment Agreement; providedperformance period has elapsed, howeverone hundred percent (100%), that the Company may instead settle such accounts by directing the Trustee and (B) with respect to distribute the assets any tranche as of the "rabbi trust" Date of Termination for which less than fifty percent (50%) of the performance period has elapsed, a fraction, the numerator of which is the number of days that have elapsed in the relevant performance period and the Company shall be relieved denominator of its obligation under this Termination Agreement and which is the Employment Agreement to total number of days in the extent that assets are so distributed. Such amounts shall be paid or distributed as promptly as practicable following such Date of Termination, without regard to any stated period of deferral otherwise remaining in respect of such amounts, and the payment of such amounts shall be deemed to fully settle such accountsrelevant performance period; and
(Eiv) to the extent not covered by in (Ai), (Bii), (Ciii) or (D) aboveiv), all vested, nonforfeitable amounts owing and or accrued at the Date of Termination under any other compensation and benefit plans, programs, and arrangements in which Executive theretofore participated participated, including any supplemental retirement plan in which the Executive may have participated, including any additional accruals provided under such plan due to the Change of Control, will be paid under the terms and conditions of the plans, programs, and arrangements (and agreements and documents thereunder) pursuant to which such compensation and benefits were granted; and.
(iib) stock Stock options then held by Executive will be exercisable and restricted stock held by the Executive will be vested to the extent and for such periods, and otherwise governed, byby the plans and programs (and the agreements and other documents thereunder) pursuant to which such stock options or restricted stock were granted;
(c) For three (3) years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue welfare plan benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b) of this Termination Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive is employed with another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For three (3) years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the plan, the Company shall continue tax-qualified defined contribution and supplemental retirement plan accruals for the Executive, including participation and crediting of service, contributions and compensation at least equal to what the Executive would have accrued in accordance with such plans of the Company or affiliated companies if the Executive's employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies. If such welfare benefit or tax-qualified defined contribution plans, programs, or arrangements do not allow Executive's continued participation, a cash payment equivalent on an after-tax basis to the value of the additional benefits Executive would have received under such employee benefit plans, programs, and arrangements in which Executive was participating immediately prior to the Date of Termination, as if Executive had received credit under such plans, programs, and arrangements for service, compensation and age with the Company during such period following Executive's Date of Termination, with such benefits payable by the Company at the same times and in the same manner as such benefits would have been received by Executive under such plans (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);
(d) outplacement services the scope and provider of which shall be selected by the Executive in his sole discretion, provided by the Company at its sole expense as incurred;
(e) for three (3) years after Executive's Date of Termination, a continued application of the Company's auto leasing policy in effect on the Extension Date with respect to the Executive;
(f) for three (3) years after Executive's Date of Termination, the payment of all regular lunch and country club membership dues or fees in respect of any lunch or country club of which Executive is a member on Executive's Date of Termination;
(g) for one (1) year after Executive's Date of Termination, the provision of reasonable personal tax accounting and financial planning by a firm chosen by Executive and reasonably acceptable to the Company;
(h) the Company shall reimburse the Executive the actual brokerage commissions paid by Executive in connection with the sale of Executive's principal residence, if the Executive lists (and continues to list) the Executive's principal residence for sale commencing not later than the second anniversary of the Date of Termination and the Executive shall have the right to cause the Company to purchase the Executive's principal residence at any time prior to the second anniversary of the Date of Termination for its appraised value; provided, the appraised value shall be the average of the values of the Executive's principal residence (net of any indebtedness assumed by the Company) determined within ten (10) days of the date the residence is listed for sale by three real estate appraisers, one chosen by each of the Executive and the Company and the third appraiser chosen by the other two appraisers; and
(i) for three (3) years after Executive's Date of Termination, the payment of normal insurance premiums with respect to the insurance policies on the life of Executive under the Company's Group Replacement Insurance Program, or any successor thereto.
Appears in 2 contracts
Samples: Termination and Change of Control Agreement (Commercial Intertech Corp), Termination and Change of Control Agreement (Commercial Intertech Corp)
Termination by the Company Without Cause and Termination by Executive for Good Reason. Upon an In accordance with the provisions of this Section 7(b), the Company may terminate the employment of Executive without Cause, including after a Change in Control, upon 90 days' written notice to Executive's Date of Termination prior , and Executive may terminate his employment with the Company for Good Reason upon 90 days' written notice to the Extension Date Company; provided, however, that the Company shall have 30 days after receipt of such notice to remedy the basis for such Good Reason. Termination of Employment by Executive shall not be a termination for Good Reason unless such termination occurs during the two (2) year period following the initial occurrence of one or more events constituting a Good Reason. Notwithstanding the foregoing, the Company may terminate Executive without Cause and without providing 90 days' written notice to Executive provided that the Company pays Executive the portion of his then-current annual base salary under Section 4(a) for such 90-day period in a single lump sum payment on 30th day following such Termination of Employment and credits Executive with service for such 90 days for purposes of determining amounts payable under Sections 7(b)(ii), (including non-renewal iii) and (v). Upon a Termination of Employment by the Term of this Termination Agreement Company without Cause) , or voluntarily a Termination of Employment by the Executive for Good Reason, the Term will immediately terminate and all obligations of the Company and Executive parties under Sections 1 through 4 5 of this Termination Agreement and under the Employment Agreement will immediately cease; provided, however, except that subject to the provisions of Section 13(c) the Company shall pay to the Executive (or his or her beneficiaries) Executive, and Executive (or his or her beneficiaries) shall be entitled to receive receive, the following amounts:(in addition to any amount payable under the last sentence of the first grammatical paragraph of this Section 7(b)):
(i) the Company shall pay A cash payment in an amount equal to Executive within, or commencing within, thirty (30) days after the Date of Termination, the following amounts:
(A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, and (2) the product of (x) the target sum of (A) Executive's annual base salary under Section 4(a) at the annual rate in effect immediately prior to termination plus (B) the guaranteed annual cash bonus under Section 4(a) at the annual rate in effect immediately prior to termination, plus (C) the Severance Annual Bonus paid or payableIncentive Amount, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve (12) full months or during which the Executive was employed for less than twelve (12) full months) for the fiscal year, and multiplied by (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, two and the denominator of which is 365, in each case to the extent not theretofore paidone-half (2.5);
(Bii) twenty-four (24) semi-monthly payments during a twelve (12) consecutive month period equal to the Executive's Annual Base Salary divided by twenty-four (24); provided, however, notwithstanding anything to the contrary in the Termination Agreement or in the Employment Agreement, none The earned but unpaid portion of such amounts shall qualify Executive for any incremental benefit under any plan or program in which he has participated or continues to participateannual base salary and guaranteed cash bonus;
(Ciii) a single lump sum amount equal Any annual cash incentive cash compensation earned, but unpaid, for the calendar year prior to the actuarial equivalent (determined calendar year in accordance with Section 5(b)(iv) which occurs such termination of the Employment Agreement) of the benefit under the SERPemployment;
(Div) a cash amount will be paid equal to the value at the Date of Termination of any phantom shares of Common Stock credited to Executive's deferral accounts under deferral arrangements authorized under the Employment Agreement at the Date of Termination, less applicable withholding taxes under Section 14(i) of the Employment Agreement; provided, however, that the Company may instead settle such accounts by directing the Trustee to distribute the assets of the "rabbi trust" and the Company shall be relieved of its obligation under this Termination Agreement and the Employment Agreement to the extent that assets are so distributed. Such amounts shall be paid or distributed as promptly as practicable following such Date of Termination, without regard to any stated period of deferral otherwise remaining in respect of such amounts, and the payment of such amounts shall be deemed to fully settle such accounts; and
(E) to the extent not covered by (A), (B), (C) or (D) above, all All vested, nonforfeitable amounts owing and or accrued at the Date date of Executive's Termination of Employment under any compensation and benefit plans, programs, programs and arrangements set forth or referred to in Sections 5(a) and 5(b) in which Executive theretofore participated will be paid under participated, in accordance with the terms and conditions of the plans, programs, programs and arrangements (and agreements and documents thereunder) pursuant to which such compensation and benefits were granted;
(v) An amount equal to the Severance Annual Incentive Amount, which, unless a termination occurs during the period beginning on the date of a Change in Control and ending two years after a Change in Control, shall be 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; and
(vi) Reimbursement of reasonable business expenses and disbursements incurred by Executive prior to such termination of employment, within 60 days after Executive submits reasonable evidence of such expenses and disbursements to the Company. The Company shall pay the amounts under clauses (i), (iii) and (v) in a single lump sum payment no later than 30 days after Termination of Employment. The Company shall pay the amount under clause (ii) in a single lump sum payment no later than (A) 30 days after Termination of Employment or (B) such earlier date as required by Section 4(b). In addition, upon a Termination of Employment by the Company without Cause, or Termination of Employment by the Executive for Good Reason, stock options then held by Executive will be exercisable to the extent and for such periodsperiods indicated in, and otherwise governedbe governed by, bythe plans and programs (and agreements and other documents thereunder) pursuant to which such stock options were granted. Furthermore, for a period of one (1) year after such termination, Executive shall continue to participate in the Insurance Plans (as defined in Section 6) as if Executive had continued in employment with the Company during such period. To the extent that the Insurance Plans do not allow such continued participation, the Company shall make cash payments to Executive equivalent on an after-tax basis to the value of the benefits Executive would have received under the Insurance Plans if Executive had so continued in the employment of the Company during such period and had continued to participate in the Insurance Plans, provided that (i) the value of any insurance-provided benefits (including under self-funded Insurance Plans) 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, and (ii) such cash payments by the Company shall be made within 60 days after the Executive submits reasonable evidence to the Company of Executive's payment of such premiums. Upon a Termination of Employment by the Company without Cause or by the Executive for Good Reason during the period beginning 60 days prior to a Change in Control and ending two years after a Change in Control, the Company will use its reasonable best efforts to file with the Commission within 30 days of the effective date of such termination, a registration statement registering under the Securities Act of 1933, as amended (the "Securities Act"), the offer and sale (or other disposition) of all shares of the class of Common Stock of the Company registered under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and beneficially owned by the Executive at the time of such termination. The Company will use its reasonable best efforts to cause such registration statement to become effective and to maintain the continuous effectiveness of such registration statement until the end of the 90th day after Executive is no longer, in the opinion of counsel to the Company, an affiliate for purposes of Rule 144 under the Securities Act. The Company will also use its reasonable best efforts to maintain as current all offering materials under such registration statement at all times that offers and sales of such shares can be made by Executive.
Appears in 2 contracts
Samples: Employment Agreement (Iggys House, Inc.), Employment Agreement (Iggys House, Inc.)
Termination by the Company Without Cause and Termination by Executive for Good Reason. Upon an In accordance with the provisions of this Section 7(b), the Company may terminate the employment of Executive without Cause, including after a Change in Control, upon 90 days’ written notice to Executive's Date of Termination prior , and Executive may terminate his employment with the Company for Good Reason upon 90 days’ written notice to the Extension Date Company; provided, however, that the Company shall have 30 days after receipt of such notice to remedy the basis for such Good Reason. Termination of Employment by Executive shall not be a termination for Good Reason unless such termination occurs during the two (2) year period following the initial occurrence of one or more events constituting a Good Reason. Notwithstanding the foregoing, the Company may terminate Executive without Cause and without providing 90 days’ written notice to Executive provided that the Company pays Executive the portion of his then-current annual base salary under Section 4(a) for such 90-day period in a single lump sum payment on 30th day following such Termination of Employment and credits Executive with service for such 90 days for purposes of determining amounts payable under Sections 7(b)(ii), (including non-renewal iii) and (v). Upon a Termination of Employment by the Term of this Termination Agreement Company without Cause) , or voluntarily a Termination of Employment by the Executive for Good Reason, the Term will immediately terminate and all obligations of the Company and Executive parties under Sections 1 through 4 5 of this Termination Agreement and under the Employment Agreement will immediately cease; provided, however, except that subject to the provisions of Section 13(c) the Company shall pay to the Executive (or his or her beneficiaries) Executive, and Executive (or his or her beneficiaries) shall be entitled to receive receive, the following amounts:(in addition to any amount payable under the last sentence of the first grammatical paragraph of this Section 7(b)):
(i) the Company shall pay A cash payment in an amount equal to Executive within, or commencing within, thirty (30) days after the Date of Termination, the following amounts:
(A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, and (2) the product of (x) the target sum of (A) Executive’s annual base salary under Section 4(a) at the annual rate in effect immediately prior to termination plus (B) the guaranteed annual cash bonus under Section 4(a) at the annual rate in effect immediately prior to termination, plus (C) the Severance Annual Bonus paid or payableIncentive Amount (as defined in Section 6 of this agreement), including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve (12) full months or during which the Executive was employed for less than twelve (12) full months) for the fiscal year, and multiplied by (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, in each case to the extent not theretofore paid3;
(Bii) twenty-four (24) semi-monthly payments during a twelve (12) consecutive month period equal to the Executive's Annual Base Salary divided by twenty-four (24); provided, however, notwithstanding anything to the contrary in the Termination Agreement or in the Employment Agreement, none The earned but unpaid portion of such amounts shall qualify Executive for any incremental benefit under any plan or program in which he has participated or continues to participateannual base salary and guaranteed cash bonus;
(Ciii) a single lump sum amount equal Any annual cash incentive cash compensation earned, but unpaid, for the calendar year prior to the actuarial equivalent (determined calendar year in accordance with Section 5(b)(iv) which occurs such termination of the Employment Agreement) of the benefit under the SERPemployment;
(Div) a cash amount will be paid equal to the value at the Date of Termination of any phantom shares of Common Stock credited to Executive's deferral accounts under deferral arrangements authorized under the Employment Agreement at the Date of Termination, less applicable withholding taxes under Section 14(i) of the Employment Agreement; provided, however, that the Company may instead settle such accounts by directing the Trustee to distribute the assets of the "rabbi trust" and the Company shall be relieved of its obligation under this Termination Agreement and the Employment Agreement to the extent that assets are so distributed. Such amounts shall be paid or distributed as promptly as practicable following such Date of Termination, without regard to any stated period of deferral otherwise remaining in respect of such amounts, and the payment of such amounts shall be deemed to fully settle such accounts; and
(E) to the extent not covered by (A), (B), (C) or (D) above, all All vested, nonforfeitable amounts owing and or accrued at the Date date of Executive’s Termination of Employment under any compensation and benefit plans, programs, programs and arrangements set forth or referred to in Sections 5(a) and 5(b) in which Executive theretofore participated will be paid under participated, in accordance with the terms and conditions of the plans, programs, programs and arrangements (and agreements and documents thereunder) pursuant to which such compensation and benefits were granted;
(v) An amount equal to the Severance Annual Incentive Amount, which, unless a termination occurs during the period beginning on the date of a Change in Control and ending two years after a Change in Control, shall be 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; and
(vi) Reimbursement of reasonable business expenses and disbursements incurred by Executive prior to such termination of employment, within 60 days after Executive submits reasonable evidence of such expenses and disbursements to the Company. The Company shall pay the amounts under clauses (i), (iii) and (v) in a single lump sum payment no later than 30 days after Termination of Employment. The Company shall pay the amount under clause (ii) in a single lump sum payment no later than (A) 30 days after Termination of Employment or (B) such earlier date as required by Section 4(b). In addition, upon a Termination of Employment by the Company without Cause, or Termination of Employment by the Executive for Good Reason, stock options then held by Executive will be exercisable to the extent and for such periodsperiods indicated in, and otherwise governedbe governed by, bythe plans and programs (and agreements and other documents thereunder) pursuant to which such stock options were granted. Furthermore, for a period of one (1) year after such termination, Executive shall continue to participate in the Insurance Plans (as defined in Section 6) as if Executive had continued in employment with the Company during such period. To the extent that the Insurance Plans do not allow such continued participation, the Company shall make cash payments to Executive equivalent on an after-tax basis to the value of the benefits Executive would have received under the Insurance Plans if Executive had so continued in the employment of the Company during such period and had continued to participate in the Insurance Plans, provided that (i) the value of any insurance-provided benefits (including under self-funded Insurance Plans) 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, and (ii) such cash payments by the Company shall be made within 60 days after the Executive submits reasonable evidence to the Company of Executive’s payment of such premiums.
Appears in 2 contracts
Samples: Employment Agreement (Confederate Motors, Inc.), Employment Agreement (Confederate Motors, Inc.)
Termination by the Company Without Cause and Termination by Executive for Good Reason. Upon an In accordance with the provisions of this Section 7(b), the Company may terminate the employment of Executive without Cause, including after a Change in Control, upon 90 days’ written notice to Executive's Date of Termination prior , and Executive may terminate his employment with the Company for Good Reason upon 90 days’ written notice to the Extension Date Company; provided, however, that the Company shall have 30 days after receipt of such notice to remedy the basis for such Good Reason. Termination of Employment by Executive shall not be a termination for Good Reason unless such termination occurs during the two (2) year period following the initial occurrence of one or more events constituting a Good Reason. Notwithstanding the foregoing, the Company may terminate Executive without Cause and without providing 90 days’ written notice to Executive provided that the Company pays Executive the portion of his then-current annual base salary under Section 4(a) for such 90-day period in a single lump sum payment on 30th day following such Termination of Employment and credits Executive with service for such 90 days for purposes of determining amounts payable under Sections 7(b)(ii), (including non-renewal iii) and (v). Upon a Termination of Employment by the Term of this Termination Agreement Company without Cause) , or voluntarily a Termination of Employment by the Executive for Good Reason, the Term will immediately terminate and all obligations of the Company and Executive parties under Sections 1 through 4 5 of this Termination Agreement and under the Employment Agreement will immediately cease; provided, however, except that subject to the provisions of Section 13(c) the Company shall pay to the Executive (or his or her beneficiaries) Executive, and Executive (or his or her beneficiaries) shall be entitled to receive receive, the following amounts:(in addition to any amount payable under the last sentence of the first grammatical paragraph of this Section 7(b)):
(i) the Company shall pay A cash payment in an amount equal to Executive within, or commencing within, thirty (30) days after the Date of Termination, the following amounts:
(A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, and (2) the product of (x) the target sum of (A) Executive’s annual base salary under Section 4(a) at the annual rate in effect immediately prior to termination plus (B) the Severance Annual Bonus paid or payableIncentive Amount (as defined in Section 6 of this agreement), including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve (12) full months or during which the Executive was employed for less than twelve (12) full months) for the fiscal year, and multiplied by (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, in each case to the extent not theretofore paid3;
(Bii) twenty-four (24) semi-monthly payments during a twelve (12) consecutive month period equal to the Executive's Annual Base Salary divided by twenty-four (24); provided, however, notwithstanding anything to the contrary in the Termination Agreement or in the Employment Agreement, none The earned but unpaid portion of such amounts shall qualify Executive for any incremental benefit under any plan or program in which he has participated or continues to participateannual base salary;
(Ciii) a single lump sum amount equal Any annual cash incentive cash compensation earned, but unpaid, for the calendar year prior to the actuarial equivalent (determined calendar year in accordance with Section 5(b)(iv) which occurs such termination of the Employment Agreement) of the benefit under the SERPemployment;
(Div) a cash amount will be paid equal to the value at the Date of Termination of any phantom shares of Common Stock credited to Executive's deferral accounts under deferral arrangements authorized under the Employment Agreement at the Date of Termination, less applicable withholding taxes under Section 14(i) of the Employment Agreement; provided, however, that the Company may instead settle such accounts by directing the Trustee to distribute the assets of the "rabbi trust" and the Company shall be relieved of its obligation under this Termination Agreement and the Employment Agreement to the extent that assets are so distributed. Such amounts shall be paid or distributed as promptly as practicable following such Date of Termination, without regard to any stated period of deferral otherwise remaining in respect of such amounts, and the payment of such amounts shall be deemed to fully settle such accounts; and
(E) to the extent not covered by (A), (B), (C) or (D) above, all All vested, nonforfeitable amounts owing and or accrued at the Date date of Executive’s Termination of Employment under any compensation and benefit plans, programs, programs and arrangements set forth or referred to in Sections 5(a) and 5(b) in which Executive theretofore participated will be paid under participated, in accordance with the terms and conditions of the plans, programs, programs and arrangements (and agreements and documents thereunder) pursuant to which such compensation and benefits were granted;
(v) An amount equal to the Severance Annual Incentive Amount, which, unless a termination occurs during the period beginning on the date of a Change in Control and ending two years after a Change in Control, shall be 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; and
(vi) Reimbursement of reasonable business expenses and disbursements incurred by Executive prior to such termination of employment, within 60 days after Executive submits reasonable evidence of such expenses and disbursements to the Company. The Company shall pay the amounts under clauses (i), (iii) and (v) in a single lump sum payment no later than 30 days after Termination of Employment. The Company shall pay the amount under clause (ii) in a single lump sum payment no later than 30 days after Termination of Employment. In addition, upon a Termination of Employment by the Company without Cause, or Termination of Employment by the Executive for Good Reason, stock options then held by Executive will be exercisable to the extent and for such periodsperiods indicated in, and otherwise governedbe governed by, bythe plans and programs (and agreements and other documents thereunder) pursuant to which such stock options were granted. Furthermore, for a period of one (1) year after such termination, Executive shall continue to participate in the Insurance Plans (as defined in Section 6) as if Executive had continued in employment with the Company during such period. To the extent that the Insurance Plans do not allow such continued participation, the Company shall make cash payments to Executive equivalent on an after-tax basis to the value of the benefits Executive would have received under the Insurance Plans if Executive had so continued in the employment of the Company during such period and had continued to participate in the Insurance Plans, provided that (i) the value of any insurance-provided benefits (including under self-funded Insurance Plans) 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, and (ii) such cash payments by the Company shall be made within 60 days after the Executive submits reasonable evidence to the Company of Executive’s payment of such premiums.
Appears in 2 contracts
Samples: Employment Agreement (Med Control), Employment Agreement (Med Control)
Termination by the Company Without Cause and Termination by Executive for Good Reason. Upon an Executive's Date In accordance with the provisions of Termination prior to this Section 7(b), the Extension Date Company may terminate the employment of Executive as Chief Executive Officer without Cause (as defined in Section 8(a)), including nonafter a Change in Control (as defined in Section 8(b)), upon 90 days' written notice to Executive, and Executive may terminate his employment as Chief Executive Officer for Good Reason (as defined in Section 8(d)) upon written notice to the Company; provided, however, that in the case of a termination for Good Reason prior to a Change in Control, the Executive must provide 90 days= written notice to the Company and if the basis for such Good Reason is correctable, the Company must not have corrected the basis for such Good Reason within 30 days after receipt of such notice. The foregoing notwithstanding, the Company may, in lieu of providing 90 days' written notice to Executive, pay Executive his then-renewal current annual base salary under Section 4(a) (subject to Section 5(b)) and credit Executive with service for 90 days for all purposes hereunder. An election by the Company not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of this Agreement by the Company without Cause at the date of expiration of the Term Term. Upon a termination of this Termination Agreement Executive's employment by the Company without Cause) , or voluntarily termination of Executive's employment by the Executive for Good Reason, the Term will immediately terminate and all obligations of the Company and Executive parties under Sections 1 through 4 5 of this Termination Agreement and under the Employment Agreement will immediately cease; provided, however, except that subject to the provisions of Section 13(c12(i) the Company shall pay to the Executive (or his or her beneficiaries) Executive, and Executive (or his or her beneficiaries) shall be entitled to receive receive, the following amountsfollowing:
(i) the Company shall pay to Executive within, or commencing within, thirty (30) days after the Date of Termination, the following amounts:
(A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, and (2) the product of (x) the target Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve (12) full months or during which the Executive was employed for less than twelve (12) full months) for the fiscal year, and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, in each case to the extent not theretofore paid;
(B) twenty-four (24) semi-monthly payments during a twelve (12) consecutive month period equal to the Executive's Annual Base Salary divided by twenty-four (24); provided, however, notwithstanding anything to the contrary in the Termination Agreement or in the Employment Agreement, none of such amounts shall qualify Executive for any incremental benefit under any plan or program in which he has participated or continues to participate;
(C) a single A lump sum cash payment in an amount equal to the actuarial equivalent sum of Executive's then-current annual base salary at the rate payable under Section 4(a) (determined in accordance with Section 5(b)(iv) of the Employment Agreement) of the benefit under the SERP;
(D) a cash amount will be paid equal without regard to the value at election to forego salary pursuant to Section 5(b)) immediately prior to termination plus the Date of Termination of any phantom shares of Common Stock credited to Executive's deferral accounts under deferral arrangements authorized under the Employment Agreement at the Date of TerminationSeverance Annual Incentive Amount (as defined below) multiplied by 5, less applicable withholding taxes under Section 14(i) of the Employment Agreement; provided, however, that the Company may instead settle such accounts by directing the Trustee to distribute the assets of the "rabbi trust" and the Company which payment shall be relieved of its obligation under this Termination Agreement and the Employment Agreement reduced pro rata to the extent that assets are so distributedthe number of full months remaining until Executive attains age 65 is less than 60 months. Such amounts For purposes of this Section 7(b)(i) and Section 7(b)(iv), the "Severance Annual Incentive Amount" shall be paid or distributed as promptly as practicable following such Date of Termination, without regard to any stated period of deferral otherwise remaining in respect of such amounts, and the payment of such amounts shall be deemed to fully settle such accounts; and
(E) to the extent not covered by (A), in the case of a termination prior to a Change in Control, the average annual incentive compensation paid to Executive in the three years immediately preceding the year of termination (B)or, (C) if Executive was not eligible to receive or (D) above, all vested, nonforfeitable amounts owing and accrued at the Date of Termination under any compensation and benefit plans, programs, and arrangements in which Executive theretofore participated will be paid under the terms and conditions of the plans, programs, and arrangements (and agreements and documents thereunder) pursuant to which did not receive such compensation and benefits were granted; and
(ii) stock options then held by Executive will be exercisable to the extent and for such periods, and otherwise governed, byincentive compensa-
Appears in 1 contract
Termination by the Company Without Cause and Termination by Executive for Good Reason. During the Extended Employment Period ----------------------------------------------------------- Upon an Executive's Date of Termination prior to during the Extension Date Extended Employment Period by the Company without Cause (including non-renewal of the Term of this Termination Agreement without Cause) or voluntarily by the Executive for Good Reason, the Term of this Termination Agreement will immediately terminate and all obligations of the Company and Executive under Sections 1 through 4 of this Termination Agreement and under the Employment Agreement will immediately cease; providedPROVIDED, howeverHOWEVER, that subject to the provisions of Section 13(c) the Company shall pay to the Executive (or his or her beneficiaries) ), and Executive (or his or her beneficiaries) shall be entitled to receive receive, the following:
(a) the Company shall pay to the Executive in a lump sum in cash on the Date of Termination the aggregate of the following amounts:
(i) the Company shall pay to Executive within, or commencing within, thirty (30) days after the Date of Termination, the following amounts:
(A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, and (2) the product of (x) the target higher of (A) the Recent Annual Bonus and (B) the Executive's Annual Bonus paid or payablepayable for the Company's fiscal year in which occurs the Date of Termination, including any bonus or portion thereof which has been earned but deferred assuming Executive and Company satisfy all conditions to Executive's receiving the full Annual Bonus at target (and annualized for any fiscal year consisting of less than twelve (12) full months or during which the Executive was employed for less than twelve (12) full months) for (such higher amount being referred to as the fiscal year, "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, in each case to the extent not theretofore paid;
(Bii) twenty-four (24) semi-monthly payments during a twelve (12) consecutive month period the amount equal to three (3) times the sum of (1) $400,000 ("Referenced Salary") and (2) the Executive's Highest Annual Base Salary divided by twenty-four Bonus but not less than 100% of target of his annual incentive compensation based on his Referenced Salary. (24Payment of any amount under Section 8(a)(i) shall not constitute a payment or discharge of the Company's obligation under Section 8(a)(ii) and VICE VERSA); provided, however, notwithstanding anything to the contrary in the Termination Agreement or in the Employment Agreement, none of such amounts shall qualify Executive for any incremental benefit under any plan or program in which he has participated or continues to participate;
(Ciii) a single lump sum in lieu of any payment in respect of performance shares, or other long term incentive awards granted prior to the Extension Date or in accordance with Section 4(a) hereof, for any performance period not completed at the Executive's Date of Termination, an amount equal to the actuarial equivalent (determined in accordance with Section 5(b)(iv) of the Employment Agreement) of the benefit under the SERP;
(D) a cash amount will be paid equal to payable plus the value at the Date of Termination of any phantom shares of Common Stock credited to Executive's deferral accounts under deferral arrangements authorized under the Employment Agreement shares, dividends or other property (valued at the Date of Termination) payable upon the achievement of the then existing performance in respect of each tranche of such performance shares or awards as if the Date of Termination were the end of the performance period, but in no event less applicable withholding taxes under Section 14(ithan one hundred percent (100%) of target, multiplied by (A) with respect to any tranche as of the Date of Termination for which at least fifty percent (50%) of the Employment Agreement; providedperformance period has elapsed, howeverone hundred percent (100%), that the Company may instead settle such accounts by directing the Trustee and (B) with respect to distribute the assets any tranche as of the "rabbi trust" Date of Termination for which less than fifty percent (50%) of the performance period has elapsed, a fraction, the numerator of which is the number of days that have elapsed in the relevant performance period and the Company shall be relieved denominator of its obligation under this Termination Agreement and which is the Employment Agreement to total number of days in the extent that assets are so distributed. Such amounts shall be paid or distributed as promptly as practicable following such Date of Termination, without regard to any stated period of deferral otherwise remaining in respect of such amounts, and the payment of such amounts shall be deemed to fully settle such accountsrelevant performance period; and
(Eiv) to the extent not covered by in (Ai), (Bii), (Ciii) or (D) aboveiv), all vested, nonforfeitable amounts owing and or accrued at the Date of Termination under any other compensation and benefit plans, programs, and arrangements in which Executive theretofore participated participated, including any supplemental retirement plan in which the Executive may have participated, including any additional accruals provided under such plan due to the Change of Control, will be paid under the terms and conditions of the plans, programs, and arrangements (and agreements and documents thereunder) pursuant to which such compensation and benefits were granted; and.
(iib) stock Stock options then held by Executive will be exercisable and restricted stock held by the Executive will be vested to the extent and for such periods, and otherwise governed, byby the plans and programs (and the agreements and other documents thereunder) pursuant to which such stock options or restricted stock were granted;
(c) For three (3) years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue welfare plan benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b) of this Termination Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive is covered by the Company's medical plan on the Date of Termination and is employed with another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For three (3) years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the plan, the Company shall continue tax-qualified defined contribution plan accruals for the Executive, including participation and crediting of service, contributions and compensation at least equal to what the Executive would have accrued in accordance with such plans of the Company or affiliated companies if the Executive's employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies. If such welfare benefit or tax-qualified defined contribution plans, programs, or arrangements do not allow Executive's continued participation, a cash payment equivalent on an after-tax basis to the value of the additional benefits Executive would have received under such employee benefit plans, programs, and arrangements in which Executive was participating immediately prior to the Date of Termination, as if Executive had received credit under such plans, programs, and arrangements for service, compensation and age with the Company during such period following Executive's Date of Termination, with such benefits payable by the Company at the same times and in the same manner as such benefits would have been received by Executive under such plans (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);
(d) outplacement services the scope and provider of which shall be selected by the Executive in his sole discretion, provided by the Company at its sole expense as incurred;
(e) for three (3) years after Executive's Date of Termination, a continued application of the Company's auto leasing policy in effect with respect to the Executive on the Extension Date, including, without limitation, fuel, insurance, maintenance and car phone;
(f) for one (1) year after Executive's Date of Termination, the provision of exclusive secretarial service unless the Executive is employed or reemployed by another employer that provides the Executive with such services;
(g) for three (3) years after Executive's Date of Termination, the provision of reasonable personal tax accounting and financial planning by a firm chosen by Executive and reasonably acceptable to the Company; and
(h) for three (3) years after Executive's Date of Termination, the payment of all regular lunch and country club membership dues or fees in respect of any lunch or country club of which Executive is a member on the Executive's Date of Termination but only to the extent of the company policy regarding such clubs and applied to the Executive on the Extension Date.
Appears in 1 contract
Samples: Termination and Change of Control Agreement (Cuno Inc)
Termination by the Company Without Cause and Termination by Executive for Good Reason. Upon an In accordance with the provisions of this Section 7(b), the Company may terminate the employment of Executive without Cause, including after a Change in Control, upon 90 days' written notice to Executive's Date of Termination prior , and Executive may terminate his employment with the Company for Good Reason upon 90 days' written notice to the Extension Date Company; provided, however, that the Company shall have 30 days after receipt of such notice to remedy the basis for such Good Reason. Termination of Employment by Executive shall not be a termination for Good Reason unless such termination occurs during the two (2) year period following the initial occurrence of one or more events constituting a Good Reason. Notwithstanding the foregoing, the Company may terminate Executive without Cause and without providing 90 days' written notice to Executive provided that the Company pays Executive the portion of his then-current annual base salary under Section 4(a) for such 90-day period in a single lump sum payment on 30th day following such Termination of Employment and credits Executive with service for such 90 days for purposes of determining amounts payable under Sections 7(b)(ii), (including non-renewal iii) and (v). Upon a Termination of Employment by the Term of this Termination Agreement Company without Cause) , or voluntarily a Termination of Employment by the Executive for Good Reason, the Term will immediately terminate and all obligations of the Company and Executive parties under Sections 1 through 4 5 of this Termination Agreement and under the Employment Agreement will immediately cease; provided, however, except that subject to the provisions of Section 13(c) the Company shall pay to the Executive (or his or her beneficiaries) Executive, and Executive (or his or her beneficiaries) shall be entitled to receive receive, the following amounts:(in addition to any amount payable under the last sentence of the first grammatical paragraph of this Section 7(b)):
(i) the Company shall pay A cash payment in an amount equal to Executive within, or commencing within, thirty (30) days after the Date of Termination, the following amounts:
(A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, and (2) the product of (x) the target sum of (A) Executive's annual base salary under Section 4(a) at the annual rate in effect immediately prior to termination plus (B) the guaranteed annual cash bonus under Section 4(a) at the annual rate in effect immediately prior to termination, plus (C) the Severance Annual Bonus paid or payableIncentive Amount, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve (12) full months or during which the Executive was employed for less than twelve (12) full months) for the fiscal year, and multiplied by (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, in each case to the extent not theretofore paid2.9;
(Bii) twenty-four (24) semi-monthly payments during a twelve (12) consecutive month period equal to the Executive's Annual Base Salary divided by twenty-four (24); provided, however, notwithstanding anything to the contrary in the Termination Agreement or in the Employment Agreement, none The earned but unpaid portion of such amounts shall qualify Executive for any incremental benefit under any plan or program in which he has participated or continues to participateannual base salary and guaranteed cash bonus;
(Ciii) a single lump sum amount equal Any annual cash incentive cash compensation earned, but unpaid, for the calendar year prior to the actuarial equivalent (determined calendar year in accordance with Section 5(b)(iv) which occurs such termination of the Employment Agreement) of the benefit under the SERPemployment;
(Div) a cash amount will be paid equal to the value at the Date of Termination of any phantom shares of Common Stock credited to Executive's deferral accounts under deferral arrangements authorized under the Employment Agreement at the Date of Termination, less applicable withholding taxes under Section 14(i) of the Employment Agreement; provided, however, that the Company may instead settle such accounts by directing the Trustee to distribute the assets of the "rabbi trust" and the Company shall be relieved of its obligation under this Termination Agreement and the Employment Agreement to the extent that assets are so distributed. Such amounts shall be paid or distributed as promptly as practicable following such Date of Termination, without regard to any stated period of deferral otherwise remaining in respect of such amounts, and the payment of such amounts shall be deemed to fully settle such accounts; and
(E) to the extent not covered by (A), (B), (C) or (D) above, all All vested, nonforfeitable amounts owing and or accrued at the Date date of Executive's Termination of Employment under any compensation and benefit plans, programs, programs and arrangements set forth or referred to in Sections 5(a) and 5(b) in which Executive theretofore participated will be paid under participated, in accordance with the terms and conditions of the plans, programs, programs and arrangements (and agreements and documents thereunder) pursuant to which such compensation and benefits were granted;
(v) An amount equal to the Severance Annual Incentive Amount, which, unless a termination occurs during the period beginning on the date of a Change in Control and ending two years after a Change in Control, shall be 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; and
(vi) Reimbursement of reasonable business expenses and disbursements incurred by Executive prior to such termination of employment, within 60 days after Executive submits reasonable evidence of such expenses and disbursements to the Company. The Company shall pay the amounts under clauses (i), (iii) and (v) in a single lump sum payment no later than 30 days after Termination of Employment. The Company shall pay the amount under clause (ii) in a single lump sum payment no later than (A) 30 days after Termination of Employment or (B) such earlier date as required by Section 4(b). In addition, upon a Termination of Employment by the Company without Cause, or Termination of Employment by the Executive for Good Reason, stock options then held by Executive will be exercisable to the extent and for such periodsperiods indicated in, and otherwise governedbe governed by, bythe plans and programs (and agreements and other documents thereunder) pursuant to which such stock options were granted. Furthermore, for a period of one (1) year after such termination, Executive shall continue to participate in the Insurance Plans (as defined in Section 6) as if Executive had continued in employment with the Company during such period. To the extent that the Insurance Plans do not allow such continued participation, the Company shall make cash payments to Executive equivalent on an after-tax basis to the value of the benefits Executive would have received under the Insurance Plans if Executive had so continued in the employment of the Company during such period and had continued to participate in the Insurance Plans, provided that (i) the value of any insurance-provided benefits (including under self-funded Insurance Plans) 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, and (ii) such cash payments by the Company shall be made within 60 days after the Executive submits reasonable evidence to the Company of Executive's payment of such premiums. Upon a Termination of Employment by the Company without Cause or by the Executive for Good Reason during the period beginning 60 days prior to a Change in Control and ending two years after a Change in Control, the Company will use its reasonable best efforts to file with the Commission within 30 days of the effective date of such termination, a registration statement registering under the Securities Act of 1933, as amended (the "Securities Act"), the offer and sale (or other disposition) of all shares (the "Registrable Securities") of the class of Common Stock of the Company registered under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and beneficially owned by the Executive at the time of such termination. The Company will use its reasonable best efforts to cause such registration statement to become effective and to maintain the continuous effectiveness of such registration statement until the end of the 90th day after Executive is no longer, in the opinion of counsel to the Company, an affiliate for purposes of Rule 144 under the Securities Act. The Company will also use its reasonable best efforts to maintain as current all offering materials under such registration statement at all times that offers and sales of such shares can be made by Executive. If a greater number of Registrable Shares, other securities of the Company held by stockholders holding rights as selling security holders, and securities held by directors and officers of the Company is requested to be included in the proposed offering than, in the reasonable opinion of the managing underwriters of the proposed offering, can be accommodated without adversely affecting the proposed offering, then the Company shall include in such registration the number of shares that can be so sold in the proposed offering in the following order of priority: (i) first, to the Company and, if there is a balance remaining, (ii) second, to the Executive, any other stockholders holding rights as selling security holders, and any stockholder who is an officer or director of the Company as of the IPO Date, provided that if the balance remaining is not sufficient to include in the offering all of the Registrable Securities and other securities requested to be registered by the Executive and such other stockholders, the number of Registrable Securities and other securities to be included for any such holder shall be reduced pro rata based on the proportionate number of Registrable Securities and other securities requested to be included in such offering. As used herein, "IPO Date" means the date of the closing of the Company's initial underwritten public offering of its common stock.
Appears in 1 contract
Termination by the Company Without Cause and Termination by Executive for Good Reason. Upon an In accordance with the provisions of this Section 7(b), the Company may terminate the employment of Executive without Cause, including after a Change in Control, upon 90 days' written notice to Executive's Date of Termination prior , and Executive may terminate his employment with the Company for Good Reason upon 90 days' written notice to the Extension Date Company; provided, however, that the Company shall have 30 days after receipt of such notice to remedy the basis for such Good Reason. Termination of Employment by Executive shall not be a termination for Good Reason unless such termination occurs during the two (2) year period following the initial occurrence of one or more events constituting a Good Reason. Notwithstanding the foregoing, the Company may terminate Executive without Cause and without providing 90 days' written notice to Executive provided that the Company pays Executive the portion of his then-current annual base salary under Section 4(a) for such 90-day period in a single lump sum payment on 30th day following such Termination of Employment and credits Executive with service for such 90 days for purposes of determining amounts payable under Sections 7(b)(ii), (including non-renewal iii) and (v). Upon a Termination of Employment by the Term of this Termination Agreement Company without Cause) , or voluntarily a Termination of Employment by the Executive for Good Reason, the Term will immediately terminate and all obligations of the Company and Executive parties under Sections 1 through 4 5 of this Termination Agreement and under the Employment Agreement will immediately cease; provided, however, except that subject to the provisions of Section 13(c) the Company shall pay to the Executive (or his or her beneficiaries) Executive, and Executive (or his or her beneficiaries) shall be entitled to receive receive, the following amounts:(in addition to any amount payable under the last sentence of the first grammatical paragraph of this Section 7(b)):
(i) the Company shall pay A cash payment in an amount equal to Executive within, or commencing within, thirty (30) days after the Date of Termination, the following amounts:
(A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, and (2) the product of (x) the target sum of (A) Executive's annual base salary under Section 4(a) at the annual rate in effect immediately prior to termination plus (B) the guaranteed annual cash bonus under Section 4(a) at the annual rate in effect immediately prior to termination, plus (C) the Severance Annual Bonus paid or payableIncentive Amount, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve (12) full months or during which the Executive was employed for less than twelve (12) full months) for the fiscal year, and multiplied by (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, in each case to the extent not theretofore paid2.9;
(Bii) twenty-four (24) semi-monthly payments during a twelve (12) consecutive month period equal to the Executive's Annual Base Salary divided by twenty-four (24); provided, however, notwithstanding anything to the contrary in the Termination Agreement or in the Employment Agreement, none The earned but unpaid portion of such amounts shall qualify Executive for any incremental benefit under any plan or program in which he has participated or continues to participateannual base salary and guaranteed cash bonus;
(Ciii) a single lump sum amount equal Any annual cash incentive cash compensation earned, but unpaid, for the calendar year prior to the actuarial equivalent (determined calendar year in accordance with Section 5(b)(iv) which occurs such termination of the Employment Agreement) of the benefit under the SERPemployment;
(Div) a cash amount will be paid equal to the value at the Date of Termination of any phantom shares of Common Stock credited to Executive's deferral accounts under deferral arrangements authorized under the Employment Agreement at the Date of Termination, less applicable withholding taxes under Section 14(i) of the Employment Agreement; provided, however, that the Company may instead settle such accounts by directing the Trustee to distribute the assets of the "rabbi trust" and the Company shall be relieved of its obligation under this Termination Agreement and the Employment Agreement to the extent that assets are so distributed. Such amounts shall be paid or distributed as promptly as practicable following such Date of Termination, without regard to any stated period of deferral otherwise remaining in respect of such amounts, and the payment of such amounts shall be deemed to fully settle such accounts; and
(E) to the extent not covered by (A), (B), (C) or (D) above, all All vested, nonforfeitable amounts owing and or accrued at the Date date of Executive's Termination of Employment under any compensation and benefit plans, programs, programs and arrangements set forth or referred to in Sections 5(a) and 5(b) in which Executive theretofore participated will be paid under participated, in accordance with the terms and conditions of the plans, programs, programs and arrangements (and agreements and documents thereunder) pursuant to which such compensation and benefits were granted;
(v) An amount equal to the Severance Annual Incentive Amount, which, unless a termination occurs during the period beginning on the date of a Change in Control and ending two years after a Change in Control, shall be 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; and
(vi) Reimbursement of reasonable business expenses and disbursements incurred by Executive prior to such termination of employment, within 60 days after Executive submits reasonable evidence of such expenses and disbursements to the Company. The Company shall pay the amounts under clauses (i), (iii) and (v) in a single lump sum payment no later than 30 days after Termination of Employment. The Company shall pay the amount under clause (ii) in a single lump sum payment no later than (A) 30 days after Termination of Employment or (B) such earlier date as required by Section 4(b). In addition, upon a Termination of Employment by the Company without Cause, or Termination of Employment by the Executive for Good Reason, stock options then held by Executive will be exercisable to the extent and for such periodsperiods indicated in, and otherwise governedbe governed by, bythe plans and programs (and agreements and other documents thereunder) pursuant to which such stock options were granted. Furthermore, for a period of one (1) year after such termination, Executive shall continue to participate in the Insurance Plans (as defined in Section 6) as if Executive had continued in employment with the Company during such period. To the extent that the Insurance Plans do not allow such continued participation, the Company shall make cash payments to Executive equivalent on an after-tax basis to the value of the benefits Executive would have received under the Insurance Plans if Executive had so continued in the employment of the Company during such period and had continued to participate in the Insurance Plans, provided that (i) the value of any insurance-provided benefits (including under self-funded Insurance Plans) 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, and (ii) such cash payments by the Company shall be made within 60 days after the Executive submits reasonable evidence to the Company of Executive's payment of such premiums. Upon a Termination of Employment by the Company without Cause or by the Executive for Good Reason during the period beginning 60 days prior to a Change in Control and ending two years after a Change in Control, the Company will use its reasonable best efforts to file with the Commission within 30 days of the effective date of such termination, a registration statement registering under the Securities Act of 1933, as amended (the "Securities Act"), the offer and sale (or other disposition) of all shares (the "Registrable Shares") of the class of Common Stock of the Company registered under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and beneficially owned by the Executive at the time of such termination. The Company will use its reasonable best efforts to cause such registration statement to become effective and to maintain the continuous effectiveness of such registration statement until the end of the 90th day after Executive is no longer, in the opinion of counsel to the Company, an affiliate for purposes of Rule 144 under the Securities Act. The Company will also use its reasonable best efforts to maintain as current all offering materials under such registration statement at all times that offers and sales of such shares can be made by Executive. If a greater number of Registrable Shares, other securities of the Company held by stockholders holding rights as selling security holders, and securities held by directors and officers of the Company is requested to be included in the proposed offering than, in the reasonable opinion of the managing underwriters of the proposed offering, can be accommodated without adversely affecting the proposed offering, then the Company shall include in such registration the number of shares that can be so sold in the proposed offering in the following order of priority: (i) first, to the Company and, if there is a balance remaining, (ii) second, to the Executive, any other stockholders holding rights as selling security holders, and any stockholder who is an officer or director of the Company as of the IPO Date, provided that if the balance remaining is not sufficient to include in the offering all of the Registrable Securities and other securities requested to be registered by the Executive and such other stockholders, the number of Registrable Securities and other securities to be included for any such holder shall be reduced pro rata based on the proportionate number of Registrable Securities and other securities requested to be included in such offering. As used herein, "IPO Date" means the date of the closing of the Company's initial underwritten public offering of its common stock.
Appears in 1 contract
Termination by the Company Without Cause and Termination by Executive for Good Reason. Upon an Executive's Date In accordance with the provisions of Termination prior to this Section 7(b), the Extension Date Company may terminate the employment of Executive without Cause (as defined in Section 8(a)), including nonafter a Change in Control (as defined in Section 8(b)), upon 90 days' written notice to Executive, and Executive may terminate his employment with the Company for Good Reason (as defined in Section 8(d)) upon written notice to the Company; provided, however, that, (1) in the case of a termination for Good Reason prior to a Change in Control, the Executive must provide 90 days= written notice to the Company and if the basis for such Good Reason is correctable, the Company must not have corrected the basis for such Good Reason within 30 days after receipt of such notice, and (2) in the case of a termination for Good Reason after a Change in Control, the Executive may provide written notice to the Company at any time during the Term, regardless of when the circumstances giving rise to such Good Reason did occur. The foregoing notwithstanding, the Company may, in lieu of providing 90 days' written notice to Executive, pay Executive his then-renewal current annual base salary under Section 4(a) and credit Executive with service for 90 days for all purposes hereunder. An election by the Company not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of this Agreement by the Company without Cause at the date of expiration of the Term Term. Upon a termination of this Termination Agreement Executive's employment by the Company without Cause) , or voluntarily termination of Executive's employment by the Executive for Good Reason, the Term will immediately terminate and all obligations of the Company and Executive parties under Sections 1 through 4 5 of this Termination Agreement and under the Employment Agreement will immediately cease; provided, however, except that subject to the provisions of Section 13(c12(i) the Company shall pay to the Executive (or his or her beneficiaries) Executive, and Executive (or his or her beneficiaries) shall be entitled to receive receive, the following amountsfollowing:
(i) the Company shall pay A lump sum cash payment in an amount equal to Executive within, or commencing within, thirty (30) days after the Date of Termination, the following amounts:
(A) the sum of (1) the Executive's then-current annual base salary at the rate payable under Section 4(a) immediately prior to termination plus the Severance Annual Base Salary through Incentive Amount (as defined below) multiplied by 3 (2 in the Date case of Termination a termination of employment prior to a Change in Control), which payment shall be reduced pro rata to the extent not theretofore paid, and (2) the product of (x) the target Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve (12) full months or during which the Executive was employed for less than twelve (12) full months) for the fiscal year, and (y) a fraction, the numerator of which is the number of days full months remaining until Executive attains age 65 is less than 36 months (24 months in the case of a termination of employment prior to a Change in Control). For purposes of this Section 7(b)(i) and Section 7(b)(iv), the "Severance Annual Incentive Amount" shall be 50% of the current fiscal year through annual base salary referred to above;
(ii) The unpaid portion of annual base salary at the Date of Termination, and the denominator of which is 365rate payable, in each case to accordance with Section 4(a) hereof, at the extent not theretofore date of termination of employment, pro rated through such date of termination, will be paid;
(Biii) twenty-four (24) semi-monthly payments during a twelve (12) consecutive month period equal to the Executive's Annual Base Salary divided by twenty-four (24); provided, however, notwithstanding anything to the contrary in the Termination Agreement or in the Employment Agreement, none of such amounts shall qualify Executive for any incremental benefit under any plan or program in which he has participated or continues to participate;
(C) a single lump sum amount equal to the actuarial equivalent (determined in accordance with Section 5(b)(iv) of the Employment Agreement) of the benefit under the SERP;
(D) a cash amount will be paid equal to the value at the Date of Termination of any phantom shares of Common Stock credited to Executive's deferral accounts under deferral arrangements authorized under the Employment Agreement at the Date of Termination, less applicable withholding taxes under Section 14(i) of the Employment Agreement; provided, however, that the Company may instead settle such accounts by directing the Trustee to distribute the assets of the "rabbi trust" and the Company shall be relieved of its obligation under this Termination Agreement and the Employment Agreement to the extent that assets are so distributed. Such amounts shall be paid or distributed as promptly as practicable following such Date of Termination, without regard to any stated period of deferral otherwise remaining in respect of such amounts, and the payment of such amounts shall be deemed to fully settle such accounts; and
(E) to the extent not covered by (A), (B), (C) or (D) above, all All vested, nonforfeitable amounts owing and or accrued at the Date date of Termination termination of employment under any compensation and benefit plans, programs, and arrangements set forth or referred to in Sections 4(b) and 5(a) and (b) hereof (including any earned annual incentive compensation and long term incentive award) in which Executive theretofore participated participated, and all amounts not vested and nonforfeitable, but owing and accrued at the date of termination of employment, under such benefit plans, programs, and arrangements, shall become vested and nonforfeitable and will be paid under the terms and conditions of the plans, programs, and arrangements (and agreements and documents thereunder) pursuant to which such compensation and benefits were granted; and;
(iiiv) stock In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive's employment terminated (unless otherwise payable under (iii) above), Executive will be paid an amount equal to the Severance Annual Incentive Amount as defined in Section 7(b)(i) which shall be 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;
(v) In lieu of any payment in respect of any long term incentive award granted in accordance with Section 5(a) for any performance and vesting periods not completed at the date Executive's employment terminated (unless otherwise payable under (iii) above), an amount equal to any cash amount plus the value of any shares of Common Stock or other property (valued at the date of termination) assuming achievement of the maximum performance for the performance period;
(vi) Stock options then held by Executive will be exercisable to the extent and for such periods, and otherwise governed, byby the plans and programs and the agreements and other documents thereunder pursuant to which such stock options were granted, provided, however, that for all such purposes Executive shall be deemed to be an Employee for a period of 3 years following the termination of Executive's employment (2 years in the case of a termination of employment prior to a Change in Control);
(vii) All deferral arrangements under Section 5(c) will be settled in accordance with Executive's duly executed Deferral Election Forms or the terms of any mandatory deferral;
(viii) Reasonable business expenses and disbursements incurred by Executive prior to such termination of employment will be reimbursed, as authorized under Section 5(d);
(ix) A lump-sum cash payment will be paid equal to the present value of Executive's accrued benefit, if any, which shall be fully vested at date of termination of employment, under all supplemental (non-qualified) defined benefit pension plans of the Company, unless such benefits are fully funded based on assets held in trust for the benefit of Executive which cannot be reached by creditors of the Company, or such benefits are otherwise funded and secured in an equivalent manner; and
(x) For a period of 3 years after such termination (2 years in the case of a termination prior to a Change in Control), Executive shall continue to participate in all employee, executive, and special individual benefit plans, programs, and arrangements under Section 5(b) (and, in the case of a termination following a Change in Control, the Company's restricted stock grant plan (with all stock issued under such plan being fully vested)), including but not limited to health, medical, disability, life insurance, and pension benefits in which Executive was participating immediately prior to termination (but not including any plan, program or arrangement under which the Executive was entitled to the use of a Company-provided automobile), the terms of which allow Executive's continued participation, as if Executive had continued in employment with the Company during such period (additional years of service creditable under Section 5(b)(iv) shall be credited as a result of such deemed continued participation following termination) or, if such plans, programs, or arrangements do not allow Executive's continued participation, a cash payment equivalent on an after-tax basis to the value of the additional benefits Executive would have received under such employee benefit plans, programs, and arrangements in which Executive was participating immediately prior to termination, as if Executive had received credit under such plans, programs, and arrangements for service and age with the Company during such period following Executive's termination, with such benefits payable by the Company at the same times and in the same manner as such benefits would have been received by Executive under such plans (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 be entitled to the benefit of any terms of plans or agreements applicable to Executive which are more favorable than those specified in this Section 7(b). Amounts payable under (i), (ii), (iii), (iv), (v), (vii), (viii), (ix), and (x) above will be paid as promptly as practicable after termination of Executive's employment, and in no event more than 45 days after such termination; provided, however, that, if such termination is a termination by the Company without Cause and prior to a Change in Control, to the extent that the Company would not be entitled to deduct any such payments under Internal Revenue Code Section 162(m), such payments shall be made at the earliest time that the payments would be deductible by the Company without limitation under Section 162(m) (unless this provision is waived by the Company), but in no event later than 12 months subsequent to the date of termination.
Appears in 1 contract
Termination by the Company Without Cause and Termination by Executive for Good Reason. During the Extended Employment Period ------------------------------------------------------------ Upon an Executive's Date of Termination prior to during the Extension Date Extended Employment Period by the Company without Cause (including non-renewal of the Term of this Termination Agreement without Cause) or voluntarily by the Executive for Good Reason, the Term of this Termination Agreement will immediately terminate and all obligations of the Company and Executive under Sections 1 through 4 of this Termination Agreement and under the Employment Agreement will immediately cease; providedPROVIDED, howeverHOWEVER, that subject to the provisions of Section 13(c) the Company shall pay to the Executive (or his or her beneficiaries) ), and Executive (or his or her beneficiaries) shall be entitled to receive receive, the following:
(a) the Company shall pay to the Executive in a lump sum in cash on the Date of Termination the aggregate of the following amounts:
(i) the Company shall pay to Executive within, or commencing within, thirty (30) days after the Date of Termination, the following amounts:
(A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, and (2) the product of (x) the target higher of (A) the Recent Annual Bonus and (B) the Executive's current Annual Bonus paid or payablepayable for the Company's fiscal year in which occurs the Date of Termination, including any bonus or portion thereof which has been earned but deferred assuming Executive and Company satisfy all conditions to Executive's receiving the full Annual Bonus at target (and annualized for any fiscal year consisting of less than twelve (12) full months or during which the Executive was employed for less than twelve (12) full months) for (such higher amount being referred to as the fiscal year, "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, in each case to the extent not theretofore paid;
(Bii) twenty-four (24) semi-monthly payments during a twelve (12) consecutive month period the amount equal to two (2) times the sum of (1) the Executive's Annual Base Salary divided by twenty-four and (242) the Highest Annual Bonus. (Payment of any amount under Section 8(a)(i) shall not constitute a payment or discharge of the Company's obligation under Section 8(a)(ii) and VICE VERSA); provided, however, notwithstanding anything to the contrary in the Termination Agreement or in the Employment Agreement, none of such amounts shall qualify Executive for any incremental benefit under any plan or program in which he has participated or continues to participate;
(Ciii) a single lump sum in lieu of any payment in respect of performance shares, or other long term incentive awards granted prior to the Extension Date or in accordance with Section 4(a) hereof, for any performance period not completed at the Executive's Date of Termination, an amount equal to the actuarial equivalent (determined in accordance with Section 5(b)(iv) of the Employment Agreement) of the benefit under the SERP;
(D) a cash amount will be paid equal to payable plus the value at the Date of Termination of any phantom shares of Common Stock credited to Executive's deferral accounts under deferral arrangements authorized under the Employment Agreement shares, dividends or other property (valued at the Date of Termination) payable upon the achievement of the then existing performance in respect of each tranche of such performance shares or awards as if the Date of Termination were the end of the performance period, but in no event less applicable withholding taxes under Section 14(ithan one hundred percent (100%) of target, multiplied by (A) with respect to any tranche as of the Date of Termination for which at least fifty percent (50%) of the Employment Agreement; providedperformance period has elapsed, howeverone hundred percent (100%), that the Company may instead settle such accounts by directing the Trustee and (B) with respect to distribute the assets any tranche as of the "rabbi trust" Date of Termination for which less than fifty percent (50%) of the performance period has elapsed, a fraction, the numerator of which is the number of days that have elapsed in the relevant performance period and the Company shall be relieved denominator of its obligation under this Termination Agreement and which is the Employment Agreement to total number of days in the extent that assets are so distributed. Such amounts shall be paid or distributed as promptly as practicable following such Date of Termination, without regard to any stated period of deferral otherwise remaining in respect of such amounts, and the payment of such amounts shall be deemed to fully settle such accountsrelevant performance period; and
(Eiv) to the extent not covered by in (Ai), (Bii), (Ciii) or (D) aboveiv), all vested, nonforfeitable amounts owing and or accrued at the Date of Termination under any other compensation and benefit plans, programs, and arrangements in which Executive theretofore participated participated, including any supplemental retirement plan in which the Executive may have participated, including any additional accruals provided under such plan due to the Change of Control, will be paid under the terms and conditions of the plans, programs, and arrangements (and agreements and documents thereunder) pursuant to which such compensation and benefits were granted; and.
(iib) stock Stock options then held by Executive will be exercisable and restricted stock held by the Executive will be vested to the extent and for such periods, and otherwise governed, byby the plans and programs (and the agreements and other documents thereunder) pursuant to which such stock options or restricted stock were granted;
(c) For two (2) years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue welfare plan benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b) of this Termination Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families, provided, however, that if the Executive is employed with another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For two (2) years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the plan, the Company shall continue tax-qualified defined contribution and supplemental retirement plan accruals for the Executive, including participation and crediting of service, contributions and compensation at least equal to what the Executive would have accrued in accordance with such plans of the Company or affiliated companies if the Executive's employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies. If such welfare benefit or tax-qualified defined contribution plans, programs, or arrangements do not allow Executive's continued participation, a cash payment equivalent on an after-tax basis to the value of the additional benefits Executive would have received under such employee benefit plans, programs, and arrangements in which Executive was participating immediately prior to the Date of Termination, as if Executive had received credit under such plans, programs, and arrangements for service, compensation and age with the Company during such period following Executive's Date of Termination, with such benefits payable by the Company at the same times and in the same manner as such benefits would have been received by Executive under such plans (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);
(d) outplacement services the scope and provider of which shall be selected by the Executive in his sole discretion, provided by the Company at its sole expense as incurred;
(e) for two (2) years after Executive's Date of Termination, a continued application of the Company's auto leasing policy in effect on the Extension Date with respect to the Executive;
(f) for two (2) years after Executive's Date of Termination, the payment of all regular lunch and country club membership dues or fees in respect of any lunch or country club of which Executive is a member on Executive's Date of Termination; and
(g) for two (2) years after Executive's Date of Termination, the payment of normal insurance premiums with respect to the insurance policies on the life of Executive under the Group Replacement Insurance Program of Commercial Intertech Corp., or any successor thereto.
Appears in 1 contract
Samples: Termination and Change of Control Agreement (Cuno Inc)
Termination by the Company Without Cause and Termination by Executive for Good Reason. Upon an Executive's Date In accordance with the provisions of Termination prior to this Section 7(b), the Extension Date Company may terminate the employment of Executive without Cause (as defined in Section 8(a)), including nonafter a Change in Control (as defined in Section 8(b)), upon 90 days' written notice to Executive, and Executive may terminate his employment with the Company for Good Reason (as defined in Section 8(d)) upon written notice to the Company; provided, however, that, (1) in the case of a termination for Good Reason prior to a Change in Control, the Executive must provide 90 day's written notice to the Company and if the basis for such Good Reason is correctable, the Company must not have corrected the basis for such Good Reason within 30 days after receipt of such notice, and (2) in the case of a termination for Good Reason after a Change in Control, the Executive may provide written notice to the Company at any time during the Term, regardless of when the circumstances giving rise to such Good Reason did occur. The foregoing notwithstanding, the Company may, in lieu of providing 90 days' written notice to Executive, pay Executive his then-renewal current annual base salary under Section 4(a) and credit Executive with service for 90 days for all purposes hereunder. An election by the Company not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of this Agreement by the Company without Cause at the date of expiration of the Term Term. Upon a termination of this Termination Agreement Executive's employment by the Company without Cause) , or voluntarily termination of Executive's employment by the Executive for Good Reason, the Term will immediately terminate and all obligations of the Company and Executive parties under Sections 1 through 4 5 of this Termination Agreement and under the Employment Agreement will immediately cease; provided, however, except that subject to the provisions of Section 13(c12(i) the Company shall pay to the Executive (or his or her beneficiaries) Executive, and Executive (or his or her beneficiaries) shall be entitled to receive receive, the following amountsfollowing:
(i) the Company shall pay to Executive within, or commencing within, thirty (30) days after the Date of Termination, the following amounts:
(A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, and (2) the product of (x) the target Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve (12) full months or during which the Executive was employed for less than twelve (12) full months) for the fiscal year, and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, in each case to the extent not theretofore paid;
(B) twenty-four (24) semi-monthly payments during a twelve (12) consecutive month period equal to the Executive's Annual Base Salary divided by twenty-four (24); provided, however, notwithstanding anything to the contrary in the Termination Agreement or in the Employment Agreement, none of such amounts shall qualify Executive for any incremental benefit under any plan or program in which he has participated or continues to participate;
(C) a single A lump sum cash payment in an amount equal to the actuarial equivalent sum of Executive's then-current annual base salary at the rate payable under Section 4(a) immediately prior to termination plus the Severance Annual Incentive Amount (determined as defined below) multiplied by 3 (2 in accordance with the case of a termination of employment prior to a Change in Control), which payment shall be reduced pro rata to the extent the number of full months remaining until Executive attains age 65 is less than 36 months (24 months in the case of a termination of employment prior to a Change in Control). For purposes of this Section 5(b)(iv7(b)(i) and Section 7(b)(iv), the "Severance Annual Incentive Amount" shall be 50% of the Employment Agreement) current annual base salary referred to above. Notwithstanding the foregoing, the lump sum cash payment described in the preceding sentence shall be reduced by 50% in the case of the benefit under the SERP;
(D) a cash amount will be paid equal to the value at the Date termination of Termination of any phantom shares of Common Stock credited to Executive's deferral accounts under deferral arrangements authorized under employment by the Employment Agreement at Executive for Good Reason, if the Date effective date of Terminationsuch termination occurs within 12 months after the date of a Change in Control, less applicable withholding taxes under Section 14(i) of the Employment Agreement; provided, however, that if subsequent to the date the Executive gives written notice of a termination for Good Reason, but prior to the effective date of such termination selected by Executive, the Company may instead settle terminates the Executive, the reduction shall not apply, but if the Executive terminates employment prior to such accounts by directing effective date and before the Trustee to distribute date which is 12 months after the assets date of Change in Control, the "rabbi trust" and the Company reduction shall be relieved of its obligation under this Termination Agreement and the Employment Agreement to the extent that assets are so distributed. Such amounts shall be paid or distributed as promptly as practicable following such Date of Termination, without regard to any stated period of deferral otherwise remaining in respect of such amounts, and the payment of such amounts shall be deemed to fully settle such accounts; andapply;
(Eii) to The unpaid portion of annual base salary at the extent not covered by rate payable, in accordance with Section 4(a) hereof, at the date of termination of employment, pro rated through such date of termination, will be paid;
(A), (B), (Ciii) or (D) above, all All vested, nonforfeitable amounts owing and or accrued at the Date date of Termination termination of employment under any compensation and benefit plans, programs, and arrangements set forth or referred to in Sections 4(b) and 5(a) and (b) hereof (including any earned annual incentive compensation and long term incentive award) in which Executive theretofore participated participated, and all amounts not vested and nonforfeitable, but owing and accrued at the date of termination of employment, under such benefit plans, programs, and arrangements, shall become vested and nonforfeitable and will be paid under the terms and conditions of the plans, programs, and arrangements (and agreements and documents thereunder) pursuant to which such compensation and benefits were granted; and;
(iiiv) stock In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive's employment terminated (unless otherwise payable under (iii) above), Executive will be paid an amount equal to the Severance Annual Incentive Amount as defined in Section 7(b)(i) which shall be 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;
(v) In lieu of any payment in respect of any long term incentive award granted in accordance with Section 5(a) for any performance and vesting periods not completed at the date Executive's employment terminated (unless otherwise payable under (iii) above), an amount equal to any cash amount plus the value of any shares of Common Stock or other property (valued at the date of termination) assuming achievement of the maximum performance for the performance period;
(vi) Stock options then held by Executive will be exercisable to the extent and for such periods, and otherwise governed, byby the plans and programs and the agreements and other documents thereunder pursuant to which such stock options were granted, provided, however, that for all such purposes Executive shall be deemed to be an Employee for a period of 3 years following the termination of Executive's employment (2 years in the case of a termination of employment prior to a Change in Control);
(vii) All deferral arrangements under Section 5(c) will be settled in accordance with Executive's duly executed Deferral Election Forms or the terms of any mandatory deferral;
(viii) Reasonable business expenses and disbursements incurred by Executive prior to such termination of employment will be reimbursed, as authorized under Section 5(d);
(ix) A lump-sum cash payment will be paid equal to the present value of Executive's accrued benefit, if any, which shall be fully vested at date of termination of employment, under all supplemental (non-qualified) defined benefit pension plans of the Company, unless such benefits are fully funded based on assets held in trust for the benefit of Executive which cannot be reached by creditors of the Company, or such benefits are otherwise funded and secured in an equivalent manner; and
(x) For a period of 3 years after such termination (2 years in the case of a termination prior to a Change in Control), Executive shall continue to participate in all employee, executive, and special individual benefit plans, programs, and arrangements under Section 5(b) (and, in the case of a termination following a Change in Control, the Company's restricted stock grant plan (with all stock issued under such plan being fully vested)), including but not limited to health, medical, disability, life insurance, and pension benefits in which Executive was participating immediately prior to termination (but not including any plan, program or arrangement under which the Executive was entitled to the use of a Company-provided automobile), the terms of which allow Executive's continued participation, as if Executive had continued in employment with the Company during such period (additional years of service creditable under Section 5(b)(iv) shall be credited as a result of such deemed continued participation following termination) or, if such plans, programs, or arrangements do not allow Executive's continued participation, a cash payment equivalent on an after-tax basis to the value of the additional benefits Executive would have received under such employee benefit plans, programs, and arrangements in which Executive was participating immediately prior to termination, as if Executive had received credit under such plans, programs, and arrangements for service and age with the Company during such period following Executive's termination, with such benefits payable by the Company at the same times and in the same manner as such benefits would have been received by Executive under such plans (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 be entitled to the benefit of any terms of plans or agreements applicable to Executive which are more favorable than those specified in this Section 7(b). Amounts payable under (i), (ii), (iii), (iv), (v), (vii), (viii), (ix), and (x) above will be paid as promptly as practicable after termination of Executive's employment, and in no event more than 45 days after such termination; provided, however, that, if such termination is a termination by the Company without Cause and prior to a Change in Control, to the extent that the Company would not be entitled to deduct any such payments under Internal Revenue Code Section 162(m), such payments shall be made at the earliest time that the payments would be deductible by the Company without limitation under Section 162(m) (unless this provision is waived by the Company), but in no event later than 12 months subsequent to the date of termination.
Appears in 1 contract
Termination by the Company Without Cause and Termination by Executive for Good Reason. Upon an Executive's Date In accordance with the provisions of Termination prior to this Section 7(b), the Extension Date Company may terminate the employment of Executive without Cause (as defined in Section 8(a)), including nonafter a Change in Control (as defined in Section 8(b)), upon 90 days' written notice to Executive, and Executive may terminate his employment with the Company for Good Reason (as defined in Section 8(d)) upon written notice to the Company; provided, however, that, (1) in the case of a termination for Good Reason prior to a Change in Control, the Executive must provide 90 days' written notice to the Company and if the basis for such Good Reason is correctable, the Company must not have corrected the basis for such Good Reason within 30 days after receipt of such notice, and (2) in the case of a termination for Good Reason after a Change in Control, the Executive may provide written notice to the Company at any time during the Term, regardless of when the circumstances giving rise to such Good Reason did occur. The foregoing notwithstanding, the Company may, in lieu of providing 90 days' written notice to Executive, pay Executive his then-renewal current annual base salary under Section 4(a) and credit Executive with service for 90 days for all purposes hereunder. An election by the Company not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of this Agreement by the Company without Cause at the date of expiration of the Term Term. Upon a termination of this Termination Agreement Executive's employment by the Company without Cause) , or voluntarily termination of Executive's employment by the Executive for Good Reason, the Term will immediately terminate and all obligations of the Company and Executive parties under Sections 1 through 4 5 of this Termination Agreement and under the Employment Agreement will immediately cease; provided, however, except that subject to the provisions of Section 13(c12(i) the Company shall pay to the Executive (or his or her beneficiaries) Executive, and Executive (or his or her beneficiaries) shall be entitled to receive receive, the following amountsfollowing:
(i) the Company shall pay A lump sum cash payment in an amount equal to Executive within, or commencing within, thirty (30) days after the Date of Termination, the following amounts:
(A) the sum of (1) the Executive's then-current annual base salary at the rate payable under Section 4(a) immediately prior to termination plus the Severance Annual Base Salary through Incentive Amount (as defined below) multiplied by 3 (2 in the Date case of Termination a termination of employment prior to a Change in Control), which payment shall be reduced pro rata to the extent not theretofore paid, and (2) the product of (x) the target Annual Bonus paid or payable, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve (12) full months or during which the Executive was employed for less than twelve (12) full months) for the fiscal year, and (y) a fraction, the numerator of which is the number of days full months remaining until Executive attains age 65 is less than 36 months (24 months in the case of a termination of employment prior to a Change in Control). For purposes of this Section 7(b)(i) and Section 7(b)(iv), the "Severance Annual Incentive Amount" shall be 50% of the current fiscal year through annual base salary referred to above;
(ii) The unpaid portion of annual base salary at the Date of Termination, and the denominator of which is 365rate payable, in each case to accordance with Section 4(a) hereof, at the extent not theretofore date of termination of employment, pro rated through such date of termination, will be paid;
(Biii) twenty-four (24) semi-monthly payments during a twelve (12) consecutive month period equal to the Executive's Annual Base Salary divided by twenty-four (24); provided, however, notwithstanding anything to the contrary in the Termination Agreement or in the Employment Agreement, none of such amounts shall qualify Executive for any incremental benefit under any plan or program in which he has participated or continues to participate;
(C) a single lump sum amount equal to the actuarial equivalent (determined in accordance with Section 5(b)(iv) of the Employment Agreement) of the benefit under the SERP;
(D) a cash amount will be paid equal to the value at the Date of Termination of any phantom shares of Common Stock credited to Executive's deferral accounts under deferral arrangements authorized under the Employment Agreement at the Date of Termination, less applicable withholding taxes under Section 14(i) of the Employment Agreement; provided, however, that the Company may instead settle such accounts by directing the Trustee to distribute the assets of the "rabbi trust" and the Company shall be relieved of its obligation under this Termination Agreement and the Employment Agreement to the extent that assets are so distributed. Such amounts shall be paid or distributed as promptly as practicable following such Date of Termination, without regard to any stated period of deferral otherwise remaining in respect of such amounts, and the payment of such amounts shall be deemed to fully settle such accounts; and
(E) to the extent not covered by (A), (B), (C) or (D) above, all All vested, nonforfeitable amounts owing and or accrued at the Date date of Termination termination of employment under any compensation and benefit plans, programs, and arrangements set forth or referred to in Sections 4(b) and 5(a) and (b) hereof (including any earned annual incentive compensation and long term incentive award) in which Executive theretofore participated participated, and all amounts not vested and nonforfeitable, but owing and accrued at the date of termination of employment, under such benefit plans, programs, and arrangements, shall become vested and nonforfeitable and will be paid under the terms and conditions of the plans, programs, and arrangements (and agreements and documents thereunder) pursuant to which such compensation and benefits were granted; and;
(iiiv) stock In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive's employment terminated (unless otherwise payable under (iii) above), Executive will be paid an amount equal to the Severance Annual Incentive Amount as defined in Section 7(b)(i) which shall be 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;
(v) In lieu of any payment in respect of any long term incentive award granted in accordance with Section 5(a) for any performance and vesting periods not completed at the date Executive's employment terminated (unless otherwise payable under (iii) above), an amount equal to any cash amount plus the value of any shares of Common Stock or other property (valued at the date of termination) assuming achievement of the maximum performance for the performance period;
(vi) Stock options then held by Executive will be exercisable to the extent and for such periods, and otherwise governed, byby the plans and programs and the agreements and other documents thereunder pursuant to which such stock options were granted, provided, however, that for all such purposes Executive shall be deemed to be an Employee for a period of 3 years following the termination of Executive's employment (2 years in the case of a termination of employment prior to a Change in Control);
(vii) All deferral arrangements under Section 5(c) will be settled in accordance with Executive's duly executed Deferral Election Forms or the terms of any mandatory deferral;
(viii) Reasonable business expenses and disbursements incurred by Executive prior to such termination of employment will be reimbursed, as authorized under Section 5(d);
(ix) A lump-sum cash payment will be paid equal to the present value of Executive's accrued benefit, if any, which shall be fully vested at date of termination of employment, under all supplemental (non-qualified) defined benefit pension plans of the Company, unless such benefits are fully funded based on assets held in trust for the benefit of Executive which cannot be reached by creditors of the Company, or such benefits are otherwise funded and secured in an equivalent manner; and
(x) For a period of 3 years after such termination (2 years in the case of a termination prior to a Change in Control), Executive shall continue to participate in all employee, executive, and special individual benefit plans, programs, and arrangements under Section 5(b) (and, in the case of a termination following a Change in Control, the Company's restricted stock grant plan (with all stock issued under such plan being fully vested)), including but not limited to health, medical, disability, life insurance, and pension benefits in which Executive was participating immediately prior to termination (but not including any plan, program or arrangement under which the Executive was entitled to the use of a Company-provided automobile), the terms of which allow Executive's continued participation, as if Executive had continued in employment with the Company during such period (additional years of service creditable under Section 5(b)(iv) shall be credited as a result of such deemed continued participation following termination) or, if such plans, programs, or arrangements do not allow Executive's continued participation, a cash payment equivalent on an after-tax basis to the value of the additional benefits Executive would have received under such employee benefit plans, programs, and arrangements in which Executive was participating immediately prior to termination, as if Executive had received credit under such plans, programs, and arrangements for service and age with the Company during such period following Executive's termination, with such benefits payable by the Company at the same times and in the same manner as such benefits would have been received by Executive under such plans (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 be entitled to the benefit of any terms of plans or agreements applicable to Executive which are more favorable than those specified in this Section 7(b). Amounts payable under (i), (ii), (iii), (iv), (v), (vii), (viii), (ix), and (x) above will be paid as promptly as practicable after termination of Executive's employment, and in no event more than 45 days after such termination; provided, however, that, if such termination is a termination by the Company without Cause and prior to a Change in Control, to the extent that the Company would not be entitled to deduct any such payments under Internal Revenue Code Section 162(m), such payments shall be made at the earliest time that the payments would be deductible by the Company without limitation under Section 162(m) (unless this provision is waived by the Company), but in no event later than 12 months subsequent to the date of termination.
Appears in 1 contract
Termination by the Company Without Cause and Termination by Executive for Good Reason. Upon an In accordance with the provisions of this Section 7(b), the Company may terminate the employment of Executive without Cause, including after a Change in Control, upon 90 days’ written notice to Executive's Date of Termination prior , and Executive may terminate his employment with the Company for Good Reason upon 90 days’ written notice to the Extension Date Company; provided, however, that the Company shall have 30 days after receipt of such notice to remedy the basis for such Good Reason. Termination of Employment by Executive shall not be a termination for Good Reason unless such termination occurs during the two (2) year period following the initial occurrence of one or more events constituting a Good Reason. Notwithstanding the foregoing, the Company may terminate Executive without Cause and without providing 90 days’ written notice to Executive provided that the Company pays Executive the portion of his then-current annual base salary under Section 4(a) for such 90-day period in a single lump sum payment on 30th day following such Termination of Employment and credits Executive with service for such 90 days for purposes of determining amounts payable under Sections 7(b)(ii), (including non-renewal iii) and (v). Upon a Termination of Employment by the Term of this Termination Agreement Company without Cause) , or voluntarily a Termination of Employment by the Executive for Good Reason, the Term will immediately terminate and all obligations of the Company and Executive parties under Sections 1 through 4 5 of this Termination Agreement and under the Employment Agreement will immediately cease; provided, however, except that subject to the provisions of Section 13(c) the Company shall pay to the Executive (or his or her beneficiaries) Executive, and Executive (or his or her beneficiaries) shall be entitled to receive receive, the following amounts:(in addition to any amount payable under the last sentence of the first grammatical paragraph of this Section 7(b)):
(i) the Company shall pay A cash payment in an amount equal to Executive within, or commencing within, thirty (30) days after the Date of Termination, the following amounts:
(A) the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, and (2) the product of (x) the target sum of (A) Executive’s annual base salary under Section 4(a) at the annual rate in effect immediately prior to termination plus (B) the guaranteed annual cash bonus under Section 4(a) at the annual rate in effect immediately prior to termination, plus (C) the Severance Annual Bonus paid or payableIncentive Amount, including any bonus or portion thereof which has been earned but deferred (and annualized for any fiscal year consisting of less than twelve (12) full months or during which the Executive was employed for less than twelve (12) full months) for the fiscal year, and multiplied by (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, in each case to the extent not theretofore paid2.9;
(Bii) twenty-four (24) semi-monthly payments during a twelve (12) consecutive month period equal to the Executive's Annual Base Salary divided by twenty-four (24); provided, however, notwithstanding anything to the contrary in the Termination Agreement or in the Employment Agreement, none The earned but unpaid portion of such amounts shall qualify Executive for any incremental benefit under any plan or program in which he has participated or continues to participateannual base salary and guaranteed cash bonus;
(Ciii) a single lump sum amount equal Any annual cash incentive cash compensation earned, but unpaid, for the calendar year prior to the actuarial equivalent (determined calendar year in accordance with Section 5(b)(iv) which occurs such termination of the Employment Agreement) of the benefit under the SERPemployment;
(Div) a cash amount will be paid equal to the value at the Date of Termination of any phantom shares of Common Stock credited to Executive's deferral accounts under deferral arrangements authorized under the Employment Agreement at the Date of Termination, less applicable withholding taxes under Section 14(i) of the Employment Agreement; provided, however, that the Company may instead settle such accounts by directing the Trustee to distribute the assets of the "rabbi trust" and the Company shall be relieved of its obligation under this Termination Agreement and the Employment Agreement to the extent that assets are so distributed. Such amounts shall be paid or distributed as promptly as practicable following such Date of Termination, without regard to any stated period of deferral otherwise remaining in respect of such amounts, and the payment of such amounts shall be deemed to fully settle such accounts; and
(E) to the extent not covered by (A), (B), (C) or (D) above, all All vested, nonforfeitable amounts owing and or accrued at the Date date of Executive’s Termination of Employment under any compensation and benefit plans, programs, programs and arrangements set forth or referred to in Sections 5(a) and 5(b) in which Executive theretofore participated will be paid under participated, in accordance with the terms and conditions of the plans, programs, programs and arrangements (and agreements and documents thereunder) pursuant to which such compensation and benefits were granted;
(v) An amount equal to the Severance Annual Incentive Amount, which, unless a termination occurs during the period beginning on the date of a Change in Control and ending two years after a Change in Control, shall be 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; and
(vi) Reimbursement of reasonable business expenses and disbursements incurred by Executive prior to such termination of employment, within 60 days after Executive submits reasonable evidence of such expenses and disbursements to the Company. The Company shall pay the amounts under clauses (i), (iii) and (v) in a single lump sum payment no later than 30 days after Termination of Employment. The Company shall pay the amount under clause (ii) in a single lump sum payment no later than (A) 30 days after Termination of Employment or (B) such earlier date as required by Section 4(b). In addition, upon a Termination of Employment by the Company without Cause, or Termination of Employment by the Executive for Good Reason, stock options then held by Executive will be exercisable to the extent and for such periodsperiods indicated in, and otherwise governedbe governed by, bythe plans and programs (and agreements and other documents thereunder) pursuant to which such stock options were granted. Furthermore, for a period of one (1) year after such termination, Executive shall continue to participate in the Insurance Plans (as defined in Section 6) as if Executive had continued in employment with the Company during such period. To the extent that the Insurance Plans do not allow such continued participation, the Company shall make cash payments to Executive equivalent on an after-tax basis to the value of the benefits Executive would have received under the Insurance Plans if Executive had so continued in the employment of the Company during such period and had continued to participate in the Insurance Plans, provided that (i) the value of any insurance-provided benefits (including under self-funded Insurance Plans) 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, and (ii) such cash payments by the Company shall be made within 60 days after the Executive submits reasonable evidence to the Company of Executive’s payment of such premiums.
Appears in 1 contract
