Termination of Employment Without Cause or for Good Reason. (a) If (1) the Company terminates Executive’s employment without Cause or (2) Executive resigns for Good Reason, (both as defined in Appendix A), then Executive shall be entitled to receive the following termination payments and benefits; provided, however, that this Section 3.3 shall not apply to, and shall have no effect in connection with, any termination to which Section 3.2 of this Agreement applies: (i) an amount equal to twelve (12) months’ Salary at the rate in effect immediately prior to termination (or, if Executive terminates employment for Good Reason due to a material reduction in Executive’s then-in-effect base Salary, immediately prior to such reduction); provided, however, that in the event such termination occurs within twelve (12) months following a Change in Control, such amount shall be equal to eighteen (18) months’ Salary, such amount payable to Executive in accordance with the terms below; (ii) in the event such termination occurs within twelve (12) months following a Change in Control, an amount equal to Executive’s target Bonus for the calendar year in which such termination occurs, such amount pro-rated for the number of full months worked in such calendar year prior to termination and payable to Executive in accordance with the terms below; (iii) if Executive and his spouse and eligible children are entitled to, and timely (and properly) elect to, continue their coverage (or the coverage of any one of them) under the Company’s group health plans pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended (“COBRA”), the Company shall pay the premiums (or reimburse Executive for any premiums paid by Executive (or Executive’s spouse or eligible children)) for such COBRA continuation coverage for a period of six (6) months following the last day of the month containing Executive’s date of termination (“COBRA Continuation Date”) or until Executive is no longer entitled to COBRA continuation coverage under the Company’s group health plans, whichever period is shorter; provided, however, that in the event such termination occurs within twelve (12) months following a Change in Control, such COBRA continuation coverage shall be for a period of twelve (12) months following the COBRA Continuation Date or until Executive is no longer entitled to COBRA continuation coverage under the group health plans of the Company or, if applicable, those of a Successor Company, whichever period is shorter. Notwithstanding the foregoing or any other provision in this Agreement to the contrary, the Company may unilaterally amend this Section 3.3(a)(iii) or eliminate the benefit provided hereunder to the extent it deems necessary to avoid the imposition of excise taxes, penalties or similar charges on the Company or any of its subsidiaries or affiliates, including, without limitation, under Section 4980D of the Code; (iv) in the event such termination occurs within twelve (12) months following a Change in Control, full acceleration of Executive’s then unvested equity awards that vest based on continued employment or service (the payments and benefits set forth in Section 3.3(a)(i)-
Appears in 1 contract
Termination of Employment Without Cause or for Good Reason. (a) If (1) the Company terminates Executive’s employment under this Agreement is terminated by the Executive for Good Reason or by the Company without Cause (other than on account of the Executive’s death or (2) Executive resigns for Good Reason, (both as defined in Appendix ADisability), then the Executive shall be entitled to receive the following:
(1) Accrued Obligations paid in a lump sum in cash in accordance with the Company's customary payroll practices no later than 60 days following termination payments and benefitsthe Termination Date; provided, however, that this Section 3.3 shall not apply toany portion of the Accrued Obligations which consists of Annual Bonus, and shall have no effect in connection withEquity Awards, any termination to which Section 3.2 of this Agreement applies:
(i) an amount equal to twelve (12) months’ Salary at the rate in effect immediately prior to termination (ordeferred compensation, if Executive terminates employment for Good Reason due to a material reduction in Executive’s then-in-effect base Salary, immediately prior to such reduction); provided, however, that in the event such termination occurs within twelve (12) months following a Change in Control, such amount insurance benefits or other employee benefits shall be equal to eighteen (18) months’ Salary, such amount payable to Executive determined and paid or provided in accordance with the terms belowof the AICP, Equity Incentive Plan, award agreement and other relevant plan or policy as applicable to the Executive;
(ii2) in the event such termination occurs within twelve (12) months following a Change in Control, an amount equal to Executive’s target Pro-rated Annual Bonus for the calendar year in during which such termination occurs, such amount pro-rated for the Executive’s employment terminated (the “Termination Year”) based on the number of full months worked in such calendar year prior to termination days elapsed during the Termination Year through the Termination Date (“Service Days”). The amount of the Pro-rated Annual Bonus shall be calculated by multiplying the Executive’s Target Bonus for the Termination Year by a fraction, the numerator of which is the Service Days and the denominator of which is 365 (the “Pro-Rated Annual Bonus”). The Pro-Rated Annual Bonus shall be payable to Executive in accordance with the terms belowSection 5.5 of this Agreement;
(iii3) if Executive A lump sum payment of equal to [one/two] times [(1x)/(2x)] the sum of Executive’s Base Salary and his spouse and eligible children are entitled toTarget Bonus for the year in which the Termination Date occurs, and timely payable in accordance with Section 5.5 of this Agreement;
(and properly4) elect to, continue their If COBRA continuation coverage (or the coverage of any one of them) is properly elected under the Company’s group health medical plan(s) by the Executive (and the Executive’s spouse and dependents, if any, covered by the Company’s group medical plans pursuant to Section 4980B of on the Internal Revenue Code of 1986, as amended (“COBRA”Executive’s Termination Date), the Company shall pay the premiums (or reimburse Executive cost of such coverage for any premiums paid by the Executive (or Executive’s and such spouse or and dependents, if applicable), payable in accordance with Section 5.5 of this Agreement. The Executive shall be eligible children)) for such to receive COBRA continuation coverage for a period through the Company until the earlier of six (6A) twenty-four (24) months following the last day of Termination Date; (B) the month containing Executive’s date of termination (“COBRA Continuation Date”) or until Executive is no longer entitled to eligible for COBRA continuation coverage under through the Company’s group health plans; or (C) the date on which the Executive receives substantially similar coverage from another employer or other source (the “Continuation Eligibility Period”). If applicable, whichever period is shorter; provided, however, such payments or provision of benefits shall be in compliance with Section 6 herein. The Executive acknowledges and agrees that the value of this coverage may be includible in the event such termination occurs within twelve (12) months following a Change in Control, such COBRA continuation coverage shall be Executive’s gross income for a period of twelve (12) months following the COBRA Continuation Date or until Executive is no longer entitled to COBRA continuation coverage under the group health plans of the Company or, if applicable, those of a Successor Company, whichever period is shorter. Notwithstanding the foregoing or any other provision in this Agreement to the contrary, the Company may unilaterally amend this Section 3.3(a)(iii) or eliminate the benefit provided hereunder to the extent it deems necessary to avoid the imposition of excise taxes, penalties or similar charges on the Company or any of its subsidiaries or affiliates, including, without limitation, under Section 4980D of the Codefederal and state income tax purposes;
(iv5) in If allowed under the event such termination occurs within twelve current insurance plan, a lump sum payment equal to eighteen (1218) months following a Change of premiums of term life insurance at the coverage levels and terms as provided for the Executive immediately before the Termination Date, payable directly to the then current insurance carrier and in Controlaccordance with Section 5.5 of this Agreement; and
(6) Outplacement counseling, full acceleration the scope and provider of Executive’s then unvested equity awards that vest based on continued which shall be selected by the Company, continuing until the earlier to occur of the following: (A) the Executive finds comparable employment or service (B) two years from the payments Termination Date, payable directly to the provider and benefits set forth in accordance with Section 3.3(a)(i)-5.5 of this Agreement. The use of any other provider or outplacement-related services by the Executive would require the approval of the [Compensation Committee/Chief Executive Officer or the Chief People Officer of the Company].7
Appears in 1 contract
Termination of Employment Without Cause or for Good Reason. (a) If (1) the The Company terminates Executivemay terminate Employee’s employment without Cause or (2) Executive resigns for Good Reasonat any time without notice. Subject to the provisions of Section 4 below, (both as defined in Appendix A), then Executive shall be entitled to receive the following upon termination payments and benefits; provided, however, that this Section 3.3 shall not apply to, and shall have no effect in connection with, any termination to which Section 3.2 of this Agreement applies:
(i) an amount equal to twelve (12) months’ Salary at the rate in effect immediately prior to termination (or, if Executive terminates Employee’s employment for Good Reason due to a material reduction in Executive’s then-in-effect base Salary, immediately prior to such reduction); provided, however, that in the event such termination occurs within twelve (12) months following after a Change in Controlof Control which occurs during the Term and is without Cause or is voluntary by Employee for Good Reason, such Employee shall receive the following payments and benefits:
a. The Company shall pay to Employee during the eighteen (18) month period following the Termination Date an amount shall be equal to eighteen (18) months’ Salaryof Employee’s base annual salary at the highest rate in effect at any time during the twelve (12) months immediately preceding the Termination Date. Employee will be paid in equal biweekly installments in accordance with Company’s regular payroll periods and practices. The first payment to which Employee is entitled will be paid to Employee within a period that shall extend no more than ninety (90) days from the Termination Date so long as the Release described in Attachment A has been executed and become irrevocable. To the extent that such ninety-day period spans two taxable years of the Employee, upon satisfaction of the Release requirement, payments shall not begin until the second of such taxable years. At all times, the right to each biweekly payment made under this section 3(a) shall be treated as the right to a series of separate payments within the meaning of 26 CFR §1.409A-2(b) (2) (iii).
b. In the event that Employee becomes entitled to severance payments under Section 3.a. above, subject to (i) Employee having timely elected continuation coverage under the federal law known as “COBRA”, (ii) Employee’s timely payment of the full monthly COBRA premium for each month during the period described below and (iii) such continuation coverage not having terminated, for a period of up to eighteen (18) months beginning on the first day of the month after the month in which Employee’s employment terminates or, if earlier, until such time as Employee’s COBRA coverage terminates, the Company shall pay to Employee in each such month, within ten (10) days of the first day of such month, an amount payable equal to Executive the full monthly COBRA premium for such month minus the active employee monthly cost of such coverage.
c. In the event that Employee become entitled to severance payments under Section 3.a. above, then all outstanding unvested equity-based compensation awards granted to Employee under any Company equity plan prior to the Termination Date shall become exercisable and vested in full, and all restrictions thereon shall lapse, notwithstanding any vesting schedule or other provisions to the contrary in the agreements evidencing such awards, and the Company and Employee hereby agree that any agreements covering such awards are hereby, and will be deemed to be, amended to give effect to this provision. In addition to the foregoing, any cash component of any awards granted to Employee under any Company executive incentive plan prior to the Termination Date shall become fully vested and, to the extent not already paid to Employee, shall be accelerated and payment shall become due and owing to Employee.
d. The Company will provide Employee with outplacement support services through Xxxxxxx & Company in the amount of three (3) months of High Impact Career Transition, providing Employee initiates the service within ninety (90) days of the Termination Date.
e. In the event that Employee become entitled to severance payments under Section 3.a. above, then Employee shall be released from, and no longer subject to, any non-competition provision contained in any previously signed agreement, and in particular, the provision contained in the Company’s standard form of Nondisclosure, Noncompetition and Developments Agreement.
f. Notwithstanding anything to the contrary contained in this Agreement, if (i) Employee is a “specified employee” within the meaning of Treas. Reg. §1.409A-1(i), and (ii) any amounts or benefits to be paid to Employee upon termination of employment without Cause or for Good Reason, as defined in this Agreement, do not qualify for exemption from Section 409A or the delay in payment rule under the short-term deferral exception to deferred compensation of Treas. Reg. §1.409A-1(b)(4), the separation pay plan exception to deferred compensation of Treas. Reg. §1.409A-1(b)(9), or otherwise, then payments of such amounts that are not exempt from Section 409A of the Code shall be made in accordance with the terms below;
of this Agreement, but in no event earlier than the first to occur of (ii1) in the event such day after the six-month anniversary of Employee’s termination occurs within twelve of employment, or (122) months following a Change in Control, an amount equal to ExecutiveEmployee’s target Bonus for the calendar year in which such termination occurs, such amount pro-rated for the number of full months worked in such calendar year prior to termination and payable to Executive in accordance with the terms below;
(iii) if Executive and his spouse and eligible children are entitled to, and timely (and properly) elect to, continue their coverage (or the coverage of any one of them) under the Company’s group health plans death. Any payments delayed pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended (“COBRA”), the Company shall pay the premiums (or reimburse Executive for any premiums paid by Executive (or Executive’s spouse or eligible children)) for such COBRA continuation coverage for a period of six (6) months following the last day of the month containing Executive’s date of termination (“COBRA Continuation Date”) or until Executive is no longer entitled to COBRA continuation coverage under the Company’s group health plans, whichever period is shorter; provided, however, that in the event such termination occurs within twelve (12) months following a Change in Control, such COBRA continuation coverage prior sentence shall be for made in a period lump sum, on the first business day after the six-month anniversary of twelve (12) months following the COBRA Continuation Date or until Executive is no longer entitled to COBRA continuation coverage under the group health plans Employee’s termination of the Company or, if applicable, those of a Successor Company, whichever period is shorter. employment.
g. Notwithstanding the foregoing or any other provision in of this Agreement to the contrary, neither the time nor the schedule of any payment under this Agreement may be accelerated or subject to a further deferral except as provided in 26 C.F.R. § 1.409A-3 (j) (4).
h. Employee does not have any right to make any election regarding the time or form of any payment due under this Agreement.
i. If the Company fails to make any payment under this Agreement, either intentionally or unintentionally, within the time period specified in this Agreement, but the payment is made within the same calendar year, such payment will be treated as made within the time period specified in the Agreement pursuant to 26 C.F.R. § 1.409A-3(d). In addition, if a payment is not made due to a dispute with respect to such payment, the payment may unilaterally amend be delayed in accordance with 26 C.F.R. § 1.409A-3(g).
j. For purposes of this Agreement, the determination of whether Employee has terminated employment will be made in accordance with 26 C.F.R. § 1.409A-1(h)(1).
k. This Agreement shall be administered in compliance with Section 3.3(a)(iii) or eliminate 409A of the benefit provided hereunder Code and each provision of the Agreement shall be interpreted, to the extent it deems necessary possible, to avoid the imposition of excise taxes, penalties or similar charges on the Company or any of its subsidiaries or affiliates, including, without limitation, under comply with Section 4980D of the Code;
(iv) in the event such termination occurs within twelve (12) months following a Change in Control, full acceleration of Executive’s then unvested equity awards that vest based on continued employment or service (the payments and benefits set forth in Section 3.3(a)(i)-409A.
Appears in 1 contract
Termination of Employment Without Cause or for Good Reason. (a) If (1) the Company terminates Executive’s employment without Cause Cause, or (2) Executive resigns for Good Reason, (both as defined in Appendix A), then Executive shall be entitled to receive the following below termination payments and benefits; provided, however, that this Section 3.3 3.4(a) shall not apply to, and shall have no effect in connection with, any termination to which Section 3.2 or Section 3.3 of this Agreement applies:
(i) any Accrued Obligations;
(ii) COBRA continuation coverage for Executive and his eligible dependents paid in full by the Company, so long as Executive has not become actually covered by the medical plan of a subsequent employer during any such month and is otherwise entitled to COBRA continuation coverage, with such payments for up to a maximum of six (6) months following the date of termination. After such period, Executive is responsible for paying the full cost for any additional COBRA continuation coverage to which Executive is then entitled;
(iii) an amount equal to twelve six (126) months’ Salary Salary, at the rate in effect immediately prior to termination termination, payable to Executive in accordance with the terms below (or, if Executive terminates employment for Good Reason due to a material reduction in “Severance Payments”);
(iv) accelerated vesting by an additional twelve (12) months of Executive’s then-in-effect base Salary, immediately prior to such reduction)then outstanding Awards that vest based on Executive’s continued employment or service; provided, however, that in the event such termination occurs in connection with or within eighteen (18) months following a Change of Control (as defined in the Plan), fifty percent (50%) of Executive’s then outstanding Awards that vest based on Executive’s continued employment or service shall become vested immediately prior to such termination (subject to any greater acceleration that applies under the terms of the Plan in the event such Awards are not assumed or substituted for in a Change of Control); and
(v) an extension of the time period during which Executive may exercise Executive’s then outstanding and vested stock options (taking into account the accelerated vesting provided in this Section 3.4(a)), until the earlier of (A) twelve (12) months following from the date of termination, or (B) the latest date upon which such stock options would have expired by their original terms under any circumstances.
(b) As a Change in Controlcondition to receiving the payments and benefits under this Section 3.4 other than the Accrued Obligations, such amount Executive shall execute (and not revoke within the applicable revocation period) a general release and waiver of all claims against the Company, which release and waiver shall be equal in a form mutually acceptable to eighteen the Company and Executive. Such release and waiver shall be delivered to the Company no later than the date specified by the Company (18which date shall in no event be later than twenty-one (21) months’ Salarydays or forty-five (45) days, such amount payable to as applicable, after the date on which Executive in accordance is presented with the terms below;of the release and waiver). In addition, payment of the amounts and benefits under this Section 3.4, other than the Accrued Obligations, are contingent on Executive’s full and continued compliance with the Company’s Confidentiality Agreement, as the same may be amended from time to time.
(iic) Notwithstanding the foregoing, termination of employment by Executive will not be for Good Reason unless (1) Executive notifies the Company in writing of the existence of the condition which Executive believes constitutes Good Reason within thirty (30) days of the initial existence of such condition (which notice specifically identifies such condition), (2) the Company fails to remedy such condition within thirty (30) days after the date on which it receives such notice (the “Remedial Period”), and (3) Executive actually terminates employment within thirty (30) days after the expiration of the Remedial Period and before the Company remedies such condition. If Executive terminates employment before the expiration of the Remedial Period or after the Company remedies the condition (even if after the end of the Remedial Period), then Executive’s termination will not be considered to be for Good Reason.
(d) Subject to Section 3.4(b), Severance Payments under Section 3.4(a)(iii) shall be paid to Executive through the Company’s normally scheduled payroll during the six (6) month period commencing within sixty (60) days following the date on which Executive’s employment was terminated without Cause or Executive resigned for Good Reason; provided, however, that in the event such termination occurs within twelve sixty (1260) months following day period begins in one taxable year of Executive and ends in a Change in Controlsecond taxable year of Executive, an amount equal to Executive’s target Bonus for the calendar year in which such termination occurs, such amount pro-rated for the number of full months worked in such calendar year prior to termination and payable Company shall not make any Severance Payments to Executive in accordance with until the terms below;
(iii) if Executive and his spouse and eligible children are entitled to, and timely (and properly) elect to, continue their coverage (or the coverage second taxable year. Each such payment shall be treated as a separate payment for purposes of any one of them) under the Company’s group health plans pursuant to Section 4980B 409A of the Internal Revenue Code of 1986, as amended (the “COBRACode”), including the Company shall pay the premiums (or reimburse Executive for any premiums paid by Executive (or Executive’s spouse or eligible children)) for such COBRA continuation coverage for a period of six (6) months following the last day of the month containing Executive’s date of termination rules and regulations thereunder (“COBRA Continuation DateCode Section 409A”) or until Executive is no longer entitled to COBRA continuation coverage under the Company’s group health plans, whichever period is shorter; provided, however, that in the event such termination occurs within twelve (12) months following a Change in Control, such COBRA continuation coverage shall be for a period of twelve (12) months following the COBRA Continuation Date or until Executive is no longer entitled to COBRA continuation coverage under the group health plans of the Company or, if applicable, those of a Successor Company, whichever period is shorter). Notwithstanding the foregoing or foregoing, if any other provision in this Agreement to the contrary, the Company may unilaterally amend this Section 3.3(a)(iii) or eliminate the benefit provided hereunder to the extent it deems necessary to avoid the imposition of excise taxes, penalties or similar charges on the Company or any of its subsidiaries or affiliates, including, without limitation, under Section 4980D of the Code;
(iv) in the event such termination occurs within twelve (12) months following a Change in Control, full acceleration of Executive’s then unvested equity awards that vest based on continued employment or service (the payments and benefits set forth in payable pursuant to Section 3.3(a)(i)-3.4(a) constitute a “deferral of compensation” subject to Code Section 409A (after taking into account, to the maximum extent possible, any applicable exemptions), then the applicable provisions of Section 13 hereof shall apply.
Appears in 1 contract
Samples: Executive Employment Agreement (Zillow Group, Inc.)
Termination of Employment Without Cause or for Good Reason. (a) If (1) Upon termination of the Company terminates Executive’s employment by the Company without Cause or (2) resignation by the Executive resigns for Good Reason, if the Executive executes and does not revoke a written Release (both as defined in Appendix Abelow), then the Executive shall be entitled to receive receive, in lieu of any payments under any severance plan or program for employees or executives, the following termination payments and benefits; provided, however, that this Section 3.3 shall not apply to, and shall have no effect in connection with, any termination to which Section 3.2 of this Agreement appliesfollowing:
(i1) the Company’s continued payment of the Executive’s Base Salary in accordance with the Company’s customary payroll practices (the “Severance Payments”) for the period (the “Severance Period”) beginning on the termination date and ending on the earlier to occur of (x) the «SEVERANCE» month anniversary of the termination date and (y) the first date that the Executive violates any covenant contained in Restrictive Covenants Annex attached hereto as Annex B, provided, that, any such Severance Payments shall commence on the first payroll period following the effective date of the Release, and the initial Severance Payment installment shall include a lump-sum payment of all amounts accrued under this Section 3(e) from the date of termination through the date of such initial Severance Payment, and provided, further, that if the consideration and revocation period relating to the Release spans two calendar years, any such Severance Payments shall commence on the first payroll period of the second calendar year (the date of such initial Severance Payment, the “Severance Payment Commencement Date”);
(2) the Company’s payment of an amount equal to the COBRA premiums that the Executive would pay (based upon the benefits elections in effect on the termination date) if the Executive elected continued health coverage under the Company’s health plan for the Executive and the Executive’s dependents for the twelve month period following the date of termination (12the “COBRA Payments”), payable in substantially equal payments in accordance with the Company’s customary payroll practices, provided that the first of such payments shall commence on the Severance Payment Commencement Date and such first COBRA Payment shall include a lump-sum payment of all amounts accrued under this Section 3(e) months’ Salary from the date of termination;
(3) the Company’s payment of a pro-rated portion of the Annual Bonus for the fiscal year in which the Executive’s termination date occurs, equal to the product of (i) the Annual Bonus for such fiscal year determined based solely on the actual level of achievement of the applicable performance goals for such year, multiplied by (ii) a fraction, the numerator of which is the number of days during such fiscal year ending on the termination date, and the denominator of which is 365, and payable if and when annual bonuses are paid to other senior executives of the Company with respect to such year, and no later than two and a half months following the end of such fiscal year;
(4) the Company’s provision of up to $10,000 of outplacement services; and
(5) treatment of any outstanding equity awards that the Executive holds at the rate in effect immediately prior to termination (or, if Executive terminates employment for Good Reason due to a material reduction in Executive’s then-in-effect base Salary, immediately prior to such reduction); provided, however, that in the event such termination occurs within twelve (12) months following a Change in Control, such amount shall be equal to eighteen (18) months’ Salary, such amount payable to Executive date in accordance with the terms below;
(ii) in of the event such termination occurs within twelve (12) months following a Change in Control, an amount equal to Executive’s target Bonus for the calendar year in which such termination occurs, such amount pro-rated for the number of full months worked in such calendar year prior to termination and payable to Executive in accordance with applicable grant agreement; [provided that notwithstanding the terms below;
(iii) if Executive and his spouse and eligible children are entitled to, and timely (and properly) elect to, continue their coverage (or the coverage of any one of them) under the Company’s group health plans pursuant to Section 4980B of the Internal Revenue Code of 1986applicable grant agreement, as amended (“COBRA”)any Prior Performance Options, the Company shall pay the premiums (or reimburse Executive for any premiums paid by Executive (or Executive’s spouse or eligible children)) for such COBRA continuation coverage for a period of six (6) months following the last day of the month containing Executive’s date of termination (“COBRA Continuation Date”) or until Executive is no longer entitled to COBRA continuation coverage under the Company’s group health plans, whichever period is shorter; provided, however, that in the event such termination occurs within twelve (12) months following a Change in Control, such COBRA continuation coverage shall be for a period of twelve (12) months following the COBRA Continuation Date or until Executive is no longer entitled to COBRA continuation coverage under the group health plans of the Company or, if applicable, those of a Successor Company, whichever period is shorter. Notwithstanding the foregoing or any other provision in this Agreement to the contrary, the Company may unilaterally amend this Section 3.3(a)(iii) or eliminate the benefit provided hereunder to the extent it deems necessary not yet vested, shall not terminate immediately but shall remain outstanding and eligible to avoid the imposition of excise taxes, penalties or similar charges become vested based on the Company applicable performance measures being achieved as if the Executive had remained actively employed until the earlier of _________ or any of its subsidiaries or affiliates, including, without limitation, under Section 4980D one year following the date of the Code;
(iv) in the event such termination occurs within twelve (12) months following a Change in Control, full acceleration of Executive’s then termination of employment, at which time any vested Prior Performance Options will remain exercisable for an additional 90 days before expiring, and any remaining unvested equity awards that vest based on continued employment or service (the payments and benefits set forth in Section 3.3(a)(i)-Prior Performance Options will be immediately cancelled].
Appears in 1 contract
Samples: Executive Employment Agreement (Savers Value Village, Inc.)
Termination of Employment Without Cause or for Good Reason. (a) If (1) the Company terminates Executive’s employment without Cause Cause, or (2) Executive resigns for Good Reason, (both as defined in Appendix A), then Executive shall be entitled to receive the following below termination payments and benefits; provided, however, that this Section 3.3 3.4(a) shall not apply to, and shall have no effect in connection with, any termination to which Section 3.2 or Section 3.3 of this Agreement applies:
(i) any Accrued Obligations;
(ii) COBRA continuation coverage for Executive and his eligible dependents paid in full by the Company, so long as Executive has not become actually covered by the medical plan of a subsequent employer during any such month and is otherwise entitled to COBRA continuation coverage, with such payments for up to a maximum of six (6) months following the date of termination. After such period, Executive is responsible for paying the full cost for any additional COBRA continuation coverage to which Executive is then entitled;
(iii) an amount equal to twelve six (126) months’ Salary Salary, at the rate in effect immediately prior to termination termination, payable to Executive in accordance with the terms below (or, if Executive terminates employment for Good Reason due to a material reduction in “Severance Payments”);
(iv) accelerated vesting by an additional twelve (12) months of Executive’s then-in-effect base Salary, immediately prior to such reduction)then outstanding Awards that vest based on Executive’s continued employment or service; provided, however, that in the event such termination occurs in connection with or within eighteen (18) months following a Change of Control (as defined in the Plan), fifty percent (50%) of Executive’s then outstanding Awards that vest based on Executive’s continued employment or service shall become vested immediately prior to such termination (subject to any greater acceleration that applies under the terms of the Plan in the event such Awards are not assumed or substituted for in a Change of Control); and
(v) an extension of the time period during which Executive may exercise Executive's then outstanding and vested stock options (taking into account the accelerated vesting provided in this Section 3.4(a)), until the earlier of (A) twelve (12) months following from the date of termination, or (B) the latest date upon which such stock options would have expired by their original terms under any circumstances.
(b) As a Change in Controlcondition to receiving the payments and benefits under this Section 3.4 other than the Accrued Obligations, such amount Executive shall execute (and not revoke within the applicable revocation period) a general release and waiver of all claims against the Company, which release and waiver shall be equal in a form mutually acceptable to eighteen the Company and Executive. Such release and waiver shall be delivered to the Company no later than the date specified by the Company (18which date shall in no event be later than twenty-one (21) months’ Salarydays or forty-five (45) days, such amount payable to as applicable, after the date on which Executive in accordance is presented with the terms below;of the release and waiver). In addition, payment of the amounts and benefits under this Section 3.4, other than the Accrued Obligations, are contingent on Executive’s full and continued compliance with the Company’s Confidentiality Agreement, as the same may be amended from time to time.
(iic) Notwithstanding the foregoing, termination of employment by Executive will not be for Good Reason unless (1) Executive notifies the Company in writing of the existence of the condition which Executive believes constitutes Good Reason within thirty (30) days of the initial existence of such condition (which notice specifically identifies such condition), (2) the Company fails to remedy such condition within thirty (30) days after the date on which it receives such notice (the “Remedial Period”), and (3) Executive actually terminates employment within thirty (30) days after the expiration of the Remedial Period and before the Company remedies such condition. If Executive terminates employment before the expiration of the Remedial Period or after the Company remedies the condition (even if after the end of the Remedial Period), then Executive’s termination will not be considered to be for Good Reason.
(d) Subject to Section 3.4(b), Severance Payments under Section 3.4(a)(iii) shall be paid to Executive through the Company’s normally scheduled payroll during the six (6) month period commencing within sixty (60) days following the date on which Executive’s employment was terminated without Cause or Executive resigned for Good Reason; provided, however, that in the event such termination occurs within twelve sixty (1260) months following day period begins in one taxable year of Executive and ends in a Change in Controlsecond taxable year of Executive, an amount equal to Executive’s target Bonus for the calendar year in which such termination occurs, such amount pro-rated for the number of full months worked in such calendar year prior to termination and payable Company shall not make any Severance Payments to Executive in accordance with until the terms below;
(iii) if Executive and his spouse and eligible children are entitled to, and timely (and properly) elect to, continue their coverage (or the coverage second taxable year. Each such payment shall be treated as a separate payment for purposes of any one of them) under the Company’s group health plans pursuant to Section 4980B 409A of the Internal Revenue Code of 1986, as amended (the “COBRACode”), including the Company shall pay the premiums (or reimburse Executive for any premiums paid by Executive (or Executive’s spouse or eligible children)) for such COBRA continuation coverage for a period of six (6) months following the last day of the month containing Executive’s date of termination rules and regulations thereunder (“COBRA Continuation DateCode Section 409A”) or until Executive is no longer entitled to COBRA continuation coverage under the Company’s group health plans, whichever period is shorter; provided, however, that in the event such termination occurs within twelve (12) months following a Change in Control, such COBRA continuation coverage shall be for a period of twelve (12) months following the COBRA Continuation Date or until Executive is no longer entitled to COBRA continuation coverage under the group health plans of the Company or, if applicable, those of a Successor Company, whichever period is shorter). Notwithstanding the foregoing or foregoing, if any other provision in this Agreement to the contrary, the Company may unilaterally amend this Section 3.3(a)(iii) or eliminate the benefit provided hereunder to the extent it deems necessary to avoid the imposition of excise taxes, penalties or similar charges on the Company or any of its subsidiaries or affiliates, including, without limitation, under Section 4980D of the Code;
(iv) in the event such termination occurs within twelve (12) months following a Change in Control, full acceleration of Executive’s then unvested equity awards that vest based on continued employment or service (the payments and benefits set forth in payable pursuant to Section 3.3(a)(i)-3.4(a) constitute a “deferral of compensation” subject to Code Section 409A (after taking into account, to the maximum extent possible, any applicable exemptions), then the applicable provisions of Section 13 hereof shall apply.
Appears in 1 contract
Samples: Executive Employment Agreement (Zillow Group, Inc.)
Termination of Employment Without Cause or for Good Reason. (a) If (1) the Company terminates Executive’s employment without Cause or (2) Executive resigns for Good Reason, Reason (both as defined in Appendix A), then Executive shall be entitled to receive the following termination payments and benefits; provided, however, that this Section 3.3 shall not apply to, and shall have no effect in connection with, any termination to which Section 3.2 of this Agreement applies:
(i) an amount equal to twelve six (126) months’ Salary at the rate in effect immediately prior to termination (or, if Executive terminates employment for Good Reason due to a material reduction in Executive’s then-in-effect base Salary, immediately prior to such reduction); provided, however, that in the event such termination occurs within twelve (12) months following a Change in Control, such amount shall be equal to eighteen twelve (1812) months’ Salary, such amount payable to Executive in accordance with the terms below;
(ii) in the event such termination occurs within twelve (12) months following a Change in Control, an amount equal to Executive’s target Bonus bonus for the calendar year in which such termination occurs, such amount pro-rated for the number of full months worked in such calendar year prior to termination and payable to Executive in accordance with the terms below;
(iii) if Executive and his spouse and eligible children are entitled to, and timely (and properly) elect to, continue their coverage (or the coverage of any one of them) under the Company’s group health plans pursuant to Section 4980B of the Internal Revenue Code of 1986, as amended (“COBRA”), the Company shall pay the premiums (or reimburse Executive for any premiums paid by Executive (or Executive’s spouse or eligible children)) for such COBRA continuation coverage for a period of six (6) months following the last day of the month containing Executive’s date of termination (“COBRA Continuation Date”) or until Executive is no longer entitled to COBRA continuation coverage under the Company’s group health plans, whichever period is shorter; provided, however, that in the event such termination occurs within twelve (12) months following a Change in Control, such COBRA continuation coverage shall be for a period of twelve (12) months following the COBRA Continuation Date or until Executive is no longer entitled to COBRA continuation coverage under the group health plans of the Company or, if applicable, those of a Successor Company, whichever period is shorter. Notwithstanding the foregoing or any other provision in this Agreement to the contrary, the Company may unilaterally amend this Section 3.3(a)(iii) or eliminate the benefit provided hereunder to the extent it deems necessary to avoid the imposition of excise taxes, penalties or similar charges on the Company or any of its subsidiaries or affiliates, including, without limitation, under Section 4980D of the Code;
(iv) in the event such termination occurs within twelve (12) months following a Change in Control, full acceleration of Executive’s then unvested equity awards that vest based on continued employment or service (the payments and benefits set forth in Section 3.3(a)(i)-3.3(a)(i)-(iv) are collectively referred to herein as “Severance Payments”); and
(v) unpaid Salary earned through the date of termination and unused vacation that has accrued and would be payable under the Company’s standard policy (collectively, the “Accrued Obligations”), payable in a lump sum on the next regularly scheduled payroll date following the date on which Executive’s employment terminated.
(b) As a condition to receiving the payments and benefits under this Section 3.3 other than the Accrued Obligations, Executive must timely execute (and not revoke within the applicable revocation period specified therein) a general release and waiver of all claims against the Company, which release and waiver shall be in a form acceptable to the Company, and in substantially the form attached hereto as Appendix B (the “Release”). To be timely, the Release must become effective (i.e., Executive must have executed the Release and any revocation period must have expired without Executive’s revoking the Release) no later than sixty (60) days (or such earlier date specified in the Release) after Executive’s date of termination (the “Release Deadline”). If the Release does not become effective and irrevocable by the Release Deadline, Executive will not have any right or entitlement to any of the Severance Payments described in this Section 3.3. In addition, payment of the amounts and benefits under this Section 3.3 is contingent on Executive’s full and continued compliance with the Company’s Proprietary Information and Inventions Agreement, as the same may be amended from time to time.
(c) Notwithstanding the foregoing, termination of employment by Executive will not be for Good Reason unless (1) Executive notifies the Company in writing of the existence of the condition that Executive believes constitutes Good Reason within thirty (30) days of the initial existence of such condition (which notice specifically identifies such condition), (2) the Company fails to remedy such condition within thirty (30) days after the date on which it receives such notice (the “Remedial Period”), and (3) Executive actually terminates employment within thirty (30) days after the expiration of the Remedial Period and before the Company remedies such condition.
(d) Subject to Section 3.3(b), Severance Payments to which Executive becomes entitled under Sections 3.3(a)(i) and (ii) shall be made to Executive in approximately equal installments through the Company’s regularly scheduled payroll during the six (6) or, if applicable, twelve (12) month period immediately following Executive’s date of termination. Severance Payments shall commence on the first regularly scheduled payroll date following the date on which Executive’s Release becomes effective; provided, however, that if the maximum period during which Executive can consider and revoke the Release begins in one calendar year and ends in the subsequent calendar year, payments shall not be made or commence to be made until the later of the effective date of Executive’s Release and the first business day of such subsequent calendar year, regardless of when Executive’s Release becomes effective. The first such Severance Payment shall include payment of all amounts that otherwise would have been paid under Sections 3.3(a)(i) and (ii) prior to such date had such payments commenced as of the first regularly scheduled payroll date occurring immediately after Executive’s date of termination, and any payments made thereafter shall continue as provided herein. Notwithstanding the foregoing, if any payments and benefits payable pursuant to Section 3.3(a) constitute a “deferral of compensation” subject to Code Section 409A (after taking into account, to the maximum extent possible, any applicable exemptions), then the applicable provisions of Section 13 shall apply.
Appears in 1 contract
Termination of Employment Without Cause or for Good Reason. (a) If (1) Notwithstanding anything herein to the contrary, this Agreement may be terminated by the Company terminates Executive’s employment or the Employee, at any time, with or without Cause or (2) Executive resigns Good Reason. In the event that the Employee's employment is terminated by the Company without Cause or by the Employee for Good Reason, (both as defined in Appendix A), then Executive the Employee shall be entitled to receive (i) a lump sum amount equal to 25% of the following termination payments Severance Benefit (the “Modified Severance Benefit”); and benefits(ii) immediate vesting of any Securities granted to the Employee during the course of the Employee's employment (including, but not limited to, any Securities granted under this Agreement), without regard to any other terms or conditions governing such vesting; provided, however, that this Section 3.3 any such Securities that remain subject to then-undetermined performance-based vesting criteria shall not apply tovest but instead shall be immediately forfeited and cancelled. The Modified Severance Benefit shall be paid to the Employee no later than the forty-fifth (45th) day immediately following the Employee's “separation from service” (as defined under the Code), provided the Employee first executes a release of any and shall have no effect all claims against the Company (set forth in connection withSection 4(f), any termination to which Section 3.2 of this Agreement applies:
(ibelow) an amount equal to twelve (12) months’ Salary at and the rate in effect immediately prior to termination (orrevocation period specified therein has expired without the Employee revoking such release. However, if Executive terminates employment for Good Reason due to a material reduction in Executive’s thensuch forty-in-effect base Salary, immediately prior to such reduction); provided, however, that in the event such termination occurs within twelve five (1245) months following a Change in Control, such amount shall be equal to eighteen day period straddles two (182) months’ Salary, such amount payable to Executive in accordance with the terms below;
(ii) in the event such termination occurs within twelve (12) months following a Change in Control, an amount equal to Executive’s target Bonus for the calendar year in which such termination occurs, such amount pro-rated for the number of full months worked in such calendar year prior to termination and payable to Executive in accordance with the terms below;
(iii) if Executive and his spouse and eligible children are entitled to, and timely (and properly) elect to, continue their coverage (or the coverage of any one of them) under the Company’s group health plans pursuant to Section 4980B taxable years of the Internal Revenue Code of 1986Employee, as amended (“COBRA”), then the Company shall pay the premiums (or reimburse Executive for any premiums paid by Executive (or Executive’s spouse or eligible children)) for Modified Severance Benefit in the second of such COBRA continuation coverage for a period of six (6) months following the last day taxable years, regardless of the month containing Executive’s date taxable year in which the Employee actually delivers the executed release of termination (“COBRA Continuation Date”) or until Executive is no longer entitled to COBRA continuation coverage under the Company’s group health plans, whichever period is shorter; provided, however, that in the event such termination occurs within twelve (12) months following a Change in Control, such COBRA continuation coverage shall be for a period of twelve (12) months following the COBRA Continuation Date or until Executive is no longer entitled to COBRA continuation coverage under the group health plans of the Company or, if applicable, those of a Successor Company, whichever period is shorter. Notwithstanding the foregoing or any other provision in this Agreement to the contrary, the Company may unilaterally amend this Section 3.3(a)(iii) or eliminate the benefit provided hereunder to the extent it deems necessary to avoid the imposition of excise taxes, penalties or similar charges on the Company or any of its subsidiaries or affiliates, including, without limitation, under Section 4980D of the Code;
(iv) in the event such termination occurs within twelve (12) months following a Change in Control, full acceleration of Executive’s then unvested equity awards that vest based on continued employment or service (the payments and benefits set forth in Section 3.3(a)(i)-claims.
Appears in 1 contract
Termination of Employment Without Cause or for Good Reason. (a) If (1) the The Company terminates Executivemay terminate Employee’s employment without Cause or (2) Executive resigns for Good Reasonat any time without notice. Subject to the provisions of Section 4 below, (both as defined in Appendix A), then Executive shall be entitled to receive the following upon termination payments and benefits; provided, however, that this Section 3.3 shall not apply to, and shall have no effect in connection with, any termination to which Section 3.2 of this Agreement applies:
(i) an amount equal to twelve (12) months’ Salary at the rate in effect immediately prior to termination (or, if Executive terminates Employee’s employment for Good Reason due to a material reduction in Executive’s then-in-effect base Salary, immediately prior to such reduction); provided, however, that in the event such termination occurs within twelve (12) months following after a Change in Controlof Control which occurs during the Term and is without Cause or is voluntary by Employee for Good Reason, such Employee shall receive the following payments and benefits:
a. The Company shall pay to Employee during the eighteen (18) month period following the Termination Date an amount shall be equal to eighteen (18) months’ Salaryof Employee’s base annual salary at the highest rate in effect at any time during the twelve (12) months immediately preceding the Termination Date. Employee will be paid in equal biweekly installments in accordance with Company’s regular payroll periods and practices. The first payment to which Employee is entitled will be paid to Employee within a period that shall extend no more than ninety (90) days from the Termination Date so long as the Release described in Attachment A has been executed and become irrevocable. To the extent that such ninety-day period spans two taxable years of the Employee, upon satisfaction of the Release requirement, payments shall not begin until the second of such taxable years. At all times, the right to each biweekly payment made under this section 3(a) shall be treated as the right to a series of separate payments within the meaning of 26 CFR §1.409A-2(b) (2) (iii).
b. In the event that Employee becomes entitled to severance payments under Section 3.a. above, subject to (i) Employee having timely elected continuation coverage under the federal law known as “COBRA”, (ii) Employee’s timely payment of the full monthly COBRA premium for each month during the period described below and (iii) such continuation coverage not having terminated, for a period of up to eighteen (18) months beginning on the first day of the month after the month in which Employee’s employment terminates or, if earlier, until such time as Employee’s COBRA coverage terminates, the Company shall pay to Employee in each such month, within ten (10) days of the first day of such month, an amount payable equal to Executive the full monthly COBRA premium for such month minus the active employee monthly cost of such coverage.
c. In the event that Employee become entitled to severance payments under Section 3.a. above, then all outstanding unvested equity-based compensation awards granted to Employee under any Company equity plan prior to the Termination Date shall become exercisable and vested in full, and all restrictions thereon shall lapse, notwithstanding any vesting schedule or other provisions to the contrary in the agreements evidencing such awards, and the Company and Employee hereby agree that any agreements covering such awards are hereby, and will be deemed to be, amended to give effect to this provision. In addition to the foregoing, any cash component of any awards granted to Employee under any Company executive incentive plan prior to the Termination Date shall become fully vested and, to the extent not already paid to Employee, shall be accelerated and payment shall become due and owing to Employee.
d. The Company will provide Employee with outplacement support services through Xxxxxxx & Company in the amount of three (3) months of High Impact Career Transition, providing Employee initiates the service within ninety (90) days of the Termination Date.
e. In the event that Employee become entitled to severance payments under Section 3.a. above, then Employee shall be released from, and no longer subject to, any non-competition provision contained in any previously signed agreement, and in particular, the provision contained in the Company’s standard form of Nondisclosure, Noncompetition and Developments Agreement.
f. Notwithstanding anything to the contrary contained in this Agreement, if (i) Employee is a “specified employee” within the meaning of Treas. Reg. §1.409A-1(i), and (ii) any amounts or benefits to be paid to Employee upon termination of employment without Cause or for Good Reason, as defined in this Agreement, do not qualify for exemption from Section 409A or the delay in payment rule under the short-term deferral exception to deferred compensation of Treas. Reg. §1.409A-1(b)(4), the separation pay plan exception to deferred compensation of Treas. Reg. §1.409A-1(b)(9), or otherwise, then payments of such amounts that are not exempt from Section 409A of the Code shall be made in accordance with the terms below;of this Agreement, but in no event earlier than the first to occur of (1) the day after the six-month anniversary of Employee’s termination of employment, or (2) Employee’s death. Any payments delayed pursuant to the prior sentence shall be made in a lump sum, on the first business day after the six-month anniversary of Employee’s termination of employment.
(iig. The parties hereto agree that the payments provided in Section 3 hereof are reasonable compensation in light of the Employee’s services rendered to the Company and in consideration of the Employee’s adherence to the terms of this Agreement. Neither party shall contest the payment of such benefits as constituting an “excess parachute payment” within the meaning of Section 280G(b)(1) in of the Code. In the event that the Employee becomes entitled to the severance payments and other benefits described in this Section 3 (the “Compensation Payments”) and the Company has determined, based upon the advice of tax counsel selected by the Company’s independent auditors and acceptable to the Employee, that, as a result of such termination occurs within twelve Compensation Payments and any other benefits or payments required to be taken into account under Code Section 280G(b)(2) (12“Parachute Payments”), any of such Parachute Payments must be reported by the Company as “excess parachute payments” and are therefore not deductible by the Company, the Company shall pay to the Employee an additional amount (the “Gross-Up Payment”) months following a Change in Controlsuch that the net amount retained by the Employee, an amount after deduction of any of the tax imposed on the Employee by Section 4999 of the Code (the “Excise Tax”) and any Federal, state and local income tax and Excise Tax upon the Gross-Up Payment, shall be equal to Executivethe Parachute Payments determined prior to the application of this paragraph. The value of any non-cash benefits or any deferred payment or benefit shall be determined by the Company’s target Bonus for independent auditors. For purposes of determining the amount of the Gross-Up Payment, the Employee shall be deemed to pay Federal income taxes at the highest marginal rate Federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation in the state and locality of Employee’s residence on the Termination Date, net of the maximum reduction in Federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax payable by the Employee is subsequently determined to be less than the amount, if any, taken into account hereunder at the time of termination occursof the Employee’s employment, the Employee shall repay to the Company at the time that the amount of such reduction in Excise Tax is finally determined the portion of the Gross-Up Payment attributable to such reduction plus interest on the amount pro-rated of such repayment at the rate provided for in Section 1274(b)(2)(B) of the number Code (“Repayment Amount”). In the event that the Excise Tax payable by the Employee is determined to exceed the amount, if any, taken into account hereunder at the time of full months worked in such calendar year prior to the termination and payable to Executive in accordance with of the terms below;
Employee’s employment (iii) if Executive and his spouse and eligible children are entitled to, and timely (and properly) elect to, continue their coverage (or the coverage including by reason of any one payment the existence or amount of them) under which cannot be determined at the Company’s group health plans pursuant to Section 4980B time of the Internal Revenue Code of 1986, as amended (“COBRA”Gross-Up Payment), the Company shall pay make an additional Gross-Up Payment in respect of such excess (plus any interest and penalty payable with respect to such excess) immediately prior to the premiums (or reimburse Executive for any premiums time that the amount of such excess is required to be paid by Executive (or Executive’s spouse or eligible children)) for such COBRA continuation coverage for a period of six (6) months following the last day of the month containing Executive’s date of termination Employee (“COBRA Continuation DateAdditional Gross-Up”) or until Executive is no longer entitled to COBRA continuation coverage under the Company’s group health plans, whichever period is shorter; provided, however, that in the event such termination occurs within twelve (12) months following a Change in Control), such COBRA continuation coverage that the net amount retained by the Employee, after deduction of any Excise Tax on the Parachute Payments and any Federal, state and local income tax and Excise Tax upon the Additional Gross-Up Payment, shall be equal to the Parachute Payments determined prior to the application of this paragraph. The obligation to pay any Repayment Amount or Additional Gross-up shall remain in effect under this Agreement for a the entire period during which the Employee remains liable for the Excise Tax, including the period during which any applicable statute of twelve (12) months following the COBRA Continuation Date or until Executive is no longer entitled to COBRA continuation coverage under the group health plans of the Company or, if applicable, those of a Successor Company, whichever period is shorter. limitation remains open.
h. Notwithstanding the foregoing or any other provision in of this Agreement to the contrary, neither the time nor the schedule of any payment under this Agreement may be accelerated or subject to a further deferral except as provided in 26 C.F.R. § 1.409A-3 (j) (4).
i. Employee does not have any right to make any election regarding the time or form of any payment due under this Agreement.
j. If the Company fails to make any payment under this Agreement, either intentionally or unintentionally, within the time period specified in this Agreement, but the payment is made within the same calendar year, such payment will be treated as made within the time period specified in the Agreement pursuant to 26 C.F.R. § 1.409A-3(d). In addition, if a payment is not made due to a dispute with respect to such payment, the payment may unilaterally amend be delayed in accordance with 26 C.F.R. § 1.409A-3(g).
k. For purposes of this Agreement, the determination of whether Employee has terminated employment will be made in accordance with 26 C.F.R. § 1.409A-1(h)(1).
l. This Agreement shall be administered in compliance with Section 3.3(a)(iii) or eliminate 409A of the benefit provided hereunder Code and each provision of the Agreement shall be interpreted, to the extent it deems necessary possible, to avoid the imposition of excise taxes, penalties or similar charges on the Company or any of its subsidiaries or affiliates, including, without limitation, under comply with Section 4980D of the Code;
(iv) in the event such termination occurs within twelve (12) months following a Change in Control, full acceleration of Executive’s then unvested equity awards that vest based on continued employment or service (the payments and benefits set forth in Section 3.3(a)(i)-409A.
Appears in 1 contract
