Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii). If the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon the Executive’s execution of a separation agreement containing a general release of claims substantially in the form attached as Exhibit A hereto (the “Release”), and the expiration of the applicable revocation period with respect to such Release within 60 days following the date of termination (the date on which the Release becomes effective, the “Release Effective Date”): (A) A lump sum cash payment equal to the product of (i) two and (ii) the sum of (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third calendar year following the calendar year in which the Original Employment Agreement was entered into (the “Third Annual Bonus”), the average Annual Bonus paid in respect of each of the three calendar years prior to the date of termination or (y) if such termination occurs prior to the date on which the Third Annual Bonus, if any, is paid, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date (the actual date of payment, the “Severance Payment Date”); (B) A lump sum cash payment equal to the Annual Bonus, if any, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable on the date such amount would have been paid had the Executive continued in employment (the “Unpaid Bonus”); (C) A lump-sum payment equal to the product of (1) the Target Annual Bonus in effect for the calendar year in which the termination occurs, and (2) a fraction, the numerator of which shall equal the number of days during the year in which the termination date occurs that the Executive was employed by the Company and the denominator of which shall equal 365, payable on the Severance Payment Date (the “Pro-Rated Bonus”); and (D) Full vesting as of the Severance Payment Date any and all equity or equity-based awards relating to the securities of the Company and any Fund Incentives that are in each case outstanding and unvested immediately prior to the date of such termination. (ii) For purposes of this Agreement, “Good Reason” shall mean any action by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; (B) requires the Executive to report to any person other than the Chief Executive Officer of DBRG; (C) reduces the Base Salary, Target Annual Bonus or Target LTIP Award then in effect; (D) relocates the Executive’s principal place of employment to a location more than 25 miles from the location in effect immediately prior to such relocation; or (E) constitutes a material breach by the Company of this Agreement or any other material agreement between the Executive and the Company; provided, that, in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.
Appears in 1 contract
Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four (4) business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii). .
(ii) If the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon the Executive’s execution of a separation agreement containing a general release of claims substantially in the form attached as Exhibit A hereto (the “Release”), and the expiration of the applicable revocation period with respect to such Release within 60 days following the date of termination (the date on which the Release becomes effective, the “Release Effective Date”):
(A) A lump sum cash payment equal to the product of (i) two three and (ii) the sum of (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third second calendar year following the calendar year in which the Original Employment Agreement was entered into Effective Date occurs (the “Third Annual Bonus”), the average Annual Bonus paid in respect of each of the three calendar years prior to the date of termination or (y) if such termination occurs prior to the date on which the Third Annual Bonus, if any, is paid, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date and in no event later than the 60th day following the date of termination (the actual date of payment, the “Severance Payment Date”); provided, that, if the 60 day period referenced in Section 4(c)(ii) begins in one calendar year and ends in a subsequent calendar year, the Severance Payment Date will in all events occur in the second calendar year;
(B) A lump sum cash payment equal to the Annual Bonus, if any, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable on the date such amount would have been paid had the Executive continued in employment (the “Unpaid Bonus”);
(C) A lump-sum payment equal to the product of (1) the Target Annual Bonus in effect for the calendar year in which the termination occurs, and (2) a fraction, the numerator of which shall equal the number of days during the year in which the termination date occurs that the Executive was employed by the Company and the denominator of which shall equal 365, payable on the Severance Payment Date (the “Pro-Rated Bonus”);
(D) Continuation of the Company’s contributions necessary to maintain the Executive’s coverage for the 24 calendar months immediately following the end of the calendar month in which the termination date occurs under the medical, dental and vision programs in which the Executive participated immediately prior to his termination of employment (and such coverage shall include the Executive’s eligible dependents); provided, that, if the Company determines in good faith that such contributions would cause adverse tax consequences to the Company or the Executive under applicable law, the Company shall instead provide the Executive with monthly cash payments during such 24-month period in an amount that, after reduction for applicable taxes (assuming the Executive pays taxes at the highest marginal rates in the applicable jurisdictions), is equal to the amount of the Company’s monthly contributions referenced above. The applicable period of health benefit continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) shall begin on the expiration of such 24-month period; and
(DE) Full vesting as of the Severance Payment Date date of termination of any and all equity or equity-based awards relating to the securities of the Company and any Fund Incentives that are in each case outstanding and unvested immediately prior to the date of such termination.
(iiiii) For purposes of this Agreement, “Good Reason” shall mean any action by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; provided that failing to maintain Executive on the Board shall constitute Good Reason; (B) requires the Executive to report to any person other than the Chief Executive Officer of DBRGChairman or the Board (or any sub-committee thereof); (C) reduces the Base Salary, Target Annual Bonus or Target LTIP Award then in effect; (D) relocates the Executive’s principal place of employment to a location more than 25 miles from the location in effect immediately prior to such relocation; or (E) constitutes a material breach by the Company of this Agreement or any other material agreement between the Executive and the Company; provided, that, in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.
Appears in 1 contract
Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four (4) business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii). .
(ii) If the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon the Executive’s execution of a separation agreement containing a general release of claims substantially in the form attached as Exhibit A hereto (the “Release”), and the expiration of the applicable revocation period with respect to such Release within 60 days following the date of termination (the date on which the Release becomes effective, the “Release Effective Date”):
(A) A lump sum cash payment equal to the product of (i) two three and (ii) the sum of (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third second calendar year following the calendar year in which the Original Employment Agreement was entered into Effective Date occurs (the “Third Annual Bonus”), the average Annual Bonus paid in respect of each of the three calendar years prior to the date of termination or (y) if such termination occurs prior to the date on which the Third Annual Bonus, if any, is paid, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date and in no event later than the 60th day following the date of termination (the actual date of payment, the “Severance Payment Date”); provided, that, if the 60 day period referenced in Section 4(c)(ii) begins in one calendar year and ends in a subsequent calendar year, the Severance Payment Date will in all events occur in the second calendar year;
(B) A lump sum cash payment equal to the Annual Bonus, if any, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable on the date such amount would have been paid had the Executive continued in employment (the “Unpaid Bonus”);
(C) A lump-sum payment equal to the product of (1) the Target Annual Bonus in effect for the calendar year in which the termination occurs, and (2) a fraction, the numerator of which shall equal the number of days during the year in which the termination date occurs that the Executive was employed by the Company and the denominator of which shall equal 365, payable on the Severance Payment Date (the “Pro-Rated Bonus”); and;
(D) Continuation of the Company’s contributions necessary to maintain the Executive’sExecutive and Executive’s eligible dependents shall continue to be covered at the expense of the Company by the same or substantially equivalent coverage for the 24 calendar months immediately following the end of the calendar month in which the termination date occurs under the medical, dental and vision programs in which the Executive and Executive’s eligible dependents participated immediately prior to his termination of employment (and such coverage shall include the Executive’s eligible dependents); provided, that, ifthe “Group Health Benefits”). Except as may be otherwise agreed by the Executive, all such Group Health Benefits coverages shall be provided under insured plans or arrangements. If the Company determines in good faith that such contributions would cause adverse tax consequences tocontinuation of Group Health Benefits coverage (x) would adversely affect the tax status of the plan(s) pursuant to which the Group Health Benefits are provided or result in taxability of benefits or penalties on the Company or the Executive under applicable law, the Company shall (including without limitation, pursuant to Section 2716 of the Public Health Service Act, the Patient Protection and Affordable Care Act, or Section 4980D of the Code), the Company may cease providing continuation of the Group Health Benefits coverage and instead provide the Executive with monthly cash payments during such 24-month period in an amount that, after reduction for applicable taxes (assuming the Executive pays taxes at the highest marginal rates in the applicable jurisdictions), is equal to the amount of the Company’s monthly contributionscost of providing the continuing Group Health Benefits coverage referenced above. The applicable period of health benefit continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) shall begin on the expiration of such 24-month period;
(E) Full vesting as of the Severance Payment Date date of termination of any and all equity or equity-based awards relating to the securities of the Company and any Fund Incentives that are in each case outstanding and unvested immediately prior to the date of such termination; and.
(F) Continued provision of the Other Fringe Benefits (including security and kidnap insurance as in effect immediately prior to the date of such termination,) for the later to occur of (x) the scheduled expiration of the Employment Term and (y) 24 calendar months immediately following the date of such termination. In addition during the 18 calendar months immediately following the date of termination, (i) CFI shall provide Executive continued use of his office and the services of a personal assistant, in each case, commensurate with those provided prior to the date of termination and (ii) Executive shall have continued use of CFI’s corporate jet (if any) for personal use, in which case Executive shall reimburse the Company for the cost of any such use on the same basis as personal use is reimbursed by Executive prior to the date of termination.
(iii) For purposes of this Agreement, “Good Reason” shall mean any action by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; provided, that (Bx) requires causing the Executive to no longer report solely and directly to any person other than the Chief Board, (y) modifying the Executive’s title and (z) failing to maintain Executive Officer of DBRGon the Board shall all constitute Good Reason; (CB) reduces the Base Salary, Target Annual Bonus or Target LTIP Award then in effect; (DC) relocates the Executive’s principal place of employment to a location more than 25 miles from the location in effect immediately prior to such relocation; or (ED) constitutes a material breach by the Company of this Agreement or any other material agreement between the Executive and the Company, which such material breach shall include (i) any action by the Company that restricts the Executive’s ability to perform the CCHLLC Duties or (ii) the failure of the Board to provide the Executive with the opportunity to serve as the Chief Executive Officer of CFI following a CEO Termination; provided, that, in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.
Appears in 1 contract
Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii). If the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon the Executive’s execution of a separation agreement containing a general release of claims substantially in the form attached as Exhibit A hereto (the “Release”), and the expiration of the applicable revocation period with respect to such Release within 60 days following the date of termination (the date on which the Release becomes effective, the “Release Effective Date”):
(A) A lump sum cash payment equal to the product of (i) two and (ii) the sum of (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third calendar year following the calendar year in which the Original Employment Agreement was entered into Effective Date occurs (the “Third Annual Bonus”), the average Annual Bonus paid in respect of each of the three calendar years prior to the date of termination or (y) if such termination occurs prior to the date on which the Third Annual Bonus, if any, is paid, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date and in no event later than the 60th day following the date of termination (the actual date of payment, the “Severance Payment Date”); provided, that, if the 60 day period referenced in this Section 4(c)(i)(A) begins in one calendar year and ends in a subsequent calendar year, the Severance Payment Date will in all events occur in the second calendar year;
(B) A lump sum cash payment equal to the Annual Bonus, if any, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable on the date such amount would have been paid had the Executive continued in employment (the “Unpaid Bonus”);
(C) A lump-sum payment equal to the product of (1) the Target Annual Bonus in effect for the calendar year in which the termination occurs, and (2) a fraction, the numerator of which shall equal the number of days during the year in which the termination date occurs that the Executive was employed by the Company and the denominator of which shall equal 365, payable on the Severance Payment Date (the “Pro-Rated Bonus”); and
(D) Full vesting as of the Severance Payment Date date of termination of any and all equity or equity-based awards relating to the securities of the Company and any Fund Incentives that are in each case outstanding and unvested immediately prior to the date of such termination.
(ii) For purposes of this Agreement, “Good Reason” shall mean any action by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; (B) requires the Executive to report to any person other than (x) prior to such time that the Executive is the Chief Financial Officer, to the Chief Financial Officer, and (y) thereafter, to the Chief Executive Officer or the President or a Co-President of DBRGCLNY; (CB) reduces the Base Salary, Target Annual Bonus or Target LTIP Award then in effect; (DC) relocates the Executive’s principal place of employment to a location more than 25 miles from the location in effect immediately prior to such relocation; or (ED) constitutes a material breach by the Company of this Agreement or any other material agreement between the Executive and the Company; provided, that, in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.
Appears in 1 contract
Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii). .
(ii) If the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon the Executive’s execution of a separation agreement containing a general release of claims substantially in the form attached as Exhibit A hereto (the “Release”), and the expiration of the applicable revocation period with respect to such Release within 60 days following the date of termination (the date on which the Release becomes effective, the “Release Effective Date”):
(A) A lump sum cash payment equal to the product of (i) two and (ii) the sum of (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third second calendar year following the calendar year in which the Original Employment Agreement was entered into Effective Date occurs (the “Third Annual Bonus”), the average Annual Bonus paid in respect of each of the three calendar years prior to the date of termination or (y) if such termination occurs prior to the date on which the Third Annual Bonus, if any, is paid, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date and in no event later than the 60th day following the date of termination (the actual date of payment, the “Severance Payment Date”); provided, that, if the 60 day period referenced in Section 4(c)(ii) begins in one calendar year and ends in a subsequent calendar year, the Severance Payment Date will in all events occur in the second calendar year;
(B) A lump sum cash payment equal to the Annual Bonus, if any, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable on the date such amount would have been paid had the Executive continued in employment (the “Unpaid Bonus”);
(C) A lump-sum payment equal to the product of (1) the Target Annual Bonus in effect for the calendar year in which the termination occurs, and (2) a fraction, the numerator of which shall equal the number of days during the year in which the termination date occurs that the Executive was employed by the Company and the denominator of which shall equal 365, payable on the Severance Payment Date (the “Pro-Rated Bonus”);
(D) Continuation of the Company’s contributions necessary to maintain the Executive’s coverage for the 24 calendar months immediately following the end of the calendar month in which the termination date occurs under the medical, dental and vision programs in which the Executive participated immediately prior to his termination of employment (and such coverage shall include the Executive’s eligible dependents); provided, that, if the Company determines in good faith that such contributions would cause adverse tax consequences to the Company or the Executive under applicable law, the Company shall instead provide the Executive with monthly cash payments during such 24-month period in an amount that, after reduction for applicable taxes (assuming the Executive pays taxes at the highest marginal rates in the applicable jurisdictions), is equal to the amount of the Company’s monthly contributions referenced above. The applicable period of health benefit continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) shall begin on the expiration of such 24-month period; and
(DE) Full vesting as of the Severance Payment Date date of termination of any and all equity or equity-based awards relating to the securities of the Company and any Fund Incentives that are in each case outstanding and unvested immediately prior to the date of such termination.
(iiiii) For purposes of this Agreement, “Good Reason” shall mean any action by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; (B) requires the Executive to report to any person other than the Chief Executive Officer of DBRGor the Executive Chairman; (C) reduces the Base Salary, Target Annual Bonus or Target LTIP Award then in effect; (D) relocates the Executive’s principal place of employment to a location more than 25 miles from the location in effect immediately prior to such relocation; or (E) constitutes a material breach by the Company of this Agreement or any other material agreement between the Executive and the CompanyCompany ; provided, that, in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.
Appears in 1 contract
Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four (4) business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii). .
(ii) If the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon the Executive’s execution of a separation agreement containing a general release of claims substantially in the form attached as Exhibit A hereto (the “Release”), and the expiration of the applicable revocation period with respect to such Release within 60 days following the date of termination (the date on which the Release becomes effective, the “Release Effective Date”):
(A) A lump sum cash payment equal to the product of (i) two three and (ii) the sum of (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third second calendar year following the calendar year in which the Original Employment Agreement was entered into Effective Date occurs (the “Third Annual Bonus”), the average Annual Bonus paid in respect of each of the three calendar years prior to the date of termination or (y) if such termination occurs prior to the date on which the Third Annual Bonus, if any, is paid, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date and in no event later than the 60th day following the date of termination (the actual date of payment, the “Severance Payment Date”); provided, that, if the 60 day period referenced in Section 4(c)(ii) begins in one calendar year and ends in a subsequent calendar year, the Severance Payment Date will in all events occur in the second calendar year;
(B) A lump sum cash payment equal to the Annual Bonus, if any, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable on the date such amount would have been paid had the Executive continued in employment (the “Unpaid Bonus”);
(C) A lump-sum payment equal to the product of (1) the Target Annual Bonus in effect for the calendar year in which the termination occurs, and (2) a fraction, the numerator of which shall equal the number of days during the year in which the termination date occurs that the Executive was employed by the Company and the denominator of which shall equal 365, payable on the Severance Payment Date (the “Pro-Rated Bonus”); and;
(D) Continuation of the Company’s contributions necessary to maintain the Executive’s coverage for the 24 calendar months immediately following the end of the calendar month in which the termination date occurs under the medical, dental and vision programs in which the Executive participated immediately prior to his termination of employment (and such coverage shall include the Executive’s eligible dependents); provided, that, if the Company determines in good faith that such contributions would cause adverse tax consequences to the Company or the Executive under applicable law, the Company shall instead provide the Executive with monthly cash payments during such 24-month period in an amount that, after reduction for applicable taxes (assuming the Executive pays taxes at the highest marginal rates in the applicable jurisdictions), is equal to the amount of the Company’s monthly contributions referenced above. The applicable period of health benefit continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) shall begin on the expiration of such 24-month period;
(E) Full vesting as of the Severance Payment Date date of termination of any and all equity or equity-based awards relating to the securities of the Company and any Fund Incentives that are in each case outstanding and unvested immediately prior to the date of such termination.; and
(iiiii) For purposes of this Agreement, “Good Reason” shall mean any action by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; provided that failing to maintain Executive on the Board shall constitute Good Reason; (B) requires the Executive to report to any person other than the Chief Executive Officer of DBRGChairman or the Board (or any sub-committee thereof); (C) reduces the Base Salary, Target Annual Bonus or Target LTIP Award then in effect; (D) relocates the Executive’s principal place of employment to a location more than 25 miles from the location in effect immediately prior to such relocation; or (E) constitutes a material breach by the Company of this Agreement or any other material agreement between the Executive and the Company; provided, that, in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.
Appears in 1 contract
Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii4(c)(ii). If the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon the Executive’s execution of a separation agreement containing a general release of claims substantially in the form attached as Exhibit A hereto (the “Release”), and the expiration of the applicable revocation period with respect to such Release within 60 days following the date of termination (the date on which the Release becomes effective, the “Release Effective Date”):
(A) A lump sum cash payment equal to the product of (ix) two one and one-half (1.5) (the “Severance Multiple”) and (iiy) the sum of (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third calendar year following the calendar year in which the Original Employment Agreement was entered into (the “Third Annual Bonus”), the average Annual Bonus paid in respect of each of the three calendar years prior to the date of termination or (y) if such termination occurs prior to the date on which the Third Annual Bonus, if any, is paid, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date (the actual date of payment, the “Severance Payment Date”);
(B) A lump sum cash payment equal to the Annual Bonus, if anyany and if not already paid, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable Company on the date such amount Annual Bonus would have been paid had the Executive continued in employment (the “Unpaid Bonus”)) payable on the Severance Payment Date;
(C) If termination in a calendar year occurs between January 1 and the date on which the grant of the LTIP Awards is made, the grant of the then current Target LTIP Award;
(D) A lump-sum payment equal to the product of (1) the Target Annual Bonus Amount in effect for the calendar year in which the termination occurs, and (2) a fraction, the numerator of which shall equal the number of days during the calendar year in which the termination date occurs that the Executive was employed by the Company and the denominator of which shall equal 365, payable on the Severance Payment Date 365 (the “Pro-Rated Bonus”)) payable on the Severance Payment Date; and
(DE) Full vesting as of the Severance Payment Release Effective Date of any and all equity or equity-LTIP Awards (including performance based awards relating to LTIP Awards, if any, at no less than the securities of the Company and any Fund Incentives full target award amount) that are in each case outstanding and unvested immediately prior to the date of such termination, including any LTIP Award granted pursuant to clause (C) of this Section 4(c)(i).
(ii) Notwithstanding the foregoing, if the Employment Term and Executive’s employment hereunder is terminated pursuant to Section 4(c)(i) above, during the period beginning ninety (90) days prior to the consummation of a Change in Control (as such term is defined in the LTIP) or within one year following a Change in Control, the Severance Multiple shall be increased to two (2).
(iii) For purposes of this Agreement, “Good Reason” shall mean any action by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; (B) requires the Executive to report to any person other than the Chief Executive Officer of DBRG; (C) reduces the Base Salary, the Target Annual Bonus Amount or the Target LTIP Award then in effectAward; (DC) relocates the Executive’s principal place of employment to a location more than 25 miles from the location in effect immediately prior to such relocationoutside of New York City; or (ED) constitutes a material breach by the Company of this Agreement or any other material agreement between the Executive and the CompanyAgreement; provided, that, provided that in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.
Appears in 1 contract
Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii). If the Executive’s employment is terminated by the Company without Cause other than for Cause, or by the Executive for Good Reason, in either case prior to a Change of Control (as defined herein), I/3516071.4
(i) the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon as severance compensation an amount equal to two times the Executive’s execution Base Salary as then in effect plus two times the Executive’s Bonus paid for the Company’s last calendar year. This severance compensation shall be paid in 12 equal monthly installments following a qualifying event, with the first payment payable on the first regular payroll date occurring in the calendar month following the date of the Executive's termination of employment, provided that the Company has received a separation agreement containing a general release following termination of claims employment signed by the Executive or his personal representative, substantially in the form attached hereto as Exhibit A hereto (the “Release”)A, and that such release is no longer revocable on the expiration first payment date;
(ii) all outstanding unvested options to purchase shares of the applicable revocation Company's common stock held by the Executive on the effective date of termination that would have vested in accordance with their terms prior to the first anniversary of the effective date of the termination of the Executive's employment shall vest immediately following the termination of the Executive's employment on such effective date and remain exercisable for a period of 30 days following such effective date;
(iii) all outstanding unvested awards of restricted stock and all unvested restricted stock units held by the Executive on the effective date of termination that would have vested in accordance with their terms prior to the first anniversary of the effective date of the termination of the Executive's employment shall vest immediately following the termination of the Executive's employment on such effective date; and
(iv) the Executive shall be entitled to receive, at the time when a payout with respect to such Release within 60 days following any performance shares held by the Executive on the effective date of termination would otherwise have been made, a pro-rata portion (the date on which the Release becomes effective, the “Release Effective Date”):
(A) A lump sum cash payment equal to the product of (i) two and (ii) the sum of (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third calendar year following the calendar year in which the Original Employment Agreement was entered into (the “Third Annual Bonus”), the average Annual Bonus paid in respect of each of the three calendar years prior to the date of termination or (y) if such termination occurs prior to the date on which the Third Annual Bonus, if any, is paid, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date (the actual date of payment, the “Severance Payment Date”);
(B) A lump sum cash payment equal to the Annual Bonus, if any, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable on the date such amount would have been paid had the Executive continued in employment (the “Unpaid Bonus”);
(C) A lump-sum payment equal to the product of (1) the Target Annual Bonus in effect for the calendar year in which the termination occurs, and (2) a fraction, the numerator of which shall equal the number of days during the year in applicable performance period on which the termination date occurs that the Executive was employed employed) of the number of such performance shares that would have been earned by the Company and Executive in accordance with the denominator terms thereof (including the satisfaction of which shall equal 365, payable the performance conditions related thereto based on the Severance Payment Date (Company's actual performance) if the “Pro-Rated Bonus”); and
(D) Full vesting as of the Severance Payment Date any and all equity or equity-based awards relating to the securities of the Company and any Fund Incentives that are in each case outstanding and unvested immediately prior to Executive had been employed on the date of required to earn such terminationshares.
(ii) For purposes of this Agreement, “Good Reason” shall mean any action by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; (B) requires the Executive to report to any person other than the Chief Executive Officer of DBRG; (C) reduces the Base Salary, Target Annual Bonus or Target LTIP Award then in effect; (D) relocates the Executive’s principal place of employment to a location more than 25 miles from the location in effect immediately prior to such relocation; or (E) constitutes a material breach by the Company of this Agreement or any other material agreement between the Executive and the Company; provided, that, in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.
Appears in 1 contract
Samples: Employment Agreement (Republic Airways Holdings Inc)
Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii). If the Executive’s employment is terminated by the Company without Cause other than for Cause, or by the Executive for Good Reason, in either case prior to a Change of Control (as defined herein),
(i) the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon as severance compensation an amount equal to two times the Executive’s execution Base Salary as then in effect plus two times the Executive’s Bonus paid for the Company’s last calendar year. This severance compensation shall be paid in 12 equal monthly installments following a qualifying event, with the first I/3481492.12 payment payable on the first regular payroll date occurring in the calendar month following the date of the Executive's termination of employment, provided that the Company has received a separation agreement containing a general release following termination of claims employment signed by the Executive or his personal representative, substantially in the form attached hereto as Exhibit A hereto (the “Release”)A, and that such release is no longer revocable on the expiration first payment date;
(ii) all outstanding unvested options to purchase shares of the applicable revocation Company's common stock held by the Executive on the effective date of termination that would have vested in accordance with their terms prior to the first anniversary of the effective date of the termination of the Executive's employment shall vest immediately following the termination of the Executive's employment on such effective date and remain exercisable for a period of 30 days following such effective date;
(iii) all outstanding unvested awards of restricted stock and all unvested restricted stock units held by the Executive on the effective date of termination that would have vested in accordance with their terms prior to the first anniversary of the effective date of the termination of the Executive's employment shall vest immediately following the termination of the Executive's employment on such effective date; and
(iv) the Executive shall be entitled to receive, at the time when a payout with respect to such Release within 60 days following any performance shares held by the Executive on the effective date of termination would otherwise have been made, a pro-rata portion (the date on which the Release becomes effective, the “Release Effective Date”):
(A) A lump sum cash payment equal to the product of (i) two and (ii) the sum of (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third calendar year following the calendar year in which the Original Employment Agreement was entered into (the “Third Annual Bonus”), the average Annual Bonus paid in respect of each of the three calendar years prior to the date of termination or (y) if such termination occurs prior to the date on which the Third Annual Bonus, if any, is paid, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date (the actual date of payment, the “Severance Payment Date”);
(B) A lump sum cash payment equal to the Annual Bonus, if any, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable on the date such amount would have been paid had the Executive continued in employment (the “Unpaid Bonus”);
(C) A lump-sum payment equal to the product of (1) the Target Annual Bonus in effect for the calendar year in which the termination occurs, and (2) a fraction, the numerator of which shall equal the number of days during the year in applicable performance period on which the termination date occurs that the Executive was employed employed) of the number of such performance shares that would have been earned by the Company and Executive in accordance with the denominator terms thereof (including the satisfaction of which shall equal 365, payable the performance conditions related thereto based on the Severance Payment Date (Company's actual performance) if the “Pro-Rated Bonus”); and
(D) Full vesting as of the Severance Payment Date any and all equity or equity-based awards relating to the securities of the Company and any Fund Incentives that are in each case outstanding and unvested immediately prior to Executive had been employed on the date of required to earn such terminationshares.
(ii) For purposes of this Agreement, “Good Reason” shall mean any action by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; (B) requires the Executive to report to any person other than the Chief Executive Officer of DBRG; (C) reduces the Base Salary, Target Annual Bonus or Target LTIP Award then in effect; (D) relocates the Executive’s principal place of employment to a location more than 25 miles from the location in effect immediately prior to such relocation; or (E) constitutes a material breach by the Company of this Agreement or any other material agreement between the Executive and the Company; provided, that, in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.
Appears in 1 contract
Samples: Employment Agreement (Republic Airways Holdings Inc)
Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii). If the Executive’s employment is terminated by the Company without Cause or Cause, by the Executive for Good ReasonReason or by the Executive without Good Reason on or after January 1, 2022 (which for purposes of this Section 4(c)(i) shall include a termination of the Executive’s employment resulting from an expiration of the Term), the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon the Executive’s execution of a separation agreement containing a general release of claims substantially in the form attached as Exhibit A hereto (the “Release”), and the expiration of the applicable revocation period with respect to such Release within 60 days following the date of termination (the date on which the Release becomes effective, the “Release Effective Date”):
(A) A lump sum cash payment equal to the product of (i) two and (ii) the ii)the sum of (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual BonusJanuary 1, if any, is paid to the Executive in respect of the third calendar year following the calendar year in which the Original Employment Agreement was entered into (the “Third Annual Bonus”)2022, the average Annual Bonus paid or to be paid in respect of each of the three calendar years prior to the date of termination 2019, 2020 and 2021 or (y) if such termination occurs prior to the date on which the Third Annual BonusJanuary 1, if any, is paid2022, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date and in no event later than the 60th day following the date of termination (the actual date of payment, the “Severance Payment Date”); provided, that, if the 60 day period referenced in Section 4(c)(ii) begins in one calendar year and ends in a subsequent calendar year, the Severance Payment Date will in all events occur in the second calendar year;
(B) A lump sum cash payment equal to the Annual Bonus, if any, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable on the date such amount would have been paid had the Executive continued in employment (the “Unpaid Bonus”);
(C) A lump-sum payment equal to the product of (1) the Target Annual Bonus in effect for the calendar year in which the termination occurs, and (2) a fraction, the numerator of which shall equal the number of days during the year in which the termination date occurs that the Executive was employed by the Company and the denominator of which shall equal 365, payable on the Severance Payment Date (the “Pro-Pro- Rated Bonus”);
(D) Continuation of the Company’s contributions necessary to maintain the Executive’s coverage for the 24 calendar months immediately following the end of the calendar month in which the termination date occurs under the medical, dental and vision programs in which the Executive participated immediately prior to his termination of employment (and such coverage shall include the Executive’s eligible dependents); provided, that, if the Company determines in good faith that such contributions would cause adverse tax consequences to the Company or the Executive under applicable law, the Company shall instead provide the Executive with monthly cash payments during such 24- month period in an amount that, after reduction for applicable taxes (assuming the Executive pays taxes at the highest marginal rates in the applicable jurisdictions), is equal to the amount of the Company’s monthly contributions referenced above. The applicable period of health benefit continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) shall begin on the expiration of such 24-month period; and
(DE) Full vesting as of the Severance Payment Date date of termination of any and all equity or equity-based awards relating to the securities of the Company and any Fund Incentives that are in each case outstanding and unvested immediately prior to the date of such termination.
(ii) For purposes of this Agreement, “Good Reason” shall mean any action by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; (B) requires the Executive to report to any person other than the Chief Executive Financial Officer of DBRGCLNY; (C) reduces the Base Salary, Target Annual Bonus or Target LTIP Award then in effect; (D) relocates the Executive’s principal place of employment to a location more than 25 miles from the location in effect immediately prior to such relocation; or (E) constitutes a material breach by the Company of this Agreement or any other material agreement between the Executive and the Company; provided, that, in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.,
Appears in 1 contract
Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii). If the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon the Executive’s execution of a separation agreement containing a general release of claims substantially in the form attached as Exhibit A hereto (the “Release”), and the expiration of the applicable revocation period with respect to such Release within 60 days following the date of termination (the date on which the Release becomes effective, the “Release Effective Date”):
(A) A lump sum cash payment equal to the product of (i) two and (ii) the sum of (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third calendar year following the calendar year in which the Original Employment Agreement was entered into (the “Third Annual Bonus”), the average Annual Bonus paid in respect of each of the three calendar years prior to the date of termination or (y) if such termination occurs prior to the date on which the Third Annual Bonus, if any, is paid, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date and in no event later than the 60th day following the date of termination (the actual date of payment, the “Severance Payment Date”); provided, that, if the 60 day period referenced in this Section 4(c)(i)(A) begins in one calendar year and ends in a subsequent calendar year, the Severance Payment Date will in all events be paid with the applicable regularly scheduled payroll date in the second calendar year;
(B) A lump sum cash payment equal to the Annual Bonus, if any, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable on the date such amount would have been paid had the Executive continued in employment (the “Unpaid Bonus”);
(C) A lump-sum payment equal to the product of (1) the Target Annual Bonus in effect for the calendar year in which the termination occurs, and (2) a fraction, the numerator of which shall equal the number of days during the year in which the termination date occurs that the Executive was employed by the Company and the denominator of which shall equal 365, payable on the Severance Payment Date (the “Pro-Rated Bonus”); and
(D) Full vesting as of the Severance Payment Date date of termination of any and all equity or equity-based awards relating to the securities of the Company and any Fund Incentives that are in each case outstanding and unvested immediately prior to the date of such termination, including without limitation the “Sign-On Equity Award” (as defined in the Original Employment Agreement).
(ii) For purposes of this Agreement, “Good Reason” shall mean any action by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; (B) requires the Executive to report to any person other than the Chief Executive Officer of DBRG; (C) reduces the Base Salary, Target Annual Bonus or Target LTIP Award then in effect; (D) relocates the Executive’s principal place of employment to a location more than 25 miles from the location in effect immediately prior to such relocation; or (E) constitutes a material breach by the Company of this Agreement or any other material agreement between the Executive and the Company; provided, that, in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.
Appears in 1 contract
Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii). If the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon the Executive’s execution of a separation agreement containing a general release of claims substantially in the form attached as Exhibit A hereto (the “Release”), and the expiration of the applicable revocation period with respect to such Release within 60 days following the date of termination (the date on which the Release becomes effective, the “Release Effective Date”):
(A) A lump sum cash payment equal to the product of (i) two and (ii) the sum of (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third second calendar year following the calendar year in which the Original Employment Agreement was entered into Effective Date occurs (the “Third Annual Bonus”), the average Annual Bonus paid in respect of each of the three calendar years prior to the date of termination or (y) if such termination occurs prior to the date on which the Third Annual Bonus, if any, is paid, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date and in no event later than the 60th day following the date of termination (the actual date of payment, the “Severance Payment Date”); provided, that, if the 60 day period referenced in Section 4(c)(ii) begins in one calendar year and ends in a subsequent calendar year, the Severance Payment Date will in all events occur in the second calendar year;
(B) A lump sum cash payment equal to the Annual Bonus, if any, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable on the date such amount would have been paid had the Executive continued in employment (the “Unpaid Bonus”);
(C) A lump-sum payment equal to the product of (1) the Target Annual Bonus in effect for the calendar year in which the termination occurs, and (2) a fraction, the numerator of which shall equal the number of days during the year in which the termination date occurs that the Executive was employed by the Company and the denominator of which shall equal 365, payable on the Severance Payment Date (the “Pro-Rated Bonus”);
(D) Continuation of the Company’s contributions necessary to maintain the Executive’s coverage for the 24 calendar months immediately following the end of the calendar month in which the termination date occurs under the medical, dental and vision programs in which the Executive participated immediately prior to his termination of employment (and such coverage shall include the Executive’s eligible dependents); provided, that, if the Company determines in good faith that such contributions would cause adverse tax consequences to the Company or the Executive under applicable law, the Company shall instead provide the Executive with monthly cash payments during such 24- month period in an amount that, after reduction for applicable taxes (assuming the Executive pays taxes at the highest marginal rates in the applicable jurisdictions), is equal to the amount of the Company’s monthly contributions referenced above. The applicable period of health benefit continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) shall begin on the expiration of such 24-month period; and
(DE) Full vesting as of the Severance Payment Date date of termination of any and all equity or equity-based awards relating to the securities of the Company and any Fund Incentives that are in each case outstanding and unvested immediately prior to the date of such termination.
(ii) For purposes of this Agreement, “Good Reason” shall mean any action by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position, provided that Good Reason shall not occur pursuant to this clause (A) if Executive retains either the title of Chief Operating Officer or Chief Financial Officer and there is no diminution in the Executive’s duties, authority or responsibility with respect to such retained title; (B) requires the Executive to report to any person other than the Chief Executive Officer of DBRGor the Executive Chairman; (C) reduces the Base Salary, Target Annual Bonus or Target LTIP Award then in effect; (D) relocates the Executive’s principal place of employment to a location more than 25 miles from the location (or, in the case there is more than one location, more than 25 miles from each such location) in effect immediately prior to such relocation; or (E) constitutes a material breach by the Company of this Agreement or any other material agreement between the Executive and the Company; provided, that, in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.
Appears in 1 contract
Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii4(c)(ii). If the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon the Executive’s execution execution, within 60 days after receipt, of a separation agreement containing a general release of claims substantially in the form attached as Exhibit A hereto (the “Release”), ) and the expiration of the applicable revocation period with respect to such Release within 60 days following the date of termination (the date on which the Release becomes effective, the “Release Effective Date”):
(A) A lump sum cash payment equal to the product of (i) two two, and (ii) the sum of (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third second calendar year following the calendar year in which the Original Employment Agreement was entered into Effective Date occurs (the “Third Annual Bonus”), the greater of (I) the average Annual Bonus paid in respect of each of the three calendar years prior to the date of termination and (II) the Target Bonus Amount, or (y) if such termination occurs prior to the date on which the Third Annual Bonus, if any, is paid, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date (the actual date of payment, the “Severance Payment Date”);
(B) A lump sum cash payment equal to the Annual Bonus, if any, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable on the date such amount would have been paid had the Executive continued in employment (the “Unpaid Bonus”);
(C) A lump-sum payment equal to the product of (1i) the Target Annual Bonus Amount in effect for the calendar year in which the termination occurs, and (2ii) a fraction, the numerator of which shall equal the number of days during the year in which the termination date occurs that the Executive was employed by the Company and the denominator of which shall equal 365, payable on the Severance Payment Date (the “Pro-Rated Bonus”);
(D) Continuation of the Company’s contributions necessary to maintain the Executive’s coverage for the 24 calendar months immediately following the end of the calendar month in which the termination date occurs under the medical, dental and vision programs in which the Executive participated immediately prior to his termination of employment (and such coverage shall include the Executive’s eligible dependents); provided, that, if the Company determines in good faith that such contributions would cause adverse tax consequences to the Company or the Executive under applicable law, the Company shall instead provide the Executive with monthly cash payments during such 24 month period in an amount that, after reduction for applicable taxes (assuming the Executive pays taxes at the highest marginal rates in the applicable jurisdictions), is equal to the amount of the Company’s monthly contributions referenced above. The applicable period of health benefit continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) shall begin on the expiration of such 24-month period; and
(DE) Full vesting as of the Severance Payment Date of any and all equity or equity-based awards relating to the securities of the Company and any Fund Incentives that are are, in each case case, outstanding and unvested immediately prior to the date of such termination. If such termination of employment occurs (i) at a time when a Change in Control (as defined in the DigitalBridge Group, Inc. 2014 Omnibus Stock Incentive Plan as in effect on the date hereof) (“Change in Control”) is being anticipated, whether or not a Change of Control is actually consummated, or (ii) within two years after either the consummation of a Change of Control or cessation of plans or actions intended to result in a Change in Control, no repurchase right or option with respect to any equity or equity-based awards relating to the securities of the Company or any Fund Incentives, whether or not vested immediately prior to the date of such termination, shall be exercised.
(ii) For purposes of this Agreement, “Good Reason” shall mean any action or omission by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; (B) requires the Executive to report to any person other than the Chief Executive Officer of DBRG; (C) reduces the Base Salary, Target Annual Bonus or Target LTIP Award then in effect; (D) relocates the Executive’s principal place of employment to a location more than 25 miles from the location in effect immediately prior to such relocation; or (E) constitutes a material breach by the Company of this Agreement or any other material agreement between the Executive and the Company, or (F) results in any successor (whether direct or indirect, by purchase, merger, consolidation, or otherwise) to all or substantially all of the business or assets of the Company not, as a condition of such succession, assuming expressly, and agreeing to perform, this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place; provided, that, in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.
Appears in 1 contract
Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii). If the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon the Executive’s execution of a separation agreement containing a general release of claims substantially in the form attached as Exhibit A hereto (the “Release”), and the expiration of the applicable revocation period with respect to such Release within 60 days following the date of termination (the date on which the Release becomes effective, the “Release Effective Date”):
(A) A lump sum cash payment equal to the product of (i) two and (ii) the sum of (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third second calendar year following the calendar year in which the Original Employment Agreement was entered into Effective Date occurs (the “Third Annual Bonus”), the average Annual Bonus paid in respect of each of the three calendar years prior to the date of termination or (y) if such termination occurs prior to the date on which the Third Annual Bonus, if any, is paid, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date and in no event later than the 60th day following the date of termination (the actual date of payment, the “Severance Payment Date”); provided, that, if the 60 day period referenced in Section 4(c)(ii) begins in one calendar year and ends in a subsequent calendar year, the Severance Payment Date will in all events occur in the second calendar year;
(B) A lump sum cash payment equal to the Annual Bonus, if any, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable on the date such amount would have been paid had the Executive continued in employment (the “Unpaid Bonus”);
(C) A lump-sum payment equal to the product of (1) the Target Annual Bonus in effect for the calendar year in which the termination occurs, and (2) a fraction, the numerator of which shall equal the number of days during the year in which the termination date occurs that the Executive was employed by the Company and the denominator of which shall equal 365, payable on the Severance Payment Date (the “Pro-Rated Bonus”);
(D) Continuation of the Company’s contributions necessary to maintain the Executive’s coverage for the 24 calendar months immediately following the end of the calendar month in which the termination date occurs under the medical, dental and vision programs in which the Executive participated immediately prior to his termination of employment (and such coverage shall include the Executive’s eligible dependents); provided, that, if the Company determines in good faith that such contributions would cause adverse tax consequences to the Company or the Executive under applicable law, the Company shall instead provide the Executive with monthly cash payments during such 24- month period in an amount that, after reduction for applicable taxes (assuming the Executive pays taxes at the highest marginal rates in the applicable jurisdictions), is equal to the amount of the Company’s monthly contributions referenced above. The applicable period of health benefit continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) shall begin on the expiration of such 24-month period; and
(DE) Full vesting as of the Severance Payment Date date of termination of any and all equity or equity-based awards relating to the securities of the Company and any Fund Incentives that are in each case outstanding and unvested immediately prior to the date of such termination.
(ii) For purposes of this Agreement, “Good Reason” shall mean any action by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; (B) requires the Executive to report to any person other than the Chief Executive Officer, the Chief Financial Officer of DBRGor the President; (C) reduces the Base Salary, Target Annual Bonus or Target LTIP Award then in effect; (D) relocates the Executive’s principal place of employment to a location more than 25 miles from the location in effect immediately prior to such relocation; or (E) constitutes a material breach by the Company of this Agreement or any other material agreement between the Executive and the Company; provided, that, in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.
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Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii). If the Executive’s 's employment is shall be terminated by the Company without Cause during the Employment Period, or by the Executive for Good Reason, then:
(i) the Company shall make a lump sum cash payment to the Executive within 30 days after the Date of Termination of (x) the Executive's pro rata Annual Base Salary payable through the Date of Termination to the extent not theretofore paid, (y) the targeted amount of the Executive's annual incentive bonus and long-term incentive awards and Partnership Plan Units that would have been payable with respect to the fiscal year in which the Date of Termination occurs in each case absent the termination of the Executive's employment, prorated for the portion of such fiscal year through the Date of Termination taking into account the number of complete months during such fiscal year through the Date of Termination and (z) the Executive's actual earned annual incentive bonus or long-term incentive awards and Partnership Plan Units for any completed fiscal year or period not theretofore paid or deferred;
(ii) the Company shall pay or provide to the Executive in equal installments, made at least monthly, over the twenty-four months following the Date of Termination, an aggregate amount equal to (A1) two times the Accrued Benefits Executive's Annual Base Salary in effect on the Date of Termination, (2) two times the targeted amount of the annual incentive bonus that would have been paid or accrued to the Executive with respect to the Company's fiscal year in which such Date of Termination occurs and (B3) upon two times the Executive’s execution of a separation agreement containing a general release of claims substantially in the form attached as Exhibit A hereto (the “Release”), and the expiration targeted amount of the applicable revocation period long-term incentive award and Partnership Plan Units that would have been paid or accrued to the Executive with respect to such Release within 60 days following the date of termination (the date on which the Release becomes effective, the “Release Effective Date”):fiscal year;
(Aiii) A lump sum cash payment equal the Company shall continue to provide, in the product of manner and timing provided for in the Plans (other than as provided in clauses (i) two and ), (ii) the sum of ), (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reasoniv) and (2v) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third calendar year following the calendar year in which the Original Employment Agreement was entered into (the “Third Annual Bonus”this Section 3(e)), the average Annual Bonus paid in respect of each of benefits provided under the three calendar years prior to the date of termination or (y) if such termination occurs prior to the date on which the Third Annual Bonus, if any, is paid, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date (the actual date of payment, the “Severance Payment Date”);
(B) A lump sum cash payment equal to the Annual Bonus, if any, Plans that the Executive would have received receive if the Executive's employment continued for two years after the Date of Termination, assuming for this purpose that the Executive's compensation is the amount paid pursuant to clause (ii) above, and the Executive shall be fully vested in respect of any account balance and all other benefits under the calendar year prior Plans; provided, however, that the benefits provided under this clause (iii) shall be limited to the calendar year in which amounts permitted by law or as would otherwise not potentially adversely impact on the termination occurs had tax qualification of any Plans; provided, further, that if such benefits may not be continued under the Plans, the Company shall pay to the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable on the date such amount would have been paid had the Executive continued in employment (the “Unpaid Bonus”);
(C) A lump-sum payment equal to the product of Company's cost had such benefits been continued.
(1) all unvested options held by the Target Annual Bonus in effect for Executive shall vest on the calendar year in which the termination occursDate of Termination, and (2) all unvested profit shares held by the Executive or for the benefit of the Executive by a grantor trust established by the Company shall vest on the Date of Termination, (3) any other unvested equity based award (including, without limitation, restricted stock and stock units) held by the Executive shall vest on the two year anniversary date of the Date of Termination on a pro rata basis determined by a fraction, the numerator of which shall equal is the number of days during months elapsed from the year in which grant of such equity award through the termination date occurs that Date of Termination plus the Executive was employed by twenty-four months after the Company Date of Termination and the denominator of which is the total number of months in the vesting period for such award, and shall equal 365be delivered to the Executive entirely in the form of Common Stock upon the later of May 1, payable 2002 and the expiration of the period of that the Executive's activities are restricted under Section 10(c), subject to compliance with this Agreement through such date, (4) any options held by the Executive that are vested on the Severance Payment Date of Termination or vest thereafter pursuant to this clause (iv) may be exercised until the “Proexpiration date of such options and (5) the Executive shall not be entitled to any additional grants of any stock options, restricted stock, or other equity based or long-Rated Bonus”)term awards; and
(Dv) Full vesting as of the Severance Payment Date any Executive, his spouse and all equity or equity-based awards relating dependent children shall be entitled to the securities of the Company and any Fund Incentives that are in each case outstanding and unvested immediately prior to the date of such terminationbenefits set forth under Section 3(b)(iii).
(ii) For purposes of this Agreement, “Good Reason” shall mean any action by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; (B) requires the Executive to report to any person other than the Chief Executive Officer of DBRG; (C) reduces the Base Salary, Target Annual Bonus or Target LTIP Award then in effect; (D) relocates the Executive’s principal place of employment to a location more than 25 miles from the location in effect immediately prior to such relocation; or (E) constitutes a material breach by the Company of this Agreement or any other material agreement between the Executive and the Company; provided, that, in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.
Appears in 1 contract
Samples: Retention Agreement (Toys R Us Inc)
Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii). If the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon the Executive’s execution of a separation agreement containing a general release of claims substantially in the form attached as Exhibit A hereto (the “Release”), and the expiration of the applicable revocation period with respect to such Release within 60 days following the date of termination (the date on which the Release becomes effective, the “Release Effective Date”):
(A) A lump sum cash payment equal to the product of (i) two three and (ii) the sum of (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third calendar year following the calendar year in which the Original Employment Agreement was entered into Effective Date occurs (the “Third Annual Bonus”), the average Annual Bonus paid in respect of each of the three calendar years prior to the date of termination or (y) if such termination occurs prior to the date on which the Third Annual Bonus, if any, is paid, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date and in no event later than the 60th day following the date of termination (the actual date of payment, the “Severance Payment Date”); provided, that, if the 60-day period referenced in this Section 4(c)(i)(A) begins in one calendar year and ends in a subsequent calendar year, the Severance Payment Date will in all events occur in the second calendar year;
(B) A lump sum cash payment equal to the Annual Bonus, if any, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable on the date such amount would have been paid had the Executive continued in employment (the “Unpaid Bonus”);
(C) A lump-sum payment equal to the product of (1) the Target Annual Bonus in effect for the calendar year in which the termination occurs, and (2) a fraction, the numerator of which shall equal the number of days during the year in which the termination date occurs that the Executive was employed by the Company and the denominator of which shall equal 365, payable on the Severance Payment Date (the “Pro-Rated Bonus”);
(D) The Executive and the Executive’s eligible dependents shall continue to be covered at the expense of the Company by the same or substantially equivalent coverage for the 24 calendar months immediately following the end of the calendar month in which the termination date occurs under the medical, dental and vision programs in which the Executive and the Executive’s eligible dependents participated immediately prior to his termination of employment (the “Group Health Benefits”). Except as may be otherwise agreed by the Executive, all such Group Health Benefits coverages shall be provided under insured plans or arrangements. If the Company determines in good faith that such continuation of Group Health Benefits coverage would cause adverse tax consequences to the Company or the Executive under applicable law, the Company shall instead provide the Executive with monthly cash payments during such 24-month period in an amount that, after reduction for applicable taxes (assuming the Executive pays taxes at the highest marginal rates in the applicable jurisdictions), is equal to the cost of providing the continuing Group Health Benefits coverage. The applicable period of health benefit continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) shall begin on the expiration of such 24-month period; and
(DE) Full Except as otherwise provided in the documents governing the Sign-on Equity Award, full vesting as of the Severance Payment Date date of termination of any and all equity or equity-based awards relating to the securities of the Company and any Fund Incentives that are in each case outstanding and unvested immediately prior to the date of such termination.
(F) Continued provision of the Other Fringe Benefits (including, without limitation, security and kidnap insurance as in effect immediately prior to the date of such termination) for 24 calendar months immediately following the date of such termination. In addition during the 18 calendar months immediately following the date of termination, the Company shall provide Executive continued use of his office and the services of a personal assistant, in each case, commensurate with those provided prior to the date of termination.
(ii) For purposes of this Agreement, “Good Reason” shall mean any action by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; provided, that, for the avoidance of doubt, (x) modifying the Executive’s title (other than as set forth in Section 2 hereof) and (y) after the Executive becomes CLNY CEO, the failure to nominate or maintain the Executive on the Board shall each constitute Good Reason; (B) requires the Executive to report to any person other than the Chief CLNY CEO, or, after the Executive Officer of DBRGbecomes CLNY CEO, the Board; (C) reduces the Base Salary, Target Annual Bonus or Target LTIP Award then in effectas set forth herein; (D) relocates the Executive’s principal place of employment to a location more than 25 miles from the DBH office in Boca Raton, Florida; provided, that if the Executive agrees in writing to establish another location in effect immediately prior to as his principal place of employment, then for purposes of this clause (D) such relocationother location shall be substituted for Boca Raton, Florida; or (E) constitutes a material breach by the Company of this Agreement (including, without limitation, failure to timely pay or award the Base Salary, Target Annual Bonus or Target LTIP Award) or any other material agreement between the Executive and the CompanyCompany (including, for the avoidance of doubt, the Restrictive Covenant Agreement), which such material breach shall include, without limitation, any action by the Company that restricts the Executive’s ability to comply with his then-applicable time and attention obligations to the DBH Legacy Investments; (F) results in the Executive not having the title of CLNY CEO after the later of (x) Xxxxxx X. Xxxxxxx, Xx. ceasing to be CLNY CEO, (y) the investment period for Digital Colony Partners terminates and (z) December 31, 2020; provided; however, that, for the avoidance of doubt, the Executive shall have Good Reason if Executive is not CEO at any time when all of the foregoing conditions (x), (y) and (z) have been satisfied; provided, further, that, in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.
Appears in 1 contract
Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii4(c)(ii). If the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon the Executive’s execution of a separation agreement containing a general release of claims substantially in the form attached as Exhibit A hereto (the “Release”), and the expiration of the applicable revocation period with respect to such Release within 60 days following the date of termination (the date on which the Release becomes effective, the “Release Effective Date”):
(A) A lump sum cash payment equal to the product of (i) two and (ii) the sum of (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third calendar year following the calendar year in which the Original Employment Agreement was entered into 2022 (the “Third 2022 Annual Bonus”), the average Annual Bonus paid in respect of each of the three calendar years prior to the date of termination or (y) if such termination occurs prior to the date on which the Third 2022 Annual Bonus, if any, is paid, the Target average Annual Bonus Amount in effect immediately paid prior to the date of termination (without regard the amount determined pursuant to any reduction that gives rise to Good Reasonclause (x) or (y), the “Average Bonus”), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date and in no event later than the 60th day following the date of termination (the actual date of payment, the “Severance Payment Date”); provided, that, if the 60-day period referenced in this Section 4(c)(i)(A) begins in one calendar year and ends in a subsequent calendar year, the Severance Payment Date will in all events occur in the second calendar year;
(B) A lump sum cash payment equal to the Annual Bonus, if any, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable on the date such amount would have been paid had the Executive continued in employment (the “Unpaid Bonus”);
(C) A lump-sum payment equal to the product of (1) the Target Annual Bonus in effect for the calendar year in which the termination occursAverage Bonus, and (2) a fraction, the numerator of which shall equal the number of days during the year in which the termination date occurs that the Executive was employed by the Company and the denominator of which shall equal 365, payable on the Severance Payment Date (the “Pro-Rated Bonus”);
(D) The Executive and the Executive’s eligible dependents shall continue to be covered at the expense of the Company by the same or substantially equivalent coverage for the 24 calendar months immediately following the end of the calendar month in which the termination date occurs under the medical, dental and vision programs in which the Executive and the Executive’s eligible dependents participated immediately prior to his termination of employment (the “Group Health Benefits”). Except as may be otherwise agreed by the Executive, all such Group Health Benefits coverages shall be provided under insured plans or arrangements. If the Company determines in good faith that such continuation of Group Health Benefits coverage would cause adverse tax consequences to the Company or the Executive under applicable law, the Company shall instead provide the Executive with monthly cash payments during such 24-month period in an amount that, after reduction for applicable taxes (assuming the Executive pays taxes at the highest marginal rates in the applicable jurisdictions), is equal to the cost of providing the continuing Group Health Benefits coverage. The applicable period of health benefit continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) shall begin on the expiration of such 24-month period; and
(DE) Full vesting as of the Severance Payment Date date of termination of any and all equity or equity-based awards relating to the securities of the Company and any Fund Incentives that are in each case outstanding and unvested immediately prior to the date of such termination.
(ii) For purposes of this Agreement, “Good Reason” shall mean any action or inaction (as applicable) by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; , (B) requires the Executive to report to any person other than the Chief Executive Officer of DBRG; DBRG CEO, (C) reduces the Base Salary, Target Annual Bonus or Target LTIP Award then in effect; , (D) constitutes a material breach by the Company of this Agreement (including, without limitation, failure to timely pay the Base Salary) or any other material agreement between the Executive and the Company (including, for the avoidance of doubt, the Restrictive Covenant Agreement) which such material breach shall include, without limitation, any action by the Company that restricts Executive’s ability to comply with his then applicable time and attention obligations to the DBH Legacy Investments, (E) relocates the Executive’s principal place of employment to a location more than 25 miles from New York, New York; provided, that, if the Executive agrees in writing to establish another location in effect immediately prior to such relocation; or as his principal place of employment, then for purposes of this clause (E) constitutes a material breach by the Company of this Agreement or any ), such other material agreement between the Executive and the Companylocation shall be substituted for New York, New York; provided, that, in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period. Notwithstanding the foregoing, in no event shall the Executive’s removal from the board or investment committee of any direct or indirect general partner of any Digital Colony Fund (as defined in the Purchase Agreement dated as of July 17, 2020 (the “Purchase Agreement”) among W-Catalina (S) LLC, W-Catalina (C) LLC and the Company) constitute “Good Reason” hereunder.
Appears in 1 contract
Termination by the Company Without Cause or by the Executive for Good Reason. (iA) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four business 10 days following the date on which written notice to such effect is delivered to the Executive, or such earlier date as agreed upon by the parties, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii4(c)(ii). If the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon the Executive’s execution of a separation agreement containing a general release of claims substantially in the form attached as Exhibit A hereto (the “Release”), and the expiration of the applicable revocation period with respect to such Release within 60 days following the date of termination (the date on which the Release becomes effective, the “Release Effective Date”):
(A) A lump sum cash payment equal to the product of (i) two and (ii) the sum of (1) the full amount of Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third second calendar year following the calendar year in which the Original Employment Agreement was entered into Effective Date occurs (the “Third Annual Bonus”), the average Annual Bonus paid in respect of each of the three calendar years prior to the date of termination or (y) if such termination occurs prior to the date on which the Third Annual Bonus, if any, is paid, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date (the actual date of payment, the “Severance Payment Date”);
(B) A lump sum cash payment equal to the Annual Bonus, if any, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable on the date such amount would have been paid had the Executive continued in employment (the “Unpaid Bonus”);
(C) A lump-sum payment equal to the product of (1) the Target Annual Bonus in effect for the calendar year in which the termination occurs, and (2) a fraction, the numerator of which shall equal the number of days during the year in which the termination date occurs that the Executive was employed by the Company and the denominator of which shall equal 365, payable on the Severance Payment Date (the “Pro-Rated Bonus”); and
(D) Full vesting as of the Severance Payment Date of any and all equity or equity-based awards relating to the securities of the Company and any Fund Incentives that are in each case outstanding and unvested immediately prior to the date of such termination.
(ii) For purposes of this Agreement, “Good Reason” shall mean any action by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; (B) requires the Executive to report to any person other than the Chief Executive Officer of DBRG; (C) reduces the Base Salary, Target Annual Bonus or Target LTIP Award then in effect; (D) relocates the Executive’s principal place of employment to a location more than 25 miles from the location in effect immediately prior to such relocation; or (E) constitutes a material breach by the Company of this Agreement or any other material agreement between the Executive and the Company; provided, that, in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.
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Termination by the Company Without Cause or by the Executive for Good Reason. (i) The Employment Term and the Executive’s employment hereunder may be terminated (A) by the Company at any time without Cause, effective four business days following the date on which written notice to such effect is delivered to the Executive, or (B) by the Executive for “Good Reason” (as defined and determined below), effective as set forth in Section 4(c)(iii4(c)(ii). If the Executive’s employment is terminated by the Company without Cause or by the Executive for Good Reason, the Company shall pay or provide to the Executive (A) the Accrued Benefits and (B) upon the Executive’s execution of a separation agreement containing a general release of claims substantially in the form attached as Exhibit A hereto (the “Release”), and the expiration of the applicable revocation period with respect to such Release within 60 days following the date of termination (the date on which the Release becomes effective, the “Release Effective Date”):
(A) A lump sum cash payment equal to the product of (ix) two one and one-half (1.5) (the “Severance Multiple”) and (iiy) the sum of (1) the Base Salary in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason) and (2) (x) if such termination occurs on or after the date on which the Annual Bonus, if any, is paid to the Executive in respect of the third calendar year following the calendar year in which the Original Employment Agreement was entered into (the “Third Annual Bonus”), the average Annual Bonus paid in respect of each of the three calendar years prior to the date of termination or (y) if such termination occurs prior to the date on which the Third Annual Bonus, if any, is paid, the Target Bonus Amount in effect immediately prior to the date of termination (without regard to any reduction that gives rise to Good Reason), payable on the first regularly scheduled payroll date of the Company following the Release Effective Date (the actual date of payment, the “Severance Payment Date”);
(B) A lump sum cash payment equal to the Annual Bonus, if any, that the Executive would have received in respect of the calendar year prior to the calendar year in which the termination occurs had the Executive remained an active employee of the Company, based on the achievement of the applicable performance measures, to the extent unpaid as of the termination date, payable Company on the date such amount Annual Bonus would have been paid had the Executive continued in employment (the “Unpaid Bonus”)) payable on the Severance Payment Date;
(C) If termination in a calendar year occurs between January 1 and the date on which the grant of the LTIP Awards is made, the grant of the then current Target LTIP Award;
(D) A lump-sum payment equal to the product of (1) the Target Annual Bonus Amount in effect for the calendar year in which the termination occurs, and (2) a fraction, the numerator of which shall equal the number of days during the calendar year in which the termination date occurs that the Executive was employed by the Company and the denominator of which shall equal 365, payable on the Severance Payment Date 365 (the “Pro-Rated Bonus”)) payable on the Severance Payment Date; and
(DE) Full vesting as of the Severance Payment Release Effective Date of any and all equity or equity-based awards relating to the securities of the Company and any Fund Incentives LTIP Awards that are in each case outstanding and unvested immediately prior to the date of such termination, including any LTIP Award granted pursuant to clause (C) of this Section 4(c)(i).
(ii) Notwithstanding the foregoing, if the Employment Term and Executive’s employment hereunder is terminated pursuant to Section 4(c)(i) above, on or within one (1) year following a Change in Control (as such term is defined under the LTIP), the Severance Multiple shall be increased to two (2).
(iii) For purposes of this Agreement, “Good Reason” shall mean any action by the Company, in each case without the Executive’s prior written consent, that (A) results in a material diminution in the Executive’s duties, authority or responsibilities or a diminution in the Executive’s title or position; (B) requires the Executive to report to any person other than the Chief Executive Officer of DBRG; (C) reduces the Base Salary, the Target Annual Bonus Amount or the Target LTIP Award then in effectAward; (DC) relocates the Executive’s principal place of employment to a location more than 25 miles from the location in effect immediately prior to such relocationoutside of New York City; or (ED) constitutes a material breach by the Company of this Agreement or any other material agreement between the Executive and the CompanyAgreement; provided, that, provided that in no event shall the occurrence of any such condition constitute Good Reason unless (1) the Executive gives notice to the Company of the existence of the Executive’s knowledge of the condition giving rise to Good Reason within 90 days following the Executive’s knowledge of its initial existence, (2) the Company fails to cure such condition within 30 days following the date such notice is given and (3) the Executive terminates his employment with the Company within 30 days following the expiration of such cure period.
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Samples: Employment Agreement (Colony Credit Real Estate, Inc.)
