Termination by the Company without Cause; Termination by the Executive for Good Reason. During the Term, the Company shall be entitled to terminate Executive’s employment without Cause (as defined below), and the Executive is also entitled to terminate his employment for Good Reason (as defined below), in which case Executive shall be entitled to receive the following severance benefits (the “Severance Payments”), in addition to accrued salary and bonus, and accrued and unused vacation, through Executive’s last day of employment: (i) Executive shall be entitled to severance pay in the form of continuation of Executive’s Base Salary in effect on the effective date of termination for a period of twelve (12) months after the date of such termination, to be paid periodically in accordance with the Company’s normal payroll practices and subject to standard payroll deductions and withholdings; (ii) if Executive timely elects continued coverage under COBRA, then (A) the Company shall make such COBRA coverage (or equivalent medical benefits after the termination of COBRA) available for at least 18 months following termination and (B) the Company shall pay the COBRA premiums necessary to continue Executive’s medical insurance coverage in effect on the termination date for a period of twelve (12) months following Executive’s termination (provided that such COBRA continuation and reimbursement shall terminate upon commencement of new employment by an employer that offers health care coverage to its employees); and (iii) a pro-rata portion of the Executive’s annual target bonus for the calendar year in which the termination occurs. Notwithstanding the foregoing, all Severance Payments under this Agreement are conditional on Executive (i) complying with the provisions of Section 7 below, and (ii) delivering prior to receipt of such severance payments, an effective, general release of claims in favor of the Company or its successor, its subsidiaries and their respective directors, officers and stockholders in a form acceptable to the Company or its successor. In the event that the Company determines that any severance benefit provided hereunder fails to satisfy the distribution requirement of Section 409A(a)(2)(A) of the Internal Revenue Code (“Code”) as a result of Section 409A(a)(2)(B)(i) of the Code, then if an accelerated payment of such benefits would cause such benefit not to be subject to the provisions of Section 409A(a)(1) of the Code, the payment of such benefits shall be accelerated to the minimum extent necessary so that the benefit is not subject to the provisions of Section 409A(a)(1) of the Code. (The payment schedule as revised after the application of the preceding sentence shall be referred to as the “Revised Payment Schedule.”) However, in the event the accelerated payment of such benefits would not avoid the application of Section 409A (a)(1) of the Code, the payment of such benefits shall not be made pursuant to the original payment schedule or the Revised Payment Schedule and instead the payment of such benefits shall be delayed to the minimum extent necessary so that such benefits are not subject to the provisions of Section 409A(a)(1) of the Code. The Board may attach conditions to or adjust the amount paid pursuant to this Section 6(b)(iv) to preserve, as closely as possible, the economic consequences that would have applied in the absence of this Section 6(b)(iv); provided, however, that no such condition or adjustment shall result in the payments being subject to Section 409A(a)(1) of the Code. Notwithstanding any other provisions in this Agreement, it shall be a prerequisite of any termination by Executive for Good Reason that Executive shall have given the Company written notice within sixty (60) days following the date Executive becomes aware of the event or events giving rise to Good Reason, specifying in reasonable detail the nature and circumstances of such Good Reason, and giving the Company thirty (30) days to cure any such Good Reason prior to any such termination, and if uncured, the termination for Good Reason must occur within ninety (90) days of the end of such cure period.
Appears in 2 contracts
Samples: Executive Employment Agreement (Akebia Therapeutics, Inc.), Executive Employment Agreement (Akebia Therapeutics, Inc.)
Termination by the Company without Cause; Termination by the Executive for Good Reason. During (a) The Company may terminate the Term, Executive's employment at any time for any reason or no 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 service for "Good Reason", (i) the Executive shall receive Annual Salary and other benefits earned and accrued under this Agreement and the Company's Milestone Incentive Compensation Plan to the extent benefits are earned, accrued and payable under the terms of such plan prior to the termination of employment (and reimbursement under this Agreement for expenses incurred prior to the termination of employment); (ii) the Executive shall receive (A) a cash payment equal to 100% of the Executive's Annual Salary (as in effect immediately before such termination), payable no later than 15 days after such termination and (B) for a period of 12 months after termination of employment such continuing coverage under the group health plan and the basic life insurance plan as the Executive was receiving at the time of such termination of employment at the same cost to the Executive as that paid by active executive-level employees; (iii) the Executive shall have a non-forfeitable right to, and shall be entitled to terminate receive, the consideration payable to the Executive under the Merger Agreement with respect to which the Executive’s employment without Cause 's rights were not vested at Closing (as defined below), in the Merger Agreement) and which has not yet been paid as of the Executive is also entitled to terminate his employment for Good Reason date of termination; (as defined below), in which case iv) the Executive shall be entitled to receive all payments that he would have received under the following severance benefits Company's Milestone Incentive Plan if he had remained employed through the Performance Period (as defined in the “Severance Payments”Milestone Incentive Plan), in addition to accrued salary ; and bonus, and accrued and unused vacation, through Executive’s last day of employment: (iv) the Executive shall be entitled have no further rights to severance pay in the form of continuation of Executive’s Base Salary in effect any other compensation or benefits hereunder on the effective date of termination for a period of twelve (12) months after the date of such termination, to be paid periodically in accordance with the Company’s normal payroll practices and subject to standard payroll deductions and withholdings; (ii) if Executive timely elects continued coverage under COBRA, then (A) the Company shall make such COBRA coverage (or equivalent medical benefits after the termination of COBRA) available for at least 18 months following termination and (B) the Company shall pay the COBRA premiums necessary to continue Executive’s medical insurance coverage in effect on the termination date for a period of twelve (12) months following Executive’s termination (employment, or any other rights hereunder; provided that such COBRA continuation the Company's obligations with respect to the payments and reimbursement shall terminate benefits provided for in this Section 5.2(a) are conditioned upon commencement of new employment by an employer that offers health care coverage to its employees); and (iii) a pro-rata portion of the Executive’s annual target bonus for 's execution of a General Release in the calendar year in which standard form used by the termination occursCompany. Notwithstanding the foregoing, all Severance Payments under this Agreement are conditional on Executive (i) complying with the provisions of Section 7 below, It is expressly understood and (ii) delivering prior to receipt of such severance payments, an effective, general release of claims in favor of the Company or its successor, its subsidiaries and their respective directors, officers and stockholders in a form acceptable to the Company or its successor. In the event that the Company determines agreed that any severance benefit provided hereunder fails to satisfy the distribution requirement of Section 409A(a)(2)(A) of the Internal Revenue Code (“Code”) as a result of Section 409A(a)(2)(B)(i) of the Code, then if an accelerated payment of such benefits would cause such benefit not to be subject to the provisions of Section 409A(a)(1) of the Code, the payment of such benefits shall be accelerated to the minimum extent necessary so that the benefit is not subject to the provisions of Section 409A(a)(1) of the Code. (The payment schedule as revised after the application of the preceding sentence shall be referred to as the “Revised Payment Schedule.”) However, in the event the accelerated payment of such benefits would not avoid the application of Section 409A (a)(1) of the Code, the payment of such benefits shall not be made pursuant to the original payment schedule or the Revised Payment Schedule and instead the payment of such benefits shall be delayed to the minimum extent necessary so that such benefits are not subject to the provisions of Section 409A(a)(1) of the Code. The Board may attach conditions to or adjust the amount paid pursuant to this Section 6(b)(iv5.2(a) shall be in lieu of any other payments that may otherwise be due to preservethe Executive under any severance or separation plan, as closely as possible, the economic consequences that would have applied in the absence of this Section 6(b)(iv); provided, however, that no such condition program or adjustment shall result in the payments being subject to Section 409A(a)(1) policy of the Code. Notwithstanding any other provisions in Company.
(b) For purposes of this Agreement, it "Good Reason" shall be mean (i) a prerequisite of any termination breach by Executive for Good Reason that Executive shall have given the Company in any material respect of the terms and provisions of this Agreement, which breach is not cured within 30 days after written notice within sixty thereof is provided by the Executive or (60ii) days following the date Executive becomes aware relocation of the event or events giving rise to Good Reason, specifying in reasonable detail the nature and circumstances of such Good Reason, and giving the Company thirty (30) days to cure any such Good Reason prior to any such termination, and if uncured, the termination for Good Reason must occur within ninety (90) days of the end of such cure period.the
Appears in 2 contracts
Samples: Employment Agreement (Unisphere Solutions Inc), Employment Agreement (Unisphere Networks Inc)
Termination by the Company without Cause; Termination by the Executive for Good Reason. During (a) The Company may terminate the Term, Executive's employment at any time for any reason or no 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 service for "Good Reason", (i) the Executive shall receive Annual Salary and other benefits earned and accrued under this Agreement and the Company's Milestone Incentive Compensation Plan to the extent benefits are earned, accrued and payable under the terms of such plan prior to the termination of employment (and reimbursement under this Agreement for expenses incurred prior to the termination of employment); (ii) the Executive shall receive (A) a cash payment equal to 100% of the Executive's Annual Salary (as in effect immediately before such termination), payable no later than 15 days after such termination and (B) for a period of 12 months after termination of employment such continuing coverage under the group health plan and the basic life insurance plan as the Executive was receiving at the time of such termination of employment at the same cost to the Executive as that paid by active executive-level employees; (iii) the Executive shall have a non-forfeitable right to, and shall be entitled to terminate receive, the consideration payable to the Executive under the Merger Agreement with respect to which the Executive’s employment without Cause 's rights were not vested-at Closing (as defined below), in the Merger Agreement) and which has not yet been paid as of the Executive is also entitled to terminate his employment for Good Reason date of termination; (as defined below), in which case iv) the Executive shall be entitled to receive all payments that he would have received under the following severance benefits Company's Milestone Incentive Plan if he had remained employed through the Performance Period (as defined in the “Severance Payments”Milestone Incentive Plan), in addition to accrued salary ; and bonus, and accrued and unused vacation, through Executive’s last day of employment: (iv) the Executive shall be entitled have no further rights to severance pay in the form of continuation of Executive’s Base Salary in effect any other compensation or benefits hereunder on the effective date of termination for a period of twelve (12) months after the date of such termination, to be paid periodically in accordance with the Company’s normal payroll practices and subject to standard payroll deductions and withholdings; (ii) if Executive timely elects continued coverage under COBRA, then (A) the Company shall make such COBRA coverage (or equivalent medical benefits after the termination of COBRA) available for at least 18 months following termination and (B) the Company shall pay the COBRA premiums necessary to continue Executive’s medical insurance coverage in effect on the termination date for a period of twelve (12) months following Executive’s termination (employment, or any other rights hereunder; provided that such COBRA continuation the Company's obligations with respect to the payments and reimbursement shall terminate benefits provided for in this Section 5.2(a) are conditioned upon commencement of new employment by an employer that offers health care coverage to its employees); and (iii) a pro-rata portion of the Executive’s annual target bonus for 's execution of a General Release in the calendar year in which standard form used by the termination occursCompany. Notwithstanding the foregoing, all Severance Payments under this Agreement are conditional on Executive (i) complying with the provisions of Section 7 below, It is expressly understood and (ii) delivering prior to receipt of such severance payments, an effective, general release of claims in favor of the Company or its successor, its subsidiaries and their respective directors, officers and stockholders in a form acceptable to the Company or its successor. In the event that the Company determines agreed that any severance benefit provided hereunder fails to satisfy the distribution requirement of Section 409A(a)(2)(A) of the Internal Revenue Code (“Code”) as a result of Section 409A(a)(2)(B)(i) of the Code, then if an accelerated payment of such benefits would cause such benefit not to be subject to the provisions of Section 409A(a)(1) of the Code, the payment of such benefits shall be accelerated to the minimum extent necessary so that the benefit is not subject to the provisions of Section 409A(a)(1) of the Code. (The payment schedule as revised after the application of the preceding sentence shall be referred to as the “Revised Payment Schedule.”) However, in the event the accelerated payment of such benefits would not avoid the application of Section 409A (a)(1) of the Code, the payment of such benefits shall not be made pursuant to the original payment schedule or the Revised Payment Schedule and instead the payment of such benefits shall be delayed to the minimum extent necessary so that such benefits are not subject to the provisions of Section 409A(a)(1) of the Code. The Board may attach conditions to or adjust the amount paid pursuant to this Section 6(b)(iv5.2(a) shall be in lieu of any other payments that may otherwise be due to preservethe Executive under any severance or separation plan, as closely as possible, the economic consequences that would have applied in the absence of this Section 6(b)(iv); provided, however, that no such condition program or adjustment shall result in the payments being subject to Section 409A(a)(1) policy of the Code. Notwithstanding any other provisions in Company.
(b) For purposes of this Agreement, it "Good Reason" shall be mean (i) a prerequisite of any termination breach by Executive for Good Reason that Executive shall have given the Company in any material respect of the terms and provisions of this Agreement, which breach is not cured within 30 days after written notice within sixty thereof is provided by the Executive or (60ii) days following the date Executive becomes aware relocation of the event or events giving rise to Good Reason, specifying in reasonable detail the nature and circumstances of such Good Reason, and giving the Company thirty (30) days to cure any such Good Reason prior to any such termination, and if uncured, the termination for Good Reason must occur within ninety (90) days of the end of such cure period.the
Appears in 1 contract
Termination by the Company without Cause; Termination by the Executive for Good Reason. During Termination at the Term, end of a Term after the Company shall provides notice of Non- Renewal.
(1) This Agreement may be entitled to terminate Executive’s employment without Cause terminated: (as defined below), and i) by the Executive is also entitled to terminate his employment for Good Reason (as defined below), in which case (ii) by the Company without Cause, or (iii) at the end of a Term after the Company provides the Executive with notice of non-renewal.
(2) In the event this Agreement is terminated by the Executive for Good Reason or by the Company without Cause, subject to Section (6)(c)(4) and Section 21, the Executive shall be entitled to receive the following:
(A) The Accrued Payments;
(B) any earned but unpaid Annual Bonus for any prior period and the Annual Bonus for the year of such termination, prorated to the date of termination (determined based on actual performance for such year and payable when bonuses are paid to all Company executives for such year);
(C) continued payment of the then Base Salary during the 12 month period following severance benefits the date of termination (the “Severance PaymentsPeriod”), in addition to accrued salary and bonus, and accrued and unused vacation, through Executive’s last day of employment: (i) Executive shall be entitled to severance pay in the form of continuation of Executive’s Base Salary in effect on the effective date of termination for a period of twelve (12) months after the date of such termination, to be paid periodically payable in accordance with the Company’s normal regular payroll practices and as of the date of such termination;
(D) continued vesting of the Equity Awards during the Severance Period;
(E) the Executive or the Executive’s legally appointed guardian, as the case may be, shall have up to three (3) months from the date of termination to exercise all vested stock options held by the Executive as of the date of termination, provided that in no event shall any option be exercisable beyond its term; and
(F) any benefits (except perquisites) to which the Executive was entitled pursuant to Section 5(b) hereof shall continue to be paid or provided by the Company, as the case may be, during the Severance Period, subject to standard payroll deductions the terms of any applicable plan or insurance contract and withholdings; applicable law.
(ii3) if In the event this Agreement is terminated at the end of a Term after the Company provides the Executive timely elects continued coverage under COBRAwith notice of non-renewal and the Executive remains employed until the end of the Term, then subject to Section 6(c)(4) and Section 21, the Executive shall be entitled to the following:
(A) the Company shall make such COBRA coverage (or equivalent medical benefits after the termination of COBRA) available for at least 18 months following termination and The Accrued Payments;
(B) the Company shall pay the COBRA premiums necessary to continue Executive’s medical insurance coverage in effect on the termination date for a period of twelve (12) months following Executive’s termination (provided that such COBRA continuation and reimbursement shall terminate upon commencement of new employment by an employer that offers health care coverage to its employees); and (iii) a pro-rata portion of Executive or the Executive’s annual target bonus for legally appointed guardian, as the calendar year case may be, shall have up to three (3) months from the date of termination to exercise all vested stock options held by the Executive as of the date of termination, provided that in no event shall any option be exercisable beyond its term; and
(C) any benefits (except perquisites) to which the termination occurs. Notwithstanding the foregoing, all Severance Payments under this Agreement are conditional on Executive (iwas entitled pursuant to Section 5(b) complying with the provisions of Section 7 below, and (ii) delivering prior to receipt of such severance payments, an effective, general release of claims in favor of the Company or its successor, its subsidiaries and their respective directors, officers and stockholders in a form acceptable to the Company or its successor. In the event that the Company determines that any severance benefit provided hereunder fails to satisfy the distribution requirement of Section 409A(a)(2)(A) of the Internal Revenue Code (“Code”) as a result of Section 409A(a)(2)(B)(i) of the Code, then if an accelerated payment of such benefits would cause such benefit not hereof shall continue to be paid or provided by the Company, as the case may be, for 12 months, subject to the provisions terms of Section 409A(a)(1) of the Code, the payment of such benefits shall be accelerated to the minimum extent necessary so that the benefit is not subject to the provisions of Section 409A(a)(1) of the Code. (The payment schedule as revised after the application of the preceding sentence shall be referred to as the “Revised Payment Schedule.”) However, in the event the accelerated payment of such benefits would not avoid the application of Section 409A (a)(1) of the Code, the payment of such benefits shall not be made pursuant to the original payment schedule any applicable plan or the Revised Payment Schedule insurance contract and instead the payment of such benefits shall be delayed to the minimum extent necessary so that such benefits are not subject to the provisions of Section 409A(a)(1) of the Code. The Board may attach conditions to or adjust the amount paid pursuant to this Section 6(b)(iv) to preserve, as closely as possible, the economic consequences that would have applied in the absence of this Section 6(b)(iv)applicable law; provided, however, that no the Executive shall only be entitled to receive the payments or benefits set forth in Section 6(c)(3)(B) and (D) if the Executive is willing and able (i) to execute a new agreement providing terms and conditions substantially similar to those in this Agreement and (ii) to continue providing such condition or adjustment services, and therefore, the Company’s non-renewal of the Term will be considered an “involuntary separation from service” within the meaning of Treasury Regulation Section 1.409A-l(n).
(4) The payments and benefits provided in Sections 6(c)(2)(B), (C), (E) and (F) and Section 6(c)(3)(B) and (D) shall result be conditioned on (i) the Executive’s execution and non-revocation of a waiver and release of claims in the payments being subject to Section 409A(a)(1Company’s customary form (a “Release”) as of the CodeRelease Expiration Date, in accordance with Section 21(d), and (ii) the Executive’s continued compliance with the restrictive covenants set forth in Sections 8 and 9 of this Agreement (the “Restrictive Covenants”). Notwithstanding any other provisions in provision of this Agreement, it no payments will be made or benefits provided pursuant to such sections prior to the date the Release becomes irrevocable in accordance with its terms or following the date the Executive first breaches any of the Restrictive Covenants.
(5) The term “Good Reason” shall be mean: (i) a prerequisite material diminution in the Executive’s authority, duties or responsibilities due to no fault of the Executive other than temporarily while the Executive is physically or mentally incapacitated or as required by applicable law; (ii) the Company requires the Executive to permanently change the Executive’s principal business office as defined in Section 3(c) to a location that is greater than 30 miles from the Principal Office, (iii) a change in the Executive’s overall compensation or bonus structure such that the Executive’s overall compensation is materially diminished; or (v) any termination other action or inaction that constitutes a material breach by the Company under this Agreement. Prior to the Executive terminating the Executive’s employment with the Company for Good Reason that Reason, the Executive shall have given the Company must provide written notice to the Company, within sixty (60) 30 days following the date Executive becomes aware Executive’s initial awareness of the event or events giving rise to Good Reason, specifying in reasonable detail the nature and circumstances existence of such Good Reasoncondition, and giving the Company thirty (30) days to cure any that such Good Reason prior to any exists and setting forth in detail the grounds the Executive believes constitutes Good Reason. If the Company does not cure the condition(s) constituting Good Reason within 30 days following receipt of such terminationnotice, and if uncured, then the termination Executive’s employment shall be deemed terminated for Good Reason must occur within ninety (90) days of the end of such cure periodReason.
Appears in 1 contract
Termination by the Company without Cause; Termination by the Executive for Good Reason. During In the TermEvent that the Executive's employment is terminated by the Company without Cause pursuant to Paragraph 5(d) or by the Executive for Good Reason pursuant to Paragraph 5(e), the Company shall be entitled pay the following amounts to terminate the Executive’s employment without Cause :
i. Any accrued but unpaid Base Salary (as defined below), and determined pursuant to Paragraph 3) for services rendered to the Executive is also entitled date of termination;
ii. Any accrued but unpaid expenses required to terminate his employment for Good Reason be reimbursed pursuant to Paragraph 4;
iii. Any vacation accrued to the date of termination; and
iv. Continued payment of the Base Salary (as defined below), in which case Executive shall be entitled to receive the following severance benefits (the “Severance Payments”), in addition to accrued salary and bonus, and accrued and unused vacation, through Executive’s last day of employment: (idetermined under Paragraph 3) Executive shall be entitled to severance pay in the form of continuation of Executive’s Base Salary in effect on the effective date of termination for a period of twelve six (126) months after the date of such termination, to be paid periodically in accordance with the Company’s normal payroll practices and subject to standard payroll deductions and withholdings; (ii) if Executive timely elects continued coverage under COBRA, then (A) the Company shall make such COBRA coverage (or equivalent medical benefits after the termination of COBRA) available for at least 18 months following termination and (B) the Company shall pay the COBRA premiums necessary to continue Executive’s medical insurance coverage in effect on the termination date for a period of twelve (12) months following Executive’s termination (provided that such COBRA continuation and reimbursement shall terminate upon commencement of new employment by an employer that offers health care coverage to its employees); and (iii) a pro-rata portion of the Executive’s annual target bonus for the calendar year in which the termination occurs. Notwithstanding the foregoing, all Severance Payments under this Agreement are conditional on Executive (i) complying with the provisions of Section 7 below, and (ii) delivering prior to receipt of such severance payments, an effective, general release of claims in favor of the Company or its successor, its subsidiaries and their respective directors, officers and stockholders in a form acceptable to the Company or its successor. In the event that the Company determines that any severance benefit provided hereunder fails to satisfy the distribution requirement of Section 409A(a)(2)(A) of the Internal Revenue Code (“Code”) as a result of Section 409A(a)(2)(B)(i) of the Code, then if an accelerated payment of such benefits would cause such benefit not to be subject to the provisions of Section 409A(a)(1) of the Code, the payment of such benefits shall be accelerated to the minimum extent necessary so that the benefit is not subject to the provisions of Section 409A(a)(1) of the Code. (The payment schedule as revised after the application of the preceding sentence shall be referred to as the “Revised Payment Schedule.”) However, in the event the accelerated payment of such benefits would not avoid the application of Section 409A (a)(1) of the Code, the payment of such benefits shall not be made pursuant to the original payment schedule or the Revised Payment Schedule and instead the payment of such benefits shall be delayed to the minimum extent necessary so that such benefits are not subject to the provisions of Section 409A(a)(1) of the Code. The Board may attach conditions to or adjust the amount paid pursuant to this Section 6(b)(iv) to preserve, as closely as possible, the economic consequences that would have applied in the absence of this Section 6(b)(iv); provided, however, that no such condition or adjustment shall result in the payments being subject event the Executive 112 has terminated the Agreement pursuant to Section 409A(a)(1) Paragraph 5(e)(2), the Company shall make continued payment of the CodeBase Salary until the earlier of (a) thirty-six (36) months after the date of termination, or (b) the expiration of the Term. Notwithstanding any other provisions in this Agreement, it Such payments shall be made in accordance with the Company's standard payroll practices then in effect. The Company shall continue to provide the Executive with the benefits set forth in Paragraph 4 for a prerequisite period of any six (6) months after the date of termination as if he had remained employed by Executive for Good Reason that Executive shall have given the Company written notice within sixty pursuant to this Agreement during such period; provided, however, that in the event the Executive has terminated the Agreement pursuant to Paragraph 5(e)(2), the Company shall continue to provide the Executive with the benefits set forth in Paragraph 4 as if he had remained employed by the Company pursuant to this Agreement through the earlier of (60a) days following thirty-six (36) months after the date Executive becomes aware of the event or events giving rise to Good Reason, specifying in reasonable detail the nature and circumstances of such Good Reason, and giving the Company thirty (30) days to cure any such Good Reason prior to any such termination, and if uncured, the termination for Good Reason must occur within ninety or (90b) days of the end of the Term. To the extent any benefits described in Paragraph 4 cannot be provided pursuant to the plan or program maintained by the Company for its employees and/or executives, the Company shall provide such cure periodbenefits outside such plan or program at no additional cost (including without limitation tax cost) to the Executive. The benefits referred to in Paragraph 3(c) shall be determined in accordance with the terms of such plan and grant thereunder.
Appears in 1 contract
Termination by the Company without Cause; Termination by the Executive for Good Reason. During The Company may terminate the Term, the Company shall be entitled to terminate Executive’s employment without Cause (as defined below)with 30 days’ prior written notice, and effective upon the date specified in such notice. The Executive is also entitled to may terminate his the Executive’s employment for Good Reason by providing the Company written notice in the manner set forth below. In the event that during the Term the Executive’s employment is terminated (as defined belowx) by the Company without Cause, or (y) by the Executive for Good Reason (each, a “Qualifying Termination”), in each case, subject to Section 4(f) (other than with respect to any Accrued Benefits, which case are not subject to Section 4(f)), the Executive shall be entitled to receive the following severance benefits (the “Severance Payments”), in addition to accrued salary and bonus, and accrued and unused vacation, through Executive’s last day of employment: to:
(i) Executive shall be entitled the Accrued Benefits and any accrued but unpaid Annual Bonus due with respect to severance pay in the form of continuation of Executive’s Base Salary in effect on the effective date of termination for a period of twelve (12) months after the date of such termination, to be paid periodically in accordance with the Company’s normal payroll practices and subject to standard payroll deductions and withholdings; (ii) if Executive timely elects continued coverage under COBRA, then (A) the Company shall make such COBRA coverage (or equivalent medical benefits after the termination of COBRA) available for at least 18 months following termination and (B) the Company shall pay the COBRA premiums necessary to continue Executive’s medical insurance coverage in effect on the termination date for a period of twelve (12) months following Executive’s termination (provided that such COBRA continuation and reimbursement shall terminate upon commencement of new employment by an employer that offers health care coverage to its employees); and (iii) a pro-rata portion of the Executive’s annual target bonus for any calendar year preceding the calendar year in which the termination Termination Date occurs. Notwithstanding , which amount shall be paid in accordance with Section 3(b), to be paid by the foregoing, all Severance Payments under this Agreement are conditional on Executive deadline set forth in the last sentence of Section 3(b);
(ii) a lump-sum cash payment equal to 200% of the sum of (i) complying with the provisions Executive’s Base Salary (without giving effect to any reduction or series of reductions) plus (ii) Target Annual Bonus (without giving effect to any reduction or series of reductions), payable on the first payroll date following the date on which the Release (as defined below) becomes non-revocable pursuant to Section 7 below4(f), provided, that if the period that the Executive has to consider and revoke the Release pursuant to Section 4(f) commences in one calendar year and ends in a subsequent calendar year, then the first such payment shall not be made until the second calendar year; and
(iii) subject to the Executive’s (A) timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (iiB) delivering prior continued copayment of premiums at the same level and cost to receipt of such severance payments, the Executive as if the Executive were an effective, general release of claims in favor employee of the Company or its successor(excluding, its subsidiaries and their respective directorsfor purposes of calculating cost, officers and stockholders an employee’s ability to pay premiums with pre-tax dollars), continued participation in a form acceptable the Company’s group health plan (to the Company or its successor. In extent permitted under applicable law) that covers the event Executive (and the Executive’s eligible dependents) for a period of 24 months following the Termination Date at the Company’s expense; provided that the Executive is eligible and remains eligible for COBRA coverage; provided, further, that the Company determines that may modify the continuation coverage contemplated by this Section 4(d)(iii) to the extent reasonably necessary to avoid the imposition of any severance benefit provided hereunder fails excise taxes on the Company for failure to satisfy comply with the distribution requirement of Section 409A(a)(2)(A) nondiscrimination requirements of the Internal Revenue Code Patient Protection and Affordable Care Act of 2010, as amended, and/or the Health Care and Education Reconciliation Act of 2010, as amended (“Code”) to the extent applicable), provided that (if doing so would not result in such an excise tax), the Executive will be provided with a lump sum cash benefit on the same payment schedule should such benefit be reduced as a result of this proviso; and provided, further, that if the Executive obtains other employment that offers substantially comparable group health benefits, such continuation of coverage by the Company under this Section 409A(a)(2)(B)(i4(d)(iii) of shall immediately cease (the Codepayments described in clauses (ii) through (iii), then if an accelerated payment of such benefits would cause such benefit not to be subject to the provisions of Section 409A(a)(1) of the Codecollectively, the payment of such “Severance Benefits”). Payments and benefits provided in this Section 4(d) shall be accelerated to the minimum extent necessary so that the benefit is not subject to the provisions of Section 409A(a)(1) of the Code. (The payment schedule as revised after the application of the preceding sentence shall be referred to as the “Revised Payment Schedule.”) However, in the event the accelerated payment of such benefits would not avoid the application of Section 409A (a)(1) of the Code, the payment of such benefits shall not be made pursuant to the original payment schedule or the Revised Payment Schedule and instead the payment of such benefits shall be delayed to the minimum extent necessary so that such benefits are not subject to the provisions of Section 409A(a)(1) of the Code. The Board may attach conditions to or adjust the amount paid pursuant to this Section 6(b)(iv) to preserve, as closely as possible, the economic consequences that would have applied in the absence of this Section 6(b)(iv); provided, however, that no such condition or adjustment shall result in the payments being subject to Section 409A(a)(1) of the Code. Notwithstanding any other provisions in this Agreement, it shall be a prerequisite lieu of any termination or severance payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of the Company (other than any awards under the Company’s 2021 Long-Term Stock Incentive Plan) or under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation. Following the termination of the Executive’s employment by the Company without Cause or by the Executive for Good Reason that Reason, except as set forth in this Section 4(d), the Executive shall have given the Company written notice within sixty (60) days following the date Executive becomes aware of the event or events giving rise to Good Reason, specifying in reasonable detail the nature and circumstances of such Good Reason, and giving the Company thirty (30) days to cure any such Good Reason prior no further rights to any such termination, and if uncured, the termination for Good Reason must occur within ninety (90) days of the end of such cure periodcompensation or any other benefits under this Agreement.
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Samples: Employment Agreement (Diamond Offshore Drilling, Inc.)