Termination by the Company Without Cause or by Executive for Good Reason. The Employment Period and the Executive’s employment hereunder may be terminated by the Company without Cause, upon not less than thirty (30) days’ written notice to the Executive, or by the Executive with Good Reason, upon not less than thirty (30) days’ written notice to the Company. The Executive shall be entitled to receive, and the Company shall have no obligation pursuant to this Agreement or otherwise except for, (i) Base Salary through the date of termination in accordance with Section 3(a), (ii) any Annual Performance Bonus earned but not yet paid in accordance with Section 3(b), (iii) any Special Bonus earned but not yet paid in accordance with Section 3(c), (iv) reimbursement for business expenses properly incurred by the Executive in accordance with Section 3(g), (v) payment for accrued but unused vacation, and (vi) subject to (A) the Executive having executed a general release and waiver in a form reasonably satisfactory to the Company and such general release and waiver having become effective, (B) the Executive having resigned from the Board, and (C) the Executive complying with the covenants set forth in Section 4, Base Salary for a severance period commencing upon the date of termination and ending twelve (12) months thereafter (such period, the “Severance Period”) in accordance with Section 3(a). In addition, the Executive shall be entitled to any other rights, benefits or entitlements in accordance with any applicable plan, policy, program, arrangement of, or other agreement with, the Company or any of its subsidiaries Exhibit 10.2 or affiliates, other than amounts in the nature of severance or termination payments except as provided herein. If the Executive dies during any Severance Period during which he is entitled to benefits pursuant to this Section 5(d), his designated beneficiaries (or his estate in the absence of any surviving designated beneficiary) shall continue to receive the compensation and benefits that the Executive would have otherwise received during the remainder of the Severance Period.
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Employment Period and the Subject to Section 5.0 below, if Executive’s employment hereunder may be and the Employment Term are terminated by the Company without Cause, upon not less than thirty (30) days’ written notice to Cause or if Executive terminates his employment and the Executive, or by the Executive with Employment Term for Good Reason, upon not less the Company shall pay Executive the Accrued Obligations in a single, lump-sum payment in accordance with the regular payroll practices and procedures of the Company but in no event longer than thirty 45 days following such termination (30or on such earlier date required by applicable law) days’ written notice or, in the case of a Cash Incentive Plan payment, according to the Companyterms of such plan but no later than March 15 of the calendar year immediately following the calendar year in which the applicable performance period ended. The In addition, subject to Sections 5.0, 6.0 and 7.0, in the event of such a termination, Executive shall be entitled to receive, and receive the Company shall have no obligation pursuant to this Agreement or otherwise except for, following:
(i) an amount equal to the sum of two year’s Base Salary through the date of termination in accordance with Section 3(aand two times Target Bonus (“Severance Payment”), which shall be payable during the two year period immediately following the Termination Date as provided below;
(ii) continued vesting of outstanding stock options and stock appreciation rights for a period of two years following the Termination Date, with any Annual Performance Bonus earned but not yet paid in accordance with Section 3(bstock option and stock appreciation right held by Executive immediately prior to such termination that is, or becomes, vested to remain exercisable until the earlier of the second anniversary of the Termination Date and the original expiration date of such stock option or stock appreciation right (as applicable), ;
(iii) immediate vesting of any Special Bonus earned but not yet paid in accordance with Section 3(c), restricted stock grants that would have vested during the two-year period immediately following the Termination Date;
(iv) reimbursement continued vesting of restricted stock unit grants for business expenses properly incurred by a period of two years following the Executive Termination Date in accordance with Section 3(g), the same manner as if no such termination had occurred;
(v) continued vesting of performance stock and performance stock units in the same manner as if no termination of employment had occurred, with payment for accrued calculated based on actual performance but unused vacation, and with vesting to be pro-rated based on the number of days from the start of the performance period through the second anniversary of the Termination Date in relation to the total number of days in the performance period (provided that such pro-ration shall not result in a pro-ration factor greater than 1);
(vi) subject to (A) the Executive having executed a general release reimbursement of Executive’s and waiver in a form reasonably satisfactory his eligible dependents’ insurance premiums pursuant to the Company Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) under the Company’s medical, dental and such general release vision plans if Executive and waiver having become effective, (B) the Executive having resigned from the BoardExecutive’s eligible dependents are eligible for, and (C) the Executive complying timely elect, COBRA continuation coverage, with the covenants set forth in Section 4, Base Salary such reimbursements to be provided for a severance period commencing upon of the lesser of 18 months immediately following the Termination Date or the date Executive or such dependent receives similar or comparable coverage from a new employer, a spouse or the employer of termination and ending twelve a spouse; provided, however, that the Company may unilaterally amend this clause (12v) months thereafter (such periodor eliminate the benefit provided hereunder to the extent it deems necessary to avoid the imposition of excise taxes, the “Severance Period”) in accordance with Section 3(a). In addition, the Executive shall be entitled to any other rights, benefits penalties or entitlements in accordance with any applicable plan, policy, program, arrangement of, or other agreement with, similar charges on the Company or any of its subsidiaries Exhibit 10.2 or affiliates, including, without limitation, under Code Section 4980D, or to the extent that this provision violates applicable law or non-discrimination rules (Executive understands that such COBRA reimbursement may be treated as taxable, in which case, Executive shall be grossed-up for such taxes in accordance with Section 409A);
(vii) 6 monthly payments each in an amount equal to the greater of (x) two (2) times the monthly COBRA insurance premiums as of the Termination Date under the Company’s medical, dental and vision plans and (y) $5,000, in either case as compensation for Executive’s loss of participation in certain of the Company’s employee benefit plans, which shall commence on the first payroll date following the 18-month anniversary of the Termination Date; and
(viii) 24 monthly cash payments in an amount equal to two (2) times the monthly premiums as of the Termination Date for the life insurance and long-term disability insurance coverage under the Company’s life insurance and long-term disability plans covering Executive as of immediately prior to the Termination Date (the “L&D Payments”), which shall be payable during the two year period immediately following the Termination Date as provided below. All payments and benefits under this Section 4.02 (other than amounts in the nature of severance or termination payments except as provided herein. If the Executive dies during any Severance Period during which he is entitled to benefits pursuant to this Section 5(d), his designated beneficiaries (or his estate in the absence of any surviving designated beneficiaryAccrued Obligations) shall continue to receive be conditional on Executive’s timely execution and non-revocation of the compensation Release (as defined in Section 6.0) and benefits that the Executive would have otherwise received during the remainder Executive’s continued compliance with Section 9.0, Section 12.0, Section 13.0, and Section 14.0. Payment of the Severance PeriodPayment and the L&D Payments shall be made in substantially equal installments in accordance with the regular payroll practices and procedures of the Company commencing on the first payroll date occurring after Executive’s Release becomes effective (but not later than sixty (60) days after the Termination Date); provided, however, that the first such payment shall include any installments that would have been made on previous payroll dates but for the requirement that Executive execute a Release. For the avoidance of doubt, a termination of employment pursuant to Section 3.01(a) by notice of non-renewal by the Company for any reason other than Cause, shall be deemed a termination of employment by the Company without Cause for purposes of this Section 4.02 and Section 5, as applicable.
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Employment Period and the Executive’s 's employment hereunder may be terminated by the Company without Cause, upon not less than thirty (30) days’ written notice to the Executive, or by the Executive with Good Reason, upon not less than thirty (30) days’ written notice to the Company. The Executive shall be entitled to receive, and the Company shall have no obligation pursuant to this Agreement or otherwise except for, (i) Base Salary through the date of termination in accordance with Section 3(a), (ii) any Annual Performance Bonus earned but not yet paid in accordance with Section 3(b), (iii) any Special Bonus earned but not yet paid in accordance with Section 3(c), (iv) reimbursement for business expenses properly incurred by the Executive in accordance with Section 3(g), (viv) payment for accrued but unused vacation, and (viv) subject to (A) the Executive having executed a general release and waiver in a form reasonably satisfactory to the Company and such general release and waiver having become effective, (B) the Executive having resigned from the Board, and (C) the Executive complying with the covenants set forth in Section 4, Base Salary for a severance period commencing upon the date of termination and ending twelve eighteen (1218) months thereafter (such period, the “Severance Period”) in accordance with Section 3(a). In addition, the Executive shall be entitled to any other rights, benefits or entitlements in accordance with any applicable plan, policy, program, arrangement of, or other agreement with, the Company or any of its subsidiaries Exhibit 10.2 or affiliates, other than amounts in the nature of severance or termination payments except as provided herein. If the Executive dies during any Severance Period during which he is entitled to benefits pursuant to this Section 5(d)Section, his designated beneficiaries (or his estate in the absence of any surviving designated beneficiary) shall continue to receive the compensation and benefits that the Executive would have otherwise received during the remainder of the Severance Period.
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Employment Period and the Executive’s employment hereunder may be terminated by the Company without Cause, upon not less than thirty (30) days’ written notice to the Executive, or by the Executive with Good Reason, upon not less than thirty (30) days’ written notice to the Company. The Executive shall be entitled to receive, and the Company shall have no obligation pursuant to this Agreement or otherwise except for, (i) Base Salary through the date of termination in accordance with Section 3(a), (ii) any Annual Performance Bonus earned but not yet paid in accordance with Section 3(b), (iii) any Special Bonus earned but not yet paid in accordance with Section 3(c), (iv) reimbursement for business expenses properly incurred by the Executive in accordance with Section 3(g3(f), (viv) payment for accrued but unused vacation, and (viv) subject to (A) the Executive having executed a general release and waiver in a form reasonably satisfactory to the Company and such general release and waiver having become effective, (B) the Executive having resigned from the Board, and (C) the Executive complying with the covenants set forth in Section 4, Base Salary for a severance period commencing upon the date of termination and ending twelve (12) months thereafter (such period, the “Severance Period”) in accordance with Section 3(a). In addition, the Executive shall be entitled to any other rights, benefits or entitlements in accordance with any applicable plan, policy, program, arrangement of, or other agreement with, the Company or any of its subsidiaries Exhibit 10.2 or affiliates, other than amounts in the nature of severance or termination payments except as provided herein. If the Executive dies during any Severance Period during which he is entitled to benefits pursuant to this Section 5(d)Section, his designated beneficiaries (or his estate in the absence of any surviving designated beneficiary) shall continue to receive the compensation and benefits that the Executive would have otherwise received during the remainder of the Severance Period.
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Employment Period and In the event that Executive’s employment hereunder may be is terminated by the Company without Cause, upon not less Cause (and other than thirty (30due to Executive’s death or disability) days’ written notice to the Executive, or by the Executive with for Good Reason, upon not less than thirty (30) days’ written notice in addition to the Company. The Accrued Obligations, the Company shall, subject to Executive’s compliance with Section 5, 6 and 7 and the execution and timely return by Executive shall be entitled to receiveof a release of claims in substantially the form of Exhibit B hereto (the “Release”), and further subject to the Company shall have no obligation pursuant provisions of Section 10(c), Section 12 and Section 13, pay and/or provide the following amounts to this Agreement or otherwise except for, Executive:
(i) The Company shall pay Executive, as severance, an amount equal to nine (9) months Base Salary through the date of termination Salary. Such severance shall be payable in installments in accordance with Section 3(a), (ii) any Annual Performance Bonus earned but not yet paid in accordance with Section 3(b), (iii) any Special Bonus earned but not yet paid in accordance with Section 3(c), (iv) reimbursement for business expenses properly incurred by the Executive in accordance with Section 3(g), (v) payment for accrued but unused vacation, and (vi) subject to (A) the Executive having executed regular payroll practices over a general release and waiver in a form reasonably satisfactory period of time equal to the Company and such general release and waiver having become effective, number of months severance is payable (B) the Executive having resigned from the Board, and (C) the Executive complying with the covenants set forth in Section 4, Base Salary for a severance period commencing upon the date of termination and ending twelve (12) months thereafter (such period, the “Severance Period”) in accordance with Section 3(a). In additionSubject to Section 13, the first installment shall commence on the sixtieth (60th) day following the termination of Executive’s employment, subject to the effectiveness of the Release, and shall include all installment amounts that would have been paid during the first sixty (60) days following the termination of Executive’s employment had installments commenced immediately following the date of termination.
(ii) Any bonus earned for the year preceding the year of the date of termination, in the discretion of the Board or a committee thereof, but unpaid as of the date termination, will be paid, subject to Section 13, at the same time as bonuses are paid to other executives of the Company, but in any event no earlier than the date the Release becomes effective.
(iii) The Company shall pay Executive an amount equal to a pro-rata portion of any bonus that would have been earned by Executive for the fiscal year in which Executive’s date of termination occurs based on the Company’s year-to-date performance through the date of termination, determined in the discretion of the Board or a committee thereof, which amount shall be payable at such time as Executive’s annual bonus would otherwise have been payable had he not terminated employment, but in no event shall such amount be paid later than the 15th day of the third month following the later of (x) the close of the Company’s fiscal year in which Executive’s date of termination occurs, or (y) the calendar year following the year in which Executive’s date of termination occurs.
(iv) Executive shall be entitled deemed to any other rights, benefits or entitlements have an additional six (6) months of vesting service credit for purposes of determining his vested interest in accordance with any applicable plan, policy, program, arrangement of, or other agreement withall stock options granted to Executive that are outstanding as of Executive’s date of termination.
(v) Provided that Executive timely elects and is eligible for COBRA coverage, the Company will reimburse Executive on a monthly basis for the cost of such coverage until the earlier of (x) the termination of the Severance Period, (y) the date that Executive becomes covered under another group health plan, or (z) the date that Executive’s COBRA coverage otherwise terminates. The Company may modify its obligation to provide such benefit to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it under the Patient Protection and Affordable Care Act of 2010, as amended, provided that it does so in a manner that, to the extent possible as determined by the Company in its subsidiaries Exhibit 10.2 reasonable discretion, preserves the economic benefit and original intent of such benefit but does not cause such a penalty or affiliatesexcise tax. In the event Executive fails to comply with the covenants in Sections 5, other than amounts 6 or 7, or does not timely execute and return (or otherwise revokes) a release of claims in the nature of severance form and substance reasonably requested by the Company, no amount or termination payments except as provided herein. If the benefit shall be payable to Executive dies during any Severance Period during which he is entitled to benefits pursuant to this Section 5(d10(b), his designated beneficiaries (or his estate in the absence of any surviving designated beneficiary) shall continue to receive the compensation and benefits that the Executive would have otherwise received during the remainder of the Severance Period.
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Employment Period and the If Executive’s employment hereunder may be is terminated by the Company without Cause, upon not less than thirty Cause or by Executive for Good Reason (30as defined below) days’ written notice prior to the Executive, or expiration of the Term (it being understood by the Executive with Good Reasonparties that termination by death or Disability shall not constitute a termination without Cause), upon not less than thirty (30) days’ written notice to the Company. The then Executive shall be entitled to receivethe following benefits upon the execution and effectiveness of the Release attached hereto and made a part hereof (the “Release”). For all purposes under Section 8 and this Section 9, any payments due to Executive solely as a result of a termination of his employment that is not a “separation from service” shall be postponed until the occurrence of a “separation from service” (or such earlier permitted event) to the extent necessary to satisfy Section 409A of the Code.
a. On the 60th day after Executive’s termination of employment, but contingent upon the execution and effectiveness of the Release attached hereto prior to such date, and subject to Section 20(r) below, Executive shall be entitled to the Company shall have no obligation pursuant to this Agreement or otherwise except for, following:
(i) A lump sum in cash equal to the sum of (A) Executive’s Base Salary and unused vacation accrued through the date of termination to the extent not theretofore paid, payable within 30 days after such date, (B) to the extent earned, but not yet paid, the Annual Bonus accrued in respect of the previously completed fiscal year of the Company, payable when annual bonuses are paid to other senior executives of the Company, (C) any expenses but not theretofore paid, payable in accordance with applicable Company expense reimbursement policy, and (D) unless Executive has elected a different payout date in a prior deferral election, any compensation previously deferred by Executive (together with any accrued interest or earnings thereon) to the extent not theretofore paid, payable in accordance with the terms thereof, (the sum of the amounts described in subsections (A), (B), (C) and (D) shall be referred to in this Agreement as the “Accrued Obligations”);
(ii) Payment in installments ratably over twenty-four (24) months after such date in accordance with the Company’s normal payroll cycle and procedures, with the first such payment on the first such payroll date after the effective date of the Release, an amount equal to the product of (x) two (2) multiplied by (y) the sum of (A) Executive’s annual Base Salary in effect as of the date of termination, and (B) Executive’s Target Bonus;
(iii) A Pro-Rata Bonus;
(iv) Benefits, on the same basis as provided to senior executives of the Company who are actively employed during the Severance Period (as defined below) under the Company’s group health plans, to Executive, his spouse and eligible dependents (to the extent covered immediately prior to such termination) until the earlier of (x) two years from the date of termination of Executive’s employment (the “Severance Period”), to the extent that Executive was eligible to participate in such plans immediately prior to the date of termination, or (y) until Executive is, or becomes, eligible for comparable coverage (determined on a coverage-by-coverage basis) under the group health plans of a subsequent employer. The COBRA health care continuation coverage period under Section 3(a4980B of the Code, or any replacement or successor provision of United States tax law, shall run concurrently with the Severance Period;
(v) Outplacement services, provided by the Company, with a senior executive-level outplacement firm, for one year after such date or until other employment is secured, whichever comes first; and
(vi) To the extent not theretofore paid or provided to Executive any other accrued amounts or accrued benefits required to be paid or provided or which Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company (such other amounts and benefits shall be referred to in this Agreement as the “Other Benefits”).
b. In the event that there is a material breach by Executive of any continuing obligations under this Agreement or the Release after termination of employment, any unpaid amounts under this Section 9 shall be forfeited. Any payments or reimbursements under this Section 9 shall not be deemed the continuation of Executive’s employment for any purpose. Except as specifically enumerated in the Release, the Company’s payment obligations under this Section 9 will not negate or reduce (i) any amounts otherwise due but not yet paid to Executive by the Company, (ii) any Annual Performance Bonus earned but not yet paid in accordance with Section 3(b)other amounts payable to Executive outside this Agreement, (iii) those benefits owed under any Special Bonus earned but not yet paid in accordance with Section 3(c), other plan or agreement covering Executive which shall be governed by the terms of such plan or agreement or (iv) reimbursement for business expenses properly incurred by the any amounts due to Executive in accordance with Section 3(g)under his rights of indemnification hereunder or otherwise.
c. For purposes of this Agreement, (v) payment for accrued but unused vacation, and (vi) subject to (A) the Executive having executed a general release and waiver in a form reasonably satisfactory to the Company and such general release and waiver having become effective, (B) the Executive having resigned from the Board, and (C) the Executive complying with the covenants set forth in Section 4, Base Salary for a severance period commencing upon the date of termination and ending twelve (12) months thereafter (such period, the “Severance Period”) in accordance with Section 3(a). In addition, the Executive Good Reason” shall be entitled to any other rights, benefits or entitlements in accordance with any applicable plan, policy, program, arrangement of, or other agreement with, the Company or any of its subsidiaries Exhibit 10.2 or affiliates, other than amounts in the nature of severance or termination payments except as provided herein. If the Executive dies during any Severance Period during which he is entitled to benefits pursuant to this Section 5(d), his designated beneficiaries (or his estate in the absence of any surviving designated beneficiary) shall continue to receive the compensation and benefits that the Executive would have otherwise received during the remainder of the Severance Period.mean:
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Employment Period and In addition to payment of the Accrued Compensation due to Executive pursuant to Section 5.1 hereof, if the Company terminates Executive’s employment hereunder without Cause during the Term (other than due to Executive’s death or disability) or if Executive terminates his employment hereunder for Good Reason, then the Company will provide the following severance payments, benefits and entitlements to Executive (provided, however, that the Company will not have any obligation to pay any amounts under Sections 5.2 (a) and (b) or to provide the benefits and entitlements described in Sections 5.2 (c) and (d) unless and until after Executive has executed a release of claims favoring the Company in substantially the form attached as Exhibit B hereto, as may be terminated modified by the Company without Causefor purposes of compliance with specific legal requirements, upon not less than thirty within sixty (3060) days’ written notice days of his termination date and until after the expiration of any revocation periods required by applicable law):
(a) The Company will make a lump-sum payment equal to a pro rated portion of the average Bonus Compensation received by Executive for the two calendar years (or such lesser number of years for which he was employed by the Company) prior to the calendar year in which termination occurs (based upon the number of days in the year of termination through his termination date relative to 365) less any required taxes and withholdings, payable on the sixty-eighth (68th) day following the termination date; provided, however, that if the Company terminates Executive’s employment without Cause prior to December 31, or by 2014, in lieu of the foregoing, the Company will make a lump-sum payment to Executive with Good Reasonof $250,000 less any required taxes and withholdings, upon not payable on the sixty-eighth (68th) day following the termination date;
(b) The Company will continue paying Executive his annual Base Salary at the rate in effect on the termination date, less than thirty any required taxes and withholdings, for a period of twenty-four (3024) days’ written notice to months after the Company. The Executive termination date, except that the first payment shall be entitled to receive, made on the sixty-eighth (68th) day following the termination date and such first payment shall include all payments that would otherwise have been made between the date of termination and the Company shall have no obligation first payment date; and
(i) With respect to any stock options, stock appreciation rights, restricted stock units and shares of restricted stock granted to Executive pursuant to this Agreement or otherwise except for, (i) Base Salary through the date of termination in accordance with Section 3(a), (ii) pursuant to any Annual Performance Bonus earned but not yet paid in accordance with Section 3(b), (iii) any Special Bonus earned but not yet paid in accordance with Section 3(c), (iv) reimbursement for business expenses properly incurred by the other written agreement between Executive in accordance with Section 3(g), (v) payment for accrued but unused vacation, and (vi) subject to (A) the Executive having executed a general release and waiver in a form reasonably satisfactory to the Company and such general release and waiver having become effectivethat remain subject only to time-based vesting requirements, (B) the Executive having resigned from the Board, and (C) the Executive complying with the covenants set forth in Section 4, Base Salary for a severance period commencing upon the date of termination and ending will be entitled to twelve (12) months thereafter accelerated vesting such that all of such options, stock appreciation rights, restricted stock and restricted stock units will be vested as if Executive’s termination date were twelve (12) months later and as if Executive’s time-based stock options, stock appreciation rights, restricted stock and restricted stock units vested on a monthly basis (rather than on an annual basis) from the date of grant. Except as provided in Section 5.2(d)(ii) below, all of Executive’s stock options, stock appreciation rights, restricted stock units and restricted stock (whether subject to time-based and/or performance-based vesting) which remain unvested after giving effect to the acceleration provided for in the preceding sentence will be forfeited as of the termination date. Pursuant to Executive’s equity award agreements, Executive will have such periodperiod as provided in the applicable equity award agreement to exercise any such time-based vested stock options or stock appreciation rights that remain outstanding, but in no event shall Executive be able to exercise any equity awards later than the “Severance Period”specified expiration dates of such awards.
(ii) in accordance with Section 3(a). In addition, the Executive shall will be entitled to vesting of any other rights, benefits or entitlements then-unvested performance-based restricted stock units and shares of restricted stock which are included in accordance with any applicable plan, policy, program, arrangement of, or other agreement with, the Company or any of its subsidiaries Exhibit 10.2 or affiliates, other than amounts in the nature of severance or termination payments except as provided herein. If the performance-based equity awards granted to Executive dies during any Severance Period during which he is entitled to benefits pursuant to this Agreement or any other written agreement between Executive and the Company, but only if the performance period for such equity awards ends within twelve (12) months of Executive’s termination date, based upon achievement of the performance objectives within such performance period, and only if and to the extent that such unvested awards would have vested if Executive had continued employment with the Company through the end of the performance period. All such additional vesting of performance-based equity awards under this Section 5(d), his designated beneficiaries 5.2(d)(ii) shall be subject to and effective upon the determination by the Board (or his estate in the absence of any surviving designated beneficiaryapplicable committee) shall continue to receive the compensation and benefits that the Executive would have otherwise received during the remainder of the Severance Periodrequisite level of achievement.
Appears in 1 contract
Samples: Employment Agreement (Blackbaud Inc)
Termination by the Company Without Cause or by Executive for Good Reason. The Employment Period and (a) Subject to Section 6.2, in the event that the Company terminates the Executive’s employment hereunder may without Cause (which shall include a termination at the end of the Term of Employment by reason of the Company’s non-renewal of the Agreement pursuant to Section 3), or if the Executive terminates his employment for Good Reason in accordance with Section 6.1(c) below, the Executive shall only be terminated entitled to:
(i) the continuation of the Annual Base Salary at the rate then in effect (as provided in Section 5.1 of this Agreement) on the Date of Termination for a period of twelve (12) months commencing on such Date of Termination (the “Section 6.1 Severance Period”);
(ii) a portion of the Annual Incentive for the year in which the Date of Termination occurs, determined by dividing the number of days in the calendar year through the Date of Termination by three hundred sixty-five (365) and multiplying such fraction by the Annual Incentive which the Executive would have earned if he had remained employed by the Company without Causefor the entire calendar year; provided, upon however, that the discretionary portion of the Annual Incentive shall be determined in good faith by the Compensation Committee taking into account the Executive’s length of service and contribution towards the Company’s business during the year in which the Date of Termination occurs;
(iii) any Annual Base Salary accrued to the Date of Termination, and any Annual Incentive relating to a prior year actually earned but not less than yet paid as of the Date of Termination;
(iv) reimbursement for all expenses (under Section 5.6 of this Agreement) incurred as of the Date of Termination, but not yet paid as of the Date of Termination;
(v) to the extent applicable, and as so permitted by applicable law, the continuation of the Executive’s welfare benefits (as described in Section 5.5 of this Agreement) at the level in effect on the Date of Termination during the Section 6.1 Severance Period, and any other compensation and benefits as may be provided in accordance with the terms and provisions of applicable plans and programs, if any, generally applicable to executives of the Company or specifically applicable to the Executive; provided, that, that the Company shall provide the Executive with group health continuation coverage for the Executive and his dependents during such Section 6.1 Severance Period on the same terms and conditions as applicable to active employees, and such period of coverage shall run concurrently with the COBRA continuation coverage period; provided, further that if the Company is not permitted to provide such continuation coverage or cover the costs thereof due to applicable law or limitations on COBRA, the Company shall provide a lump sum payment equal to the value of such coverage within thirty (30) days of the Termination of Employment;
(vi) such rights as the Executive may have under any other written agreement between the Company and the Executive which is currently in effect or under any employee benefit plan or program of the Company (including rights to equity compensation). For the avoidance of doubt, in the event that amounts payable pursuant to Sections 5.3 and 5.4 herein have not yet been paid to the Executive on the Date of Termination, the Executive shall receive such amounts in accordance with Sections 5.3 and 5.4.
(b) Subject to Section 6.6, the amounts owed under Section 6.1(a)(i) shall be payable in equal bi-weekly installments from the Date of Termination through the expiration of the Section 6.1 Severance Period. Each such installment shall be treated as a separate payment for purposes of Section 409A of the Code. The amounts owed under Section 6.1(a)(ii) shall be payable, if at all, at the same time as the Annual Incentive normally would be paid for the calendar year in which the Date of Termination occurs. The amounts owed under Section 6.1(a) (iii) shall be paid within fifteen (15) days of the Date of Termination or such earlier date as may be required by law. The amounts owed under Section 6.1(a)(iv), unless otherwise expressly specified herein, shall be paid in accordance with the plan, programs, policies and procedures of the Company in effect at the time the applicable expenses are incurred. The amounts owed under Section 6.1(a)(v) shall be payable in accordance with the terms of the applicable plans and programs. The amounts owed under Section 6.1(a)(vi) shall be paid in accordance with the applicable agreements, plans, and programs.
(c) Upon thirty (30) days’ prior written notice to the ExecutiveBoard, the Executive may terminate his employment under this Agreement for Good Reason and such notification shall specify the act, or acts, on the basis of which the Executive has found Good Reason, provided, that such notice must be provided by the Executive with to the Board no later than ninety (90) days following the Executive’s knowledge of the initial existence of the circumstances that constitute Good Reason. The Board shall then be provided the opportunity, upon not less than within thirty (30) days’ written notice days of its receipt of such notification, to the Company. The Executive shall be entitled to receive, and the Company shall have no obligation pursuant to this Agreement or otherwise except for, (i) Base Salary through the date of termination in accordance meet with Section 3(a), (ii) any Annual Performance Bonus earned but not yet paid in accordance with Section 3(b), (iii) any Special Bonus earned but not yet paid in accordance with Section 3(c), (iv) reimbursement for business expenses properly incurred by the Executive in accordance with Section 3(g), (v) payment for accrued but unused vacation, and (vi) subject to (A) the Executive having executed a general release and waiver in a form reasonably satisfactory to the Company and discuss such general release and waiver having become effective, (B) the Executive having resigned from the Board, and (C) the Executive complying with the covenants set forth in Section 4, Base Salary for a severance period commencing upon the date of termination and ending twelve (12) months thereafter (such period, the “Severance Period”) in accordance with Section 3(a). In addition, the Executive shall be entitled to any other rights, benefits act or entitlements in accordance with any applicable plan, policy, program, arrangement of, or other agreement with, the Company or any of its subsidiaries Exhibit 10.2 or affiliates, other than amounts in the nature of severance or termination payments except as provided hereinacts. If the Executive dies during any Severance Period during which he is entitled to benefits does not rescind his termination of employment at such meeting and the Company does not fully cure such Good Reason circumstances, the Executive’s employment by the Company shall be terminated for Good Reason pursuant to this Section 5(d)6.1, his designated beneficiaries (or his estate in and the absence of any surviving designated beneficiary) Executive shall continue to receive the compensation and benefits that the Executive would have otherwise received during the remainder of the Severance Periodprovided under Section 6.1(a) hereof.
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Employment Period and the Subject to Section 5.0 below, if Executive’s employment hereunder may be and the Employment Term are terminated by the Company without Cause, upon not less than thirty (30) days’ written notice to Cause or if Executive terminates his employment and the Executive, or by the Executive with Employment Term for Good Reason, upon not less the Company shall pay Executive the Accrued Obligations in a single, lump-sum payment in accordance with the regular payroll practices and procedures of the Company but in no event longer than thirty 45 days following such termination (30or on such earlier date required by applicable law) days’ written notice or, in the case of a Cash Incentive Plan payment, according to the Companyterms of such plan but no later than March 15 of the calendar year immediately following the calendar year in which the applicable performance period ended. The In addition, subject to Sections 5.0, 6.0 and 7.0, in the event of such a termination, Executive shall be entitled to receive, and receive the Company shall have no obligation pursuant to this Agreement or otherwise except for, following:
(i) an amount equal to the sum of two year’s Base Salary through the date of termination in accordance with Section 3(aand two times Target Bonus (“Severance Payment”), which shall be payable during the two year period immediately following the Termination Date as provided below;
(ii) continued vesting of outstanding stock options and stock appreciation rights for a period of two years following the Termination Date, with any Annual Performance Bonus earned but not yet paid in accordance with Section 3(bstock option and stock appreciation right held by Executive immediately prior to such termination that is, or becomes, vested to remain exercisable until the earlier of the second anniversary of the Termination Date and the original expiration date of such stock option or stock appreciation right (as applicable), ;
(iii) immediate vesting of any Special Bonus earned but not yet paid in accordance with Section 3(c), restricted stock grants that would have vested during the two-year period immediately following the Termination Date;
(iv) reimbursement continued vesting of restricted stock unit grants for business expenses properly incurred by a period of two years following the Executive Termination Date in accordance with Section 3(g), the same manner as if no such termination had occurred;
(v) continued vesting of performance stock and performance stock units in the same manner as if no termination of employment had occurred, with payment for accrued calculated based on actual performance but unused vacation, and with vesting to be pro-rated based on the number of days from the start of the performance period through the second anniversary of the Termination Date in relation to the total number of days in the performance period (provided that such pro-ration shall not result in a pro-ration factor greater than 1);
(vi) subject to (A) the Executive having executed a general release reimbursement of Executive’s and waiver in a form reasonably satisfactory his eligible dependents’ insurance premiums pursuant to the Company Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) under the Company’s medical, dental and such general release vision plans if Executive and waiver having become effective, (B) the Executive having resigned from the BoardExecutive’s eligible dependents are eligible for, and (C) the Executive complying timely elect, COBRA continuation coverage, with the covenants set forth in Section 4, Base Salary such reimbursements to be provided for a severance period commencing upon of the lesser of 18 months immediately following the Termination Date or the date Executive or such dependent receives similar or comparable coverage from a new employer, a spouse or the employer of termination and ending twelve a spouse; provided, however, that the Company may unilaterally amend this clause (12v) months thereafter (such periodor eliminate the benefit provided hereunder to the extent it deems necessary to avoid the imposition of excise taxes, the “Severance Period”) in accordance with Section 3(a). In addition, the Executive shall be entitled to any other rights, benefits penalties or entitlements in accordance with any applicable plan, policy, program, arrangement of, or other agreement with, similar charges on the Company or any of its subsidiaries Exhibit 10.2 or affiliates, including, without limitation, under Code Section 4980D, or to the extent that this provision violates applicable law or non-discrimination rules (Executive understands that such COBRA reimbursement may be treated as taxable, in which case, Executive shall be grossed-up for such taxes in accordance with Section 409A);
(vii) 6 monthly payments each in an amount equal to the greater of (x) two (2) times the monthly COBRA insurance premiums as of the Termination Date under the Company’s medical, dental and vision plans and (y) $5,000, in either case as compensation for Executive’s loss of participation in certain of the Company’s employee benefit plans, which shall commence on the first payroll date following the 18-month anniversary of the Termination Date; and
(viii) 24 monthly cash payments each in an amount equal to two (2) times the monthly premiums as of the Termination Date for the life insurance and long-term disability insurance coverage under the Company’s life insurance and long-term disability plans covering Executive as of immediately prior to the Termination Date (the “L&D Payments”), which shall be payable during the two year period immediately following the Termination Date as provided below; and
(ix) up to 12 consecutive months of outplacement services not to exceed $100,000 in the aggregate (such benefits to end not later than the second anniversary of the Termination Date). All payments and benefits under this Section 4.02 (other than amounts in the nature of severance or termination payments except as provided herein. If the Executive dies during any Severance Period during which he is entitled to benefits pursuant to this Section 5(d), his designated beneficiaries (or his estate in the absence of any surviving designated beneficiaryAccrued Obligations) shall continue to receive be conditional on Executive’s timely execution and non-revocation of the compensation Release (as defined in Section 6.0) and benefits that the Executive would have otherwise received during the remainder Executive’s continued compliance with Section 9.0, Section 12.0, Section 13.0, and Section 14.0. Payment of the Severance PeriodPayment and the L&D Payments shall be made in substantially equal installments in accordance with the regular payroll practices and procedures of the Company commencing on the first payroll date occurring after Executive’s Release becomes effective (but not later than sixty (60) days after the Termination Date); provided, however, that the first such payment shall include any installments that would have been made on previous payroll dates but for the requirement that Executive execute a Release. For the avoidance of doubt, a termination of employment pursuant to Section 3.01(a) by notice of non-renewal by the Company for any reason other than Cause, shall be deemed a termination of employment by the Company without Cause for purposes of this Section 4.02 and Section 5, as applicable.
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Employment Period and the If Executive’s employment hereunder may be is terminated by the Company without Cause, upon not less than thirty Cause (30as defined in Section 7.8(a)) days’ written notice to the Executive, or by the Executive with for Good ReasonReason (as defined in Section 7.8(e)), upon not less than thirty (30) days’ written notice to the Company. The Executive shall be entitled to receive:
(a) severance compensation equal to what would have been his Base Salary under Section 5.1 hereof, payable at such times as his Base Salary would have been paid if his employment had not been terminated (or, at the election of Executive, in a lump sum without discount), for the longer of 6 months or the remainder of what would have been the Term (but no longer than 6 months);
(b) a cash lump sum payment in respect of accrued but unused vacation days;
(c) a pro rata portion of the bonus applicable to the calendar year in which such termination occurs, payable when and as such bonus is determined under Section 5.3, but no less than a pro rata portion of Executive’s bonus for the preceding calendar year;
(d) acceleration of the vesting of one hundred percent (100%) of the unvested portion of Executive’s stock options or other stock-based awards, together with the right to exercise such stock options or awards for a period equal to the greater of (I) the remaining term for exercising such options or awards under the applicable agreement and/or plan, or (ii) one year following the date of termination;
(e) other benefits, payable within ninety (90) days after the date of such termination, accrued by him hereunder up to and including the date of such termination;
(f) continuation of the insurance provided by the Company pursuant to Section 5.4 for the longer of 6 months or the remainder of the Term (but not longer than 6 months), or if not available a lump sum payment of an amount equal to the fair value of such insurance; and
(g) reimbursement for all expenses incurred by Executive pursuant to Section 3 prior to his termination. The payments due Executive pursuant to Section 7.4(a) and (c) shall not be made, and the rights set forth in Section 7.4(d) shall not begin, unless and until the Company has received from Executive an executed, effective General Release, dated on or after the date of termination, substantially as set forth in Exhibit C to this Agreement. Further, the Company shall have no obligation pursuant the right to this Agreement or otherwise except for, (i) Base Salary through terminate any payments due Executive hereunder at any time Executive fails to honor the date of termination in accordance with Section 3(a), (ii) any Annual Performance Bonus earned but not yet paid in accordance with Section 3(b), (iii) any Special Bonus earned but not yet paid in accordance with Section 3(c), (iv) reimbursement for business expenses properly incurred by the Executive in accordance with Section 3(g), (v) payment for accrued but unused vacation, and (vi) subject to (A) the Executive having executed a general release and waiver in a form reasonably satisfactory to the Company and such general release and waiver having become effective, (B) the Executive having resigned from the Board, and (C) the Executive complying with the restrictive covenants set forth in Section 4, Base Salary for a severance period commencing upon the date of termination and ending twelve (12) months thereafter (such period, the “Severance Period”) in accordance with Section 3(a)8 hereof. In addition, the Executive shall Such General Release may be entitled to any other rights, benefits or entitlements in accordance with any applicable plan, policy, program, arrangement of, or other agreement with, modified by the Company to reflect certain state or any of its subsidiaries Exhibit 10.2 local laws, statutes, codes or affiliates, other than amounts in the nature of severance or termination payments except as provided herein. If the Executive dies during any Severance Period during regulations which he is entitled specifically apply to benefits pursuant to this Section 5(d), his designated beneficiaries (or his estate in the absence of any surviving designated beneficiary) shall continue to receive the compensation and benefits that the Executive would have otherwise received during the remainder of the Severance PeriodExecutive.
Appears in 1 contract
Samples: Employment Agreement (High Speed Net Solutions Inc)
Termination by the Company Without Cause or by Executive for Good Reason. (a) The Employment Period and the Company may terminate Executive’s employment hereunder under this Agreement at any time for any reason, provided that any such termination other than for Cause (as defined in Section 6.4 hereof) may only be made upon 30 days prior written notice to Executive. If Executive’s employment under this Agreement is terminated by the Company without CauseCause (other than as a result of Executive’s death or Permanent Disability (as defined in Section 6.2 hereof)) or if Executive terminates his employment for Good Reason (as defined in Section 6.1(c) hereof), upon Executive shall receive any payments to which he is entitled under any applicable compensation or employee benefit plan or program in which he participates, including but not less than thirty (30) days’ written notice limited to those referred to in Section 3.3 hereof. In addition, in the Executiveevent of any such termination described in the immediately preceding sentence, or by the Executive with Good Reason, upon not less than thirty (30) days’ written notice to the Company. The Executive shall be entitled to receive, and receive the Company shall have no obligation pursuant to this Agreement or otherwise except for, following:
(i) an amount equal to (A) one and one-half times Executive’s Base Salary through if such termination occurs prior to a Change in Control (as defined in Section 6.1(c) hereof) or more than 12 months after a Change in Control, or (B) if such termination occurs upon a Change in Control or at any time within 12 months after a Change in Control, the sum of two times Executive’s Base Salary and one times Executive’s Target Bonus (such amount, the “Severance Payment”);
(ii) a cash lump sum payment in respect of (x) accrued but unused vacation days (the “Vacation Payment”), (y) compensation earned but not yet paid (including any awarded but deferred Bonus payments) (the “Compensation Payment”), and (z) reasonable expenses incurred under Section 5 but not yet reimbursed (the “Expense Payment”); and
(iii) continued coverage under any employee medical, disability and life insurance plans in accordance with the respective terms thereof for a period ending 18 months after the date of termination under this Section 6.1(a) or, if earlier, the date on which Executive becomes covered under comparable benefit plans of a new employer.
(b) The Severance Payment shall be paid by the Company to Executive over the 12 month period following the date of termination in accordance with Section 3(a), (ii) any Annual Performance Bonus earned but not yet paid substantially equal installment payments and in accordance with Section 3(b)the normal payroll practices of the Company but no less frequently than monthly. The Vacation Payment, (iii) any Special Bonus earned but not yet the Compensation Payment and the Expense Payment shall be paid in accordance with Section 3(c), (iv) reimbursement for business expenses properly incurred by the Company to Executive in accordance with Section 3(g), (v) a cash lump sum payment for accrued but unused vacation, and (vi) subject to (A) the Executive having executed a general release and waiver in a form reasonably satisfactory to the Company and such general release and waiver having become effective, (B) the Executive having resigned from the Board, and (C) the Executive complying with the covenants set forth in Section 4, Base Salary for a severance period commencing upon within 30 days after the date of termination and ending twelve termination.
(12c) months thereafter (such periodFor purposes of this Agreement, the “Severance Period”) in accordance with Section 3(a). In addition, the Executive Good Reason” shall be entitled to any other rights, benefits or entitlements in accordance with any applicable plan, policy, program, arrangement of, or other agreement with, the Company or mean any of its subsidiaries Exhibit 10.2 or affiliates, other than amounts in the nature of severance or termination payments except as provided herein. If the Executive dies during any Severance Period during which he is entitled to benefits pursuant to this Section 5(d), his designated beneficiaries following (or his estate in the absence of any surviving designated beneficiary) shall continue to receive the compensation and benefits that the Executive would have otherwise received during the remainder of the Severance Period.without Executive’s express prior written consent):
Appears in 1 contract
Samples: Employment Agreement (Medcath Corp)
Termination by the Company Without Cause or by Executive for Good Reason. The Employment Period and If the Executive’s employment hereunder may be terminated Termination Date occurs by reason of termination by the Company without Cause, upon not less than thirty (30) days’ written notice to the Executive, Cause or by the Executive with for Good Reason, upon not less than thirty (30) days’ written notice to the Company. The Executive shall be entitled to receive, receive the following payments and the Company shall have no obligation pursuant to this Agreement or otherwise except for, benefits:
(i) Base Salary through the date a lump sum payment of termination in accordance with Section 3(a), (ii) any Annual Performance Bonus earned but not yet paid in accordance with Section 3(b), (iii) any Special Bonus earned but not yet paid in accordance with Section 3(c), (iv) reimbursement for business expenses properly incurred by the Executive in accordance with Section 3(g), (v) payment for accrued but unused vacation, and (vi) subject to (A) the Executive having executed a general release and waiver in a form reasonably satisfactory an amount equal to the Company and such general release and waiver having become effective, sum of (Bi) the Executive having resigned from the Board, and (C) the Executive complying with the covenants set forth in Section 4, Base Salary for a severance period commencing upon the date of termination and ending twelve (12) months thereafter of Executive's then base salary and (ii) the Target Bonus for the year in which the Termination Date occurs, payable sixty (60) days following the Termination Date;
(ii) if Executive elects COBRA coverage under the Company’s group health plan in connection with his termination of employment, payment by the Company of the applicable premiums for such periodcoverage for Executive and his covered dependents health for up to eighteen (18) months (or, if less, the period during which COBRA coverage remains in effect), which payments shall be paid monthly beginning on the 60th day following the Termination Date (provided, however, that the payment made on the sixtieth (60th) day following the Termination Date shall include any amounts required to continue COBRA coverage for the period from the Termination Date to such sixtieth ( 60th) day and the remaining payments will be made monthly thereafter). The Company may provide the benefits described in this subparagraph (iii) in a different manner that is not taxable or as otherwise mutually agreed provided that such alternative provision of benefits is permitted by applicable law, would not violate the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Severance PeriodCode”) or results (or may reasonably be expected to result) in the imposition of a tax or penalty on the Company or its affiliates; and 730211809.2
(iii) the vesting of all stock options and stock awards held by Executive shall immediately accelerate as to one (1) additional year of vesting and any stock awards with performance conditions that are not yet determinable (i.e. if the performance measurement period has not yet been completed) shall be deemed to have been earned at 100% of target, and shall be payable in accordance with Section 3(a)their terms. In additionNotwithstanding any other provision of this Agreement to the contrary, the Executive shall will not be entitled to any of the payments or benefits under Section 8(c) (other rightsthan payments provided under Section 8(c)(ii)) unless, benefits or entitlements no later than the sixtieth (60th) day following the Termination Date, Executive has executed and delivered to the Company, in accordance with form attached as Exhibit C, a release of all claims of any applicable plankind against the Company and its affiliates (including, policywithout limitation, programany civil rights claim) and their respective officers, arrangement of, or other agreement withdirectors and employees, the Company or any of its subsidiaries Exhibit 10.2 or affiliates, other than amounts in the nature of severance or termination payments except as provided herein. If the Executive dies during any Severance Period during which he revocation period has expired and such release is entitled to benefits pursuant to this Section 5(d), his designated beneficiaries (or his estate in the absence of any surviving designated beneficiary) shall continue to receive the compensation and benefits that the Executive would have otherwise received during the remainder of the Severance Periodeffective.
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Employment Period and the If Executive’s employment hereunder may be is terminated by the Company without Cause, upon not less than thirty Cause or by Executive for Good Reason (30as defined below) days’ written notice prior to the Executive, or expiration of the Term (it being understood by the Executive with Good Reasonparties that termination by death or Disability shall not constitute a termination without Cause), upon not less than thirty (30) days’ written notice to the Company. The then Executive shall be entitled to receivethe following benefits upon the execution and effectiveness of the Release attached hereto and made a part hereof (the “Release”). For all purposes under Section 8 and this Section 9, any payments due to Executive solely as a result of a termination of his employment that is not a “separation from service” shall be postponed until the occurrence of a “separation from service” (or such earlier permitted event) to the extent necessary to satisfy Section 409A of the Code.
a. On the later of the date of termination or the execution and effectiveness of the Release, the Company shall have no obligation pursuant to this Agreement or otherwise except for, provide Executive with the following:
(i) A lump sum in cash equal to the sum of (A) Executive’s Base Salary and unused vacation accrued through the date of termination to the extent not theretofore paid, payable within 30 days after such date, (B) to the extent earned, but not yet paid, the Annual Bonus accrued in respect of the previously completed fiscal year of the Company, payable when annual bonuses are paid to other senior executives of the Company, (C) any expenses but not theretofore paid, payable in accordance with applicable Company expense reimbursement policy, and (D) unless Executive has elected a different payout date in a prior deferral election, any compensation previously deferred by Executive (together with any accrued interest or earnings thereon) to the extent not theretofore paid, payable in accordance with the terms thereof, (the sum of the amounts described in subsections (A), (B), (C) and (D) shall be referred to in this Agreement as the “Accrued Obligations”);
(ii) Payment in installments ratably over twenty-four (24) months after such date in accordance with the Company’s normal payroll cycle and procedures, with the first such payment on the first such payroll date after the effective date of the Release, an amount equal to the product of (x) two (2) multiplied by (y) the sum of (A) Executive’s annual Base Salary in effect as of the date of termination, and (B) Executive’s Target Bonus;
(iii) A Pro-Rata Bonus;
(iv) Benefits, on the same basis as provided to senior executives of the Company who are actively employed during the Severance Period (as defined below) under the Company’s group health plans, to Executive, his spouse and eligible dependents (to the extent covered immediately prior to such termination) until the earlier of (x) two years from the date of termination of Executive’s employment (the “Severance Period”), to the extent that Executive was eligible to participate in such plans immediately prior to the date of termination, or (y) until Executive is, or becomes, eligible for comparable coverage (determined on a coverage-by-coverage basis) under the group health plans of a subsequent employer. The COBRA health care continuation coverage period under Section 3(a4980B of the Code, or any replacement or successor provision of United States tax law, shall run concurrently with the Severance Period;
(v) Outplacement services, provided by the Company, with a senior executive-level outplacement firm, for one year after such date or until other employment is secured, whichever comes first; and
(vi) To the extent not theretofore paid or provided to Executive any other accrued amounts or accrued benefits required to be paid or provided or which Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company (such other amounts and benefits shall be referred to in this Agreement as the “Other Benefits”).
b. In the event that there is a material breach by Executive of any continuing obligations under this Agreement or the Release after termination of employment, any unpaid amounts under this Section 9 shall be forfeited. Any payments or reimbursements under this Section 9 shall not be deemed the continuation of Executive’s employment for any purpose. Except as specifically enumerated in the Release, the Company’s payment obligations under this Section 9 will not negate or reduce (i) any amounts otherwise due but not yet paid to Executive by the Company, (ii) any Annual Performance Bonus earned but not yet paid in accordance with Section 3(b)other amounts payable to Executive outside this Agreement, (iii) those benefits owed under any Special Bonus earned but not yet paid in accordance with Section 3(c), other plan or agreement covering Executive which shall be governed by the terms of such plan or agreement or (iv) reimbursement for business expenses properly incurred by the any amounts due to Executive in accordance with Section 3(g)under his rights of indemnification hereunder or otherwise.
c. For purposes of this Agreement, (v) payment for accrued but unused vacation, and (vi) subject to (A) the Executive having executed a general release and waiver in a form reasonably satisfactory to the Company and such general release and waiver having become effective, (B) the Executive having resigned from the Board, and (C) the Executive complying with the covenants set forth in Section 4, Base Salary for a severance period commencing upon the date of termination and ending twelve (12) months thereafter (such period, the “Severance Period”) in accordance with Section 3(a). In addition, the Executive Good Reason” shall be entitled to any other rights, benefits or entitlements in accordance with any applicable plan, policy, program, arrangement of, or other agreement with, the Company or any of its subsidiaries Exhibit 10.2 or affiliates, other than amounts in the nature of severance or termination payments except as provided herein. If the Executive dies during any Severance Period during which he is entitled to benefits pursuant to this Section 5(d), his designated beneficiaries (or his estate in the absence of any surviving designated beneficiary) shall continue to receive the compensation and benefits that the Executive would have otherwise received during the remainder of the Severance Period.mean:
Appears in 1 contract
Samples: Employment Agreement (DGC Properties of Kentucky, LLC)
Termination by the Company Without Cause or by Executive for Good Reason. The Employment Period and (a) Subject to Section 6.2, in the event that the Company terminates the Executive’s employment hereunder may without Cause (which shall include a termination at the end of the Term of Employment by reason of the Company’s non-renewal of the Agreement pursuant to Section 3), or if the Executive terminates his employment for Good Reason in accordance with Section 6.1(c) below, the Executive shall only be terminated entitled to:
(i) the continuation of the Annual Base Salary at the rate then in effect (as provided in Section 5.1 of this Agreement) on the Date of Termination for a period of twelve (12) months commencing on such Date of Termination (the “Section 6.1 Severance Period”);
(ii) subject to the provisions of Section 5.2, a portion of the Annual Incentive for the year in which the Date of Termination occurs, determined by dividing the number of days in the calendar year through the Date of Termination by three hundred sixty-five (365) and multiplying such fraction by the Annual Incentive which the Executive would have earned if he had remained employed by the Company without Causefor the entire calendar year; provided, upon however, that the discretionary portion of the Annual Incentive shall be determined in good faith by the Compensation Committee taking into account the Executive’s length of service and contribution towards the Company’s business during the year in which the Date of Termination occurs;
(iii) any Annual Base Salary accrued to the Date of Termination, and any Annual Incentive relating to a prior year actually earned but not less than yet paid as of the Date of Termination;
(iv) reimbursement for all expenses (under Section 5.8 of this Agreement) incurred as of the Date of Termination, but not yet paid as of the Date of Termination;
(v) to the extent applicable, and as so permitted by applicable law, the continuation of the Executive’s welfare benefits (as described in Section 5.7 of this Agreement) at the level in effect on the Date of Termination during the Section 6.1 Severance Period or beyond as the law requires, and any other compensation and benefits as may be provided in accordance with the terms and provisions of applicable plans and programs, if any, generally applicable to executives of the Company or specifically applicable to the Executive; provided, that, that the Company shall provide the Executive with group health continuation coverage for the Executive and his dependents during such Section 6.1 Severance Period on the same terms and conditions as applicable to active employees, and such period of coverage shall run concurrently with the COBRA continuation coverage period; provided further, that, in the event that the Executive becomes eligible for comparable group health coverage provided by a subsequent employer, the coverage provided pursuant to this Section 6.1(a)(v) shall cease;
(vi) such rights as the Executive may have under any other written agreement between the Company and the Executive which is currently in effect or under any employee benefit plan or program of the Company (including rights to equity compensation). For the avoidance of doubt, in the event that amounts payable pursuant to Sections 5.3 and 5.4 herein have not yet been paid to the Executive on the Date of Termination, the Executive shall receive such amounts in accordance with Sections 5.3 and 5.4.
(b) Subject to Section 6.6, the amounts owed under Section 6.1(a)(i) shall be payable in equal bi-weekly installments from the Date of Termination through the expiration of the Section 6.1 Severance Period. Each such installment shall be treated as a separate payment for purposes of Section 409A of the Code. The amounts owed under Section 6.1(a)(ii) shall be payable, if at all, at the same time as the Annual Incentive normally would be paid under Section 5.2 for the calendar year in which the Date of Termination occurs. The amounts owed under Section 6.1(a)(iii) shall be paid within fifteen (15) days of the Date of Termination. The amounts owed under Section 6.1(a)(iv), unless otherwise expressly specified herein, shall be paid in accordance with the plan, programs, policies and procedures of the Company in effect at the time the applicable expenses are incurred. The amounts owed under Section 6.1(a)(v) shall be payable in accordance with the terms of the applicable plans and programs. The amounts owed under Section 6.1(a)(vi) shall be paid in accordance with the applicable agreements, plans, and programs.
(c) Upon thirty (30) days’ prior written notice to the ExecutiveBoard, the Executive may terminate his employment under this Agreement for Good Reason and such notification shall specify the act, or acts, on the basis of which the Executive has found Good Reason, provided, that such notice must be provided by the Executive with to the Board no later than ninety (90) days following the Executive’s knowledge of the initial existence of the circumstances that constitute Good Reason. The Board shall then be provided the opportunity, upon not less than within thirty (30) days’ written notice days of its receipt of such notification, to the Company. The Executive shall be entitled to receive, and the Company shall have no obligation pursuant to this Agreement or otherwise except for, (i) Base Salary through the date of termination in accordance meet with Section 3(a), (ii) any Annual Performance Bonus earned but not yet paid in accordance with Section 3(b), (iii) any Special Bonus earned but not yet paid in accordance with Section 3(c), (iv) reimbursement for business expenses properly incurred by the Executive in accordance with Section 3(g), (v) payment for accrued but unused vacation, and (vi) subject to (A) the Executive having executed a general release and waiver in a form reasonably satisfactory to the Company and discuss such general release and waiver having become effective, (B) the Executive having resigned from the Board, and (C) the Executive complying with the covenants set forth in Section 4, Base Salary for a severance period commencing upon the date of termination and ending twelve (12) months thereafter (such period, the “Severance Period”) in accordance with Section 3(a). In addition, the Executive shall be entitled to any other rights, benefits act or entitlements in accordance with any applicable plan, policy, program, arrangement of, or other agreement with, the Company or any of its subsidiaries Exhibit 10.2 or affiliates, other than amounts in the nature of severance or termination payments except as provided hereinacts. If the Executive dies during any Severance Period during which he is entitled to benefits does not rescind his termination of employment at such meeting, the Executive’s employment by the Company shall be terminated for Good Reason pursuant to this Section 5(d)6.1, his designated beneficiaries (or his estate in and the absence of any surviving designated beneficiary) Executive shall continue to receive the compensation and benefits that the Executive would have otherwise received during the remainder of the Severance Periodprovided under Section 6.1(a) hereof.
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Samples: Employment Agreement (Radio One Inc)
Termination by the Company Without Cause or by Executive for Good Reason. The Employment Period and the If Executive’s employment hereunder may be is terminated by the Company without CauseCause under Section 6(e) or by Executive for Good Reason under Section 6(d):
(i) as soon as practicable following such termination but no later than ninety (90) days after the Date of Termination, upon not less than thirty (30) days’ written notice the Company shall pay to Executive: his accrued, but yet unpaid Base Salary earned through the Date of Termination, his accrued, but unpaid Bonus, if any, earned for the year immediately prior to the year in which the Date of Termination occurs and any accrued, but unused vacation pay through the Date of Termination (the “Accrued Obligations”); and
(ii) provided Executive does not breach Section 9 or any other term of this Agreement following his termination, in which case all payments under this clause (ii) shall cease, the Company shall pay to Executive, in 12 substantially equal monthly installments, an amount equal to the product of (A) and (B), where (A) is equal to 1/12 and (B) is equal to the sum of (i) the greater of (x) Executive’s Base Salary in effect on the Date of Termination or by the Executive with (y) Executive’s Base Salary in effect immediately before a reduction of such Base Salary that would constitute Good Reason, upon not less than thirty plus (30ii) days’ written notice Executive’s Bonus (if any) paid or payable to Executive with respect to the Companyfiscal year that ended immediately prior to the fiscal year in which such Date of Termination occurred, with such payments beginning on the first day following the applicable revocation period set forth in the General Release contemplated in this Section 8 (the “Severance Payment Date”). The Executive shall Notwithstanding the foregoing, if the Board (or its delegate) determines in its discretion that severance payments due under this Section 8(a)(ii) are determined to be entitled “nonqualified deferred compensation” subject to receiveSection 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and that Executive is a “specified employee” as defined in Section 409A(a)(2)(B)(i) of the Code and the regulations and other guidance issued thereunder, then such severance payments shall commence no earlier than the first day of the seventh month following the month in which Executive’s termination occurs (the “Specified Employee Severance Payment Date”) (with the first such payment being a lump sum equal to the aggregate severance payments Executive would have received during such six-month period if no such delay had been imposed); for purposes of this Agreement, whether Executive is a “specified employee” will be determined in accordance with the written procedures adopted by the Board subsequent to the execution of this Agreement which are incorporated by reference herein;
(iii) the Company shall have no obligation reimburse Executive within ninety (90) days of the Date of Termination pursuant to this Agreement or otherwise except forSection 5(b) for reasonable expenses incurred, (i) Base Salary through the date of termination in accordance with Section 3(a), (ii) any Annual Performance Bonus earned but not yet paid in accordance with Section 3(b), (iii) any Special Bonus earned but not yet paid in accordance with Section 3(c), prior to such termination of employment;
(iv) reimbursement for business expenses properly incurred by the Executive in accordance with Section 3(g), (v) payment for accrued but unused vacation, and (vi) subject to (A) the Executive having executed a general release and waiver in a form reasonably satisfactory to the Company and such general release and waiver having become effective, (B) the Executive having resigned from the Board, and (C) the Executive complying with the covenants set forth in Section 4, Base Salary for a severance period commencing upon the date of termination and ending twelve (12) months thereafter (such period, the “Severance Period”) in accordance with Section 3(a). In addition, the Executive shall be entitled to any other rights, compensation and/or benefits or entitlements as may be due to Executive in accordance with the terms and provisions of any applicable planagreements, policy, program, arrangement of, plans or other agreement with, programs of the Company or any Company; and
(v) with respect to 35,000 of its subsidiaries Exhibit 10.2 or affiliates, other than amounts in the nature 48,699 shares of severance or termination payments except as provided herein. If the restricted common stock granted to Executive dies during any Severance Period during which he is entitled to benefits pursuant to this the Employee Restricted Stock Award Agreement, dated as of February 14, 2007, for purposes of calculating the pro rata vesting contemplated in clause (b) of Section 5(d3 thereof, Executive shall be deemed to have worked an additional 730 days (but in no event shall the numerator exceed 1,095 for purposes of making such calculation), his designated beneficiaries (or his estate in the absence of any surviving designated beneficiary) shall continue to receive the compensation and benefits that the Executive would have otherwise received during the remainder of the Severance Period.
Appears in 1 contract
