Termination; Non-Renewal. (i) Notwithstanding anything to the contrary herein contained, the Executive's employment shall terminate prior to the fifth anniversary of the Effective Time upon the occurrence of any of the following events: (i) by notice given by the Company to the Executive, to terminate the Executive's employment as of a date (not earlier than 10 days from such notice) to be specified in such notice if (A) the Executive shall be physically or mentally incapacitated or disabled or otherwise unable fully to discharge his duties hereunder for a period of 180 days, whether or not continuous, in any period of 12 months, or (B) the Executive shall have given the Company cause therefor. For purposes of this Agreement, "cause" shall be limited to (x) action by the Executive involving willful malfeasance having a material adverse effect on the Company, (y) the Executive being convicted of a felony involving theft, fraud or moral turpitude (other than resulting from a traffic violation or like event), or (z) any other action by the Executive constituting a material breach of this Agreement which is not cured within 30 days after notice from the Company thereof; (ii) by notice given by the Executive to the Company to terminate the Executive's employment as of a date (not earlier than 10 days from such notice) to be specified in such notice if the Company shall have given the Executive good reason therefor. For purposes of this Agreement, "good reason" shall be limited to a material breach by the Company of this Agreement, which breach is not cured within 30 days after notice from the Executive thereof. (ii) Upon the Executive's death or termination of the Executive's employment pursuant to Section 7(a)(i)(A), the Executive (or his estate, as the case may be) shall be entitled to receive only (i) his unpaid salary at the rate provided in Section 3(a) to the date of termination, (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year of the Company ended prior to the year in which such termination occurs, and (iii) an amount equal to such bonus in respect of such prior fiscal year multiplied by a fraction the numerator of which shall be the number of days that shall have elapsed from the first day of the fiscal year in which such termination occurs to the date of such termination and the denominator of which shall be 365 (the aggregate amounts referred to in (i), (ii) and (iii) being hereinafter referred to as the "Accrued Obligations"). The Accrued Obligations shall be paid within 30 days of the termination of the Executive's employment. (iii) Upon termination of the Executive's employment hereunder pursuant to Section 7(a)(ii) hereof or by the Company other than pursuant to Section 7(a)(i) hereof, the Executive shall be entitled to receive only (i) the Accrued Obligations, (ii) continuation of the Executive's base salary for a period after the date of such termination equal to the unexpired term of this Agreement but in no event less than eighteen months at the rate in effect at such date of termination, and (iii) during the one- year period following such termination, continuation of the participation of the Executive and his spouse and dependent children, if any, in all health and medical benefit plans, policies and programs in effect from time to time with respect to the most senior executive officers of the Company and their families generally (at the same levels and at the same cost, if any, as provided to such officers generally). Notwithstanding anything to the contrary contained in the preceding clause (iii), if the continued participation of the Executive and such family members thereunder is not possible under the general terms and provisions thereof, the Company shall provide such benefits at such levels to the Executive and such family members either by obtaining other insurance or by self-insuring such amounts, net of any reimbursement any of them shall receive with respect to health and medical costs from insurance other than pursuant to such clause (iii); provided, however, that prior to receiving benefits hereunder from the Company, the Executive and such family members shall first endeavor to obtain reimbursement with respect to health and medical costs from other insurance the Executive and such family members may own, if any, provided that such reimbursement can be obtained without unreasonable effort or expense on the part of the Executive and such family members. The Executive is hereby expressly not required to mitigate damages or seek any other employment; provided, however, that any amounts that the Executive may receive from any other employment or consulting engagement during the one-year period following such termination shall reduce in equal amounts the amounts that the Company otherwise is obligated to pay to the Executive pursuant to clause (ii) of this Section 7(c). (iv) Upon termination of the Executive's employment hereunder pursuant to Section 7(a)(i)(B) hereof or by the Executive other than pursuant to Section 7(a)(ii) hereof, the Executive shall be entitled to receive only (i) his salary at the rate provided in Section 3(a) to the date of such termination, and (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year of the Company ended prior to the year in which such termination occurs. (v) If the Company does not offer to extend the term of this Agreement from and after the fifth anniversary of the Effective Time, and the Executive is employed by the Company at such date, the Executive shall be entitled to receive continuation of the Executive's base salary for a period of one year after such fifth anniversary at the rate in effect at such anniversary.
Appears in 1 contract
Termination; Non-Renewal. (a) The Company may terminate this Agreement without liability (other than for the base salary and any other compensation provided in paragraph 4 accrued to the date of termination) in the event of (i) Notwithstanding anything a material breach by Employee of the provisions of this Agreement, which breach shall not have been cured by Employee within one hundred twenty (120) days following notice thereof by the Company to Employee, (ii) the commission of gross negligence or bad faith by Employee in the course of his employment hereunder, which commission has a material adverse effect on the Company, (iii) the commission by Employee of a criminal act of fraud, theft or dishonesty causing material damages to the contrary herein containedCompany or any of its subsidiaries, (iv) the Executive's employment conviction of Employee of (or plead nolo contendere to) any felony, or misdemeanor involving moral turpitude if such misdemeanor results in material financial harm to or materially adversely affects the goodwill of the Company, or (v) any violation by Employee of the Company’s Code of Business Conduct and Ethics or the Company’s sexual harassment and other forms of harassment policy or drug and alcohol abuse policy, as set forth in the Company’s employee handbook. The circumstances specified in (i) through (v) above shall terminate be defined as “Cause.”
(b) Unless the Employee is terminated for Cause pursuant to Section 9(a) above on or prior to the fifth anniversary Expiration Date, and other than in the circumstances described in Section 9(d), in the event that the Company does not offer Employee to enter into a written employment agreement with terms and conditions no less favorable than substantially the same terms and conditions as this Agreement to begin immediately following the Expiration Date, Employee shall receive, in consideration of his continuing obligations under Section 8 hereof, payment of base salary, based on the then applicable salary level, for a period of twelve (12) months, commencing seven months following the date of the Effective Time expiration of the Employment Period. Employee’s right to any payments pursuant to this Section 9(b) shall be in addition to, and not in lieu of, any damages for the termination by the Company of this Agreement prior to the Expiration Date for any reason other than those set forth in Section 9(a) above.
(c) After a Change in Control (as hereinafter defined) has occurred, Employee may terminate his employment upon thirty (30) days’ written notice to the Company within one hundred and eighty (180) days following such a Change in Control and after he has obtained actual knowledge of the occurrence of any of the following events:
(i) by notice given by Failure to elect or appoint, or re-elect or re-appoint, Employee to, or removal of Employee from, his office and/or position with the Company as constituted prior to the ExecutiveChange in Control, except in connection with the termination of Employee’s employment pursuant to terminate the Executive's employment as of a date (not earlier than 10 days from such noticeSection 9(a) to be specified in such notice if (A) the Executive shall be physically or mentally incapacitated or disabled or otherwise unable fully to discharge his duties hereunder for a period of 180 days, whether or not continuous, in any period of 12 months, or (B) the Executive shall have given the Company cause therefor. For purposes of this Agreement, "cause" shall be limited to (x) action by the Executive involving willful malfeasance having a material adverse effect on the Company, (y) the Executive being convicted of a felony involving theft, fraud or moral turpitude (other than resulting from a traffic violation or like event), or (z) any other action by the Executive constituting a material breach of this Agreement which is not cured within 30 days after notice from the Company thereofhereof;
(ii) A reduction in Employee’s overall compensation (including any reduction in pension or other benefit programs or perquisites) or a material adverse change in the nature or scope of the authorities, powers, functions or duties normally attached to Employee’s position with the Company as referred to in Section 2 hereof;
(iii) A determination by notice given Employee made in good faith that, as a result of a Change in Control, he is unable effectively to carry out the authorities, powers, functions or duties attached to his position with the Company as referred to in Section 2 hereof, and the situation is not remedied within thirty (30) days after receipt by the Executive to the Company to terminate the Executive's employment as of a date written notice from Employee of such determination;
(not earlier than 10 days from such noticeiv) to be specified in such notice if the Company shall have given the Executive good reason therefor. For purposes of this Agreement, "good reason" shall be limited to a material A breach by the Company of any provision of this Agreement, which breach is Agreement not cured within 30 days after notice from the Executive thereof.
(ii) Upon the Executive's death or termination of the Executive's employment pursuant to Section 7(a)(i)(A), the Executive (or his estate, as the case may be) shall be entitled to receive only (i) his unpaid salary at the rate provided in Section 3(a) to the date of termination, (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year of the Company ended prior to the year in which such termination occurs, and (iii) an amount equal to such bonus in respect of such prior fiscal year multiplied covered by a fraction the numerator of which shall be the number of days that shall have elapsed from the first day of the fiscal year in which such termination occurs to the date of such termination and the denominator of which shall be 365 (the aggregate amounts referred to in clauses (i), (ii) and or (iii) being of this Section 9(c), which is not remedied within thirty (30) days after receipt by the Company of written notice from Employee of such breach;
(v) A change in the location at which substantially all of Employee’s duties with the Company are to be performed to a location which is not within a 50-mile radius of the address of the place where Employee is performing services prior to the date of the Change in Control; or
(vi) failure by the Company or its successor pursuant to such Change in Control, as applicable, and the Employee to either agree to continue this Agreement or to enter into a new employment agreement mutually acceptable to the Company or its successor and the Employee in lieu of this Agreement. An election by Employee to terminate his employment under the provisions of this paragraph 9(c) shall not be deemed a voluntary termination of employment by Employee for the purpose of interpreting the provisions of any of the Company’s employee benefit plans, programs or policies. Employee’s right to terminate his employment pursuant to this paragraph 9(c) shall not be affected by his illness or incapacity, whether physical or mental, unless the Company shall at the time be entitled to terminate his employment under paragraph 7 of this Agreement. Employee’s continued employment with the Company for any period of time less than one hundred and eighty (180) days after a Change in Control shall not be considered a waiver of any right he may have to terminate his employment pursuant to this paragraph 9(c). A termination by Employee under this paragraph 9(c) shall be deemed a termination by the Company of this Agreement without Cause.
(d) After a Change in Control has occurred, in the event that this Agreement is terminated by the Company or its successor without Cause or by the Employee pursuant to Section 9(c), and if the Company or its successor and the Employee do not agree to enter into a new employment agreement in lieu hereof, then Employee shall be entitled to be paid in a lump sum, within thirty days of such termination, an amount of cash (to be computed, at the expense of the Company or its successor, by the independent certified public accountants utilized by the Company immediately prior to the Change of Control (the “Accountants”), whose computation shall be conclusive and binding upon Employee and the Company or its successor) equal to 2.99 times Employee’s “base amount” as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the “Code”). Any such payment shall be in full satisfaction of all of the Company’s or its successor’s obligations hereunder, and upon payment made pursuant to this paragraph 9(d), all of the Company’s or its successor’s obligations pursuant to this Agreement shall terminate in full and Employee shall have no further rights hereunder or recourse against the Company or its successor pursuant to this Agreement; provided, however, nothing in this paragraph 9(d) shall be interpreted to preclude the Employee receiving his accrued salary and other compensation payable pursuant to paragraph 4 through the date of termination. Such lump sum payment is hereinafter referred to as the "Accrued Obligations"“Termination Compensation.” It is intended that the “present value” of the payments and benefits to Employee, whether under this Agreement or otherwise, which are includable in the computation of “parachute payments” shall not, in the aggregate, exceed 2.99 times the “base amount” (the terms “present value”, “parachute payments” and “base amount” being determined in accordance with Section 280G of the Code). The Accrued Obligations Accordingly, if Employee receives payments or benefits from the Company prior to payment of the Termination Compensation which, when added to the Termination Compensation, would, in the opinion of the Accountants, subject any of the payments or benefits to Employee to the excise tax imposed by Section 4999 of the Code, the Termination Compensation shall be paid within 30 days reduced by the smallest amount necessary, in the opinion of the termination of the Executive's employment.
(iii) Upon termination of the Executive's employment hereunder pursuant Accountants, to Section 7(a)(ii) hereof or by the Company other than pursuant to Section 7(a)(i) hereof, the Executive shall be entitled to receive only (i) the Accrued Obligations, (ii) continuation of the Executive's base salary for a period after the date of avoid such termination equal to the unexpired term of this Agreement but in no event less than eighteen months at the rate in effect at such date of termination, and (iii) during the one- year period following such termination, continuation of the participation of the Executive and his spouse and dependent children, if any, in all health and medical benefit plans, policies and programs in effect from time to time with respect to the most senior executive officers of the Company and their families generally (at the same levels and at the same cost, if any, as provided to such officers generally)tax. Notwithstanding anything to the contrary contained in the preceding clause (iii), if the continued participation of the Executive and such family members thereunder is not possible under the general terms and provisions thereofIn addition, the Company shall have no obligation to make any payment or provide such any benefit to Employee subsequent to payment of the Termination Compensation which, in the opinion of the Accountants, would subject any of the payments or benefits at such levels to Employee to the Executive and such family members either excise tax imposed by obtaining other insurance or by self-insuring such amounts, net of any reimbursement any of them shall receive with respect to health and medical costs from insurance other than pursuant to such clause (iii); provided, however, that prior to receiving benefits hereunder from the Company, the Executive and such family members shall first endeavor to obtain reimbursement with respect to health and medical costs from other insurance the Executive and such family members may own, if any, provided that such reimbursement can be obtained without unreasonable effort or expense on the part Section 4999 of the Executive and such family membersCode. The Executive is hereby expressly not required to mitigate damages No reduction in Termination Compensation or seek any other employment; provided, however, that any amounts that the Executive may receive from any other employment or consulting engagement during the one-year period following such termination shall reduce in equal amounts the amounts that the Company otherwise is obligated to pay to the Executive pursuant to clause (ii) of this Section 7(c).
(iv) Upon termination of the Executive's employment hereunder pursuant to Section 7(a)(i)(B) hereof or by the Executive other than pursuant to Section 7(a)(ii) hereof, the Executive shall be entitled to receive only (i) his salary at the rate provided in Section 3(a) to the date of such termination, and (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year release of the Company ended prior to from any payment or benefit obligation in reliance upon any aforesaid opinion of the year in which such termination occurs.
(v) If Accountants shall be permitted unless the Company does not offer shall have provided to extend Employee a copy of any such opinion that specifically entitles Employee to rely thereon, no later than the term of this Agreement from and after the fifth anniversary date otherwise required for payment of the Effective Time, and the Executive is employed by the Company at Termination Compensation or any such date, the Executive shall be entitled to receive continuation of the Executive's base salary for a period of one year after such fifth anniversary at the rate in effect at such anniversarylater payment or benefit.
Appears in 1 contract
Termination; Non-Renewal. (a) The Company may terminate this Agreement without liability (other than for the base salary and any other compensation provided in paragraph 4 accrued to the date of termination) in the event of (i) Notwithstanding anything a material breach by Employee of the provisions of this Agreement, which breach shall not have been cured by Employee within one hundred twenty (120) days following notice thereof by the Company to Employee, (ii) the commission of gross negligence or bad faith by Employee in the course of his employment hereunder, which commission has a material adverse effect on the Company, (iii) the commission by Employee of a criminal act of fraud, theft or dishonesty causing material damages to the contrary herein containedCompany or any of its subsidiaries, (iv) the conviction of Employee of (or plead nolo contendere to) any felony, or misdemeanor involving moral turpitude if such misdemeanor results in material financial harm to or materially adversely affects the goodwill of the Company, or (v) any violation by Employee of the Company’s Code of Business Conduct and Ethics or the Company’s sexual harassment and other forms of harassment policy or drug and alcohol abuse policy, as set forth in the Company’s employee handbook. The circumstances specified in (i) through (v) above shall be defined as “Cause.”
(b) The Company may, outside of the circumstances describer in 9(d) below, terminate the Agreement without Cause. In such case, the Executive's employment Employee shall terminate be entitled to the compensation payable under Section 4 hereof, as if the Agreement had not been terminated (the “Termination Without Cause Compensation”). In addition, unless the Employee is terminated for Cause pursuant to Section 9(a) above on or prior to the fifth anniversary Expiration Date, and other than in the circumstances described in Section 9(d), in the event that the Company does not offer Employee to enter into a written employment agreement with terms and conditions no less favorable than substantially the same terms and conditions as this Agreement to begin immediately following the Expiration Date, Employee shall receive, in consideration of his continuing obligations under Section 8 hereof, payment of base salary, based on the then applicable salary level, for a period of twelve (12) months (the “Non Renewal Payment”), commencing seven months following the date of the Effective Time expiration of the Employment Period. Employee’s right to the Non-Renewal Payment pursuant to this Section 9(b) shall be in addition to, and not in lieu of, the Termination Without Cause Compensation in the event of the termination by the Company of this Agreement without Cause prior to the Expiration Date.
(c) After a Change in Control (as hereinafter defined) has occurred, Employee may terminate his employment upon thirty (30) days’ written notice to the Company within one hundred and eighty (180) days following such a Change in Control and after he has obtained actual knowledge of the occurrence of any of the following events:
(i) by notice given by Failure to elect or appoint, or re-elect or re-appoint, Employee to, or removal of Employee from, his office and/or position with the Company as constituted prior to the ExecutiveChange in Control, except in connection with the termination of Employee’s employment pursuant to terminate the Executive's employment as of a date (not earlier than 10 days from such noticeSection 9(a) to be specified in such notice if (A) the Executive shall be physically or mentally incapacitated or disabled or otherwise unable fully to discharge his duties hereunder for a period of 180 days, whether or not continuous, in any period of 12 months, or (B) the Executive shall have given the Company cause therefor. For purposes of this Agreement, "cause" shall be limited to (x) action by the Executive involving willful malfeasance having a material adverse effect on the Company, (y) the Executive being convicted of a felony involving theft, fraud or moral turpitude (other than resulting from a traffic violation or like event), or (z) any other action by the Executive constituting a material breach of this Agreement which is not cured within 30 days after notice from the Company thereofhereof;
(ii) A reduction in Employee’s overall compensation (including any reduction in pension or other benefit programs or perquisites) or a material adverse change in the nature or scope of the authorities, powers, functions or duties normally attached to Employee’s position with the Company as referred to in Section 2 hereof;
(iii) A determination by notice given Employee made in good faith that, as a result of a Change in Control, he is unable effectively to carry out the authorities, powers, functions or duties attached to his position with the Company as referred to in Section 2 hereof, and the situation is not remedied within thirty (30) days after receipt by the Executive to the Company to terminate the Executive's employment as of a date written notice from Employee of such determination;
(not earlier than 10 days from such noticeiv) to be specified in such notice if the Company shall have given the Executive good reason therefor. For purposes of this Agreement, "good reason" shall be limited to a material A breach by the Company of any provision of this Agreement, which breach is Agreement not cured within 30 days after notice from the Executive thereof.
(ii) Upon the Executive's death or termination of the Executive's employment pursuant to Section 7(a)(i)(A), the Executive (or his estate, as the case may be) shall be entitled to receive only (i) his unpaid salary at the rate provided in Section 3(a) to the date of termination, (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year of the Company ended prior to the year in which such termination occurs, and (iii) an amount equal to such bonus in respect of such prior fiscal year multiplied covered by a fraction the numerator of which shall be the number of days that shall have elapsed from the first day of the fiscal year in which such termination occurs to the date of such termination and the denominator of which shall be 365 (the aggregate amounts referred to in clauses (i), (ii) and or (iii) being of this Section 9(c), which is not remedied within thirty (30) days after receipt by the Company of written notice from Employee of such breach;
(v) A change in the location at which substantially all of Employee’s duties with the Company are to be performed to a location which is not within a 50-mile radius of the address of the place where Employee is performing services prior to the date of the Change in Control; or
(vi) failure by the Company or its successor pursuant to such Change in Control, as applicable, and the Employee to either agree to continue this Agreement or to enter into a new employment agreement mutually acceptable to the Company or its successor and the Employee in lieu of this Agreement. An election by Employee to terminate his employment under the provisions of this paragraph 9(c) shall not be deemed a voluntary termination of employment by Employee for the purpose of interpreting the provisions of any of the Company’s employee benefit plans, programs or policies. Employee’s right to terminate his employment pursuant to this paragraph 9(c) shall not be affected by his illness or incapacity, whether physical or mental, unless the Company shall at the time be entitled to terminate his employment under paragraph 7 of this Agreement. Employee’s continued employment with the Company for any period of time less than one hundred and eighty (180) days after a Change in Control shall not be considered a waiver of any right he may have to terminate his employment pursuant to this paragraph 9(c). A termination by Employee under this paragraph 9(c) shall be deemed a termination by the Company of this Agreement without Cause.
(d) After a Change in Control has occurred, in the event that this Agreement is terminated by the Company or its successor without Cause (which termination is hereby authorized) or by the Employee pursuant to Section 9(c), and if the Company or its successor and the Employee do not agree to enter into a new employment agreement in lieu hereof, then Employee shall be entitled to be paid in a lump sum, within thirty days of such termination, an amount of cash (to be computed, at the expense of the Company or its successor, by the independent certified public accountants utilized by the Company immediately prior to the Change of Control (the “Accountants”), whose computation shall be conclusive and binding upon Employee and the Company or its successor) equal to 2.99 times Employee’s “base amount” as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the “Code”). Any such payment shall be in full satisfaction of all of the Company’s or its successor’s obligations hereunder, and upon payment made pursuant to this paragraph 9(d), all of the Company’s or its successor’s obligations pursuant to this Agreement shall terminate in full and Employee shall have no further rights hereunder or recourse against the Company or its successor pursuant to this Agreement; provided, however, nothing in this paragraph 9(d) shall be interpreted to preclude the Employee receiving his accrued salary and other compensation payable pursuant to paragraph 4 through the date of termination. Such lump sum payment is hereinafter referred to as the "Accrued Obligations"“Termination Compensation.” It is intended that the “present value” of the payments and benefits to Employee, whether under this Agreement or otherwise, which are includable in the computation of “parachute payments” shall not, in the aggregate, exceed 2.99 times the “base amount” (the terms “present value”, “parachute payments” and “base amount” being determined in accordance with Section 280G of the Code). The Accrued Obligations Accordingly, if Employee receives payments or benefits from the Company prior to payment of the Termination Compensation which, when added to the Termination Compensation, would, in the opinion of the Accountants, subject any of the payments or benefits to Employee to the excise tax imposed by Section 4999 of the Code, the Termination Compensation shall be paid within 30 days reduced by the smallest amount necessary, in the opinion of the termination of the Executive's employment.
(iii) Upon termination of the Executive's employment hereunder pursuant Accountants, to Section 7(a)(ii) hereof or by the Company other than pursuant to Section 7(a)(i) hereof, the Executive shall be entitled to receive only (i) the Accrued Obligations, (ii) continuation of the Executive's base salary for a period after the date of avoid such termination equal to the unexpired term of this Agreement but in no event less than eighteen months at the rate in effect at such date of termination, and (iii) during the one- year period following such termination, continuation of the participation of the Executive and his spouse and dependent children, if any, in all health and medical benefit plans, policies and programs in effect from time to time with respect to the most senior executive officers of the Company and their families generally (at the same levels and at the same cost, if any, as provided to such officers generally)tax. Notwithstanding anything to the contrary contained in the preceding clause (iii), if the continued participation of the Executive and such family members thereunder is not possible under the general terms and provisions thereofIn addition, the Company shall have no obligation to make any payment or provide such any benefit to Employee subsequent to payment of the Termination Compensation which, in the opinion of the Accountants, would subject any of the payments or benefits at such levels to Employee to the Executive and such family members either excise tax imposed by obtaining other insurance or by self-insuring such amounts, net of any reimbursement any of them shall receive with respect to health and medical costs from insurance other than pursuant to such clause (iii); provided, however, that prior to receiving benefits hereunder from the Company, the Executive and such family members shall first endeavor to obtain reimbursement with respect to health and medical costs from other insurance the Executive and such family members may own, if any, provided that such reimbursement can be obtained without unreasonable effort or expense on the part Section 4999 of the Executive and such family membersCode. The Executive is hereby expressly not required to mitigate damages No reduction in Termination Compensation or seek any other employment; provided, however, that any amounts that the Executive may receive from any other employment or consulting engagement during the one-year period following such termination shall reduce in equal amounts the amounts that the Company otherwise is obligated to pay to the Executive pursuant to clause (ii) of this Section 7(c).
(iv) Upon termination of the Executive's employment hereunder pursuant to Section 7(a)(i)(B) hereof or by the Executive other than pursuant to Section 7(a)(ii) hereof, the Executive shall be entitled to receive only (i) his salary at the rate provided in Section 3(a) to the date of such termination, and (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year release of the Company ended prior to from any payment or benefit obligation in reliance upon any aforesaid opinion of the year in which such termination occurs.
(v) If Accountants shall be permitted unless the Company does not offer shall have provided to extend Employee a copy of any such opinion that specifically entitles Employee to rely thereon, no later than the term of this Agreement from and after the fifth anniversary date otherwise required for payment of the Effective Time, and the Executive is employed by the Company at Termination Compensation or any such date, the Executive shall be entitled to receive continuation of the Executive's base salary for a period of one year after such fifth anniversary at the rate in effect at such anniversarylater payment or benefit.
Appears in 1 contract
Termination; Non-Renewal. (a) The Company may terminate this Agreement without liability (other than for the base salary and any other compensation provided in paragraph 4 accrued to the date of termination) in the event of (i) Notwithstanding anything a material breach by Employee of the provisions of this Agreement, which breach shall not have been cured by Employee within thirty (30) days following notice thereof by the Company to Employee, (ii) the commission of gross negligence or bad faith (i.e., an act involving actual or constructive fraud, or a design to mislead or deceive another, or the conscious doing of a wrong because of dishonest purpose or motivated by ill will) by Employee in the course of his employment hereunder, which commission has a material adverse effect on the Company, (iii) the commission by Employee of a criminal act of fraud, theft or dishonesty causing material damages to the contrary herein containedCompany or any of its subsidiaries, (iv) the Executive's employment conviction of Employee of (or plead nolo contendere to) any felony, or misdemeanor involving moral turpitude if such misdemeanor results in material financial harm to or materially adversely affects the goodwill of the Company, or (v) any violation by Employee of the Company’s Code of Business Conduct and Ethics or the Company’s sexual harassment and other forms of harassment policy or drug and alcohol abuse policy, as set forth in the Company’s employee handbook. The circumstances specified in (i) through (v) above shall terminate be defined as “Cause.”
(b) Unless the Employee is terminated for Cause pursuant to Section 9(a) above on or prior to the fifth anniversary Expiration Date, and other than in the circumstances described in Section 9(d), in the event that the Company does not offer Employee to enter into a written employment agreement with terms and conditions no less favorable than substantially the same terms and conditions as this Agreement to begin immediately following the Expiration Date, Employee shall receive, in consideration of his continuing obligations under Section 8 hereof, payment of base salary, based on the then applicable salary level, for a period of twelve (12) months, commencing seven months following the date of expiration of the Effective Time Employment Period. Employee’s right to any payments pursuant to this Section 9(b) shall be in addition to, and not in lieu of, any damages for the termination by the Company of this Agreement prior to the Expiration Date for any reason other than those set forth in Section 9(a) above.
(c) After a Change in Control (as hereinafter defined) has occurred, Employee may terminate his employment upon thirty (30) days' written notice to the Company within one hundred and eighty (180) days following such a Change in Control and after he has obtained actual knowledge of the occurrence of any of the following events:
(i) by notice given by Failure to elect or appoint, or re-elect or re-appoint, Employee to, or removal of Employee from, his office and/or position with the Company as constituted prior to the ExecutiveChange in Control, to terminate except in connection with the Executivetermination of Employee's employment as of a date (not earlier than 10 days from such noticepursuant to Section 9(a) to be specified in such notice if (A) the Executive shall be physically or mentally incapacitated or disabled or otherwise unable fully to discharge his duties hereunder for a period of 180 days, whether or not continuous, in any period of 12 months, or (B) the Executive shall have given the Company cause therefor. For purposes of this Agreement, "cause" shall be limited to (x) action by the Executive involving willful malfeasance having a material adverse effect on the Company, (y) the Executive being convicted of a felony involving theft, fraud or moral turpitude (other than resulting from a traffic violation or like event), or (z) any other action by the Executive constituting a material breach of this Agreement which is not cured within 30 days after notice from the Company thereofhereof;
(ii) A reduction in Employee's overall compensation (including any reduction in pension or other benefit programs or perquisites) or a material adverse change in the nature or scope of the authorities, powers, functions or duties normally attached to Employee's position with the Company as referred to in Section 2 hereof;
(iii) A determination by notice given Employee made in good faith that, as a result of a Change in Control, he is unable effectively to carry out the authorities, powers, functions or duties attached to his position with the Company as referred to in Section 2 hereof, and the situation is not remedied within thirty (30) days after receipt by the Executive to the Company to terminate the Executive's employment as of a date written notice from Employee of such determination;
(not earlier than 10 days from such noticeiv) to be specified in such notice if the Company shall have given the Executive good reason therefor. For purposes of this Agreement, "good reason" shall be limited to a material A breach by the Company of any provision of this Agreement, which breach is Agreement not cured within 30 days after notice from the Executive thereof.
(ii) Upon the Executive's death or termination of the Executive's employment pursuant to Section 7(a)(i)(A), the Executive (or his estate, as the case may be) shall be entitled to receive only (i) his unpaid salary at the rate provided in Section 3(a) to the date of termination, (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year of the Company ended prior to the year in which such termination occurs, and (iii) an amount equal to such bonus in respect of such prior fiscal year multiplied covered by a fraction the numerator of which shall be the number of days that shall have elapsed from the first day of the fiscal year in which such termination occurs to the date of such termination and the denominator of which shall be 365 (the aggregate amounts referred to in clauses (i), (ii) and or (iii) being of this Section 9(c), which is not remedied within thirty (30) days after receipt by the Company of written notice from Employee of such breach;
(v) A change in the location at which substantially all of Employee's duties with the Company are to be performed to a location which is not within a 50-mile radius of the address of the place where Employee is performing services prior to the date of the Change in Control; or
(vi) failure by the Company or its successor pursuant to such Change in Control, as applicable, and the Employee to either agree to continue this Agreement or to enter into a new employment agreement mutually acceptable to the Company or its successor and the Employee in lieu of this Agreement. An election by Employee to terminate his employment under the provisions of this paragraph 9(c) shall not be deemed a voluntary termination of employment by Employee for the purpose of interpreting the provisions of any of the Company's employee benefit plans, programs or policies. Employee's right to terminate his employment pursuant to this paragraph 9(c) shall not be affected by his illness or incapacity, whether physical or mental, unless the Company shall at the time be entitled to terminate his employment under paragraph 7 of this Agreement. Employee's continued employment with the Company for any period of time less than one hundred and eighty (180) days after a Change in Control shall not be considered a waiver of any right he may have to terminate his employment pursuant to this paragraph 9(c). A termination by Employee under this paragraph 9(c) shall be deemed a termination by the Company of this Agreement without Cause.
(d) After a Change in Control has occurred, in the event that this Agreement is terminated by the Company or its successor without Cause or by the Employee pursuant to Section 9(c), and if the Company or its successor and the Employee do not agree to enter into a new employment agreement in lieu hereof, then Employee shall be entitled to be paid in a lump sum, six months and one day after such termination, an amount of cash (to be computed, at the expense of the Company or its successor, by the independent certified public accountants utilized by the Company immediately prior to the Change of Control (the "Accountants"), whose computation shall be conclusive and binding upon Employee and the Company or its successor) equal to 2.99 times Employee's "base amount" as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code"). Any such payment shall be in full satisfaction of all of the Company’s or its successor’s obligations hereunder, and upon payment made pursuant to this paragraph 9(d), all of the Company’s or its successor’s obligations pursuant to this Agreement shall terminate in full and Employee shall have no further rights hereunder or recourse against the Company or its successor pursuant to this Agreement; provided, however, nothing in this paragraph 9(d) shall be interpreted to preclude the Employee receiving his accrued salary and other compensation payable pursuant to paragraph 4 through the date of termination. Such lump sum payment is hereinafter referred to as the "Accrued ObligationsTermination Compensation." It is intended that the "present value" of the payments and benefits to Employee, whether under this Agreement or otherwise, which are includable in the computation of "parachute payments" shall not, in the aggregate, exceed 2.99 times the "base amount" (the terms "present value", "parachute payments" and "base amount" being determined in accordance with Section 280G of the Code). The Accrued Obligations Accordingly, if Employee receives payments or benefits from the Company prior to payment of the Termination Compensation which, when added to the Termination Compensation, would, in the opinion of the Accountants, subject any of the payments or benefits to Employee to the excise tax imposed by Section 4999 of the Code, the Termination Compensation shall be paid within 30 days reduced by the smallest amount necessary, in the opinion of the termination of the Executive's employment.
(iii) Upon termination of the Executive's employment hereunder pursuant Accountants, to Section 7(a)(ii) hereof or by the Company other than pursuant to Section 7(a)(i) hereof, the Executive shall be entitled to receive only (i) the Accrued Obligations, (ii) continuation of the Executive's base salary for a period after the date of avoid such termination equal to the unexpired term of this Agreement but in no event less than eighteen months at the rate in effect at such date of termination, and (iii) during the one- year period following such termination, continuation of the participation of the Executive and his spouse and dependent children, if any, in all health and medical benefit plans, policies and programs in effect from time to time with respect to the most senior executive officers of the Company and their families generally (at the same levels and at the same cost, if any, as provided to such officers generally)tax. Notwithstanding anything to the contrary contained in the preceding clause (iii), if the continued participation of the Executive and such family members thereunder is not possible under the general terms and provisions thereofIn addition, the Company shall have no obligation to make any payment or provide such any benefit to Employee subsequent to payment of the Termination Compensation which, in the opinion of the Accountants, would subject any of the payments or benefits at such levels to Employee to the Executive and such family members either excise tax imposed by obtaining other insurance or by self-insuring such amounts, net of any reimbursement any of them shall receive with respect to health and medical costs from insurance other than pursuant to such clause (iii); provided, however, that prior to receiving benefits hereunder from the Company, the Executive and such family members shall first endeavor to obtain reimbursement with respect to health and medical costs from other insurance the Executive and such family members may own, if any, provided that such reimbursement can be obtained without unreasonable effort or expense on the part Section 4999 of the Executive and such family membersCode. The Executive is hereby expressly not required to mitigate damages No reduction in Termination Compensation or seek any other employment; provided, however, that any amounts that the Executive may receive from any other employment or consulting engagement during the one-year period following such termination shall reduce in equal amounts the amounts that the Company otherwise is obligated to pay to the Executive pursuant to clause (ii) of this Section 7(c).
(iv) Upon termination of the Executive's employment hereunder pursuant to Section 7(a)(i)(B) hereof or by the Executive other than pursuant to Section 7(a)(ii) hereof, the Executive shall be entitled to receive only (i) his salary at the rate provided in Section 3(a) to the date of such termination, and (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year release of the Company ended prior to from any payment or benefit obligation in reliance upon any aforesaid opinion of the year in which such termination occurs.
(v) If Accountants shall be permitted unless the Company does not offer shall have provided to extend Employee a copy of any such opinion that specifically entitles Employee to rely thereon, no later than the term of this Agreement from and after the fifth anniversary date otherwise required for payment of the Effective Time, and the Executive is employed by the Company at Termination Compensation or any such date, the Executive shall be entitled to receive continuation of the Executive's base salary for a period of one year after such fifth anniversary at the rate in effect at such anniversarylater payment or benefit.
Appears in 1 contract
Termination; Non-Renewal. (a) The Company may terminate this Agreement without liability (other than for the base salary and any other compensation pro-vided in paragraph 4 accrued to the date of termination) in the event of (i) Notwithstanding anything a material breach by Employee of the provisions of this Agreement, which breach shall not have been cured by Employee within one hundred twenty (120) days following notice thereof by the Company to Employee, (ii) the commission of gross negligence or bad faith (i.e., an act involving actual or constructive fraud, or a design to mislead or deceive another, or the conscious doing of a wrong because of dishonest purpose or motivated by ill will) by Employee in the course of his employment hereunder, which commission has a material adverse effect on the Company, (iii) the commission by Employee of a criminal act of fraud, theft or dishonesty causing material damages to the contrary herein containedCompany or any of its subsidiaries, (iv) the Executive's employment conviction of Employee of (or plead nolo contendere to) any felony, or misdemeanor involving moral turpitude if such misdemeanor results in material financial harm to or materially adversely affects the goodwill of the Company, or (v) any violation by Employee of the Company’s Code of Business Conduct and Ethics or the Company’s sexual harassment and other forms of harassment policy or drug and alcohol abuse policy, as set forth in the Company’s employee handbook. The circumstances specified in (i) through (v) above shall terminate be defined as “Cause.”
(b) Unless the Employee is terminated for Cause pursuant to Section 9(a) above on or prior to the fifth anniversary Expiration Date, and other than in the circumstances described in Section 9(d), in the event that the Company does not offer Employee to enter into a written employment agreement with terms and conditions no less favorable than substantially the same terms and conditions as this Agreement to begin immediately following the Expiration Date, Employee shall receive, in consideration of his continuing obligations under Section 8 hereof, payment of base salary, based on the then applicable salary level, for a period of twelve (12) months, commencing immediately following the date of the Effective Time expiration of the Employment Period, unless such payment shall be delayed pursuant to Section 19 hereof. Employee’s right to any payments pursuant to this Section 9(b) shall be in addition to, and not in lieu of, any damages for the termination by the Company of this Agreement prior to the Expiration Date for any reason other than those set forth in Section 9(a) above.
(c) After a Change in Control (as hereinafter defined) has occurred, Employee may terminate his employment upon thirty (30) days' written notice to the Company within one hundred and eighty (180) days following such a Change in Control and after he has obtained actual knowledge of the occurrence of any of the following events:
(i) by notice given by Failure to elect or appoint, or re-elect or re-appoint, Employee to, or removal of Employee from, his office and/or position with the Company as constituted prior to the ExecutiveChange in Control, to terminate except in connection with the Executivetermination of Employee's employment as of a date (not earlier than 10 days from such noticepursuant to Section 9(a) to be specified in such notice if (A) the Executive shall be physically or mentally incapacitated or disabled or otherwise unable fully to discharge his duties hereunder for a period of 180 days, whether or not continuous, in any period of 12 months, or (B) the Executive shall have given the Company cause therefor. For purposes of this Agreement, "cause" shall be limited to (x) action by the Executive involving willful malfeasance having a material adverse effect on the Company, (y) the Executive being convicted of a felony involving theft, fraud or moral turpitude (other than resulting from a traffic violation or like event), or (z) any other action by the Executive constituting a material breach of this Agreement which is not cured within 30 days after notice from the Company thereofhereof;
(ii) A reduction in Employee's overall compensation (including any reduction in pension or other benefit programs or perquisites) or a material adverse change in the nature or scope of the authorities, powers, functions or duties normally attached to Employee's position with the Company as referred to in Section 2 hereof;
(iii) A determination by notice given Employee made in good faith that, as a result of a Change in Control, he is unable effectively to carry out the authorities, powers, functions or duties attached to his position with the Company as referred to in Section 2 hereof, and the situation is not remedied within thirty (30) days after receipt by the Executive to the Company to terminate the Executive's employment as of a date written notice from Employee of such determination;
(not earlier than 10 days from such noticeiv) to be specified in such notice if the Company shall have given the Executive good reason therefor. For purposes of this Agreement, "good reason" shall be limited to a material A breach by the Company of any provision of this Agreement, which breach is Agreement not cured within 30 days after notice from the Executive thereof.
(ii) Upon the Executive's death or termination of the Executive's employment pursuant to Section 7(a)(i)(A), the Executive (or his estate, as the case may be) shall be entitled to receive only (i) his unpaid salary at the rate provided in Section 3(a) to the date of termination, (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year of the Company ended prior to the year in which such termination occurs, and (iii) an amount equal to such bonus in respect of such prior fiscal year multiplied covered by a fraction the numerator of which shall be the number of days that shall have elapsed from the first day of the fiscal year in which such termination occurs to the date of such termination and the denominator of which shall be 365 (the aggregate amounts referred to in clauses (i), (ii) and or (iii) being of this Section 9(c), which is not remedied within thirty (30) days after receipt by the Company of written notice from Employee of such breach;
(v) A change in the location at which substantially all of Employee's duties with the Company are to be performed to a location which is not within a 50-mile radius of the address of the place where Employee is performing services prior to the date of the Change in Control; or
(vi) failure by the Company or its successor pursuant to such Change in Control, as applicable, and the Employee to either agree to continue this Agreement or to enter into a new employment agreement mutually acceptable to the Company or its successor and the Employee in lieu of this Agreement. An election by Employee to terminate his employment under the provisions of this paragraph 9(c) shall not be deemed a voluntary termination of employment by Employee for the purpose of interpreting the provisions of any of the Company's employee benefit plans, programs or policies. Employee's right to terminate his employment pursuant to this paragraph 9(c) shall not be affected by his illness or incapacity, whether physical or mental, unless the Company shall at the time be entitled to terminate his employment under paragraph 7 of this Agreement. Employee's continued employment with the Company for any period of time less than one hundred and eighty (180) days after a Change in Control shall not be considered a waiver of any right he may have to terminate his employment pursuant to this paragraph 9(c). A termination by Employee under this paragraph 9(c) shall be deemed a termination by the Company of this Agreement without Cause.
(d) After a Change in Control has occurred, in the event that this Agreement is terminated by the Company or its successor without Cause or by the Employee pursuant to Section 9(c), and if the Company or its successor and the Employee do not agree to enter into a new employment agreement in lieu hereof, then Employee shall be entitled to be paid in a lump sum, within thirty days of such termination, an amount of cash (to be computed, at the expense of the Company or its successor, by the independent certified public accountants utilized by the Company immediately prior to the Change of Control (the "Accountants"), whose computation shall be conclusive and bind-ing upon Employee and the Company or its successor) equal to 2.99 times Employ-ee's "base amount" as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code"). Any such payment shall be in full satisfaction of all of the Company’s or its successor’s obligations hereunder, and upon payment made pursuant to this paragraph 9(d), all of the Company’s or its successor’s obligations pursuant to this Agreement shall terminate in full and Employee shall have no further rights hereunder or recourse against the Company or its successor pursuant to this Agreement; provided, however, nothing in this paragraph 9(d) shall be interpreted to preclude the Employee receiving his accrued salary and other compensation payable pursuant to paragraph 4 through the date of termination. Such lump sum payment is hereinafter referred to as the "Accrued ObligationsTermination Compensation." It is intended that the "present value" of the payments and benefits to Employee, whether under this Agree-ment or otherwise, which are includable in the computation of "parachute payments" shall not, in the aggregate, exceed 2.99 times the "base amount" (the terms "present value", "parachute payments" and "base amount" being determined in accordance with Section 280G of the Code). The Accrued Obligations Accordingly, if Employee receives payments or benefits from the Company prior to payment of the Termination Compensation which, when added to the Termination Compensation, would, in the opinion of the Accountants, subject any of the payments or benefits to Employee to the excise tax imposed by Section 4999 of the Code, the Termination Compensation shall be paid within 30 days reduced by the smallest amount necessary, in the opinion of the termination of the Executive's employment.
(iii) Upon termination of the Executive's employment hereunder pursuant Accountants, to Section 7(a)(ii) hereof or by the Company other than pursuant to Section 7(a)(i) hereof, the Executive shall be entitled to receive only (i) the Accrued Obligations, (ii) continuation of the Executive's base salary for a period after the date of avoid such termination equal to the unexpired term of this Agreement but in no event less than eighteen months at the rate in effect at such date of termination, and (iii) during the one- year period following such termination, continuation of the participation of the Executive and his spouse and dependent children, if any, in all health and medical benefit plans, policies and programs in effect from time to time with respect to the most senior executive officers of the Company and their families generally (at the same levels and at the same cost, if any, as provided to such officers generally)tax. Notwithstanding anything to the contrary contained in the preceding clause (iii), if the continued participation of the Executive and such family members thereunder is not possible under the general terms and provisions thereofIn addition, the Company shall have no obligation to make any payment or provide such any benefit to Employee subsequent to payment of the Termination Compensation which, in the opinion of the Accountants, would subject any of the payments or benefits at such levels to Employee to the Executive and such family members either excise tax imposed by obtaining other insurance or by self-insuring such amounts, net of any reimbursement any of them shall receive with respect to health and medical costs from insurance other than pursuant to such clause (iii); provided, however, that prior to receiving benefits hereunder from the Company, the Executive and such family members shall first endeavor to obtain reimbursement with respect to health and medical costs from other insurance the Executive and such family members may own, if any, provided that such reimbursement can be obtained without unreasonable effort or expense on the part Section 4999 of the Executive and such family membersCode. The Executive is hereby expressly not required to mitigate damages No reduction in Termination Compensation or seek any other employment; provided, however, that any amounts that the Executive may receive from any other employment or consulting engagement during the one-year period following such termination shall reduce in equal amounts the amounts that the Company otherwise is obligated to pay to the Executive pursuant to clause (ii) of this Section 7(c).
(iv) Upon termination of the Executive's employment hereunder pursuant to Section 7(a)(i)(B) hereof or by the Executive other than pursuant to Section 7(a)(ii) hereof, the Executive shall be entitled to receive only (i) his salary at the rate provided in Section 3(a) to the date of such termination, and (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year release of the Company ended prior to from any payment or benefit obligation in reliance upon any aforesaid opinion of the year in which such termination occurs.
(v) If Accountants shall be permitted unless the Company does not offer shall have provided to extend Employee a copy of any such opinion that specifically entitles Employee to rely thereon, no later than the term of this Agreement from and after the fifth anniversary date otherwise required for payment of the Effective Time, and the Executive is employed by the Company at Termination Compensation or any such date, the Executive shall be entitled to receive continuation of the Executive's base salary for a period of one year after such fifth anniversary at the rate in effect at such anniversarylater payment or benefit.
Appears in 1 contract
Termination; Non-Renewal. (a) The Company may terminate this Agreement without liability (other than for the base salary provided in paragraph 4(a) accrued to the date of termination) in the event of (i) Notwithstanding anything a material breach by Employee of the provisions of this Agreement, which breach shall not have been cured by Employee within one hundred twenty (120) days following notice thereof by the Company to Employee, (ii) the commission of gross negligence or bad faith by Employee in the course of his employment hereunder, which commission has a material adverse effect on the Company, (iii) the commission by Employee of a criminal act of fraud, theft or dishonesty causing material damages to the contrary herein containedCompany or any of its subsidiaries, (iv) the Executiveconviction of Employee of (or plead nolo contendere to) any felony, or misdemeanor involving moral turpitude if such misdemeanor results in material financial harm to or materially adversely affects the goodwill of the Company, or (v) any violation by Employee of the Company's employment shall terminate Code of Business Conduct and Ethics or the Company's sexual harassment and other forms of harassment policy or drug and alcohol abuse policy, as set forth in the Company's employee handbook.
(b) Unless the Employee is terminated for cause pursuant to Section 9(a) above on or prior to the fifth anniversary Expiration Date, in the event that the Company does not offer employee to enter into a written employment agreement with terms and conditions no less favorable than substantially the same terms and conditions as this Agreement to begin immediately following the Expiration Date, Employee shall receive, in consideration of his continuing obligations under Section 8 hereof, payment of base salary, based on the then applicable salary level, for a period of twelve (12) months from the date of the Effective Time expiration of the Employment Period. Employee's right to any payments pursuant to this Section 9(b) shall be in addition to, and not in lieu of, any damages for the termination by the Company of this Agreement prior to the Expiration Date for any reason other than those set forth in Section 9(a) above.
(c) After a Change in Control (as hereinafter defined) has occurred, Employee may terminate his employment upon thirty (30) days' written notice to the Company within one hundred and eighty (180) days following such a Change in Control and after he has obtained actual knowledge of the occurrence of any of the following events:
(i) by notice given by Failure to elect or appoint, or re-elect or re-appoint, Employee to, or removal of Employee from, his office and/or position with the Company as constituted prior to the ExecutiveChange in Control, to terminate except in connection with the Executivetermination of Employee's employment as of a date (not earlier than 10 days from such noticepursuant to Section 9(a) to be specified in such notice if (A) the Executive shall be physically or mentally incapacitated or disabled or otherwise unable fully to discharge his duties hereunder for a period of 180 days, whether or not continuous, in any period of 12 months, or (B) the Executive shall have given the Company cause therefor. For purposes of this Agreement, "cause" shall be limited to (x) action by the Executive involving willful malfeasance having a material adverse effect on the Company, (y) the Executive being convicted of a felony involving theft, fraud or moral turpitude (other than resulting from a traffic violation or like event), or (z) any other action by the Executive constituting a material breach of this Agreement which is not cured within 30 days after notice from the Company thereofhereof;
(ii) A reduction in Employee's overall compensation (including any reduction in pension or other benefit programs or perquisites) or a material adverse change in the nature or scope of the authorities, powers, functions or duties normally attached to Employee's position with the Company as referred to in Section 2 hereof;
(iii) A determination by notice given Employee made in good faith that, as a result of a Change in Control, he is unable effectively to carry out the authorities, powers, functions or duties attached to his position with the Company as referred to in Section 2 hereof, and the situation is not remedied within thirty (30) days after receipt by the Executive to the Company to terminate the Executive's employment as of a date written notice from Employee of such determination;
(not earlier than 10 days from such noticeiv) to be specified in such notice if the Company shall have given the Executive good reason therefor. For purposes of this Agreement, "good reason" shall be limited to a material A breach by the Company of any provision of this Agreement, which breach is Agreement not cured within 30 days after notice from the Executive thereof.
(ii) Upon the Executive's death or termination of the Executive's employment pursuant to Section 7(a)(i)(A), the Executive (or his estate, as the case may be) shall be entitled to receive only (i) his unpaid salary at the rate provided in Section 3(a) to the date of termination, (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year of the Company ended prior to the year in which such termination occurs, and (iii) an amount equal to such bonus in respect of such prior fiscal year multiplied covered by a fraction the numerator of which shall be the number of days that shall have elapsed from the first day of the fiscal year in which such termination occurs to the date of such termination and the denominator of which shall be 365 (the aggregate amounts referred to in clauses (i), (ii) and or (iii) of this Section 9(c), which is not remedied within thirty (30) days after receipt by the Company of written notice from Employee of such breach;
(v) A change in the location at which substantially all of Employee's duties with the Company are to be performed to a location which is not within a 50-mile radius of the address of the place where Employee is performing services prior to the date of the Change in Control; or
(vi) failure by the Company to obtain the assumption of, and the agreement to perform, this Agreement by any successor (pursuant to a transfer described in Section 15). An election by Employee to terminate his employment under the provisions of this paragraph 9(c) shall not be deemed a voluntary termination of employment by Employee for the purpose of interpreting the provisions of any of the Company's employee benefit plans, programs or policies. Employee's right to terminate his employment pursuant to this paragraph 9(c) shall not be affected by his illness or incapacity, whether physical or mental, unless the Company shall at the time be entitled to terminate his employment under paragraph 7 of this Agreement. Employee's continued employment with the Company for any period of time less than one hundred and eighty (180) days after a Change in Control shall not be considered a waiver of any right he may have to terminate his employment pursuant to this paragraph 9(c).
(d) After a Change in Control has occurred, if Employee terminates his employment with the Company pursuant to paragraph 9(c) hereof or if Employee's employment is terminated by the Company for any reason other than pursuant to paragraph 9(a) hereof, Employee (i) shall be entitled to his base salary in effect at the time of such termination, bonuses, awards, perquisites and benefits, including, without limitation, benefits and awards under the Company's stock option plans and the Company's pension and retirement plans and programs, through the date specified in the notice of termination as the last day of Employee's employment by the Company (the "Termination Date") and, in addition thereto, (ii) shall be entitled to be paid in a lump sum, on the Termination Date, an amount of cash (to be computed, at the expense of the Company, by the independent certified public accountants utilized by the Company immediately prior to the Change of Control (the "Accountants"), whose computation shall be conclusive and binding upon Employee and the Company) equal to 2.99 times Employee's "base amount" as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code"); it being understood that in the event of a termination pursuant to paragraph 9(c), Employee shall not be entitled to the payments described in paragraph 9(b). Such lump sum payment is hereinafter referred to as the "Accrued ObligationsTermination Compensation."). The Accrued Obligations shall be paid within 30 days of the termination of the Executive's employment.
(iii) Upon termination of the Executive's employment hereunder pursuant to Section 7(a)(ii) hereof or by the Company other than pursuant to Section 7(a)(i) hereof, the Executive shall be entitled to receive only (i) the Accrued Obligations, (ii) continuation of the Executive's base salary for a period after the date of such termination equal to the unexpired term of this Agreement but in no event less than eighteen months at the rate in effect at such date of termination, and (iii) during the one- year period following such termination, continuation of the participation of the Executive and his spouse and dependent children, if any, in all health and medical benefit plans, policies and programs in effect from time to time with respect to the most senior executive officers of the Company and their families generally (at the same levels and at the same cost, if any, as provided to such officers generally). Notwithstanding anything to the contrary contained in the preceding clause (iii), if the continued participation of the Executive and such family members thereunder is not possible under the general terms and provisions thereof, the Company shall provide such benefits at such levels to the Executive and such family members either by obtaining other insurance or by self-insuring such amounts, net of any reimbursement any of them shall receive with respect to health and medical costs from insurance other than pursuant to such clause (iii); provided, however, that prior to receiving benefits hereunder from the Company, the Executive and such family members shall first endeavor to obtain reimbursement with respect to health and medical costs from other insurance the Executive and such family members may own, if any, provided that such reimbursement can be obtained without unreasonable effort or expense on the part of the Executive and such family members. The Executive is hereby expressly not required to mitigate damages or seek any other employment; provided, however, that any amounts that the Executive may receive from any other employment or consulting engagement during the one-year period following such termination shall reduce in equal amounts the amounts that the Company otherwise is obligated to pay to the Executive pursuant to clause (ii) of this Section 7(c).
(iv) Upon termination of the Executive's employment hereunder pursuant to Section 7(a)(i)(B) hereof or by the Executive other than pursuant to Section 7(a)(ii) hereof, the Executive shall be entitled to receive only (i) his salary at the rate provided in Section 3(a) to the date of such termination, and (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year of the Company ended prior to the year in which such termination occurs.
(v) If the Company does not offer to extend the term of this Agreement from and after the fifth anniversary of the Effective Time, and the Executive is employed by the Company at such date, the Executive shall be entitled to receive continuation of the Executive's base salary for a period of one year after such fifth anniversary at the rate in effect at such anniversary.
Appears in 1 contract
Termination; Non-Renewal. (a) The Company may terminate this Agreement without liability (other than for the base salary and any other compensation pro-vided in paragraph 4 accrued to the date of termination) in the event of (i) Notwithstanding anything a material breach by Employee of the provisions of this Agreement, which breach shall not have been cured by Employee within thirty (30) days following notice thereof by the Company to Employee, (ii) the commission of gross negligence or bad faith (i.e., an act involving actual or constructive fraud, or a design to mislead or deceive another, or the conscious doing of a wrong because of dishonest purpose or motivated by ill will) by Employee in the course of his employment hereunder, which commission has a material adverse effect on the Company, (iii) the commission by Employee of a criminal act of fraud, theft or dishonesty causing material damages to the contrary herein containedCompany or any of its subsidiaries, (iv) the Executive's employment conviction of Employee of (or plead nolo contendere to) any felony, or misdemeanor involving moral turpitude if such misdemeanor results in material financial harm to or materially adversely affects the goodwill of the Company, or (v) any violation by Employee of the Company’s Code of Business Conduct and Ethics or the Company’s sexual harassment and other forms of harassment policy or drug and alcohol abuse policy, as set forth in the Company’s employee handbook. The circumstances specified in (i) through (v) above shall terminate be defined as “Cause.”
(b) Unless the Employee is terminated for Cause pursuant to Section 9(a) above on or prior to the fifth anniversary Expiration Date, and other than in the circumstances described in Section 9(d), in the event that the Company does not offer Employee to enter into a written employment agreement with terms and conditions no less favorable than substantially the same terms and conditions as this Agreement to begin immediately following the Expiration Date, Employee shall receive, in consideration of his continuing obligations under Section 8 hereof, payment of base salary, based on the then applicable salary level, for a period of twelve (12) months, commencing immediately following the date of the Effective Time expiration of the Employment Period, unless such payment shall be delayed pursuant to Section 19 hereof. Employee’s right to any payments pursuant to this Section 9(b) shall be in addition to, and not in lieu of, any damages for the termination by the Company of this Agreement prior to the Expiration Date for any reason other than those set forth in Section 9(a) above.
(c) After a Change in Control (as hereinafter defined) has occurred, Employee may terminate his employment upon thirty (30) days' written notice to the Company within one hundred and eighty (180) days following such a Change in Control and after he has obtained actual knowledge of the occurrence of any of the following events:
(i) by notice given by Failure to elect or appoint, or re-elect or re-appoint, Employee to, or removal of Employee from, his office and/or position with the Company as constituted prior to the ExecutiveChange in Control, to terminate except in connection with the Executivetermination of Employee's employment as of a date (not earlier than 10 days from such noticepursuant to Section 9(a) to be specified in such notice if (A) the Executive shall be physically or mentally incapacitated or disabled or otherwise unable fully to discharge his duties hereunder for a period of 180 days, whether or not continuous, in any period of 12 months, or (B) the Executive shall have given the Company cause therefor. For purposes of this Agreement, "cause" shall be limited to (x) action by the Executive involving willful malfeasance having a material adverse effect on the Company, (y) the Executive being convicted of a felony involving theft, fraud or moral turpitude (other than resulting from a traffic violation or like event), or (z) any other action by the Executive constituting a material breach of this Agreement which is not cured within 30 days after notice from the Company thereofhereof;
(ii) A reduction in Employee's overall compensation (including any reduction in pension or other benefit programs or perquisites) or a material adverse change in the nature or scope of the authorities, powers, functions or duties normally attached to Employee's position with the Company as referred to in Section 2 hereof;
(iii) A determination by notice given Employee made in good faith that, as a result of a Change in Control, he is unable effectively to carry out the authorities, powers, functions or duties attached to his position with the Company as referred to in Section 2 hereof, and the situation is not remedied within thirty (30) days after receipt by the Executive to the Company to terminate the Executive's employment as of a date written notice from Employee of such determination;
(not earlier than 10 days from such noticeiv) to be specified in such notice if the Company shall have given the Executive good reason therefor. For purposes of this Agreement, "good reason" shall be limited to a material A breach by the Company of any provision of this Agreement, which breach is Agreement not cured within 30 days after notice from the Executive thereof.
(ii) Upon the Executive's death or termination of the Executive's employment pursuant to Section 7(a)(i)(A), the Executive (or his estate, as the case may be) shall be entitled to receive only (i) his unpaid salary at the rate provided in Section 3(a) to the date of termination, (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year of the Company ended prior to the year in which such termination occurs, and (iii) an amount equal to such bonus in respect of such prior fiscal year multiplied covered by a fraction the numerator of which shall be the number of days that shall have elapsed from the first day of the fiscal year in which such termination occurs to the date of such termination and the denominator of which shall be 365 (the aggregate amounts referred to in clauses (i), (ii) and or (iii) being of this Section 9(c), which is not remedied within thirty (30) days after receipt by the Company of written notice from Employee of such breach;
(v) A change in the location at which substantially all of Employee's duties with the Company are to be performed to a location which is not within a 50-mile radius of the address of the place where Employee is performing services prior to the date of the Change in Control; or
(vi) failure by the Company or its successor pursuant to such Change in Control, as applicable, and the Employee to either agree to continue this Agreement or to enter into a new employment agreement mutually acceptable to the Company or its successor and the Employee in lieu of this Agreement. An election by Employee to terminate his employment under the provisions of this paragraph 9(c) shall not be deemed a voluntary termination of employment by Employee for the purpose of interpreting the provisions of any of the Company's employee benefit plans, programs or policies. Employee's right to terminate his employment pursuant to this paragraph 9(c) shall not be affected by his illness or incapacity, whether physical or mental, unless the Company shall at the time be entitled to terminate his employment under paragraph 7 of this Agreement. Employee's continued employment with the Company for any period of time less than one hundred and eighty (180) days after a Change in Control shall not be considered a waiver of any right he may have to terminate his employment pursuant to this paragraph 9(c). A termination by Employee under this paragraph 9(c) shall be deemed a termination by the Company of this Agreement without Cause.
(d) After a Change in Control has occurred, in the event that this Agreement is terminated by the Company or its successor without Cause or by the Employee pursuant to Section 9(c), and if the Company or its successor and the Employee do not agree to enter into a new employment agreement in lieu hereof, then Employee shall be entitled to be paid in a lump sum, within thirty days of such termination, an amount of cash (to be computed, at the expense of the Company or its successor, by the independent certified public accountants utilized by the Company immediately prior to the Change of Control (the "Accountants"), whose computation shall be conclusive and bind-ing upon Employee and the Company or its successor) equal to 2.99 times Employ-ee's "base amount" as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code"). Any such payment shall be in full satisfaction of all of the Company’s or its successor’s obligations hereunder, and upon payment made pursuant to this paragraph 9(d), all of the Company’s or its successor’s obligations pursuant to this Agreement shall terminate in full and Employee shall have no further rights hereunder or recourse against the Company or its successor pursuant to this Agreement; provided, however, nothing in this paragraph 9(d) shall be interpreted to preclude the Employee receiving his accrued salary and other compensation payable pursuant to paragraph 4 through the date of termination. Such lump sum payment is hereinafter referred to as the "Accrued ObligationsTermination Compensation." It is intended that the "present value" of the payments and benefits to Employee, whether under this Agree-ment or otherwise, which are includable in the computation of "parachute payments" shall not, in the aggregate, exceed 2.99 times the "base amount" (the terms "present value", "parachute payments" and "base amount" being determined in accordance with Section 280G of the Code). The Accrued Obligations Accordingly, if Employee receives payments or benefits from the Company prior to payment of the Termination Compensation which, when added to the Termination Compensation, would, in the opinion of the Accountants, subject any of the payments or benefits to Employee to the excise tax imposed by Section 4999 of the Code, the Termination Compensation shall be paid within 30 days reduced by the smallest amount necessary, in the opinion of the termination of the Executive's employment.
(iii) Upon termination of the Executive's employment hereunder pursuant Accountants, to Section 7(a)(ii) hereof or by the Company other than pursuant to Section 7(a)(i) hereof, the Executive shall be entitled to receive only (i) the Accrued Obligations, (ii) continuation of the Executive's base salary for a period after the date of avoid such termination equal to the unexpired term of this Agreement but in no event less than eighteen months at the rate in effect at such date of termination, and (iii) during the one- year period following such termination, continuation of the participation of the Executive and his spouse and dependent children, if any, in all health and medical benefit plans, policies and programs in effect from time to time with respect to the most senior executive officers of the Company and their families generally (at the same levels and at the same cost, if any, as provided to such officers generally)tax. Notwithstanding anything to the contrary contained in the preceding clause (iii), if the continued participation of the Executive and such family members thereunder is not possible under the general terms and provisions thereofIn addition, the Company shall have no obligation to make any payment or provide such any benefit to Employee subsequent to payment of the Termination Compensation which, in the opinion of the Accountants, would subject any of the payments or benefits at such levels to Employee to the Executive and such family members either excise tax imposed by obtaining other insurance or by self-insuring such amounts, net of any reimbursement any of them shall receive with respect to health and medical costs from insurance other than pursuant to such clause (iii); provided, however, that prior to receiving benefits hereunder from the Company, the Executive and such family members shall first endeavor to obtain reimbursement with respect to health and medical costs from other insurance the Executive and such family members may own, if any, provided that such reimbursement can be obtained without unreasonable effort or expense on the part Section 4999 of the Executive and such family membersCode. The Executive is hereby expressly not required to mitigate damages No reduction in Termination Compensation or seek any other employment; provided, however, that any amounts that the Executive may receive from any other employment or consulting engagement during the one-year period following such termination shall reduce in equal amounts the amounts that the Company otherwise is obligated to pay to the Executive pursuant to clause (ii) of this Section 7(c).
(iv) Upon termination of the Executive's employment hereunder pursuant to Section 7(a)(i)(B) hereof or by the Executive other than pursuant to Section 7(a)(ii) hereof, the Executive shall be entitled to receive only (i) his salary at the rate provided in Section 3(a) to the date of such termination, and (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year release of the Company ended prior to from any payment or benefit obligation in reliance upon any aforesaid opinion of the year in which such termination occurs.
(v) If Accountants shall be permitted unless the Company does not offer shall have provided to extend Employee a copy of any such opinion that specifically entitles Employee to rely thereon, no later than the term of this Agreement from and after the fifth anniversary date otherwise required for payment of the Effective Time, and the Executive is employed by the Company at Termination Compensation or any such date, the Executive shall be entitled to receive continuation of the Executive's base salary for a period of one year after such fifth anniversary at the rate in effect at such anniversarylater payment or benefit.
Appears in 1 contract
Termination; Non-Renewal. (ia) Notwithstanding anything to the contrary herein contained, the Executive's employment shall terminate prior to the fifth anniversary of the Effective Time upon the occurrence of any of the following events:
(i) by notice given by the Company to the Executive, to terminate the Executive's employment as of a date (not earlier than 10 days from such notice) to be specified in such notice if (A) the Executive shall be physically or mentally incapacitated or disabled or otherwise unable fully to discharge his duties hereunder for a period of 180 days, whether or not continuous, in any period of 12 months, or (B) the Executive shall have given the Company cause therefor. For purposes of this Agreement, "cause" shall be limited to (x) action by the Executive involving willful malfeasance having a material adverse effect on the Company, (y) the Executive being convicted of a felony involving theft, fraud or moral turpitude (other than resulting from a traffic violation or like event), or (z) any other action by the Executive constituting a material breach of this Agreement which is not cured within 30 days after notice from the Company thereof;
(ii) by notice given by the Executive to the Company to terminate the Executive's employment as of a date (not earlier than 10 days from such notice) to be specified in such notice if the Company shall have given the Executive good reason therefor. For purposes of this Agreement, "good reason" shall be limited to a material breach by the Company of this Agreement, which breach is not cured within 30 days after notice from the Executive thereof.
(iib) Upon the Executive's death or termination of the Executive's employment pursuant to Section 7(a)(i)(A), the Executive (or his estate, as the case may be) shall be entitled to receive only (i) his unpaid salary at the rate provided in Section 3(a) to the date of termination, (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year of the Company ended prior to the year in which such termination occurs, and (iii) an amount equal to such bonus in respect of such prior fiscal year multiplied by a fraction the numerator of which shall be the number of days that shall have elapsed from the first day of the fiscal year in which such termination occurs to the date of such termination and the denominator of which shall be 365 (the aggregate amounts referred to in (i), (ii) and (iii) being hereinafter referred to as the "Accrued Obligations"). The Accrued Obligations shall be paid within 30 days of the termination of the Executive's employment.
(iiic) Upon termination of the Executive's employment hereunder pursuant to Section 7(a)(ii) hereof or by the Company other than pursuant to Section 7(a)(i) hereof, the Executive shall be entitled to receive only (i) the Accrued Obligations, (ii) continuation of the Executive's base salary for a period after the date of such termination equal to the unexpired term of this Agreement but in no event less than eighteen months at the rate in effect at such date of termination, and (iii) during the one- one-year period following such termination, continuation of the participation of the Executive and his spouse and dependent children, if any, in all health and medical benefit plans, policies and programs in effect from time to time with respect to the most senior executive officers of the Company and their families generally (at the same levels and at the same cost, if any, as provided to such officers generally). Notwithstanding anything to the contrary contained in the preceding clause (iii), if the continued participation of the Executive and such family members thereunder is not possible under the general terms and provisions thereof, the Company shall provide such benefits at such levels to the Executive and such family members either by obtaining other insurance or by self-insuring such amounts, net of any reimbursement any of them shall receive with respect to health and medical costs from insurance other than pursuant to such clause (iii); provided, however, that prior to receiving benefits hereunder from the Company, the Executive and such family members shall first endeavor to obtain reimbursement with respect to health and medical costs from other insurance the Executive and such family members may own, if any, provided that such reimbursement can be obtained without unreasonable effort or expense on the part of the Executive and such family members. The Executive is hereby expressly not required to mitigate damages or seek any other employment; provided, however, that any amounts that the Executive may receive from any other employment or consulting engagement during the one-year period following such termination shall reduce in equal amounts the amounts that the Company otherwise is obligated to pay to the Executive pursuant to clause (ii) of this Section 7(c).
(ivd) Upon termination of the Executive's employment hereunder pursuant to Section 7(a)(i)(B) hereof or by the Executive other than pursuant to Section 7(a)(ii) hereof, the Executive shall be entitled to receive only (i) his salary at the rate provided in Section 3(a) to the date of such termination, and (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year of the Company ended prior to the year in which such termination occurs.
(ve) If the Company does not offer to extend the term of this Agreement from and after the fifth anniversary of the Effective Time, and the Executive is employed by the Company at such date, the Executive shall be entitled to receive continuation of the Executive's base salary for a period of one year after such fifth anniversary at the rate in effect at such anniversary.
Appears in 1 contract
Termination; Non-Renewal. (a) The Company may terminate this Agreement without liability (other than for the base salary and any other compensation provided in paragraph 4 accrued to the date of termination) in the event of (i) Notwithstanding anything a material breach by Employee of the provisions of this Agreement, which breach shall not have been cured by Employee within thirty (30) days following notice thereof by the Company to Employee, (ii) the commission of gross negligence or bad faith (i.e., an act involving actual or constructive fraud, or a design to mislead or deceive another, or the conscious doing of a wrong because of dishonest purpose or motivated by ill will) by Employee in the course of his employment hereunder, which commission has a material adverse effect on the Company, (iii) the commission by Employee of a criminal act of fraud, theft or dishonesty causing material damages to the contrary herein containedCompany or any of its subsidiaries, (iv) the Executive's employment conviction of Employee of (or plead nolo contendere to) any felony, or misdemeanor involving moral turpitude if such misdemeanor results in material financial harm to or materially adversely affects the goodwill of the Company, or (v) any violation by Employee of the Company’s Code of Business Conduct and Ethics or the Company’s sexual harassment and other forms of harassment policy or drug and alcohol abuse policy, as set forth in the Company’s employee handbook. The circumstances specified in (i) through (v) above shall terminate be defined as “Cause.”
(b) Unless the Employee is terminated for Cause pursuant to Section 9(a) above on or prior to the fifth anniversary Expiration Date, and other than in the circumstances described in Section 9(d), in the event that the Company does not offer Employee to enter into a written employment agreement with terms and conditions no less favorable than substantially the same terms and conditions as this Agreement to begin immediately following the Expiration Date, Employee shall receive, in consideration of his continuing obligations under Section 8 hereof, payment of base salary, based on the then applicable salary level, for a period of twelve (12) months, commencing seven months following the date of the Effective Time expiration of the Employment Period. Employee’s right to any payments pursuant to this Section 9(b) shall be in addition to, and not in lieu of, any damages for the termination by the Company of this Agreement prior to the Expiration Date for any reason other than those set forth in Section 9(a) above.
(c) After a Change in Control (as hereinafter defined) has occurred, Employee may terminate his employment upon thirty (30) days' written notice to the Company within one hundred and eighty (180) days following such a Change in Control and after he has obtained actual knowledge of the occurrence of any of the following events:
(i) by notice given by Failure to elect or appoint, or re-elect or re-appoint, Employee to, or removal of Employee from, his office and/or position with the Company as constituted prior to the ExecutiveChange in Control, to terminate except in connection with the Executivetermination of Employee's employment as of a date (not earlier than 10 days from such noticepursuant to Section 9(a) to be specified in such notice if (A) the Executive shall be physically or mentally incapacitated or disabled or otherwise unable fully to discharge his duties hereunder for a period of 180 days, whether or not continuous, in any period of 12 months, or (B) the Executive shall have given the Company cause therefor. For purposes of this Agreement, "cause" shall be limited to (x) action by the Executive involving willful malfeasance having a material adverse effect on the Company, (y) the Executive being convicted of a felony involving theft, fraud or moral turpitude (other than resulting from a traffic violation or like event), or (z) any other action by the Executive constituting a material breach of this Agreement which is not cured within 30 days after notice from the Company thereofhereof;
(ii) A reduction in Employee's overall compensation (including any reduction in pension or other benefit programs or perquisites) or a material adverse change in the nature or scope of the authorities, powers, functions or duties normally attached to Employee's position with the Company as referred to in Section 2 hereof;
(iii) A determination by notice given Employee made in good faith that, as a result of a Change in Control, he is unable effectively to carry out the authorities, powers, functions or duties attached to his position with the Company as referred to in Section 2 hereof, and the situation is not remedied within thirty (30) days after receipt by the Executive to the Company to terminate the Executive's employment as of a date written notice from Employee of such determination;
(not earlier than 10 days from such noticeiv) to be specified in such notice if the Company shall have given the Executive good reason therefor. For purposes of this Agreement, "good reason" shall be limited to a material A breach by the Company of any provision of this Agreement, which breach is Agreement not cured within 30 days after notice from the Executive thereof.
(ii) Upon the Executive's death or termination of the Executive's employment pursuant to Section 7(a)(i)(A), the Executive (or his estate, as the case may be) shall be entitled to receive only (i) his unpaid salary at the rate provided in Section 3(a) to the date of termination, (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year of the Company ended prior to the year in which such termination occurs, and (iii) an amount equal to such bonus in respect of such prior fiscal year multiplied covered by a fraction the numerator of which shall be the number of days that shall have elapsed from the first day of the fiscal year in which such termination occurs to the date of such termination and the denominator of which shall be 365 (the aggregate amounts referred to in clauses (i), (ii) and or (iii) being of this Section 9(c), which is not remedied within thirty (30) days after receipt by the Company of written notice from Employee of such breach;
(v) A change in the location at which substantially all of Employee's duties with the Company are to be performed to a location which is not within a 50-mile radius of the address of the place where Employee is performing services prior to the date of the Change in Control; or
(vi) failure by the Company or its successor pursuant to such Change in Control, as applicable, and the Employee to either agree to continue this Agreement or to enter into a new employment agreement mutually acceptable to the Company or its successor and the Employee in lieu of this Agreement. An election by Employee to terminate his employment under the provisions of this paragraph 9(c) shall not be deemed a voluntary termination of employment by Employee for the purpose of interpreting the provisions of any of the Company's employee benefit plans, programs or policies. Employee's right to terminate his employment pursuant to this paragraph 9(c) shall not be affected by his illness or incapacity, whether physical or mental, unless the Company shall at the time be entitled to terminate his employment under paragraph 7 of this Agreement. Employee's continued employment with the Company for any period of time less than one hundred and eighty (180) days after a Change in Control shall not be considered a waiver of any right he may have to terminate his employment pursuant to this paragraph 9(c). A termination by Employee under this paragraph 9(c) shall be deemed a termination by the Company of this Agreement without Cause.
(d) After a Change in Control has occurred, in the event that this Agreement is terminated by the Company or its successor without Cause or by the Employee pursuant to Section 9(c), and if the Company or its successor and the Employee do not agree to enter into a new employment agreement in lieu hereof, then Employee shall be entitled to be paid in a lump sum, six months and one day after such termination, an amount of cash (to be computed, at the expense of the Company or its successor, by the independent certified public accountants utilized by the Company immediately prior to the Change of Control (the "Accountants"), whose computation shall be conclusive and binding upon Employee and the Company or its successor) equal to 2.99 times Employee's "base amount" as defined in Section 280G(b)(3) of the Internal Revenue Code of 1986, as amended (the "Code"). Any such payment shall be in full satisfaction of all of the Company’s or its successor’s obligations hereunder, and upon payment made pursuant to this paragraph 9(d), all of the Company’s or its successor’s obligations pursuant to this Agreement shall terminate in full and Employee shall have no further rights hereunder or recourse against the Company or its successor pursuant to this Agreement; provided, however, nothing in this paragraph 9(d) shall be interpreted to preclude the Employee receiving his accrued salary and other compensation payable pursuant to paragraph 4 through the date of termination. Such lump sum payment is hereinafter referred to as the "Accrued ObligationsTermination Compensation." It is intended that the "present value" of the payments and benefits to Employee, whether under this Agreement or otherwise, which are includable in the computation of "parachute payments" shall not, in the aggregate, exceed 2.99 times the "base amount" (the terms "present value", "parachute payments" and "base amount" being determined in accordance with Section 280G of the Code). The Accrued Obligations Accordingly, if Employee receives payments or benefits from the Company prior to payment of the Termination Compensation which, when added to the Termination Compensation, would, in the opinion of the Accountants, subject any of the payments or benefits to Employee to the excise tax imposed by Section 4999 of the Code, the Termination Compensation shall be paid within 30 days reduced by the smallest amount necessary, in the opinion of the termination of the Executive's employment.
(iii) Upon termination of the Executive's employment hereunder pursuant Accountants, to Section 7(a)(ii) hereof or by the Company other than pursuant to Section 7(a)(i) hereof, the Executive shall be entitled to receive only (i) the Accrued Obligations, (ii) continuation of the Executive's base salary for a period after the date of avoid such termination equal to the unexpired term of this Agreement but in no event less than eighteen months at the rate in effect at such date of termination, and (iii) during the one- year period following such termination, continuation of the participation of the Executive and his spouse and dependent children, if any, in all health and medical benefit plans, policies and programs in effect from time to time with respect to the most senior executive officers of the Company and their families generally (at the same levels and at the same cost, if any, as provided to such officers generally)tax. Notwithstanding anything to the contrary contained in the preceding clause (iii), if the continued participation of the Executive and such family members thereunder is not possible under the general terms and provisions thereofIn addition, the Company shall have no obligation to make any payment or provide such any benefit to Employee subsequent to payment of the Termination Compensation which, in the opinion of the Accountants, would subject any of the payments or benefits at such levels to Employee to the Executive and such family members either excise tax imposed by obtaining other insurance or by self-insuring such amounts, net of any reimbursement any of them shall receive with respect to health and medical costs from insurance other than pursuant to such clause (iii); provided, however, that prior to receiving benefits hereunder from the Company, the Executive and such family members shall first endeavor to obtain reimbursement with respect to health and medical costs from other insurance the Executive and such family members may own, if any, provided that such reimbursement can be obtained without unreasonable effort or expense on the part Section 4999 of the Executive and such family membersCode. The Executive is hereby expressly not required to mitigate damages No reduction in Termination Compensation or seek any other employment; provided, however, that any amounts that the Executive may receive from any other employment or consulting engagement during the one-year period following such termination shall reduce in equal amounts the amounts that the Company otherwise is obligated to pay to the Executive pursuant to clause (ii) of this Section 7(c).
(iv) Upon termination of the Executive's employment hereunder pursuant to Section 7(a)(i)(B) hereof or by the Executive other than pursuant to Section 7(a)(ii) hereof, the Executive shall be entitled to receive only (i) his salary at the rate provided in Section 3(a) to the date of such termination, and (ii) any unpaid bonus pursuant to Section 3(b) in respect of the fiscal year release of the Company ended prior to from any payment or benefit obligation in reliance upon any aforesaid opinion of the year in which such termination occurs.
(v) If Accountants shall be permitted unless the Company does not offer shall have provided to extend Employee a copy of any such opinion that specifically entitles Employee to rely thereon, no later than the term of this Agreement from and after the fifth anniversary date otherwise required for payment of the Effective Time, and the Executive is employed by the Company at Termination Compensation or any such date, the Executive shall be entitled to receive continuation of the Executive's base salary for a period of one year after such fifth anniversary at the rate in effect at such anniversarylater payment or benefit.
Appears in 1 contract
