Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive, (A) the assignment to the Executive of any duties materially inconsistent with or inappropriate to his status and office with the Company; (B) the material diminution of the nature or status of the Executive’s responsibilities in any way from those in effect as of the Effective Date; or (C) the adverse change in the Executive’s direct or indirect reporting relationship from that in effect immediately as of the Effective Date; or (ii) a material (i.e. 5% or greater) decrease in the Executive’s level of compensation because of one or more of: (A) a reduction in the Executive’s Annual Salary; or (B) any material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) that are provided to the Executive from the benefit levels in effect as of the Effective Date, unless the Company provides substitute employee benefits of a comparable nature that are at least as valuable to the Executive on an after-tax basis; (iii) the relocation of the principal business offices of the Company to beyond 30 miles from the Company’s existing location in Leesburg, Virginia, if that relocation increases the distance from the Executive’s principal residence to such offices; or (iv) a material breach of this Agreement by the Company. Notwithstanding the foregoing, (i) Good Reason (A) shall not be deemed to exist unless notice of termination on account thereof (specifying a termination date no later than 30 days from the date of such notice) is given no later than 30 days after the time at which the event or condition purportedly giving rise to Good Reason first occurs or arises and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Executive’s employment for Cause; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason, the Company shall have 30 days from the date notice of such a termination is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason hereunder. (b) The Company may terminate the Executive’s employment at any time for any reason or no reason and the Executive may terminate the Executive’s employment with the Company for or without Good Reason. If the Company terminates the Executive’s employment and the termination is not covered by Section 4 or 5.1, or the Executive terminates his employment for Good Reason, then, if a mutual general release in a form reasonably acceptable to the Company and Executive is executed and delivered, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), (i) the Executive shall receive the salary, benefits and other items set forth in Section 4(y) above earned and accrued under this Agreement prior to the termination of employment (and payable according to the same schedule); (ii) the Executive shall receive (A) a cash payment equal to 50% of the Executive’s Annual Salary (as in effect immediately before such termination), payable no later than 60 days after such termination and (B) for a period of six months after termination of employment, continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had received under this Agreement (and at such costs to the Executive) prior to such termination (but not taking into account any post-termination increases in Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits); (iii) if such termination occurs within twelve months of the Effective Time of the Merger, the vesting of any and all Options granted to the Executive prior to the Effective Time of the Merger, and which are not Cash-out Options, shall be fully accelerated and such Options shall be immediately exercisable otherwise in accordance with their respective terms (each of the capitalized terms in this subsection 5.2(b)(iii) shall have the definitions set forth in that certain Agreement and Plan of Merger by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010); and (iv) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder. (c) Notwithstanding clause (ii)(B) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(B) from time to time in its sole discretion, and (ii) the Company shall in no event be required to provide any benefits otherwise required by such clause (ii)(B) after such time as the Executive becomes entitled to receive benefits of the same type from another employer or recipient of the Executive’s services (such entitlement being determined without regard to any individual waivers or other similar arrangements).
Appears in 3 contracts
Samples: Employment Agreement (K2m Group Holdings, Inc.), Employment Agreement (K2m Group Holdings, Inc.), Employment Agreement (K2m Group Holdings, Inc.)
Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive,
(Ai) the material reduction of the Executive’s title, authority, duties and responsibilities or the assignment to the Executive of any duties materially inconsistent with the Executive’s position or inappropriate to his status and office positions with the Company; (B) the material diminution of the nature or status of the Executive’s responsibilities in any way from those in effect as of the Effective Date; or (C) the adverse change in the Executive’s direct or indirect reporting relationship from that in effect immediately as of the Effective Date; or;
(ii) a material (i.e. 5% or greater) decrease reduction in Annual Salary of the Executive’s level of compensation because of one or more of: (A) a reduction in the Executive’s Annual Salary; or (B) any material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) that are provided to the Executive from the benefit levels in effect as of the Effective Date, unless the Company provides substitute employee benefits of a comparable nature that are at least as valuable to the Executive on an after-tax basis;
(iii) the relocation of the principal business offices of the Company to beyond 30 miles from the Company’s existing location in Leesburg, Virginia, if that relocation increases the distance from the Executive’s principal residence to such offices; ormaterial and willful breach of this Agreement
(iv) a material breach Executive is required to relocate his office more than 30 miles outside of this Agreement by the CompanyNew York City. Notwithstanding the foregoing, (i) Good Reason (A) shall not be deemed to exist unless notice of termination on account thereof (specifying a termination date no later than 30 days from the date of such notice) is given no later than 30 days after the time at which the event or condition purportedly giving rise to Good Reason first occurs or arises and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Executive’s employment for Cause; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason, the Company shall have 30 15 days from the date notice of such a termination is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason hereunder.
(b) The Company may terminate the Executive’s employment at any time for any reason or no reason and the Executive may terminate the Executive’s employment with the Company at any time for any reason or without Good Reasonno reason. If the Company terminates the Executive’s employment and the termination is not covered by Section 4 or 5.1, or the Executive terminates his employment for Good Reason, then, if a mutual general release Reason or in a form reasonably acceptable to the event of any notice of non-renewal of this Agreement by the Company and Executive is executed and deliveredon at least substantially similar terms, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this as described in Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), 1:
(i) the Executive shall receive the salary, benefits a single-sum payment equal to accrued but unpaid Annual Salary and other items set forth in Section 4(ybenefits (including any bonus for a calendar year completed before termination) above earned and accrued under this Agreement prior to the termination of employment (and payable according reimbursement under this Agreement for expenses incurred prior to the same scheduletermination of employment); ;
(ii) the Executive shall receive (A) a cash single-sum payment of an amount equal to 50% of the Executive’s his Annual Salary (as at the rate in effect immediately before such termination), payable no later than 60 days after such termination and (B) for a period of six months after termination of employment, continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had received under this Agreement (and at such costs to the Executive) prior to such termination) plus the highest bonus earned in the one year period prior to termination (but not taking into account any post-termination increases in Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits)times 1.5; and
(iii) if such termination occurs within twelve months of the Effective Time of the Merger, the vesting of any all outstanding unvested equity-based awards (including without limitation stock options and all Options granted to the Executive prior to the Effective Time of the Merger, and which are not Cash-out Options, shall be fully accelerated and such Options shall be immediately exercisable otherwise in accordance with their respective terms (each of the capitalized terms in this subsection 5.2(b)(iiirestricted stock) shall have the definitions set forth in that certain Agreement and Plan of Merger held by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010); and (iv) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employmentfully vest and shall become immediately exercisable, or any other rights hereunderas applicable.
(c) Notwithstanding clause (ii)(B) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(B) from time to time in its sole discretion, and (ii) the Company shall in no event be required to provide any benefits otherwise required by such clause (ii)(B) after such time as the Executive becomes entitled to receive benefits of the same type from another employer or recipient of the Executive’s services (such entitlement being determined without regard to any individual waivers or other similar arrangements).
Appears in 2 contracts
Samples: Employment Agreement (Taberna Realty Finance Trust), Employment Agreement (RAIT Financial Trust)
Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive,
(Ai) the material reduction of the Executive’s authority, duties and responsibilities, or the assignment to the Executive of any duties materially inconsistent with or inappropriate to his status and office with the Company; (B) the material diminution of the nature or status of the Executive’s responsibilities in any way from those in effect as of position or positions with the Effective Date; Company or (C) the adverse change in the Executive’s direct or indirect reporting relationship from that in effect immediately as of the Effective Date; orParent;
(ii) a material (i.e. 5% or greater) decrease in the ExecutiveCompany’s level of compensation because of one or more of: (A) a reduction in the Executive’s Annual Salary; or (B) any material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) that are provided failure to pay the Executive from the benefit levels in effect as any amounts otherwise due hereunder or under any plan, policy, program, agreement, arrangement or other commitment of the Effective DateCompany, unless including, without limitation, the Company provides substitute employee benefits of a comparable nature that are at least as valuable to Annual Salary and the Executive on an after-tax basisNondiscretionary Bonus;
(iii) the relocation Company’s material and willful breach of the principal business offices of the Company to beyond 30 miles from this Agreement;
(iv) the Company’s existing location material breach of its obligations to pay the Contingent Amount (as defined in Leesburg, Virginia, if that relocation increases the distance from Acquisition Agreement) at the Executive’s principal residence to such officestimes set forth in Section 1.15 of the Acquisition Agreement; or
(ivv) a the Company’s material breach of this Agreement by its obligations pursuant to Section 5.1(a)(i) or Section 5.1(a)(v) of the CompanyAcquisition Agreement. Notwithstanding the foregoing, (ii)(A) Good Reason (A) shall not be deemed to exist pursuant to Section 5.2(a)(i), (ii) or (iii) unless notice of termination on account thereof (specifying a termination date no later than 30 days from the date of such notice) is given no later than 30 days after the time at which the event or condition purportedly giving rise to Good Reason first occurs or arises arises; and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Executive’s employment for Cause; and (ii) if there exists (without regard to this clause (iiB)) an event or condition that constitutes Good Reason, the Company shall have 30 ten days from the date notice of such a termination is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason hereunder; and (ii) Good Reason shall not be deemed to exist pursuant to Section 5.2(a)(iv) or (v) unless the provisions of this paragraph have been followed. The Executive shall give the Company written notice of a material breach of either Section 5.2(a)(iv) or (v) promptly after the time at which the event or condition purportedly giving rise to such breach first occurs or arises. The Company shall have 60 days from the date the initial notice of breach is given by the Executive to cure such event or condition. If the Company fails to cure such material breach within such 60-day period, the Executive shall give the Company a second written notice of such material breach and the Company shall have 15 days from the date the second notice of breach is given to cure such event or condition. If the Company fails to cure such breach within such 15-day period, the Executive may terminate this agreement for Good Reason by providing a written notice of termination to the Company within 30 days of the expiration of the 15-day period and specifying an effective date for such termination that is no later than 60 days after the expiration of the 15-day cure period. If the Executive does not give such notice of termination to the Company within such 30-day period, the Executive shall no longer ever be entitled to terminate this Agreement on account of such event or condition. For purposes of clarification, the Company shall not be deemed to be in material breach of its obligations to pay the Contingent Amount at the times set forth in Section 1.15, 5.1(a)(i) or 5.1(a)(v) of the Acquisition Agreement until such time that the notice and cure periods available to the Company pursuant to the provisions of the Acquisition Agreement have expired, and the notice and cure periods set forth herein shall be in addition to (and not in lieu of) any notice and cure periods available to the Company pursuant to the provisions of the Acquisition Agreement.
(b) The Company may terminate the Executive’s employment at any time for any reason or no reason and the Executive may terminate the Executive’s employment with the Company for or without Good Reason. If the Company terminates and the Parent terminate the Executive’s employment and the termination is not covered by Section 4 or 5.1, or the Executive terminates his employment for Good Reason, then, if a mutual general release in a form reasonably acceptable to the Company and Executive is executed and delivered, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), (i) the Executive shall receive the salaryAnnual Salary, benefits Nondiscretionary Bonus and other items set forth in Section 4(y) above benefits earned and accrued under this Agreement prior to the termination of employment (and payable according reimbursement under this Agreement for expenses incurred prior to the same scheduletermination of employment); (ii) if (and only if) the Executive provides a general release substantially in the form attached hereto as Exhibit A, which is or has become irrevocable, the Executive shall receive (A) a cash payment equal to 50250% of the sum of (x) the Executive’s Annual Salary (as in effect for the Company’s fiscal year immediately before such termination) and (y) the Nondiscretionary Bonus (as in effect for the Company’s fiscal year immediately before such termination), payable no later than 60 days after such termination and monthly over the 30-month period commencing with the month to follow termination, (B) for a period of six 30 months after termination of employment, such continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had would have received under this Agreement (and but at such costs (if any) to the ExecutiveExecutive no higher than as in effect immediately preceding such termination) prior to as would have applied in the absence of such termination (but not taking into account any post-termination increases in Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits) and (C) at the Company’s cost (not to exceed $7,500); (iii) if such termination occurs within twelve months of , outplacement services reasonably selected by the Effective Time of the Merger, the vesting of any and all Options granted to the Executive prior to the Effective Time of the Merger, and which are not Cash-out Options, shall be fully accelerated and such Options shall be immediately exercisable otherwise in accordance with their respective terms (each of the capitalized terms in this subsection 5.2(b)(iii) shall have the definitions set forth in that certain Agreement and Plan of Merger by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010)Company; and (iviii) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder.
(c) Notwithstanding clause (ii)(B) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate with general application the plans and programs referred to in such clause (ii)(B) from time to time in its sole discretion, and (ii) the Company shall in no event be required to provide any benefits otherwise required by such clause (ii)(B) after such time as the Executive becomes entitled to receive benefits of the same type from another employer or recipient of the Executive’s services (such entitlement being determined without regard to any individual waivers or other similar arrangementsupon which time the Executive shall give the Company notice thereof).
Appears in 2 contracts
Samples: Employment Agreement (Opteum Inc.), Employment Agreement (Opteum Inc.)
Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive,
(Ai) the material reduction of the Executive’s authority, duties and responsibilities, or the assignment to the Executive of any duties materially inconsistent with or inappropriate to his status and office with the Company; (B) the material diminution of the nature or status of the Executive’s responsibilities position or positions with the Company as specified in any way from those in effect as of the Effective Date; or (C) the adverse change in the Executive’s direct or indirect reporting relationship from that in effect immediately as of the Effective Date; orSection 2;
(ii) a material (i.e. 5% or greater) decrease reduction in the Annual Salary of the Executive’s level of compensation because of one , or more of: (A) a reduction in the Executive’s Annual Salary; or target bonus applicable to the Executive (B) any except for a material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) bonus that are provided to the Executive from the benefit levels in effect as of the Effective Date, unless the Company provides substitute employee benefits is part of a comparable nature Company program to reduce “general and administrative” expenses due to business conditions which reduction is applied to other senior officers generally; provided that are at least such reduction is before the occurrence of a Change in Control (as valuable to the Executive on an after-tax basisdefined below));
(iii) the relocation of the principal business offices of the Company Executive’s office to beyond more than 30 miles from Denver, Colorado;
(iv) the Company’s existing location Company does not adopt by March 31, 2007, or the shareholders do not approve by March 31, 2007, both the 2006 Incentive Compensation Plan and the LTIP, in Leesburgsubstantially the same form as such plans have been presented to the Executive prior to the date of this Agreement, Virginia, if or with changes that relocation increases are not materially adverse to the distance from financial interests of the Executive’s principal residence to such offices; or
(ivv) a any material breach by the Company of any provision of this Agreement by the CompanyAgreement. Notwithstanding the foregoing, (i) Good Reason (A) shall not be deemed to exist unless the Executive gives to the Company a written notice of termination on account thereof (specifying a termination date no later than 30 days from identifying the date of such noticeevent or condition purportedly giving rise to Good Reason expressly referencing this Section 5.2(a) is given no later than 30 within 45 days after the time at which the event or condition purportedly giving rise to Good Reason first occurs or arises and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Executive’s employment for Cause; and (ii) if there exists (without regard to this the following clause (iiii)(A)) an event or condition that constitutes Good Reason, (A) the Company shall have 30 45 days from the date notice of such a termination Good Reason is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason hereunder; and (B) if the Company does not cure such event or condition within such 45-day period, the Executive shall have one business day thereafter to give the Company notice of termination of employment on account thereof (specifying a termination date no later than 10 days from the date of such notice of termination).
(b) The Company may terminate the Executive’s employment at any time for any reason or no reason upon notice to the Executive, and the Executive may terminate the Executive’s employment with the Company for or without Good ReasonReason upon notice to the Company. If the Company terminates the Executive’s employment and the termination is not covered by Section 4 or 5.1, or the Executive terminates his employment for Good Reason, then, if a mutual general release in a form reasonably acceptable to the Company and Executive is executed and delivered, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), (i) the Company shall pay to the Executive shall receive the salaryAnnual Salary, benefits bonus and other items set forth in Section 4(y) above benefits earned and accrued under this Agreement prior to the termination of employment (and payable according reimbursement under this Agreement for expenses incurred prior to the same scheduletermination of employment); (ii) if (and only if) the Executive provides a general release in a form reasonably acceptable to the Company, which does not require the release of any payment rights under this Section 5.2(b) or under Section 3.7, and which is or has become irrevocable, the Company shall receive pay or provide to the Executive (A) a cash payment equal to 50100% of the Executive’s Annual Salary (as in effect immediately before such termination), payable no later than 60 30 days after such termination, (B) a cash payment equal to 100% of the target bonus for the year of termination, (C) a cash payment equal to (I) the target bonus for the year of termination multiplied by (II) a fraction (x) the numerator of which is the number of days in the year up to the termination and (By) the denominator of which is 365, and (D) for a period of six months after termination of employment, employment such continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had would have received under this Agreement (and at such costs to the Executive) prior to as would have applied in the absence of such termination (but not taking into account any post-termination increases in Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits); (iii) if such termination occurs within twelve months of the Effective Time of the Merger, the vesting Executive shall be entitled to elimination of any and all Options granted to vesting conditions on any grant under the Executive prior to the Effective Time LTIP or any other grant of the Mergerrestricted stock, and which are not Cash-out Options, stock options or other equity awards; (iv) Section 3.7 shall be fully accelerated and such Options shall be immediately exercisable otherwise apply in accordance with their respective terms (each of the capitalized terms in this subsection 5.2(b)(iii) shall have the definitions set forth in that certain Agreement and Plan of Merger by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010)its terms; and (ivv) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder; provided that no payments shall be made less than six months after termination to the extent required to comply with Section 409A of the Internal Revenue Code of 1986, as amended (in which case any payments deferred under this provision shall be paid upon the six-month anniversary of termination).
(c) Notwithstanding clause (ii)(Bii)(D) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(Bii)(D) from time to time in its sole discretion, and (ii) the Company shall in no event be required to provide any benefits otherwise required by such clause (ii)(Bii)(D) after such time as the Executive becomes entitled to receive benefits of the same type from another employer or recipient of the Executive’s services (such entitlement being determined without regard to any individual waivers or other similar arrangements).
Appears in 2 contracts
Samples: Employment Agreement (Dividend Capital Trust Inc), Employment Agreement (Dividend Capital Trust Inc)
Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive,
(Ai) the material reduction of the Executive’s title, authority, duties and responsibilities or the assignment to the Executive of any duties materially inconsistent with the Executive’s position or inappropriate to his status and office positions with the Company; (B) the material diminution of the nature or status of the Executive’s responsibilities in any way from those in effect as of the Effective Date; or (C) the adverse change in the Executive’s direct or indirect reporting relationship from that in effect immediately as of the Effective Date; or;
(ii) a material (i.e. 5% or greater) decrease reduction in Annual Salary of the Executive’s level of compensation because of one or more of: (A) a reduction in the Executive’s Annual Salary; or (B) any material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) that are provided to the Executive from the benefit levels in effect as of the Effective Date, unless the Company provides substitute employee benefits of a comparable nature that are at least as valuable to the Executive on an after-tax basis;or
(iii) the relocation of the principal business offices of the Company to beyond 30 miles from the Company’s existing location in Leesburg, Virginia, if that relocation increases the distance from the Executive’s principal residence to such offices; or
(iv) a material and willful breach of this Agreement by the CompanyAgreement. Notwithstanding the foregoing, (i) Good Reason (A) shall not be deemed to exist unless notice of termination on account thereof (specifying a termination date no later than 30 days from the date of such notice) is given no later than 30 days after the time at which the event or condition purportedly giving rise to Good Reason first occurs or arises and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Executive’s employment for Cause; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason, the Company shall have 30 15 days from the date notice of such a termination is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason hereunder.
(b) The Company may terminate the Executive’s employment at any time for any reason or no reason and the Executive may terminate the Executive’s employment with the Company at any time for any reason or without Good Reasonno reason. If the Company terminates the Executive’s employment and the termination is not covered by Section 4 or 5.1, or the Executive terminates his employment for Good ReasonReason or in the event of non-renewal of this Agreement by the Company, then, if a mutual general release as described in a form reasonably acceptable to the Company and Executive is executed and delivered, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), 1:
(i) the Executive shall receive the salary, benefits a single-sum payment equal to accrued but unpaid Annual Salary and other items set forth in Section 4(ybenefits (including any bonus for a calendar year completed before termination) above earned and accrued under this Agreement prior to the termination of employment (and payable according reimbursement under this Agreement for expenses incurred prior to the same scheduletermination of employment); ;
(ii) the Executive shall receive (A) a cash single-sum payment of an amount equal to 50% the sum of the Executive’s (X) his Annual Salary (as at the rate in effect immediately before prior to termination) plus (Y) the highest bonus earned in the preceeding three year period prior to termination, with such terminationsum multiplied by 1.5; and
(iii) all outstanding unvested equity-based awards (including without limitation Options, Restricted Shares and phantom units) held by the Executive shall fully vest and shall become immediately exercisable, as applicable. If payments due to Executive are subject to the requirements of Prop. Treas. Reg. § 1.409A-3(g)(2) (or any successor provision), payable no later than 60 days after such termination and (B) for a period then notwithstanding any other provision of six months after termination of employment, continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had received under this Agreement (and at such costs to the Executive) prior to such termination (but not taking into account any post-termination increases in Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits); (iii) if such termination occurs within twelve months of the Effective Time of the Merger, the vesting of any and all Options granted to the Executive prior to the Effective Time of the Merger, and which are not Cash-out Options, shall be fully accelerated and such Options shall be immediately exercisable otherwise in accordance with their respective terms (each of the capitalized terms in this subsection 5.2(b)(iii) shall have the definitions set forth in that certain Agreement and Plan of Merger by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010); and (iv) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder.
(c) Notwithstanding clause (ii)(B) of the second sentence of Section 5.2(botherwise applicable plan, policy, agreement or arrangement), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(B) from time to time in its sole discretion, and (ii) the Company shall in no event be required to provide any benefits payments that are otherwise required by such clause (ii)(B) after such time as the Executive becomes entitled to receive benefits of the same type from another employer or recipient of the due within six months following Executive’s services separation from service will be deferred (such entitlement being determined without regard with interest at 5% per annum) and paid to any individual waivers or other similar arrangements)Executive in a lump sum immediately following that six month period.
Appears in 1 contract
Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive,
(Ai) the material reduction of the Executive’s title, authority, duties and responsibilities or the assignment to the Executive of any duties materially inconsistent with the Executive’s position or inappropriate to his status and office positions with the Company; (B) the material diminution of the nature or status of the Executive’s responsibilities in any way from those in effect as of the Effective Date; or (C) the adverse change in the Executive’s direct or indirect reporting relationship from that in effect immediately as of the Effective Date; or;
(ii) a material (i.e. 5% or greater) decrease reduction in Annual Salary of the Executive’s level of compensation because of one or more of: (A) a reduction in the Executive’s Annual Salary; or (B) any material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) that are provided to the Executive from the benefit levels in effect as of the Effective Date, unless the Company provides substitute employee benefits of a comparable nature that are at least as valuable to the Executive on an after-tax basis;
(iii) the relocation of the principal business offices of the Company to beyond 30 miles from the Company’s existing location in Leesburg, Virginia, if that relocation increases the distance from the Executive’s principal residence to such offices; or
(iv) a material and willful breach of this Agreement by the CompanyAgreement. Notwithstanding the foregoing, (i) Good Reason (A) shall not be deemed to exist unless notice of termination on account thereof (specifying a termination date no later than 30 days from the date of such notice) is given no later than 30 days after the time at which the event or condition purportedly giving rise to Good Reason first occurs or arises and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Executive’s employment for Cause; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason, the Company shall have 30 15 days from the date notice of such a termination is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason hereunder. In the event of any notice of non-renewal of this Agreement by the Company, as described in Section 1, then (i) the Executive shall receive Annual Salary and other benefits (including any bonus for a fiscal year completed before termination) earned and accrued under this Agreement prior to the non-renewal of this Agreement (and reimbursement under this Agreement for expenses incurred prior to the termination of employment), (ii) the Executive shall receive a single-sum cash payment equal to the sum of (x) the 1.5 times Executive’s Annual Salary as in effect immediately before such non-renewal, and (y) the Executive’s annual bonus, as referenced in the first sentence of Section 3.2 for the fiscal year in which such non-renewal occurs, payable upon the expiration of the Term, and (iii) all outstanding unvested equity-based awards (including without limitation stock options and restricted stock) held by the Executive shall fully vest and shall become immediately exercisable, as applicable.
(b) The Company may terminate the Executive’s employment at any time for any reason or no reason and the Executive may terminate the Executive’s employment with the Company at any time for any reason or without Good Reasonno reason. If the Company terminates the Executive’s employment and the termination is not covered by Section 4 or 5.1, or the Executive terminates his employment for Good Reason, then, if a mutual general release in a form reasonably acceptable to the Company and Executive is executed and delivered, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), :
(i) the Executive shall receive the salary, benefits a single-sum payment equal to accrued but unpaid Annual Salary and other items set forth in Section 4(ybenefits (including any bonus for the calendar year completed before termination) above earned and accrued under this Agreement prior to the termination of employment (and payable according reimbursement under this Agreement for expenses incurred prior to the same scheduletermination of employment); ;
(ii) the Executive shall receive (A) a cash single-sum payment of an amount equal to 50% of the Executive’s his Annual Salary (as at the rate in effect immediately before such prior to termination)) plus the highest bonus earned in the one year period prior to termination times 1.5; and
(iii) all outstanding unvested equity-based awards (including without limitation stock options and restricted stock) held by the Executive shall fully vest and shall become immediately exercisable, payable as applicable. Notwithstanding the foregoing, no later payments under Section 5.2(b) shall be made less than 60 days after such termination and (B) for a period of six months after termination to the extent required to comply with Section 409A of employmentthe Internal Revenue Code of 1986, continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had received amended (in which case any payments deferred under this Agreement (and at such costs to the Executive) prior to such termination (but not taking into account any post-termination increases in Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits); (iii) if such termination occurs within twelve months of the Effective Time of the Merger, the vesting of any and all Options granted to the Executive prior to the Effective Time of the Merger, and which are not Cash-out Options, provision shall be fully accelerated and such Options shall be immediately exercisable otherwise in accordance with their respective terms (each paid upon the six-month anniversary of the capitalized terms in this subsection 5.2(b)(iii) shall have the definitions set forth in that certain Agreement and Plan of Merger by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010); and (iv) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder.
(c) Notwithstanding clause (ii)(B) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(B) from time to time in its sole discretion, and (ii) the Company shall in no event be required to provide any benefits otherwise required by such clause (ii)(B) after such time as the Executive becomes entitled to receive benefits of the same type from another employer or recipient of the Executive’s services (such entitlement being determined without regard to any individual waivers or other similar arrangementstermination).
Appears in 1 contract
Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive,:
(Ai) the material reduction of the Executive’s title, authority, duties and responsibilities, the assignment to the Executive of any duties materially inconsistent with or inappropriate to his status and office with the Company; (B) the material diminution of the nature or status of the Executive’s responsibilities position or positions as President of Parent and the Company, or, in any way from those in effect as the event that the Executive becomes the Chief Executive Officer of Parent and the Effective Date; or (C) Company, the adverse change in assignment to the Executive of duties materially inconsistent with the Executive’s direct position or indirect reporting relationship from that in effect immediately positions as Chief Executive Officer of Parent and the Effective Date; orCompany;
(ii) a material (i.e. 5% or greater) decrease in the Executive’s level of compensation because of one or more of: (A) a reduction in the Executive’s Annual Salary; or (B) any material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) that are provided Base Salary to the Executive from the benefit levels in effect as a rate of the Effective Date, unless the Company provides substitute employee benefits of a comparable nature that are at least as valuable to the Executive on an after-tax basisless than $600,000 per annum;
(iii) the relocation Company’s material breach of this Agreement;
(iv) Executive is required to relocate his office more than 30 miles outside of the principal business offices Borough of the Company to beyond 30 miles from the Company’s existing location in LeesburgManhattan, Virginia, if that relocation increases the distance from the Executive’s principal residence to such officesNew York; or
(ivv) a material breach the Board does not appoint the Executive to the position of this Agreement Chief Executive Officer of the Company and Parent by the CompanyFebruary 28, 2014. Notwithstanding the foregoing, (i) Good Reason (A) shall not be deemed to exist unless notice of termination on account thereof (specifying a termination date no later than 30 days from the date of such notice) is given no later than 30 days after the time at which the event or condition purportedly giving rise to Good Reason first occurs or arises and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Executive’s employment for Cause; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason, the Company shall have 30 15 days from the date notice of such a termination is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason hereunder.
(b) The Company may terminate the Executive’s employment at any time for any reason or no reason and the Executive may terminate the Executive’s employment with the Company at any time for any reason or without Good Reasonno reason. If the Company terminates the Executive’s employment (and the termination is not covered by Section 4 or 5.1), or the Executive terminates his employment for Good Reason, then, if a mutual general release in a form reasonably acceptable to the Company and Executive is executed and deliveredeither such case, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), without duplication:
(i) the Executive shall receive the salary, benefits and other items set forth in Section 4(y) above earned and accrued under this Agreement prior to the termination of employment (and payable according to the same schedule); Accrued Benefits;
(ii) the Executive shall receive (A) a cash single-sum payment by wire transfer of immediately available funds in an amount equal to 50% $950,000;
(iii) all outstanding unvested equity-based awards (including without limitation stock options and restricted stock) held by the Executive shall fully vest and shall become immediately exercisable, as applicable; and
(iv) Unless otherwise prohibited by the Employee Retirement Income Security Act of 1974 (ERISA), the Internal Revenue Code of 1986, as amended (the “Code”) or applicable law, the Executive and his eligible dependents shall continue to be covered under the Benefits Plans as described in Section 3.4 for the 12-month period following the termination of the Executive’s Annual Salary (as in effect immediately before such termination)employment. The above notwithstanding, payable no later than 60 days after such termination and (B) for a period of six months after termination of employment, continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had received under this Agreement (and at such costs to the Executive) prior to such termination (but not taking into account any post-termination increases in Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits); (iii) if such termination occurs within twelve months of the Effective Time of the Merger, the vesting of any and all Options granted to the Executive prior to the Effective Time of the Merger, and which are not Cash-out Options, shall be fully accelerated and such Options shall be immediately exercisable otherwise in accordance with their respective terms (each of the capitalized terms in this subsection 5.2(b)(iii) shall have the definitions set forth in that certain Agreement and Plan of Merger by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010); and (iv) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder.
(c) Notwithstanding clause (ii)(B) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(B) from time to time in its sole discretion, and (ii) the Company shall in no event shall coverage be required continued under such Benefit Plan if the benefit is provided pursuant to provide any benefits otherwise required by such clause (ii)(B) after such time as insurance and the Executive becomes entitled to receive benefits is not eligible for coverage as a result of his termination of employment or otherwise. To the extent the Executive or his eligible dependents are only eligible for coverage under any such Benefits Plans by reason of law commonly known as COBRA, the Company will pay the employer’s portion of the same type from another employer COBRA premiums and will pay or recipient reimburse the Executive for Executive’s portion of such COBRA premiums, so that collectively Executive and his eligible dependents are fully covered under all such Benefits Plans for no cost, such payments (or reimbursements) to be made for the 12-month period following the termination of the Executive’s services employment. Unless the payment is required to be delayed pursuant to Section 7.14(b) below, the cash amounts payable to the Executive under this Section 5.2(b) (other than Section 5.2(b)(iv)) shall be paid to the Executive within 60 days following the date of his termination of employment with the Company pursuant to this Section 5.2(b). In the event that the 60 day period following such entitlement being determined without regard termination spans two calendar years, the amounts payable to any individual waivers or other similar arrangements)the Executive under this Section 5.2(b) shall be paid in the later calendar year.
Appears in 1 contract
Samples: Employment Agreement (Institutional Financial Markets, Inc.)
Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive,
(Ai) the material reduction of the Executive’s title, authority, duties and responsibilities or the assignment to the Executive of any duties materially inconsistent with the Executive’s position or inappropriate to his status and office positions with the Company; (B) the material diminution of the nature or status of the Executive’s responsibilities in any way from those in effect as of the Effective Date; or (C) the adverse change in the Executive’s direct or indirect reporting relationship from that in effect immediately as of the Effective Date; or;
(ii) a material (i.e. 5% or greater) decrease reduction in Annual Salary of the Executive’s level of compensation because of one or more of: (A) a reduction in the Executive’s Annual Salary; or (B) any material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) that are provided to the Executive from the benefit levels in effect as of the Effective Date, unless the Company provides substitute employee benefits of a comparable nature that are at least as valuable to the Executive on an after-tax basis;or
(iii) the relocation of the principal business offices of the Company to beyond 30 miles from the Company’s existing location in Leesburg, Virginia, if that relocation increases the distance from the Executive’s principal residence to such offices; or
(iv) a material and willful breach of this Agreement by the CompanyAgreement. Notwithstanding the foregoing, (i) Good Reason (A) shall not be deemed to exist unless notice of termination on account thereof (specifying a termination date no later than 30 days from the date of such notice) is given no later than 30 days after the time at which the event or condition purportedly giving rise to Good Reason first occurs or arises and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Executive’s employment for Cause; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason, the Company shall have 30 15 days from the date notice of such a termination is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason hereunder.
(b) The Company may terminate the Executive’s employment at any time for any reason or no reason and the Executive may terminate the Executive’s employment with the Company at any time for any reason or without Good Reasonno reason. If the Company terminates the Executive’s employment and the termination is not covered by Section 4 or 5.1, or the Executive terminates his employment for Good ReasonReason or in the event of any notice of non-renewal of this Agreement by the Company, then, if a mutual general release as described in a form reasonably acceptable to the Company and Executive is executed and delivered, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), 1:
(i) the Executive shall receive the salary, benefits a single-sum payment equal to accrued but unpaid Annual Salary and other items set forth in Section 4(ybenefits (including any bonus for a calendar year completed before termination) above earned and accrued under this Agreement prior to the termination of employment (and payable according reimbursement under this Agreement for expenses incurred prior to the same scheduletermination of employment); ;
(ii) the Executive shall receive (A) a cash single-sum payment of an amount equal to 50% 1.5 times the sum of (x) the highest bonus earned in one year period preceding the date of termination plus (y) the greater of (a) the average of the Executive’s Annual Salary amounts paid to Executive over the three calendar years prior to the date of Termination or, (as in effect immediately before such termination), payable no later b) if less than 60 days after such termination and (B) for a period three years have elapsed between the date of six months after termination of employment, continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had received under this Agreement (and at such costs the date of termination, the highest Annual Salary paid to Executive in any calendar year prior to the Executivedate of Termination or (c) prior if less than 12 months have elapsed from the date of this Agreement to such termination (but not taking into account any post-termination increases in the date of termination, the highest Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits)received in any month times 12; and; and
(iii) if such termination occurs within twelve months of the Effective Time of the Merger, the vesting of any all outstanding unvested equity-based awards (including without limitation Options and all Options granted to the Executive prior to the Effective Time of the Merger, and which are not Cash-out Options, shall be fully accelerated and such Options shall be immediately exercisable otherwise in accordance with their respective terms (each of the capitalized terms in this subsection 5.2(b)(iiiRestricted Shares) shall have the definitions set forth in that certain Agreement and Plan of Merger held by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010); and (iv) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employmentfully vest and shall become immediately exercisable, or any other rights hereunderas applicable.
(c) Notwithstanding clause (ii)(B) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(B) from time to time in its sole discretion, and (ii) the Company shall in no event be required to provide any benefits otherwise required by such clause (ii)(B) after such time as the Executive becomes entitled to receive benefits of the same type from another employer or recipient of the Executive’s services (such entitlement being determined without regard to any individual waivers or other similar arrangements).
Appears in 1 contract
Samples: Employment Agreement (Taberna Realty Finance Trust)
Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive,
(Ai) the material reduction of the Executive’s authority, duties and responsibilities, the failure to continue the Executive’s appointment as Chairman of the Board, or the assignment to the Executive of any duties materially inconsistent with the Executive’s position or inappropriate to his status and office positions with the Company; (B) the material diminution of the nature or status of the Executive’s responsibilities in any way from those in effect as of the Effective Date; or (C) the adverse change in the Executive’s direct or indirect reporting relationship from that in effect immediately as of the Effective Date; or;
(ii) a material (i.e. 5% or greater) decrease reduction in Annual Salary of the Executive’s level of compensation because of one or more of: (A) a reduction in the Executive’s Annual Salary; or (B) any material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) that are provided to the Executive from the benefit levels in effect as of the Effective Date, unless the Company provides substitute employee benefits of a comparable nature that are at least as valuable to the Executive on an after-tax basis;
(iii) the relocation of the principal business offices of the Company Executive’s office to beyond 30 more than 25 miles from Vero Beach, Florida;
(iv) the Company’s existing location in Leesburgfailure to pay the Executive any amounts otherwise due hereunder or under any plan, Virginiapolicy, if that relocation increases program, agreement, arrangement or other commitment of the distance from the Executive’s principal residence to such officesCompany; or
(ivv) a the Company’s material and willful breach of this Agreement by the CompanyAgreement. Notwithstanding the foregoing, (i) Good Reason (A) shall not be deemed to exist unless notice of termination on account thereof (specifying a termination date no later than 30 days from the date of such notice) is given no later than 30 days after the time at which the event or condition purportedly giving rise to Good Reason first occurs or arises and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Executive’s employment for Causearises; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason, the Company shall have 30 ten days from the date notice of such a termination is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason hereunder.
(b) The Company may terminate the Executive’s employment at any time for any reason or no reason and the Executive may terminate the Executive’s employment with the Company for or without Good Reason. If the Company terminates the Executive’s employment and the termination is not covered by Section 4 or 5.1, or the Executive terminates his employment for Good Reason, then, if a mutual general release in a form reasonably acceptable to the Company and Executive is executed and delivered, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), :
(i) the Executive shall receive the salary, benefits Annual Salary and other items set forth in Section 4(ybenefits (including any bonus for a fiscal year completed before termination, but not any other bonus) above earned and accrued under this Agreement prior to the termination of employment (and payable according reimbursement under this Agreement for expenses incurred prior to the same scheduletermination of employment); ;
(ii) if (and only if) the Executive provides a general release in a form reasonably acceptable to the Company which is or has become irrevocable,
(A) the Executive shall receive (AI) a single-sum cash payment equal to 50300% of the sum of (x) the Executive’s Annual Salary (as in effect immediately before such termination) plus (y) the average bonus to the Executive for the three fiscal years ending coincident with or immediately preceding such termination (such amount to be deemed to be $500,000 if termination occurs before the end of the first year, and, in addition, such amount in all events to include for the first year any $250,000 bonus payable in accordance with the last sentence of Section 3.2), payable no later than 60 ten days after such termination and (Bbut subject to the release provided for above having become irrevocable), (II) subject to Section 5.2(c), for a period of six months three years after termination of employment, such continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had would have received under this Agreement (and but at such costs to the Executive(if any) prior to such termination (but not taking into account any post-termination increases in Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits); (iii) if such termination occurs within twelve months of the Effective Time of the Merger, the vesting of any and all Options granted to the Executive prior no higher than as in effect immediately preceding such termination) as would have applied in the absence of such termination; (III) an amount equal to the Effective Time annual bonus that, in the absence of such termination, would have been payable for the Mergerfiscal year in which termination occurs, and which are not Cash-out Options, shall be fully accelerated and such Options shall be immediately exercisable otherwise in accordance with their respective terms (each of the capitalized terms in this subsection 5.2(b)(iii) shall have the definitions set forth in that certain Agreement and Plan of Merger by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010); and (iv) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder.
(c) Notwithstanding clause (ii)(B) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(B) from time to time in its sole discretion, and (ii) the Company shall in no event be required to provide any benefits otherwise required by such clause (ii)(B) after payable at such time as would have applied in the Executive becomes entitled absence of such termination, with such amount to receive benefits be multiplied by a fraction (x) the numerator of which is the same type from another employer or recipient number of days in the Executive’s services fiscal year preceding the termination and (such entitlement being determined without regard to any individual waivers or other similar arrangements).y) the denominator of which is 365; and
Appears in 1 contract
Samples: Employment Agreement (Bimini Mortgage Management Inc)
Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive,
(Ai) the material reduction of the Executive’s title, authority, duties and responsibilities or the assignment to the Executive of any duties materially inconsistent with the Executive’s position or inappropriate to his status and office positions with the Company; (B) the material diminution of the nature or status of the Executive’s responsibilities in any way from those in effect as of the Effective Date; or (C) the adverse change in the Executive’s direct or indirect reporting relationship from that in effect immediately as of the Effective Date; or;
(ii) a material (i.e. 5% or greater) decrease reduction in Annual Salary of the Executive’s level of compensation because of one or more of: (A) a reduction in the Executive’s Annual Salary; or (B) any material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) that are provided to the Executive from the benefit levels in effect as of the Effective Date, unless the Company provides substitute employee benefits of a comparable nature that are at least as valuable to the Executive on an after-tax basis;or
(iii) the relocation of the principal business offices of the Company to beyond 30 miles from the Company’s existing location in Leesburg, Virginia, if that relocation increases the distance from the Executive’s principal residence to such offices; or
(iv) a material and willful breach of this Agreement by the CompanyAgreement. Notwithstanding the foregoing, (i) Good Reason (A) shall not be deemed to exist unless notice of termination on account thereof (specifying a termination date no later than 30 days from the date of such notice) is given no later than 30 days after the time at which the event or condition purportedly giving rise to Good Reason first occurs or arises and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Executive’s employment for Cause; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason, the Company shall have 30 15 days from the date notice of such a termination is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason hereunder.
(b) The Company may terminate the Executive’s employment at any time for any reason or no reason and the Executive may terminate the Executive’s employment with the Company at any time for any reason or without Good Reasonno reason. If the Company terminates the Executive’s employment and the termination is not covered by Section 4 or 5.1, or the Executive terminates his employment for Good ReasonReason or in the event of any notice of non-renewal of this Agreement by the Company, then, if a mutual general release as described in a form reasonably acceptable to the Company and Executive is executed and delivered, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), 1:
(i) the Executive shall receive the salary, benefits a single-sum payment equal to accrued but unpaid Annual Salary and other items set forth in Section 4(ybenefits (including any bonus for a calendar year completed before termination) above earned and accrued under this Agreement prior to the termination of employment (and payable according reimbursement under this Agreement for expenses incurred prior to the same scheduletermination of employment); ;
(ii) the Executive shall receive (A) a cash single-sum payment of an amount equal to 50% 1.5 times the sum of (x) the highest bonus earned in one year period preceding the date of termination plus (y) the greater of (a) the average of the Executive’s Annual Salary amounts paid to Executive over the three calendar years prior to the date of Termination or, (b) if less than three years have elapsed between the date of this Agreement and the date of termination, the highest Annual Salary paid to Executive in any calendar year prior to the date of Termination or (c) if less than 12 months have elapsed from the date of this Agreement to the date of termination, the highest Annual Salary received in any month times 12; and; and
(iii) all outstanding unvested equity-based awards (including without limitation Options and restricted shares) held by the Executive shall fully vest and shall become immediately exercisable, as in effect immediately before such termination)applicable. Notwithstanding the foregoing, payable no later payments under Section 5.2(b) shall be made less than 60 days after such termination and (B) for a period of six months after termination to the extent required to comply with Section 409A of employmentthe Internal Revenue Code of 1986, continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had received amended (in which case any payments deferred under this Agreement (and at such costs to the Executive) prior to such termination (but not taking into account any post-termination increases in Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits); (iii) if such termination occurs within twelve months of the Effective Time of the Merger, the vesting of any and all Options granted to the Executive prior to the Effective Time of the Merger, and which are not Cash-out Options, provision shall be fully accelerated and such Options shall be immediately exercisable otherwise in accordance with their respective terms (each paid upon the six-month anniversary of the capitalized terms in this subsection 5.2(b)(iii) shall have the definitions set forth in that certain Agreement and Plan of Merger by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010); and (iv) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder.
(c) Notwithstanding clause (ii)(B) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(B) from time to time in its sole discretion, and (ii) the Company shall in no event be required to provide any benefits otherwise required by such clause (ii)(B) after such time as the Executive becomes entitled to receive benefits of the same type from another employer or recipient of the Executive’s services (such entitlement being determined without regard to any individual waivers or other similar arrangementstermination).
Appears in 1 contract
Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive,:
(Ai) a material reduction of the Executive’s title, authority, duties or responsibilities, or the assignment to the Executive of any duties materially inconsistent with or inappropriate to his status and office with the Company; (B) the material diminution of the nature or status of the Executive’s responsibilities in any way from those in effect position or positions as Chief Executive Officer of Parent and the Effective Date; or (C) the adverse change in the Executive’s direct or indirect reporting relationship from that in effect immediately as of the Effective Date; orCompany;
(ii) a material (i.e. 5% or greater) decrease in the Executive’s level of compensation because of one or more of: (A) a reduction in the Executive’s Annual Salary; or (B) any material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) that are provided Base Salary to the Executive from the benefit levels in effect as a rate of the Effective Date, unless the Company provides substitute employee benefits of a comparable nature that are at least as valuable to the Executive on an after-tax basisless than $600,000 per annum;
(iii) the relocation of the principal business offices of the Company to beyond 30 miles from the Company’s existing location in Leesburg, Virginia, if that relocation increases the distance from the Executiveor Parent’s principal residence to such officesmaterial breach of this Agreement; or
(iv) the requirement that Executive relocate his office to a material breach location that is more than 30 miles outside of this Agreement by the Company. Notwithstanding Borough of Manhattan, New York; provided, that the foregoing, (i) Executive shall not be permitted to terminate his employment with Good Reason unless he has provided written notice of such termination within 90 days following the date the Executive first becomes aware (or reasonably should have become aware) of the occurrence of the event giving rise to a termination for Good Reason, so long as (A) shall not be deemed the Executive has given written notice to exist unless notice the Company and the Parent of termination on account thereof (specifying a termination date no later than such awareness or constructive awareness within 30 days from the date of such notice) is given no later than 30 days after the time at which the event or condition purportedly giving rise to Good Reason first occurs or arises thereof, and (B) shall the Company and/or the Parent (as applicable) has not be deemed to exist at any time at which there exists an cured such event within 30 days following its or condition which could serve as the basis of a termination their receipt of the Executive’s employment for Cause; and (ii) if there exists (without regard written notice. For purposes hereof, Executive hereby consents to this clause (ii)) an event Xxxxxx X. Xxxxx’x position and/or responsibilities as Chief Executive of the European business of the Company and, accordingly, such position and/or responsibilities shall not constitute, or condition that constitutes form the basis of, “Good Reason, the Company shall have 30 days from the date notice of such a termination is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason ” hereunder.
(b) The Company may terminate the Term and the Executive’s employment at any time for any reason or hereunder without Cause with no reason notice, and the Executive may terminate the Term and the Executive’s employment with the Company for or without Good ReasonReason with no notice (other than that set forth above). If the Company terminates the Executive’s employment (and the termination is not covered by Section 4 or 5.1), or the Executive terminates his employment for Good Reason, in either case during the Term, then, if a mutual general release in a form reasonably acceptable to the Company and Executive is executed and deliveredeither such case, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), without duplication:
(i) the Executive shall receive the salary, benefits and other items set forth in Section 4(y) above earned and accrued under this Agreement prior to the termination of employment (and payable according to the same schedule); Accrued Benefits;
(ii) the Executive shall receive (A) a cash single-sum payment by wire transfer of immediately available funds in an amount equal to 50% (x) $875,000, if the date of termination occurs on or prior to December 31, 2013, or (y) $1,500,000, if the date of termination occurs on or after January 1, 2014;
(iii) all outstanding unvested equity-based awards (including without limitation stock options and restricted stock) held by the Executive shall fully vest and shall become immediately exercisable, as applicable; and
(iv) unless otherwise prohibited by the Employee Retirement Income Security Act of 1974 (ERISA), the Internal Revenue Code of 1986, as amended (the “Code”) or applicable law, the Executive and his eligible dependents shall continue to be covered under the Benefits Plans as described in Section 3.4 for the 12-month period following the termination of the Executive’s Annual Salary (as in effect immediately before such termination)employment. The above notwithstanding, payable no later than 60 days after such termination and (B) for a period of six months after termination of employment, continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had received under this Agreement (and at such costs to the Executive) prior to such termination (but not taking into account any post-termination increases in Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits); (iii) if such termination occurs within twelve months of the Effective Time of the Merger, the vesting of any and all Options granted to the Executive prior to the Effective Time of the Merger, and which are not Cash-out Options, shall be fully accelerated and such Options shall be immediately exercisable otherwise in accordance with their respective terms (each of the capitalized terms in this subsection 5.2(b)(iii) shall have the definitions set forth in that certain Agreement and Plan of Merger by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010); and (iv) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder.
(c) Notwithstanding clause (ii)(B) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(B) from time to time in its sole discretion, and (ii) the Company shall in no event shall coverage be required continued under such Benefit Plan if the benefit is provided pursuant to provide any benefits otherwise required by such clause (ii)(B) after such time as insurance and the Executive becomes entitled to receive benefits is not eligible for coverage as a result of his termination of employment or otherwise. To the extent the Executive or his eligible dependents are only eligible for coverage under any such Benefits Plans by reason of the same type from another employer law commonly known as COBRA, the Company will pay the employer’s portion of the COBRA premiums and will pay or recipient reimburse the Executive for Executive’s portion of such COBRA premiums, so that collectively Executive and his eligible dependents are fully covered under all such Benefits Plans at no cost, such payments (or reimbursements) to be made for the 12-month period following the termination of the Executive’s services employment. Unless the payment is required to be delayed pursuant to Section 7.14(b) below, the cash amounts payable to the Executive under this Section 5.2(b) (other than Section 5.2(b)(iv)) shall be paid to the Executive within 60 days following the date of his termination of employment with the Company pursuant to this Section 5.2(b). In the event that the 60 day period following such entitlement being determined without regard termination spans two calendar years, the amounts payable to any individual waivers or other similar arrangements)the Executive under this Section 5.2(b) shall be paid in the later calendar year.
Appears in 1 contract
Samples: Employment Agreement (Institutional Financial Markets, Inc.)
Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive,
(Ai) the material reduction of the Executive’s authority (including, without limitation, the direction, hiring or firing by the Board of personnel that report to Executive), duties and responsibilities, the assignment to the Executive of any duties materially inconsistent with the Executive’s position or inappropriate to his status and office positions with the Company; (B) , or the material diminution of Executive is required to report to any persons other than the nature or status of the Executive’s responsibilities Board, as described in any way from those in effect as of the Effective Date; or (C) the adverse change in the Executive’s direct or indirect reporting relationship from that in effect immediately as of the Effective Date; orSection 2;
(ii) a material (i.e. 5% or greater) decrease reduction in Annual Salary of the Executive’s level of compensation because of one or more of: (A) a reduction in the Executive’s Annual Salary; or (B) any material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) that are provided to the Executive from the benefit levels in effect as of the Effective Date, unless the Company provides substitute employee benefits of a comparable nature that are at least as valuable to the Executive on an after-tax basis;
(iii) the relocation of the principal business offices Executive’s office to more than 25 miles from Long Island, or the Executive not being provided with an office, office equipment and access to secretarial assistance reasonably comparable to that provided to other similarly situated officers of the Company to beyond 30 miles from Company;
(iv) the Company’s existing location in Leesburgfailure to pay the Executive any amounts otherwise due hereunder or under any plan, Virginiapolicy, if that relocation increases program, agreement, arrangement or other commitment of the distance from the Executive’s principal residence to such officesCompany; or
(ivv) a the Company’s material and willful breach of this Agreement by the CompanyAgreement. Notwithstanding the foregoing, (i) Good Reason (A) shall not be deemed to exist unless notice of termination on account thereof (thereof, specifying a termination date no later than 30 days from the date of such notice) is given no later than 30 days after the time at which notice and describing the event or condition purportedly giving rise to the termination for Good Reason first occurs or arises and (B) shall not be deemed Reason, is given by the Executive to exist at any time at which there exists an the Board within 30 days after such event or condition which could serve as the basis of a termination of the Executive’s employment for Causeis alleged to have occurred; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason, the Company shall have 30 ten days from the date notice of such a termination is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason hereunder; and (iii) Good Reason shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination for Cause. In no event shall the Company’s notice of non-renewal, as set forth in Section 1 of this Agreement, be deemed to be a termination without Cause or constitute Good Reason.
(b) The Company may terminate the Executive’s employment at any time for any reason or no reason and the Executive may terminate the Executive’s employment with the Company at any time for any reason or without Good Reasonno reason. If the Company terminates the Executive’s employment and the termination is not covered by Section 4 or 5.1, or the Executive terminates his employment for Good Reason, then, if a mutual general release in a form reasonably acceptable to the Company and Executive is executed and delivered, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), :
(i) the Executive shall receive the salary, benefits Annual Salary and other items set forth in Section 4(ybenefits (including any bonus for a fiscal year completed before termination) above earned and accrued under this Agreement prior to the termination of employment (and payable according reimbursement under this Agreement for expenses incurred prior to the same scheduletermination of employment); ;
(ii) the Executive shall receive (A) a single-sum cash payment equal to 50% 2.99 multiplied by the sum of (x) the Executive’s Annual Salary (as in effect immediately before such termination, but in no event shall such salary be deemed to be less than $250,000, and (y) the Executive’s maximum potential bonus payable in accordance with the last sentence of Section 3.2 for the fiscal year in which such termination occurs, but in no event shall such bonus amount be deemed to be less than a $750,000 bonus), payable no later than 60 ten days after such termination and termination;
(Biii) for a period of six months three years after termination of employment, such continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had would have received under this Agreement (and at as would have applied in the absence of such costs to the Executive) prior to such termination (but not taking into account any post-termination increases in Annual Salary termination, provided that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits); (iii) if such termination occurs within twelve months of the Effective Time of the Merger, the vesting of any and all Options granted to the Executive prior to the Effective Time of the Merger, and which are not Cash-out Options, shall be fully accelerated and such Options shall be immediately exercisable otherwise in accordance with their respective terms (each of the capitalized terms in this subsection 5.2(b)(iii) shall have the definitions set forth in that certain Agreement and Plan of Merger by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010); and (iv) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder.
(c) Notwithstanding clause (ii)(B) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(B) from time to time in its sole discretion, and (ii) the Company shall in no event be required to provide any benefits otherwise required by such this clause (ii)(B) after such time as the Executive becomes entitled to receive benefits of the same type from another employer or recipient of the Executive’s services services; and
(iv) all outstanding unvested equity-based awards (including without limitation stock options and restricted stock) held by the Executive shall fully vest and shall become immediately exercisable, as applicable, in the case of options, shall continue to be exercisable for their full terms, and, in the case of interests granted in Xxxxxxx Equities Operating Partnership, LP, such entitlement being determined without regard to any individual waivers or other similar arrangements)units will become convertible into common stock of the Company, and all restrictions on such shares of the Company granted in connection with the initial public offering (“Lockups”) shall expire.
Appears in 1 contract
Samples: Employment Agreement (Feldman Mall Properties, Inc.)
Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive,
(Ai) the material reduction of the Executive’s title, authority, duties and responsibilities or the assignment to the Executive of any duties materially inconsistent with the Executive’s position or inappropriate to his status and office positions with the Company; (B) the material diminution of the nature or status of the Executive’s responsibilities in any way from those in effect as of the Effective Date; or (C) the adverse change in the Executive’s direct or indirect reporting relationship from that in effect immediately as of the Effective Date; or;
(ii) a material (i.e. 5reduction of more than 25% or greater) decrease in Annual Salary of the Executive’s level of compensation because of one or more of: (A) a reduction in the Executive’s Annual Salary; or (B) any material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) that are provided to the Executive from the benefit levels in effect as of the Effective Date, unless the Company provides substitute employee benefits of a comparable nature that are at least as valuable to the Executive on an after-tax basis;or
(iii) the relocation of the principal business offices of the Company to beyond 30 miles from the Company’s existing location in Leesburg, Virginia, if that relocation increases the distance from the Executive’s principal residence to such offices; or
(iv) a material and willful breach of this Agreement by the CompanyAgreement. Notwithstanding the foregoing, (i) Good Reason (A) shall not be deemed to exist unless notice of termination on account thereof (specifying a termination date no later than 30 days from the date of such notice) is given no later than 30 days after the time at which the event or condition purportedly giving rise to Good Reason first occurs or arises and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Executive’s employment for Cause; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason, the Company shall have 30 15 days from the date notice of such a termination is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason hereunder. In the event of any notice of non-renewal of this Agreement by the Company, as described in Section 1, then (i) the Executive shall receive Annual Salary and other benefits (including any bonus for a fiscal year completed before termination) earned and accrued under this Agreement prior to the non-renewal of this Agreement (and reimbursement under this Agreement for expenses incurred prior to the termination of employment), (ii) the Executive shall receive a single-sum cash payment equal to 1.5 times the sum of (x) times the Executive’s Annual Salary as in effect immediately before such non-renewal, and (y) the Executive’s bonus payable in accordance with the last sentence of Section 3.2 for the fiscal year in which such non-renewal occurs, payable upon the expiration of the Term, and (iii) all outstanding unvested equity-based awards (including without limitation stock options and restricted stock) held by the Executive shall fully vest and shall become immediately exercisable as applicable.
(b) The Company may terminate the Executive’s employment at any time for any reason or no reason and the Executive may terminate the Executive’s employment with the Company at any time for any reason or without Good Reasonno reason. If the Company terminates the Executive’s employment and the termination is not covered by Section 4 or 5.1, or the Executive terminates his employment for Good Reason, then, if a mutual general release in a form reasonably acceptable to the Company and Executive is executed and delivered, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), :
(i) the Executive shall receive the salary, benefits a single-sum payment equal to accrued but unpaid Annual Salary and other items set forth in Section 4(ybenefits (including any bonus for a calendar year completed before termination) above earned and accrued under this Agreement prior to the termination of employment (and payable according reimbursement under this Agreement for expenses incurred prior to the same scheduletermination of employment); ;
(ii) the Executive shall receive (A) a cash single-sum payment of an amount equal to 50% the sum of the Executive’s (X) his Annual Salary (as at the rate in effect immediately before such termination), payable no later than 60 days after such termination and (B) for a period of six months after termination of employment, continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had received under this Agreement (and at such costs to the Executive) prior to termination) plus (Y) the highest bonus earned in the one year period prior to termination, with such termination (but not taking into account any post-termination increases in Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits)sum multiplied by 1.5; and
(iii) if such termination occurs within twelve months of the Effective Time of the Merger, the vesting of any all outstanding unvested equity-based awards (including without limitation Options and all Options granted to the Executive prior to the Effective Time of the Merger, and which are not Cash-out Options, shall be fully accelerated and such Options shall be immediately exercisable otherwise in accordance with their respective terms (each of the capitalized terms in this subsection 5.2(b)(iiiRestricted Shares) shall have the definitions set forth in that certain Agreement and Plan of Merger held by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010); and (iv) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employmentfully vest and shall become immediately exercisable, or any other rights hereunderas applicable.
(c) Notwithstanding clause (ii)(B) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(B) from time to time in its sole discretion, and (ii) the Company shall in no event be required to provide any benefits otherwise required by such clause (ii)(B) after such time as the Executive becomes entitled to receive benefits of the same type from another employer or recipient of the Executive’s services (such entitlement being determined without regard to any individual waivers or other similar arrangements).
Appears in 1 contract
Samples: Employment Agreement (Taberna Realty Finance Trust)
Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive,
(Ai) the material reduction of the Executive’s authority, duties and responsibilities, or the assignment to the Executive of any duties materially inconsistent with or inappropriate to his status and office with the Company; (B) the material diminution of the nature or status of the Executive’s responsibilities position or positions with the Company as specified in any way from those in effect as of the Effective Date; or (C) the adverse change in the Executive’s direct or indirect reporting relationship from that in effect immediately as of the Effective Date; orSection 2;
(ii) a material (i.e. 5% or greater) decrease reduction in the Annual Salary of the Executive’s level of compensation because of one , or more of: (A) a reduction in the Executive’s Annual Salary; or target bonus applicable to the Executive (B) any except for a material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) bonus that are provided to the Executive from the benefit levels in effect as of the Effective Date, unless the Company provides substitute employee benefits is part of a comparable nature Company program to reduce “general and administrative” expenses due to business conditions which reduction is applied to other senior officers generally; provided that are at least such reduction is before the occurrence of a Change in Control (as valuable to the Executive on an after-tax basisdefined below));
(iii) the relocation of the principal business offices of the Company Executive’s office to beyond more than 30 miles from Denver, Colorado;
(iv) the Company’s existing location Company does not adopt by March 31, 2007, or the shareholders do not approve by March 31, 2007, both the 2006 Incentive Compensation Plan and the LTIP, in Leesburgsubstantially the same form as such plans have been presented to the Executive prior to the date of this Agreement, Virginia, if or with changes that relocation increases are not materially adverse to the distance from financial interests of the Executive’s principal residence to such offices; or
(ivv) a any material breach by the Company of any provision of this Agreement by the CompanyAgreement. Notwithstanding the foregoing, (i) Good Reason (A) shall not be deemed to exist unless the Executive gives to the Company a written notice of termination on account thereof (specifying a termination date no later than 30 days from identifying the date of such noticeevent or condition purportedly giving rise to Good Reason expressly referencing this Section 5.2(a) is given no later than 30 within 45 days after the time at which the event or condition purportedly giving rise to Good Reason first occurs or arises and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Executive’s employment for Cause; and (ii) if there exists (without regard to this the following clause (iiii)(A)) an event or condition that constitutes Good Reason, (A) the Company shall have 30 45 days from the date notice of such a termination Good Reason is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason hereunder; and (B) if the Company does not cure such event or condition within such 45-day period, the Executive shall have one business day thereafter to give the Company notice of termination of employment on account thereof (specifying a termination date no later than 10 days from the date of such notice of termination).
(b) The Company may terminate the Executive’s employment at any time for any reason or no reason upon notice to the Executive, and the Executive may terminate the Executive’s employment with the Company for or without Good ReasonReason upon notice to the Company. If the Company terminates the Executive’s employment and the termination is not covered by Section 4 or 5.1, or the Executive terminates his employment for Good Reason, then, if a mutual general release in a form reasonably acceptable to the Company and Executive is executed and delivered, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), (i) the Company shall pay to the Executive shall receive the salaryAnnual Salary, benefits bonus and other items set forth in Section 4(y) above benefits earned and accrued under this Agreement prior to the termination of employment (and payable according reimbursement under this Agreement for expenses incurred prior to the same scheduletermination of employment); (ii) if (and only if) the Executive provides a general release in a form reasonably acceptable to the Company, which does not require the release of any payment rights under this Section 5.2(b) or under Section 3.7, and which is or has become irrevocable, the Company shall receive pay or provide to the Executive (A) a cash payment equal to 50100% of the Executive’s Annual Salary (as in effect immediately before such termination), payable no later than 60 30 days after such termination, (B) a cash payment equal to 100% of the target bonus for the year of termination, (C) a cash payment equal to (I) the target bonus for the year of termination multiplied by (II) a fraction (x) the numerator of which is the number of days in the year up to the termination and (By) the denominator of which is 365, and (D) for a period of six months two years after termination of employment, employment such continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had would have received under this Agreement (and at such costs to the Executive) prior to as would have applied in the absence of such termination (but not taking into account any post-termination increases in Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits); (iii) if such termination occurs within twelve months of the Effective Time of the Merger, the vesting Executive shall be entitled to elimination of any and all Options granted to vesting conditions on any grant under the Executive prior to the Effective Time LTIP or any other grant of the Mergerrestricted stock, and which are not Cash-out Options, stock options or other equity awards; (iv) Section 3.7 shall be fully accelerated and such Options shall be immediately exercisable otherwise apply in accordance with their respective terms (each of the capitalized terms in this subsection 5.2(b)(iii) shall have the definitions set forth in that certain Agreement and Plan of Merger by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010)its terms; and (ivv) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder; provided that no payments shall be made less than six months after termination to the extent required to comply with Section 409A of the Internal Revenue Code of 1986, as amended (in which case any payments deferred under this provision shall be paid upon the six-month anniversary of termination).
(c) Notwithstanding clause (ii)(Bii)(D) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(Bii)(D) from time to time in its sole discretion, and (ii) the Company shall in no event be required to provide any benefits otherwise required by such clause (ii)(Bii)(D) after such time as the Executive becomes entitled to receive benefits of the same type from another employer or recipient of the Executive’s services (such entitlement being determined without regard to any individual waivers or other similar arrangements).
Appears in 1 contract
Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive,
(Ai) the material reduction of the Executive’s authority, duties and responsibilities, or the assignment to the Executive of any duties materially inconsistent with or inappropriate to his status and office with the Company; (B) the material diminution of the nature or status of the Executive’s responsibilities position or positions with the Company as specified in any way from those in effect as of Section 2, or the Effective Date; or (C) the adverse change in the Executive’s direct or indirect reporting relationship from that in effect immediately as of the Effective Date; ortitle to any position other than President;
(ii) a material (i.e. 5% or greater) decrease reduction in the Annual Salary of the Executive’s level of compensation because of one , or more of: (A) a reduction in the Executive’s Annual Salary; or target bonus applicable to the Executive (B) any except for a material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) bonus that are provided to the Executive from the benefit levels in effect as of the Effective Date, unless the Company provides substitute employee benefits is part of a comparable nature Company program to reduce “general and administrative” expenses due to business conditions which reduction is applied to other senior officers generally; provided that are at least such reduction is before the occurrence of a Change in Control (as valuable to the Executive on an after-tax basisdefined below));
(iii) the relocation of the principal business offices of the Company Executive’s office to beyond more than 30 miles from Denver, Colorado;
(iv) the Company’s existing location Company does not adopt by March 31, 2007, or the shareholders do not approve by March 31, 2007, both the 2006 Incentive Compensation Plan and the LTIP, in Leesburgsubstantially the same form as such plans have been presented to the Executive prior to the date of this Agreement, Virginia, if or with changes that relocation increases are not materially adverse to the distance from financial interests of the Executive’s principal residence to such offices; or
(ivv) a any material breach by the Company of any provision of this Agreement by the CompanyAgreement. Notwithstanding the foregoing, (i) Good Reason (A) shall not be deemed to exist unless the Executive gives to the Company a written notice of termination on account thereof (specifying a termination date no later than 30 days from identifying the date of such noticeevent or condition purportedly giving rise to Good Reason expressly referencing this Section 5.2(a) is given no later than 30 within 45 days after the time at which the event or condition purportedly giving rise to Good Reason first occurs or arises and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Executive’s employment for Cause; and (ii) if there exists (without regard to this the following clause (iiii)(A)) an event or condition that constitutes Good Reason, (A) the Company shall have 30 45 days from the date notice of such a termination Good Reason is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason hereunder; and (B) if the Company does not cure such event or condition within such 45-day period, the Executive shall have one business day thereafter to give the Company notice of termination of employment on account thereof (specifying a termination date no later than 10 days from the date of such notice of termination).
(b) The Company may terminate the Executive’s employment at any time for any reason or no reason upon notice to the Executive, and the Executive may terminate the Executive’s employment with the Company for or without Good ReasonReason upon notice to the Company. If the Company terminates the Executive’s employment and the termination is not covered by Section 4 or 5.1, or the Executive terminates his employment for Good Reason, then, if a mutual general release in a form reasonably acceptable to the Company and Executive is executed and delivered, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), (i) the Company shall pay to the Executive shall receive the salaryAnnual Salary, benefits bonus and other items set forth in Section 4(y) above benefits earned and accrued under this Agreement prior to the termination of employment (and payable according reimbursement under this Agreement for expenses incurred prior to the same scheduletermination of employment); (ii) if (and only if) the Executive provides a general release in a form reasonably acceptable to the Company, which does not require the release of any payment rights under this Section 5.2(b) or under Section 3.7, and which is or has become irrevocable, the Company shall receive pay or provide to the Executive (A) a cash payment equal to 50100% of the Executive’s Annual Salary (as in effect immediately before such termination), payable no later than 60 30 days after such termination, (B) a cash payment equal to 100% of the target bonus for the year of termination, (C) a cash payment equal to (I) the target bonus for the year of termination multiplied by (II) a fraction (x) the numerator of which is the number of days in the year up to the termination and (By) the denominator of which is 365, and (D) for a period of six months two years after termination of employment, employment such continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had would have received under this Agreement (and at such costs to the Executive) prior to as would have applied in the absence of such termination (but not taking into account any post-termination increases in Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits); (iii) if such termination occurs within twelve months of the Effective Time of the Merger, the vesting Executive shall be entitled to elimination of any and all Options granted to vesting conditions on any grant under the Executive prior to the Effective Time LTIP or any other grant of the Mergerrestricted stock, and which are not Cash-out Options, stock options or other equity awards; (iv) Section 3.7 shall be fully accelerated and such Options shall be immediately exercisable otherwise apply in accordance with their respective terms (each of the capitalized terms in this subsection 5.2(b)(iii) shall have the definitions set forth in that certain Agreement and Plan of Merger by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010)its terms; and (ivv) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder; provided that no payments shall be made less than six months after termination to the extent required to comply with Section 409A of the Internal Revenue Code of 1986, as amended (in which case any payments deferred under this provision shall be paid upon the six-month anniversary of termination). Notwithstanding the foregoing, if a termination under this Section 5.2(b) occurs within the twelve months following a Change in Control (as defined below), then the references to 100% in clauses (ii)(A) and (ii)(B) of the second sentence of this Section 5.2(b) shall be changed to 200%.
(c) Notwithstanding clause (ii)(Bii)(D) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(Bii)(D) from time to time in its sole discretion, and (ii) the Company shall in no event be required to provide any benefits otherwise required by such clause (ii)(Bii)(D) after such time as the Executive becomes entitled to receive benefits of the same type from another employer or recipient of the Executive’s services (such entitlement being determined without regard to any individual waivers or other similar arrangements).
Appears in 1 contract
Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive,
(Ai) the material reduction of the Executive’s authority, duties and responsibilities, or the assignment to the Executive of any duties materially inconsistent with the Executive’s position or inappropriate to his status and office positions with the Company; (B) , as specified in Section 2 or the material diminution of the nature or status of the Executive’s responsibilities in any way from those in effect as of the Effective Date; or (C) the adverse change in the Executive’s direct or indirect reporting relationship from title to any position other than Chief Executive Officer; provided that it will be considered a material reduction in effect immediately as duties and responsibilities if after the date hereof there is a reorganization of the Effective Date; orCompany and a new holding company or parent is established thereover, which controls the Company, the Executive is not Chief Executive Officer of the new holding company or parent or his role with respect to the affiliated group as a whole is materially adversely affected;
(ii) a material (i.e. 5% or greater) decrease reduction in the Annual Salary of the Executive’s level of compensation because of one , or more of: (A) a reduction in the Executive’s Annual Salary; target bonus or target LTIP award applicable to the Executive (B) any except for a material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) target bonus or target LTIP award that are provided to the Executive from the benefit levels in effect as of the Effective Date, unless the Company provides substitute employee benefits is part of a comparable nature Company program to reduce “general and administrative” expenses due to business conditions which reduction is applied to other senior officers generally; provided that are at least such reduction is before the occurrence of a Change in Control (as valuable to the Executive on an after-tax basisdefined below));
(iii) the relocation of the principal business offices of the Company Executive’s office to beyond more than 30 miles from Denver, Colorado;
(iv) the Company’s existing location Company does not adopt by March 31, 2007, or the shareholders do not approve by March 31, 2007, both the 2006 Incentive Compensation Plan and the LTIP, in Leesburgsubstantially the same form as such plans have been presented to the Executive prior to the date of this Agreement, Virginia, if or with changes that relocation increases are not materially adverse to the distance from financial interests of the Executive’s principal residence ;
(v) failure to such officescontinue to elect the Executive as a member of the Board; or
(ivvi) a any material breach by the Company of any provision of this Agreement by the CompanyAgreement. Notwithstanding the foregoing, (i) Good Reason (A) shall not be deemed to exist unless the Executive gives to the Company a written notice of termination on account thereof (specifying a termination date no later than 30 days from identifying the date of such noticeevent or condition purportedly giving rise to Good Reason expressly referencing this Section 5.2(a) is given no later than 30 within 45 days after the time at which the event or condition purportedly giving rise to Good Reason first occurs or arises and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Executive’s employment for Cause; and (ii) if there exists (without regard to this the following clause (iiii)(A)) an event or condition that constitutes Good Reason, (A) the Company shall have 30 45 days from the date notice of such a termination Good Reason is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason hereunder; and (B) if the Company does not cure such event or condition within such 45-day period, the Executive shall have one business day thereafter to give the Company notice of termination of employment on account thereof (specifying a termination date no later than 10 days from the date of such notice of termination).
(b) The Company may terminate the Executive’s employment at any time for any reason or no reason upon notice to the Executive and the Executive may terminate the Executive’s employment with the Company for or without Good ReasonReason upon notice to the Company. If the Company terminates the Executive’s employment and the termination is not covered by Section 4 or 5.1, or the Executive terminates his employment for Good Reason, then, if a mutual general release in a form reasonably acceptable to the Company and Executive is executed and delivered, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), (i) the Company shall pay to the Executive shall receive the salaryAnnual Salary, benefits bonus and other items set forth in Section 4(y) above benefits earned and accrued under this Agreement prior to the termination of employment (and payable according reimbursement under this Agreement for expenses incurred prior to the same scheduletermination of employment); (ii) if (and only if) the Executive provides a general release in a form reasonably acceptable to the Company, which does not require the release of any payment rights under this Section 5.2(b) or under Section 3.8, and which is or has become irrevocable, the Company shall receive pay or provide to the Executive (A) the two times Annual Salary, (B) two times the greater of (x) the target bonus for the year of termination and (y) the average of the actual bonuses for the two years (with respect to which bonuses are determined) prior to the year of termination, (C) a cash payment equal to 50% (I) the target bonus for the year of termination multiplied by (II) a fraction (x) the Executive’s Annual Salary (as numerator of which is the number of days in effect immediately before such termination), payable no later than 60 days after such the year up to the termination and (By) the denominator of which is 365 and (D) for a period of six months two years after termination of employment, such continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had would have received under this Agreement (and at such costs to the Executive) prior to as would have applied in the absence of such termination (but not taking into account any post-termination increases in Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits); (iii) if such termination occurs within twelve months of the Effective Time of the Merger, the vesting Executive shall be entitled to elimination of any and all Options granted to vesting conditions on any grant under the Executive prior to the Effective Time LTIP or any other grant of the Mergerrestricted stock, and which are not Cash-out Options, shall be fully accelerated and such Options shall be immediately exercisable otherwise in accordance with their respective terms (each of the capitalized terms in this subsection 5.2(b)(iii) shall have the definitions set forth in that certain Agreement and Plan of Merger by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010)stock options or other equity awards; and (iv) the Executive shall have no further rights any accrued or paid but not reimbursed costs related to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder.
(c) Notwithstanding clause (ii)(B) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(B) from time to time in its sole discretion, and (ii) the Company shall in no event be required to provide any benefits otherwise required by such clause (ii)(B) after such time as the Executive becomes entitled to receive benefits of the same type from another employer or recipient of the Executive’s services relocation; (such entitlement being determined without regard to any individual waivers or other similar arrangementsv).
Appears in 1 contract
Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive,
(Ai) the material reduction of the Executive’s authority, duties and responsibilities, the failure to continue the Executive’s appointment as a member of the Board, or the assignment to the Executive of any duties materially inconsistent with the Executive’s position or inappropriate to his status and office positions with the Company; (B) the material diminution of the nature or status of the Executive’s responsibilities in any way from those in effect as of the Effective Date; or (C) the adverse change in the Executive’s direct or indirect reporting relationship from that in effect immediately as of the Effective Date; or;
(ii) a material (i.e. 5% or greater) decrease reduction in Annual Salary of the Executive’s level of compensation because of one or more of: (A) a reduction in the Executive’s Annual Salary; or (B) any material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) that are provided to the Executive from the benefit levels in effect as of the Effective Date, unless the Company provides substitute employee benefits of a comparable nature that are at least as valuable to the Executive on an after-tax basis;
(iii) the relocation of the principal business offices of the Company Executive’s office to beyond 30 more than 25 miles from Vero Beach, Florida;
(iv) the Company’s existing location in Leesburgfailure to pay the Executive any amounts otherwise due hereunder or under any plan, Virginiapolicy, if that relocation increases program, agreement, arrangement or other commitment of the distance from the Executive’s principal residence to such officesCompany; or
(ivv) a the Company’s material and willful breach of this Agreement by the CompanyAgreement. Notwithstanding the foregoing, (i) Good Reason (A) shall not be deemed to exist unless notice of termination on account thereof (specifying a termination date no later than 30 days from the date of such notice) is given no later than 30 days after the time at which the event or condition purportedly giving rise to Good Reason first occurs or arises and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Executive’s employment for Causearises; and (ii) if there exists (without regard to this clause (ii)) an event or condition that constitutes Good Reason, the Company shall have 30 ten days from the date notice of such a termination is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason hereunder.
(b) The Company may terminate the Executive’s employment at any time for any reason or no reason and the Executive may terminate the Executive’s employment with the Company for or without Good Reason. If the Company terminates the Executive’s employment and the termination is not covered by Section 4 or 5.1, or the Executive terminates his employment for Good Reason, then, if a mutual general release in a form reasonably acceptable to the Company and Executive is executed and delivered, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), :
(i) the Executive shall receive the salary, benefits Annual Salary and other items set forth in Section 4(ybenefits (including any bonus for a fiscal year completed before termination, but not any other bonus) above earned and accrued under this Agreement prior to the termination of employment (and payable according reimbursement under this Agreement for expenses incurred prior to the same scheduletermination of employment); ;
(ii) if (and only if) the Executive provides a general release in a form reasonably acceptable to the Company which is or has become irrevocable,
(A) the Executive shall receive (AI) a single-sum cash payment equal to 50300% of the sum of (x) the Executive’s Annual Salary (as in effect immediately before such termination) plus (y) the average bonus to the Executive for the three fiscal years ending coincident with or immediately preceding such termination (such amount to be deemed to be $350,000 if termination occurs before the end of the first year, and, in addition, such amount in all events to include for the first year any $125,000 bonus payable in accordance with the last sentence of Section 3.2), payable no later than 60 ten days after such termination and (Bbut subject to the release provided for above having become irrevocable), (II) subject to Section 5.2(c), for a period of six months three years after termination of employment, such continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had would have received under this Agreement (and but at such costs to the Executive(if any) prior to such termination (but not taking into account any post-termination increases in Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits); (iii) if such termination occurs within twelve months of the Effective Time of the Merger, the vesting of any and all Options granted to the Executive prior no higher than as in effect immediately preceding such termination) as would have applied in the absence of such termination; (III) an amount equal to the Effective Time annual bonus that, in the absence of such termination, would have been payable for the Mergerfiscal year in which termination occurs, and which are not Cash-out Options, shall be fully accelerated and such Options shall be immediately exercisable otherwise in accordance with their respective terms (each of the capitalized terms in this subsection 5.2(b)(iii) shall have the definitions set forth in that certain Agreement and Plan of Merger by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010); and (iv) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder.
(c) Notwithstanding clause (ii)(B) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(B) from time to time in its sole discretion, and (ii) the Company shall in no event be required to provide any benefits otherwise required by such clause (ii)(B) after payable at such time as would have applied in the Executive becomes entitled absence of such termination, with such amount to receive benefits be multiplied by a fraction (x) the numerator of which is the same type from another employer or recipient number of days in the Executive’s services fiscal year preceding the termination and (such entitlement being determined without regard to any individual waivers or other similar arrangements).y) the denominator of which is 365; and
Appears in 1 contract
Samples: Employment Agreement (Bimini Mortgage Management Inc)
Termination by the Company without Cause; Termination by the Executive for Good Reason. (a) For purposes of this Agreement, “Good Reason” shall mean, unless otherwise consented to by the Executive,
(Ai) the material reduction of the Executive’s authority, duties and responsibilities, or the assignment to the Executive of any duties materially inconsistent with or inappropriate to his status and office with the Company; (B) the material diminution of the nature or status of the Executive’s responsibilities position or positions with the Company as specified in any way from those in effect as of the Effective Date; or (C) the adverse change in the Executive’s direct or indirect reporting relationship from that in effect immediately as of the Effective Date; orSection 2;
(ii) a material (i.e. 5% or greater) decrease in the Executive’s level of compensation because of one or more of: (A) a reduction in the Executive’s Annual Salary; or (B) any material reduction in the employee benefits (including all insurance, pension, welfare, fringe benefits and perquisites) that are provided to the Executive from the benefit levels in effect as Salary of the Effective Date, unless the Company provides substitute employee benefits of a comparable nature that are at least as valuable to the Executive on an after-tax basisExecutive;
(iii) the relocation of the principal business offices of the Company Executive’s office to beyond more than 30 miles from the Company’s existing location in LeesburgDenver, Virginia, if that relocation increases the distance from the Executive’s principal residence to such officesColorado; or
(iv) a any material breach by the Company of any provision of this Agreement by the CompanyAgreement. Notwithstanding the foregoing, (i) Good Reason (A) shall not be deemed to exist unless the Executive gives to the Company a written notice of termination on account thereof (specifying a termination date no later than 30 days from identifying the date of such noticeevent or condition purportedly giving rise to Good Reason expressly referencing this Section 5.2(a) is given no later than 30 within 45 days after the time at which the event or condition purportedly giving rise to Good Reason first occurs or arises and (B) shall not be deemed to exist at any time at which there exists an event or condition which could serve as the basis of a termination of the Executive’s employment for Cause; and (ii) if there exists (without regard to this the following clause (iiii)(A)) an event or condition that constitutes Good Reason, (A) the Company shall have 30 45 days from the date notice of such a termination Good Reason is given to cure such event or condition (which cure shall include without limitation reimbursement or payment to the Executive of any damages sustained during such notice and cure period such as increased travel expenses or out-of-pocket payments for benefits) and, if the Company does so, such event or condition shall not constitute Good Reason hereunder; and (B) if the Company does not cure such event or condition within such 45-day period, the Executive shall have one business day thereafter to give the Company notice of termination of employment on account thereof (specifying a termination date no later than 10 days from the date of such notice of termination).
(b) The Company may terminate the Executive’s employment at any time for any reason or no reason upon notice to the Executive, and the Executive may terminate the Executive’s employment with the Company for or without Good ReasonReason upon notice to the Company. If the Company terminates the Executive’s employment and the termination is not covered by Section 4 or 5.1, or the Executive terminates his employment for Good Reason, then, if a mutual general release in a form reasonably acceptable to the Company and Executive is executed and delivered, and has become irrevocable, all within the 60 days following termination (it being expressly agreed and understood that no payment or benefit under this Section 5.2(b) shall be required to be paid or provided unless and until the foregoing release requirement is satisfied), (i) the Company shall pay to the Executive shall receive the salaryAnnual Salary, benefits bonus and other items set forth in Section 4(y) above benefits earned and accrued under this Agreement prior to the termination of employment (and payable according reimbursement under this Agreement for expenses incurred prior to the same scheduletermination of employment); (ii) if (and only if) the Executive provides a general release in a form reasonably acceptable to the Company, which does not require the release of any payment rights under this Section 5.2(b) or under Section 3.6, and which is or has become irrevocable, the Company shall receive pay or provide to the Executive (A) a cash payment equal to 50100% of the Executive’s Annual Salary (as in effect immediately before such termination), payable no later than 60 30 days after such termination, (B) a cash payment equal to 100% of the target bonus (if any) for the year of termination, (C) a cash payment equal to (I) the target bonus for the year of termination multiplied by (II) a fraction (x) the numerator of which is the number of days in the year up to the termination and (By) the denominator of which is 365, and (D) for a period of six months after termination of employment, employment such continuing coverage under the Company’s group health plans at the same levels and costs as the Executive had would have received under this Agreement (and at such costs to the Executive) prior to as would have applied in the absence of such termination (but not taking into account any post-termination increases in Annual Salary that may otherwise have occurred without regard to such termination and that may have favorably affected such benefits); (iii) if such termination occurs within twelve months of the Effective Time of the Merger, the vesting Executive shall be entitled to elimination of any and all Options granted to vesting conditions on any grant under the Executive prior to the Effective Time LTIP or any other grant of the Mergerrestricted stock, and which are not Cash-out Optionsstock options or other equity awards, if applicable; (iv) Section 3.6 shall be fully accelerated and such Options shall be immediately exercisable otherwise apply in accordance with their respective terms (each of the capitalized terms in this subsection 5.2(b)(iii) shall have the definitions set forth in that certain Agreement and Plan of Merger by and Among Altitude Group Holdings, Inc., Altitude Merger Sub, Inc., K2M, Inc. and the Stockholders’ Committee named therein dated as of July 2, 2010)its terms; and (ivv) the Executive shall have no further rights to any other compensation or benefits hereunder on or after the termination of employment, or any other rights hereunder; provided that no payments shall be made less than six months after termination to the extent required to comply with Section 409A of the Internal Revenue Code of 1986, as amended (in which case any payments deferred under this provision shall be paid upon the six-month anniversary of termination).
(c) Notwithstanding clause (ii)(Bii)(D) of the second sentence of Section 5.2(b), (i) nothing herein shall restrict the ability of the Company to amend or terminate the plans and programs referred to in such clause (ii)(Bii)(D) from time to time in its sole discretion, and (ii) the Company shall in no event be required to provide any benefits otherwise required by such clause (ii)(Bii)(D) after such time as the Executive becomes entitled to receive benefits of the same type from another employer or recipient of the Executive’s services (such entitlement being determined without regard to any individual waivers or other similar arrangements).
Appears in 1 contract