Termination by the Company Without Cause Prior to a Change in Control. In the event that your employment hereunder is terminated by the Company without Cause (as defined in Section 3.7), before a Change in Control (as defined in Section 3.6 below), you shall be entitled to receive: a. Continuation of your annual base compensation then in effect for one (1) year (commencing on the next payroll date following the date of your termination of employment); b. Continuation of employer-provided healthcare benefits for one (1) year at the levels and cost to you and your qualified dependents in effect on the date of your termination, and thereafter to elect, at your or your qualified dependents’ cost, COBRA continuation for the remainder of your or your qualified dependents’ COBRA eligibility, if any, it being understood that your and your dependents’ COBRA eligibility period will include the period during which the Company is providing benefits under this Section 3.3.b.; c. Continuation of the annual reimbursement allowance received in lieu of reimbursement for or payment of country club or social club membership fees, dues or other fees and any automobile allowance (the “Annual Stipend”), then in effect for one (1) year; provided that such amount shall be paid in accordance with the Company’s executive payroll practices, commencing on the next payroll date following the date of your termination of employment; d. If your termination of employment occurs prior to your attaining age 62, payment of all fees and expenses related to the provision of outplacement services through a firm of your choice, not to exceed $10,000; provided, however, that such outplacement expenses: (i) must be incurred no later than the end of the second full calendar year following the year of your termination of employment; and (ii) must be paid no later than the end of the third full calendar year following the year of your termination of employment; and e. A pro-rata payment from the Success Sharing Plan (or other annual incentive plan then in effect) as set forth in Section 3.1.a., without regard to the age requirements contained in Section 3.1.a.
Appears in 4 contracts
Samples: Employment Agreement (Penn Millers Holding Corp), Employment Agreement (Penn Millers Holding Corp), Letter Agreement (Penn Millers Holding Corp)
Termination by the Company Without Cause Prior to a Change in Control. In The Company may terminate the event employment of Executive hereunder without Cause, if at the date of termination no Change in Control or a Potential Change in Control has occurred, upon at least 90 days’ written notice to Executive. The foregoing notwithstanding, the Company may elect, by written notice to Executive, to terminate Executive’s positions specified in Sections 1 and 3 and all other obligations of Executive and the Company under Section 3 at a date earlier than the expiration of such 90-day period, if so specified by the Company in the written notice, provided that your Executive shall be treated as an employee of the Company (without any assigned duties) for all other purposes of this Agreement, including for purposes of Sections 4 and 5, from such specified date until the expiration of such 90-day period. An election by the Company not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of Executive’s employment hereunder by the Company without Cause at the date of expiration of the Term and shall be subject to this Section 7(c) if at the date of such termination no Change in Control or a Potential Change in Control has occurred; provided, however, that, if Executive has attained age 65 at such date of termination, such termination shall be deemed a Retirement of Executive. At the time Executive’s employment is terminated by the Company without Cause (as defined in Section 3.7i.e., at the expiration of such notice period), before a Change in Control the Term will terminate, all remaining obligations of the Company and Executive under Sections 1 through 5 of this Agreement will immediately cease (except as defined in Section 3.6 expressly provided below), you shall and the Company will pay Executive, and Executive will be entitled to receive, the following:
a. Continuation (i) Executive’s Compensation Accrued at Termination;
(ii) Cash in an aggregate amount equal to two times the sum of your (A) Executive’s Base Salary under Section 4(a) immediately prior to termination plus (B) an amount equal to the greater of (x) the Executive’s annual base target incentive compensation then potentially payable in effect cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for one the year of termination or (1y) the Executive’s annual incentive compensation that became payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the latest year preceding the year of termination based on performance actually achieved in that latest year (commencing on the next payroll date sum of (A) and (B) being herein referred to as the “Cash Compensation”) . The amount determined to be payable under this Section 7(c)(ii) shall be payable in monthly installments over the 24 months following termination, without interest, except that (subject to Section 5(g)) the Company may elect to accelerate payment of the remaining balance of such amount and to pay it as a lump sum, without discount;
(iii) In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive’s employment terminated, an amount equal to the annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination, multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;
(iv) Stock options held by Executive at termination, if not then vested and exercisable, will become fully vested and exercisable at the date of your such termination, and, in other respects (including the period following termination of employmentduring which such options may be exercised), such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;
b. Continuation (v) Any performance objectives upon which the earning of employerperformance-provided healthcare benefits for one (1) year based restricted stock and deferred stock awards and other long-term incentive awards is conditioned shall be deemed to have been met at the levels and cost to you and your qualified dependents in effect on target level at the date of your termination, and thereafter restricted stock and deferred stock awards, including outstanding PERS awards, and other long-term incentive awards (to electthe extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at your or your qualified dependents’ costthe date of such termination, COBRA continuation for and, in other respects, such awards shall be governed by the remainder of your or your qualified dependents’ COBRA eligibility, if any, it being understood that your plans and your dependents’ COBRA eligibility period will include programs and the period during agreements and other documents pursuant to which the Company is providing benefits under this Section 3.3.b.such awards were granted;
c. Continuation of the annual reimbursement allowance received in lieu of reimbursement for or payment of country club or social club membership fees, dues or other fees and any automobile allowance (the “Annual Stipend”), then in effect for one (1vi) year; provided that such amount shall All deferral arrangements under Section 5(d) will be paid settled in accordance with the Company’s plans and programs governing the deferral and all rights under the SERP and any other benefit plan shall be governed by such plan, as modified by this Agreement; and
(vii) For a period of two years after such termination (but not after Executive attains age 65), Executive shall continue to participate in those employee and executive payroll practicesbenefit plans and programs under Section 5(b) to the extent such plans and programs provide medical insurance, commencing on the next payroll date following the date of your termination of employment;
d. If your termination of employment occurs disability insurance and life insurance benefits (but not other benefits, such as pension and retirement benefits, provided under Section 5(b)) in which Executive was participating immediately prior to your attaining age 62termination, payment the terms of all fees and expenses related to which allow Executive’s continued participation, as if Executive had continued in employment with the provision of outplacement services through a firm of your choice, not to exceed $10,000Company during such period; provided, however, that such outplacement expenses: participation shall terminate, or the benefits under such plans and programs shall be reduced, if and to the extent Executive becomes covered (ior is eligible to become covered) must be incurred no later than by plans of a subsequent employer or other entity to which Executive provides services during such period providing comparable benefits. If the end terms of the second full calendar year following the year of your termination of employment; Company plans and (iiprograms referred to in this Section 7(c)(vii) must do not allow Executive’s continued participation, Executive shall be paid no later than a cash payment equivalent on an after-tax basis to the end value of the third full calendar year following additional benefits described in this Section 7(c)(vii) Executive would have received under such plans or programs had Executive continued to be employed during such period, with such benefits provided by the year Company at the same times and in the same manner as such benefits would have been provided to Executive under such plans and programs (it being understood that the value of your termination of employmentany insurance-provided benefits will be based on the premium cost to Executive, which shall not exceed the highest risk premium charged by a carrier having an investment grade or better credit rating); and
e. A pro-rata payment from provided, however, that Executive must continue to satisfy the Success Sharing Plan (or other annual incentive plan then in effect) as conditions set forth in Section 3.1.a10 in order to continue receiving the benefits provided under this Section 7(c)(vii). Executive agrees to promptly notify the Company of any employment or other arrangement by which Executive provides services during the benefits-continuation period and of the nature and extent of benefits for which Executive becomes eligible during such period which would reduce or terminate benefits under this Section 7(c)(vii); and the Company be entitled to recover from Executive any payments and the fair market value of benefits previously made or provided to Executive hereunder which would not have been paid under this Section 7(c)(vii) if the Company had received adequate prior notice as required by this sentence., without regard to the age requirements contained in Section 3.1.a.
Appears in 2 contracts
Samples: Employment Agreement (Ims Health Inc), Employment Agreement (Ims Health Inc)
Termination by the Company Without Cause Prior to a Change in Control. In the event that your employment hereunder is terminated by If the Company without Cause (as defined in Section 3.7), before terminates the Executive’s employment prior to a Change in Control (as defined in Section 3.6 below9(c)), you other than pursuant to Section 7.1 (Death), 7.2 (Disability), or 7.3 (Cause), the Company shall pay to the Executive, within ninety (90) days of the Executive’s termination, the salary accrued to the date of termination and not theretofore paid to the Executive and any earned but unpaid Annual Bonus for the fiscal year preceding the fiscal year in which such termination occurs. In addition, Executive shall be entitled to receive:
a. Continuation receive a lump sum pro rata portion of your annual base compensation then in effect for one (1) year (commencing on the next payroll date following the date of your termination of employment);
b. Continuation of employer-provided healthcare benefits for one (1) year at the levels and cost to you and your qualified dependents in effect on the date of your termination, and thereafter to elect, at your or your qualified dependents’ cost, COBRA continuation for the remainder of your or your qualified dependents’ COBRA eligibilityAnnual Bonus, if any, it being understood that your and your dependents’ COBRA eligibility period will include Executive would have been entitled to receive pursuant to Section 4 hereof for the period during fiscal year in which such termination occurs (but only to the Company is providing benefits under this Section 3.3.b.;
c. Continuation extent of achievement of the annual reimbursement allowance received applicable performance standards for such year) based upon the percentage of the fiscal year that shall have elapsed through the date of Executive’s termination of employment, payable when such Annual Bonus would have otherwise been payable had Executive’s employment not terminated; provided, however, that to the extent the Annual Bonus is subject to the exercise of negative discretion, such discretion shall not be exercised to reduce Executive’s Annual Bonus by a greater percentage than is applied generally to senior executives subject to such discretion. In addition, subject to Executive’s compliance with the provisions of Section 8 and in lieu of reimbursement any severance otherwise payable to Executive under any severance plan or policy maintained by the Company, the Company shall:
(i) pay to Executive for or payment the duration of country club or social club membership feesthe Severance Period (as defined below) a monthly amount, dues or other fees and any automobile allowance (the “Annual Stipend”), then in effect for one (1) year; provided that such amount shall be paid in accordance with the Company’s executive normal payroll practicespractice, commencing on equal to the next payroll date following sum of (x) his monthly base salary and (y) 1/12th of his average Annual Bonus paid with respect to the date of your termination of employment;
d. If your termination of employment occurs last three fiscal years ending immediately prior to your attaining age 62, payment of all fees and expenses related to the provision of outplacement services through a firm of your choice, not to exceed $10,000; provided, however, that such outplacement expenses: (i) must be incurred no later than the end of the second full calendar year following the year of your his termination of employment; and (ii) must be paid no later than the end of the third full calendar year following the year of your termination of employment; and
e. A pro-rata payment from the Success Sharing Plan (or other annual incentive plan then in effect) as set forth in Section 3.1.a., without regard to the age requirements contained in Section 3.1.a.of
Appears in 2 contracts
Samples: Employment Agreement (Versum Materials, Inc.), Employment Agreement (Versum Materials, Inc.)
Termination by the Company Without Cause Prior to a Change in Control. In the event that your employment hereunder is terminated by If the Company without Cause (as defined in Section 3.7), before terminates the Executive’s employment prior to a Change in Control (as defined in Section 3.6 below9(c)), you other than pursuant to Section 7.1 (Death), 7.2 (Disability), or 7.3 (Cause), the Company shall pay to the Executive, within ninety (90) days of the Executive’s termination, the salary accrued to the date of termination and not theretofore paid to the Executive and any earned but unpaid Annual Bonus for the fiscal year preceding the fiscal year in which such termination occurs. In addition, Executive shall be entitled to receive:
a. Continuation receive a lump sum pro rata portion of your annual base compensation then in effect for one (1) year (commencing on the next payroll date following the date of your termination of employment);
b. Continuation of employer-provided healthcare benefits for one (1) year at the levels and cost to you and your qualified dependents in effect on the date of your termination, and thereafter to elect, at your or your qualified dependents’ cost, COBRA continuation for the remainder of your or your qualified dependents’ COBRA eligibilityAnnual Bonus, if any, it being understood that your and your dependents’ COBRA eligibility period will include Executive would have been entitled to receive pursuant to Section 4 hereof for the period during fiscal year in which such termination occurs (but only to the Company is providing benefits under this Section 3.3.b.;
c. Continuation extent of achievement of the annual reimbursement allowance received applicable performance standards for such year) based upon the percentage of the fiscal year that shall have elapsed through the date of Executive’s termination of employment, payable when such Annual Bonus would have otherwise been payable had Executive’s employment not terminated; provided, however, that to the extent the Annual Bonus is subject to the exercise of negative discretion, such discretion shall not be exercised to reduce Executive’s Annual Bonus by a greater percentage than is applied generally to senior executives subject to such discretion. In addition, subject to Executive’s compliance with the provisions of Section 8 and in lieu of reimbursement any severance otherwise payable to Executive under any severance plan or policy maintained by the Company, the Company shall:
(i) pay to Executive for or payment the duration of country club or social club membership feesthe Severance Period (as defined below) a monthly amount, dues or other fees and any automobile allowance (the “Annual Stipend”), then in effect for one (1) year; provided that such amount shall be paid in accordance with the Company’s executive normal payroll practicespractice, commencing on equal to the next payroll date following sum of (x) his monthly base salary and (y) 1/12th of his average Annual Bonus paid with respect to the last two fiscal years ending immediately prior to his termination of employment. The Severance Period shall be a number of full or partial months, not to exceed 24 months, equal to the sum of eighteen months plus two weeks plus (A) if the Executive has less than 10 years of service with the Company (or its affiliates and predecessors), one week for each year of service or (B) if the Executive has 10 or more years of service with the Company (or its affiliates and predecessors), two weeks for each year of service;
(ii) continue Executive’s Health Care Benefits under COBRA until the earlier of (x) the date on which Executive’s COBRA eligibility ceases, or (y) the twelve (12) month anniversary of your Executive’s termination of employment;
d. If your (iii) pay, in lieu of continuation of benefits under the plans listed in Section 6.1(ii), (iii), (iv), (v) and (vi), a lump-sum amount of $50,000, which shall be paid within 60 days of Executive’s termination of employment occurs employment;
(iv) provide continued use (at no after-tax cost as provided in Section 6.3) of Executive’s Company automobile for a period of twelve (12) months; and
(v) pay to the Executive, at the end of the twelve (12) month period following termination of employment, an amount equal to the maximum amount that the Company would have been obligated to contribute on his behalf as matching contributions to the Company’s qualified and non-qualified retirement plans for such twelve (12) month period, based on the Executive’s most recent deferral elections with respect to such plans, plus the maximum amount that the Company would have been obligated to contribute on his behalf as non-elective contributions to the Company’s qualified and non-qualified retirement plans for such twelve (12) month period, based on his salary in effect immediately prior to your attaining age 62his termination of employment, payment of all fees and expenses related in each case to the provision extent such amounts would have been vested at the end of outplacement services through a firm the twelve (12) month period under the terms of your choice, not to exceed $10,000such plans had he remained in employment for such period; provided, however, that the Company’s obligations under this Section 7.4 shall terminate if Executive does not execute and deliver to the Company a release in the form attached hereto as Appendix A within forty-five (45) days of termination of employment or revokes such outplacement expenses: (i) must be incurred no later than the end release within any applicable revocation period. The rights and benefits of the second full calendar year following Executive under the year of your termination of employment; benefit plans and (ii) must be paid no later than the end programs of the third full calendar year following Company (other than any severance plan or policy) shall be determined in accordance with the year terms and conditions of your termination of employment; and
e. A pro-rata payment from such plans and programs. Neither the Success Sharing Plan (Executive nor the Company shall have any further rights or other annual incentive plan then obligations under this Agreement, except as provided in effect) as set forth in this Section 3.1.a7.4 and Section 8., without regard to the age requirements contained in Section 3.1.a.
Appears in 1 contract
Termination by the Company Without Cause Prior to a Change in Control. In the event that your Executive’s employment hereunder is terminated by the Company without Cause (as defined in Section 3.76.1), before a Change in Control (as defined in Section 3.6 7.7 below), you Executive shall be be, subject to Section 7.5, entitled to receive:
a. Executive’s accrued but unpaid Base Compensation and any accrued but unpaid or otherwise vested benefits to which Executive is entitled in the event of such a termination under the terms of any Penn Millers System benefit or incentive plan;
b. Continuation of your annual base compensation Executive’s Base Compensation then in effect for one two (12) year years (commencing on the next payroll date following the date of your Executive’s termination of employment);
b. c. Continuation of employer-provided healthcare benefits for one two (12) year years at the levels and cost to you Executive and your his qualified dependents in effect on the date of your Executive’s termination, and thereafter to elect, at your Executive’s or your his qualified dependents’ cost, COBRA continuation for the remainder of your Executive’s or your his qualified dependents’ COBRA eligibility, if any, it being understood that your Executive’s and your his dependents’ COBRA eligibility period will include the period during which the Company is providing benefits under this Section 3.3.b7.3.c.;
c. d. Continuation of the annual reimbursement allowance received stipend described in lieu of reimbursement for or payment of country club or social club membership fees, dues or other fees and any automobile allowance Section 5.5 (the “Annual Stipend”), ) then in effect for one two (12) yearyears; provided that such amount shall be paid in accordance with the Company’s executive payroll practices, commencing on the next payroll date following the date of your Executive’s termination of employment;
d. e. If your Executive’s termination of employment occurs prior to your his attaining age 62, payment of all fees and expenses related to the provision of outplacement services through a firm of your Executive’s choice, not to exceed $10,00025,000; provided, however, that such outplacement expenses: (i) must be incurred no later than the end of the second full calendar year following the year of your Executive’s termination of employment; and (ii) must be paid no later than the end of the third full calendar year following the year of your Executive’s termination of employment; and;
e. f. A pro-rata payment from the Success Sharing Plan (or other annual incentive plan then in effect) as set forth in Section 3.1.a7.1.b.i., without regard to the age requirements contained in Section 3.1.a7.1.b.i.; and
g. A lump sum cash payment within sixty (60) days following Executive’s termination of employment equal to two (2) times Executive’s target annual bonus for the year of termination.
Appears in 1 contract
Samples: Executive Employment Agreement (Penn Millers Holding Corp)
Termination by the Company Without Cause Prior to a Change in Control. In The Company may terminate the event employment of Executive hereunder without Cause, if at the date of termination no Change in Control or a Potential Change in Control has occurred, upon at least 90 days’ written notice to Executive. The foregoing notwithstanding, the Company may elect, by written notice to Executive, to terminate Executive’s positions specified in Sections 1 and 3 and all other obligations of Executive and the Company under Section 3 at a date earlier than the expiration of such 90-day period, if so specified by the Company in the written notice, provided that your Executive shall be treated as an employee of the Company (without any assigned duties) for all other purposes of this Agreement, including for purposes of Sections 4 and 5, from such specified date until the expiration of such 90-day period. At the time Executive’s employment hereunder is terminated by the Company without Cause (as defined in Section 3.7i.e., at the expiration of such notice period), before a Change in Control the Term will terminate, all remaining obligations of the Company and Executive under Sections 1 through 5 of this Agreement will immediately cease (except as defined in Section 3.6 expressly provided below), you shall and the Company will pay Executive, and Executive will be entitled to receive, the following:
a. Continuation (i) Executive’s Compensation Accrued at Termination;
(ii) Cash in an aggregate amount equal to two times the sum of your (A) Executive’s Base Salary under Section 4(a) immediately prior to termination plus (B) an amount equal to the greater of (x) the portion of Executive’s annual base target incentive compensation then potentially payable in effect cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for one the year of termination or (1y) the portion of Executive’s annual incentive compensation that became payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the latest year preceding the year of termination based on performance actually achieved in that latest year (commencing on the next payroll date sum of (A) and (B) being herein referred to as the “Cash Compensation”) and The amount determined to be payable under this Section 7(c)(ii) shall be payable in monthly installments over the 24 months following termination, without interest, except that (subject to Section 5(h)) the Company may elect to accelerate payment of the remaining balance of such amount and to pay it as a lump sum, without discount;
(iii) In lieu of any annual incentive compensation under Section 4(b) for the year in which Executive’s employment terminated, an amount equal to the portion of Executive’s annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination, multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;
(iv) Stock options held by Executive at termination, if not then vested and exercisable, will become fully vested and exercisable at the date of your such termination, and, in other respects (including the period following termination of employmentduring which such options may be exercised), such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;
b. Continuation (v) Any performance objectives upon which the earning of employerperformance-provided healthcare benefits for one (1) year based restricted stock and deferred stock awards and other long-term incentive awards is conditioned shall be deemed to have been met at the levels and cost to you and your qualified dependents in effect on target level at the date of your termination, and thereafter restricted stock and deferred stock awards, including outstanding PERS awards, and other long-term incentive awards (to electthe extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at your or your qualified dependents’ costthe date of such termination, COBRA continuation for and, in other respects, such awards shall be governed by the remainder of your or your qualified dependents’ COBRA eligibility, if any, it being understood that your plans and your dependents’ COBRA eligibility period will include programs and the period during agreements and other documents pursuant to which the Company is providing benefits under this Section 3.3.b.such awards were granted;
c. Continuation of the annual reimbursement allowance received in lieu of reimbursement for or payment of country club or social club membership fees, dues or other fees and any automobile allowance (the “Annual Stipend”), then in effect for one (1vi) year; provided that such amount shall All deferral arrangements under Section 5(d) will be paid settled in accordance with the Company’s plans and programs governing the deferral and all rights under the SERP and any other benefit plan shall be governed by such plan, as modified by this Agreement; and
(vii) For a period of two years after such termination (but not after Executive attains age 65), Executive shall continue to participate in those employee and executive payroll practicesbenefit plans and programs under Section 5(b) to the extent such plans and programs provide medical insurance, commencing on the next payroll date following the date of your termination of employment;
d. If your termination of employment occurs disability insurance and life insurance benefits (but not other benefits, such as pension and retirement benefits, provided under Section 5(b)) in which Executive was participating immediately prior to your attaining age 62termination, payment the terms of all fees and expenses related to which allow Executive’s continued participation, as if Executive had continued in employment with the provision of outplacement services through a firm of your choice, not to exceed $10,000Company during such period; provided, however, that such outplacement expenses: participation shall terminate, or the benefits under such plans and programs shall be reduced, if and to the extent Executive becomes covered (ior is eligible to become covered) must be incurred no later than by plans of a subsequent employer or other entity to which Executive provides services during such period providing comparable benefits. If the end terms of the second full calendar year following the year of your termination of employment; Company plans and (iiprograms referred to in this Section 7(c)(vii) must do not allow Executive’s continued participation, Executive shall be paid no later than a cash payment equivalent on an after-tax basis to the end value of the third full calendar year following additional benefits described in this Section 7(c)(vii) Executive would have received under such plans or programs had Executive continued to be employed during such period, with such benefits provided by the year Company at the same times and in the same manner as such benefits would have been provided to Executive under such plans and programs (it being understood that the value of your termination of employmentany insurance-provided benefits will be based on the premium cost to Executive, which shall not exceed the highest risk premium charged by a carrier having an investment grade or better credit rating); and
e. A pro-rata payment from provided, however, that Executive must continue to satisfy the Success Sharing Plan (or other annual incentive plan then in effect) as conditions set forth in Section 3.1.a10 in order to continue receiving the benefits provided under this Section 7(c)(vii). Executive agrees to promptly notify the Company of any employment or other arrangement by which Executive provides services during the benefits-continuation period and of the nature and extent of benefits for which Executive becomes eligible during such period which would reduce or terminate benefits under this Section 7(c)(vii); and the Company be entitled to recover from Executive any payments and the fair market value of benefits previously made or provided to Executive hereunder which would not have been paid under this Section 7(c)(vii) if the Company had received adequate prior notice as required by this sentence., without regard to the age requirements contained in Section 3.1.a.
Appears in 1 contract
Termination by the Company Without Cause Prior to a Change in Control. In the event that your employment hereunder is terminated by If the Company without Cause (as defined in Section 3.7), before terminates the Executive’s employment prior to a Change in Control (as defined in Section 3.6 below9(c)), you other than pursuant to Section 7.1 (Death), 7.2 (Disability), or 7.3 (Cause), the Company shall pay to the Executive, within ninety (90) days of the Executive’s termination, the salary accrued to the date of termination and not theretofore paid to the Executive and any earned but unpaid Annual Bonus for the fiscal year preceding the fiscal year in which such termination occurs. In addition, Executive shall be entitled to receive:
a. Continuation receive a lump sum pro rata portion of your annual base compensation then in effect for one (1) year (commencing on the next payroll date following the date of your termination of employment);
b. Continuation of employer-provided healthcare benefits for one (1) year at the levels and cost to you and your qualified dependents in effect on the date of your termination, and thereafter to elect, at your or your qualified dependents’ cost, COBRA continuation for the remainder of your or your qualified dependents’ COBRA eligibilityAnnual Bonus, if any, it being understood that your and your dependents’ COBRA eligibility period will include Executive would have been entitled to receive pursuant to Section 4 hereof for the period during fiscal year in which such termination occurs (but only to the Company is providing benefits under this Section 3.3.b.;
c. Continuation extent of achievement of the annual reimbursement allowance received applicable performance standards for such year) based upon the percentage of the fiscal year that shall have elapsed through the date of Executive’s termination of employment, payable when such Annual Bonus would have otherwise been payable had Executive’s employment not terminated; provided, however, that to the extent the Annual Bonus is subject to the exercise of negative discretion, such discretion shall not be exercised to reduce Executive’s Annual Bonus by a greater percentage than is applied generally to senior executives subject to such discretion. In addition, subject to Executive’s compliance with the provisions of Section 8 and in lieu of reimbursement any severance otherwise payable to Executive under any severance plan or policy maintained by the Company, the Company shall:
(i) pay to Executive for or payment the duration of country club or social club membership feesthe Severance Period (as defined below) a monthly amount, dues or other fees and any automobile allowance (the “Annual Stipend”), then in effect for one (1) year; provided that such amount shall be paid in accordance with the Company’s executive normal payroll practicespractice, commencing on equal to the next payroll date following sum of (x) his monthly base salary and (y) 1/12th of his average Annual Bonus paid with respect to the last two fiscal years ending immediately prior to his termination of employment. The Severance Period shall be a number of full or partial months, not to exceed 24 months, equal to the sum of eighteen months plus two weeks plus (A) if the Executive has less than 10 years of service with the Company (or its affiliates and predecessors), one week for each year of service or (B) if the Executive has 10 or more years of service with the Company (or its affiliates and predecessors), two weeks for each year of service;
(ii) continue Executive’s Health Care Benefits under COBRA until the earlier of (x) the date on which Executive’s COBRA eligibility ceases, or (y) the twelve (12) month anniversary of your Executive’s termination of employment;
d. If your (iii) pay, in lieu of continuation of benefits under the plans listed in Section 6.1(ii), (iii), (iv), (v) and (vi), a lump-sum amount of $50,000, which shall be paid within 60 days of Executive’s termination of employment occurs employment;
(iv) provide continued use (at not after-tax cost as provided in Section 6.3) of Executive’s Company automobile for a period of twelve (12) months; and
(v) pay to the Executive, at the end of the twelve (12) month period following termination of employment, an amount equal to the maximum amount that the Company would have been obligated to contribute on his behalf as matching contributions to the Company’s qualified and non-qualified retirement plans for such twelve (12) month period, based on the Executive’s most recent deferral elections with respect to such plans, plus the maximum amount that the Company would have been obligated to contribute on his behalf as non-elective contributions to the Company’s qualified and non-qualified retirement plans for such twelve (12) month period, based on his salary in effect immediately prior to your attaining age 62his termination of employment, payment of all fees and expenses related in each case to the provision extent such amounts would have been vested at the end of outplacement services through a firm the twelve (12) month period under the terms of your choice, not to exceed $10,000such plans had he remained in employment for such period; provided, however, that the Company’s obligations under this Section 7.4 shall terminate if Executive does not execute and deliver to the Company a release in the form attached hereto as Appendix A within forty-five (45) days of termination of employment or revokes such outplacement expenses: (i) must be incurred no later than the end release within any applicable revocation period. The rights and benefits of the second full calendar year following Executive under the year of your termination of employment; benefit plans and (ii) must be paid no later than the end programs of the third full calendar year following Company (other than any severance plan or policy) shall be determined in accordance with the year terms and conditions of your termination of employment; and
e. A pro-rata payment from such plans and programs. Neither the Success Sharing Plan (Executive nor the Company shall have any further rights or other annual incentive plan then obligations under this Agreement, except as provided in effect) as set forth in this Section 3.1.a7.4 and Section 8., without regard to the age requirements contained in Section 3.1.a.
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Termination by the Company Without Cause Prior to a Change in Control. In The Company may terminate the event employment of Executive hereunder without Cause, if at the date of termination no Change in Control or a Potential Change in Control has occurred, upon at least 90 days' written notice to Executive. The foregoing notwithstanding, the Company may elect, by written notice to Executive, to terminate Executive's positions specified in Sections 1 and 3 and all other obligations of Executive and the Company under Section 3 at a date earlier than the expiration of such 90-day period, if so specified by the Company in the written notice, provided that your Executive shall be treated as an employee of the Company (without any assigned duties) for all other purposes of this Agreement, including for purposes of Sections 4 and 5, from such specified date until the expiration of such 90-day period. An election by the Company not to extend the Term pursuant to Section 2 hereof shall be deemed to be a termination of Executive's employment hereunder by the Company without Cause at the date of expiration of the Term and shall be subject to this Section 7(c) if at the date of such termination no Change in Control or a Potential Change in Control has occurred; provided, however, that, if Executive has attained age 65 at such date of termination, such termination shall be deemed a Retirement of Executive. At the time Executive's employment is terminated by the Company without Cause (as defined in Section 3.7i.e., at the expiration of such notice period), before a Change in Control the Term will terminate, all remaining obligations of the Company and Executive under Sections 1 through 5 of this Agreement will immediately cease (except as defined in Section 3.6 expressly provided below), you shall and the Company will pay Executive, and Executive will be entitled to receive, the following:
a. Continuation (i) Executive's Compensation Accrued at Termination;
(ii) Cash in an aggregate amount equal to the sum of your annual base compensation then in effect for one (1) two times the sum of (A) Executive's Base Salary under Section 4(a) immediately prior to termination plus (B) an amount equal to the greater of (x) the Executive's annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the year of termination or (y) the Executive's annual incentive compensation that became payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-cash awards) for the latest year preceding the year of termination based on performance actually achieved in that latest year (commencing on the next payroll date following sum of (A) and (B) being herein referred to as the "Cash Compensation") and (2), if the remainder of the Term would have exceeded two years at the date of your termination termination, an amount equal to the Cash Compensation multiplied by a fraction the numerator of employment)which is the number of days in the remaining Term in excess of 730 and the denominator of which is 365. The amount determined to be payable under this Section 7(c)(ii) shall be payable in monthly installments over the 24 months following termination, without interest, except the Company may elect to accelerate payment of the remaining balance of such amount and to pay it as a lump sum, without discount;
b. Continuation (iii) In lieu of employerany annual incentive compensation under Section 4(b) for the year in which Executive's employment terminated, an amount equal to the annual target incentive compensation potentially payable in cash to Executive (i.e., excluding the portion payable in PERS or in other non-provided healthcare benefits cash awards) for one the year of termination, multiplied by a fraction the numerator of which is the number of days Executive was employed in the year of termination and the denominator of which is the total number of days in the year of termination;
(1iv) year Stock options held by Executive at the levels termination, if not then vested and cost to you exercisable, will become fully vested and your qualified dependents in effect on exercisable at the date of your such termination, and, in other respects (including the period following termination during which such options may be exercised), such options shall be governed by the plans and programs and the agreements and other documents pursuant to which such options were granted;
(v) Any performance objectives upon which the earning of performance-based restricted stock and deferred stock awards and other long-term incentive awards is conditioned shall be deemed to have been met at target level at the date of termination, and thereafter restricted stock and deferred stock awards, including outstanding PERS awards, and other long-term incentive awards (to electthe extent then or previously earned, in the case of performance-based awards) shall become fully vested and non-forfeitable at your or your qualified dependents’ costthe date of such termination, COBRA continuation for and, in other respects, such awards shall be governed by the remainder of your or your qualified dependents’ COBRA eligibility, if any, it being understood that your plans and your dependents’ COBRA eligibility period will include programs and the period during agreements and other documents pursuant to which the Company is providing benefits under this Section 3.3.b.such awards were granted;
c. Continuation of the annual reimbursement allowance received in lieu of reimbursement for or payment of country club or social club membership fees, dues or other fees and any automobile allowance (the “Annual Stipend”), then in effect for one (1vi) year; provided that such amount shall All deferral arrangements under Section 5(d) will be paid settled in accordance with the Company’s plans and programs governing the deferral and all rights under the SERP and any other benefit plan shall be governed by such plan, as modified by this Agreement; and
(vii) For a period of two years after such termination (but not after Executive attains age 65), Executive shall continue to participate in those employee and executive payroll practicesbenefit plans and programs under Section 5(b) to the extent such plans and programs provide medical insurance, commencing on the next payroll date following the date of your termination of employment;
d. If your termination of employment occurs disability insurance and life insurance benefits (but not other benefits, such as pension and retirement benefits, provided under Section 5(b)) in which Executive was participating immediately prior to your attaining age 62termination, payment the terms of all fees and expenses related to which allow Executive's continued participation, as if Executive had continued in employment with the provision of outplacement services through a firm of your choice, not to exceed $10,000Company during such period; provided, however, that such outplacement expenses: participation shall terminate, or the benefits under such plans and programs shall be reduced, if and to the extent Executive becomes covered (ior is eligible to become covered) must be incurred no later than by plans of a subsequent employer or other entity to which Executive provides services during such period providing comparable benefits. If the end terms of the second full calendar year following the year of your termination of employment; Company plans and (iiprograms referred to in this Section 7(c)(vii) must do not allow Executive's continued participation, Executive shall be paid no later than a cash payment equivalent on an after-tax basis to the end value of the third full calendar year following additional benefits described in this Section 7(c)(vii) Executive would have received under such plans or programs had Executive continued to be employed during such period, with such benefits provided by the year Company at the same times and in the same manner as such benefits would have been provided to Executive under such plans and programs (it being understood that the value of your termination of employmentany insurance-provided benefits will be based on the premium cost to Executive, which shall not exceed the highest risk premium charged by a carrier having an investment grade or better credit rating); and
e. A pro-rata payment from provided, however, that Executive must continue to satisfy the Success Sharing Plan (or other annual incentive plan then in effect) as conditions set forth in Section 3.1.a10 in order to continue receiving the benefits provided under this Section 7(c)(vii). Executive agrees to promptly notify the Company of any employment or other arrangement by which Executive provides services during the benefits-continuation period and of the nature and extent of benefits for which Executive becomes eligible during such period which would reduce or terminate benefits under this Section 7(c)(vii); and the Company be entitled to recover from Executive any payments and the fair market value of benefits previously made or provided to Executive hereunder which would not have been paid under this Section 7(c)(vii) if the Company had received adequate prior notice as required by this sentence., without regard to the age requirements contained in Section 3.1.a.
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