Termination Other Than for Cause. If Executive’s employment with the Company is terminated (i) by the Company other than for “Cause” (as defined herein), including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason, or (iii) as a result of Executive’s Death or Disability (as provided in Section 5.1 herein), then: 6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and 6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and 6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months; 6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and 6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1.
Appears in 2 contracts
Samples: Employment Agreement (Gulfport Energy Corp), Employment Agreement (Gulfport Energy Corp)
Termination Other Than for Cause. a. If the Company terminates the Executive’s employment without Cause, the Company’s obligations under this Agreement shall be as follows:
i. The Company shall continue to pay to the Executive, or in the case of death of the Executive to his successors or legal representatives or to his estate, during the first to occur of (A) the 180 days immediately following such termination of employment and (B) the expiration of the Term (such period is hereinafter referred to as the “Severance Period”), his Base Salary on a semi-monthly basis as would have been paid to the Executive had his employment with the Company is terminated (i) by continued during the Severance period;
ii. The Company other than for “Cause” (as defined herein), including if shall pay to the Company provides notice Executive his proportionate share of nonrenewal within 90 days of any bonus compensation to which he would have received had he continued to be employed until the end of the Initial relevant bonus calculation period. Such bonus compensation shall be payable in a lump sum within 30 days of determination of Executive’s bonus amount;
iii. The Company shall continue to provide all benefits to the Executive during the Severance Period or any Extensionas would have been provided had employment continued, (ii) by including medical, disability and life insurance; and
iv. The Company shall reimburse the Executive for Good Reasonall reasonable reimbursable expenses accrued (but unpaid) to the date of termination or expiration of the Term, or (iii) subject to submission of all required documentation and the Company’s approval, as a result of the case may be; and within 10 business days after such termination, any accrued but unused vacation days paid at Executive’s Death or Disability (as provided in Section 5.1 herein)Base Salary.
b. If a termination without Cause takes effect prior to the expiration of the Term, then:
6.1.1 all of the Company shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive stock options which would have earned as Base Salary vested and Minimum Annual Bonus during become exercisable had the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on end of the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately Term in which such termination without Cause has occurred shall vest and become exercisable on in accordance with their terms.
c. Notwithstanding Section 8(b), if the Termination Date Company terminates the Executive’s employment without Cause following a business combination (including, but not limited to, sale or purchase of assets, merger, consolidation or other transaction that results in the stockholders of the Company receiving liquid consideration for a majority of the holdings in the Company accompanied by a change in actual control of the Company), all stock options theretofore granted to the Executive shall vest and will remain become exercisable in accordance with the terms and conditions applicable to such equity award; andtheir terms.
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 d. The Executive shall further be subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined hereinto, and have the benefits of, Section 9 of Appendix B, to the extent permitted by applicable law and that the terms same relate to termination of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid employment by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1Cause.
Appears in 1 contract
Termination Other Than for Cause. If The Company may terminate Executive’s 's employment with without Cause (as defined in this Agreement) at any time and without prior notice, written or otherwise. In the event the Company is terminated terminates Executive's employment for other than Cause, Disability or death, and subject to the other provisions of this Agreement, Executive will be entitled to:
(i) by continued coverage under the Company other than for “Cause” (as defined herein), including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason, or (iii) as a result of Executive’s Death or Disability (as provided in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company Company's benefit plans through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such termination date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; andof the plans;
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including (ii) payment of all insurance and maintenance costsearned but unpaid compensation through the effective date of termination, for 24 additional monthspayable on or before the termination date;
6.1.4 subject to Section 6.1.5, (iii) reimbursement of any monies advanced or incurred by Executive in connection with her Employment for reasonable and necessary Company-related business expenses incurred on or before the Company will pay termination date;
(iv) payment of the cost for continuation coverage under equivalent of the Company Group Health Plans Base Salary Executive would have earned over the next twelve (as defined herein, 12) months (the “Severance Period”) (less necessary withholdings and authorized deductions) at her then current Base Salary rate ("Severance Payment");
(v) an amount equal to the extent permitted by applicable law and pro-rata portion of any bonus payments that would have been due to the terms Executive under Section 3(b) of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for this Agreement had Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid been employed by the Company as of the last day of the fiscal year during which such termination occurred, calculated as the 18 month period immediately following product of the bonus (as determined pursuant to Section 3(b)) multiplied by a fraction, the numerator equal to the number days from the start of the applicable fiscal year through the termination date of Executive’s Termination Date or until 's employment with the Company, and the denominator being 365;
(vi) at Executive's option, reimbursement of insurance premiums payable by Executive becomes eligible for to continue Executive's group health plan benefits from another employer, whichever occurs first, provided that coverage pursuant to COBRA (if Executive timely elects COBRA coverage (“COBRA Benefits”coverage) and provided that Executive’s continued participation is possible under during the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health PlansSeverance Period; and
6.1.5 notwithstanding anything herein to (vii) the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 number of outstanding unvested stock options and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery restricted stock previously granted to Executive (or that would have vested over the Severance Period if Executive remained employed by the Company shall vest upon such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1termination.
Appears in 1 contract
Samples: Employment Agreement (Ddi Corp)
Termination Other Than for Cause. If Notwithstanding any other provisions of this Agreement, the Company may effect a “Termination Other Than For Cause,” as hereinafter defined, at any time upon giving written notice to Executive of such termination.
(a) Subject to the conditions of Section 5.2(b) and Section 6, in the event Executive’s employment with is terminated in a Termination Other Than for Cause, provided that such termination constitutes a Separation from Service (as defined in Section 6.1), in addition to payments contemplated by Section 5.1, the Company is terminated shall pay Executive as severance compensation: (i) by an aggregate amount equal to one (1) year’s Base Salary, at the Company other than for “Cause” (as defined herein), including if rate payable at the Company provides notice time of nonrenewal within 90 days of the end of the Initial Period or any Extension, such termination; plus (ii) by the Executive for Good Reason, or (iii) as a result of Executive’s Death or Disability (as provided in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment an aggregate amount equal to any annual cash Targeted Incentives for the year in which such termination occurs as though all accrued “target levels” of performance for such year are fully and unpaid salary and other compensation completely achieved. Such amounts will be payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and over a period of one (ii1) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company Termination Other Than for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable Cause in accordance with the terms Company’s normal payroll practices, at normal payroll payment dates and subject to applicable withholding. Subject to the satisfaction of the conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided specified in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.55.2(b), the Company first payment will pay be made on the cost first payroll date following the 60th day after Executive’s Separation from Service and all such payments will be considered separate payments for continuation coverage under the Company Group Health Plans purposes of Section 409A (as defined herein, below).
(b) Any payments and benefits set forth in Section 5.2(a) shall be subject to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following conditioned upon Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employercompliance with the terms, whichever occurs firstprovisions and conditions contained in this Agreement in Sections 8, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) 9 and provided that 10 and shall be subject to and conditioned upon Executive’s continued participation is possible under execution and expiration of the general terms rescission period (if applicable) of a release and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of waiver, within sixty (60) days after Executive’s COBRA coverage entitlement period. At the conclusion Separation from Service, of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition all claims with respect to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to employment against the Company, its Affiliates and their respective officers and directors in a general release substantially in the form attached hereto as “Exhibit A” A (the “General Release”). For purposes of clarification, such sixty (60) within twenty-one (21) days day period may extend past the fiscal year in which the Separation of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1Service occurs.
Appears in 1 contract
Samples: Executive Employment Agreement (Enterprise Financial Services Corp)
Termination Other Than for Cause. If Upon termination of Executive’s 's employment with on the Company is terminated (i) Retirement Date, or earlier in the event of death, disability, or upon an involuntary termination by the Company other than for “Cause” (as defined herein), including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period Cause or any Extension, (ii) by the Executive for Good Reason (within 6 months after learning of the event constituting Good Reason) prior to the Retirement Date, Executive will receive the payments or other benefits described in this paragraph as liquidated damages and in lieu of any other damages or compensation under this Agreement or otherwise; provided (A) Executive does not enter into Competition (as defined in the Agreement) with the Company for a period of two years following the termination of Executive's employment (it being understood that the duration of this non-compete requirement shall not delay payment of any amounts otherwise due hereunder), and (B) Executive executes, and does not revoke a written waiver and release, in a form prescribed by the Company, of all claims against the Company and related parties arising out of the Executive's employment or the termination of that employment except that the condition specified in Clause (A) shall not apply if such termination occurs during the two-year period after the consummation of a transaction approved by the stockholders of the Company and described in Section 13(c) or (d) of the Company's 2001 Long-Term Incentive Plan ("LTIP"), such event being hereafter referred to as a "Section 13(c) Change in Control") (and such two-year period being hereafter referred to as the "CIC Period"):
(i) Executive will receive a lump sum severance payment, payable within 60 days after termination of Executive's employment, of $4,764,006.00; provided, however, if the termination occurs during a CIC Period such lump sum severance payment shall be payable within 10 days after the termination of Executive's employment.
(ii) Executive will have Executive's period of employment service used to calculate retirement extended as if Executive had worked an additional three years, and the compensation used to calculate Executive's retirement benefits will be determined as if Executive had continued to receive for an additional three years salary and incentive compensation equal to the highest annual base salary and highest annual incentive compensation Executive received from the Company or its Affiliates within three years prior to Executive's date of termination (such amounts to be payable from a non-qualified, supplemental retirement plan);
(iii) as Subject to subsection 12(d) below, Executive will be entitled to exercise, in accordance with their terms, any remaining stock options that had been granted prior to Executive's termination (all of which will become vested under such circumstances) for the maximum period permitted under the terms of the grant;
(iv) Executive will receive a result pro-rated portion of his target annual incentive compensation award in or around March of the year following Executive's termination based on the number of months (rounded to the next highest number for a partial month) of the year elapsed prior to Executive's termination; provided, however, that if the termination occurs during a CIC Period any such awards which have become vested under the terms of the Annual Incentive Plan or the Operating Committee Incentive Plan shall be payable within 10 days after the termination of Executive’s Death 's employment;
(v) Executive and Executive's dependents will continue to participate (with the same level of coverage) for three years in all medical, dental, hospitalization, accident, disability, life insurance and any other benefit plans of the Company on the same terms as in effect immediately prior to Executive's termination unless changed for senior executives generally; provided, however, that such benefits will be offset to the extent that Executive or Disability Executive's dependents receive benefits from another source (in such event, Executive agrees to provide reasonable notice of the receipt of benefits from another source); and, provided that in the event adverse tax consequences may result if medical benefits are provided to Executive directly, the Company will pay Executive the amount necessary to purchase the coverage, adjusted for taxes, on an after-tax basis;
(vi) Executive shall be entitled to continue any and all current individual life insurance and individual disability insurance plans at Executive's own cost. Within twenty (20) days after Executive's termination date, the Company's share of cash value under Policy #CUL0021952, determined in accordance with the terms of the Split Dollar Life Insurance Plan and as provided in Section 5.1 herein)of the termination date, then:
6.1.1 will be returned to the Company; the Company shall provide then release the collateral assignment agreement. At that point, all ownership rights in connection with Policy # CUL0021952 will be vested in the Executive or his designee. The Executive or his designee will then have the option to maintain the policy by paying the future premiums, use the remaining cash value (if any) to purchase paid-up life insurance, withdraw any remaining cash value and cancel the policy, or exercise any other ownership rights in accordance with the terms of the life insurance policy;
(vii) Executive will be entitled to outplacement services, at the expense of the Company, from a provider selected by Executive’s estate, if applicable) (i) subject to a maximum expense of $25,000; provided, however, Executive shall not be entitled to such services upon his retirement from the Company on the Termination Date Retirement Date;
(viii) Executive will be entitled to participate in the Company's Financial Planning Assistance program for three (3) consecutive years from the date of termination in accordance with the policies of the Company as in effect immediately prior to the Change in Control (as such term is defined in Section 6.3the LTIP), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5(ix) Executive will receive any other amounts earned, (i) all restricted stock and restricted stock units that have been granted accrued or owing to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, plans and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion programs of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1.
Appears in 1 contract
Termination Other Than for Cause. If Executive’s 's employment with the Company is terminated (i) by the Company other than (a) for “Cause” Cause or (as defined herein)b) due to Executive's death or Permanent Disability, including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason, or (iii) as Executive, upon execution of a result of Executive’s Death or Disability (as provided release in Section 5.1 herein)a form satisfactory to the Company, thenshall receive severance benefits in the form of:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable1) (i) continuation of base salary as in effect on the Termination Date date of termination for the balance of the Term, but in no case less than one (as such term is defined in Section 6.3)1) year of continuation of base salary, a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms ordinary payroll practices of the Company, and conditions applicable to if such equity award; and
6.1.3 termination occurs where the Company will continue to provide Executiveremaining portion of the Term is less than one (1) year, during his lifetime, with base salary shall be continued for no less than one (1) year from the use date of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional monthstermination;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation (2) continued coverage under the Company Group Health Plans (as defined hereinCompany's health and medical plans for the balance of the Term; provided, and however, that any such continued coverage may be satisfied by the Company's payment of the premiums required to the extent permitted be paid by applicable law and the terms of each Company Group Health Plan) Executive to maintain such coverage under the Consolidated Omnibus Budget and Reconciliation Act of 1985 (“"COBRA”") and the COBRA period shall run during such period of continued coverage; to the extent that such coverage is not available for former employees under the terms of said plans, the Company may provide said benefits through the purchase of equivalent insurance at the Company's expense; and
(3) the Company shall pay to Executive any earned bonus for the preceding fiscal year and a full bonus for the fiscal year in which a termination under this Section 3.2 occurs, as well as for any full fiscal year remaining within the Term, and a prorated portion (based on days remaining within the Term (or a one year extension thereof referred to above) in said fiscal year divided by total days in said year) for Executive any portion of a fiscal year remaining within the Term (or a one year extension thereof referred to above), payable at such time and his eligible family members covered under in such manner as bonuses in respect of such fiscal year are generally payable to employees of the Company Group Health Plan immediately prior to Termination DateCompany. Such premiums For purposes of said bonus calculation, the actual performance of the Company, or a relevant division, during the bonus measurement period will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided used and it will be assumed that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under achieved a "neutral" performance as to the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement periodpersonal goals aspect, if any, provided under the terms of the Company Group Health Plansbonus formula; and
6.1.5 notwithstanding anything herein to (4) Any interest which the contrary, it shall be a condition to Executive’s right to receive the amounts provided for Executive may have in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially 's Supplemental Executive Retirement Plan shall become fully vested in accordance with terms of such plan up to and through the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the date through which severance benefits will commence as provided in Section 6.1.1are payable hereunder.
Appears in 1 contract
Termination Other Than for Cause. If Executive’s employment with the Company is Executive may be terminated (i) by the Company other than for “Cause” (as defined herein), including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason, or (iii) as a result of Executive’s Death or Disability (as provided in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date Term at any time and for any (or until Executive becomes eligible for group health plan benefits from another employerno) reason, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under upon the general terms and provisions giving of such Company Group Health Plans. Executive agrees to promptly inform notice by the Company in writing if to Executive becomes eligible to receive group health coverage from another employerof termination. The period of Unless such COBRA Benefits will be considered part termination satisfies all the conditions for a Termination for Cause or a termination on account of Executive’s COBRA coverage entitlement periodDisability, such termination shall be treated as a Termination other than for Cause. At In the conclusion event of a Termination other than for Cause, the Company may, in the notice of termination, discharge Executive immediately or as of such future date, not to exceed one month, as the Company may determine to be appropriate. In the event that Executive is given notice of termination pursuant to this subsection:
(i) on or prior to the second anniversary of the maximum 18 month period for which Effective Date, Executive shall receive at termination (I) a lump sum payment covering the Company will pay Accrued Obligations; (II) a lump sum cash severance payment equal to the cost amount provided in Section 4(a) and Schedule 2 of COBRA Benefitsthe Protection Plan, and benefits continuation as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for in the remainder Section 4(c) and Schedule 2 of the COBRA coverage entitlement periodProtection Plan, if anyeach as in effect prior to the second anniversary of the Effective Date (without regard to whether the Protection Plan shall have been, or is, terminated prior to the completion of such payments, it being understood that the benefits provided for under this Agreement shall not also be provided under the terms Protection Plan, so that there shall be no duplication of payments or benefits); and (III) Full Option Vesting and Extended Exercise Rights;
(ii) following the second anniversary of the Company Group Health PlansEffective Date but on or prior to the third anniversary of the Effective Date, Executive shall receive at termination (I) a lump sum payment covering the Accrued Obligations; (II) a lump-sum payment equal to two (2) times the sum of Base Salary plus Annual Bonus (calculated by assuming that target level performance was attained); (III) for a period of two (2) years following the date of such termination (or until such earlier date as equivalent benefits are provided from other employment), continuation of benefits provided in accordance with Section 4 hereof; and (IV) Full Option Vesting and Extended Exercise Rights; and
6.1.5 notwithstanding anything herein (iii) following the third anniversary of the Effective Date, Executive shall receive at termination (I) a lump sum payment covering the Accrued Obligations; (II) a lump-sum payment equal to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (211) days times the sum of its delivery to Executive Base Salary plus Annual Bonus (calculated by assuming that target level performance was attained); (III) for a period of one (1) year following the date of such termination (or until such longer period earlier date as may be required under the Age Discrimination in Employment Act of 1967, as amendedequivalent benefits are provided from other employment), without subsequent revocation continuation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in accordance with Section 6.1.14 hereof; and (IV) Full Option Vesting and Extended Exercise Rights.
Appears in 1 contract
Termination Other Than for Cause. The Company may terminate Executive’s employment other than for Cause (including the expiration of Executive’s Term pursuant to Section 1 above) or Executive may terminate his employment for Good Reason as that term is defined in this Section 7(d). If Executive’s employment with the Company is terminated terminates pursuant to this Section 7(d), then Executive shall be entitled to (i) by the Company other than for “Cause” (his base salary in effect as defined herein), including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason, or (iii) as a result of Executive’s Death or Disability (as provided in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on Termination Date through and including the Termination Date (as such that term is defined in Section 6.37(g) herein), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive ; (ii) if not previously paid prior to the Company Termination Date, incentive based compensation as described in Sections 5(b) and 5(c) of this Agreement for the year prior to the Fiscal Year in which the Termination Date occurs; (iii) accrued but unused PTO through the Termination Date; and (iiiv) subject reimbursement of any unreimbursed expenses incurred by Executive pursuant to Section 6.1.5 6 of this Agreement; (v) a prorated share of the incentive based compensation described in Sections 5(b) and Section 10.10.5, a lump sum payment on 5(c) for the sixtieth (60th) day following Fiscal Year in which the Termination Date equal to occurs, payable in accordance with those Sections, and (vi) continuing medical benefits as set forth in Section 5(e) herein. In addition, in the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had event Executive’s employment not been terminatedis terminated pursuant to this Section 7(d), reduced all unvested Class A Units of PNMAC and Class A Common Stock of PFSI held by Executive, and, as applicable, any other Award (as that term is defined in the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (iEIP) all restricted stock and restricted stock units that have been granted to Executive by pursuant to the Company EIP, shall become immediately and fully vested. For purposes of this Agreement, Executive will have “Good Reason” to terminate this Agreement if PNMAC (or any resulting or surviving entity in the event of a Transaction as defined in Section 5(c) of this Agreement) (1) materially breaches this Agreement; (2) requires Executive to report to anyone other than the Board; (3) requires that would have vested during Executive be based anywhere more than fifty (50) miles from the three-year period following the Termination Date solely office where Executive is located as of Effective Date; (4) takes any other action which results in a result of material diminution or adverse change in Executive’s continued service status, title, position, compensation, or responsibilities as of the Effective Date, other than an insubstantial action not taken in bad faith and remedied promptly after receipt of notice by Executive; or (5) fails to indemnify and advance all expenses to Executive in response to a proper request for indemnity and advancement by Executive, provided, however, Executive’s resignation for Good Reason will only be effective if Executive provides written notice to the Company will immediately vest on of the Termination Dateevents constituting the Good Reason within ninety (90) days after the occurrence of any such event, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would does not cure said events within thirty (30) days after receipt of the notice. In addition, Executive will have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service “Good Reason” to terminate this Agreement at his option at any time on or after June 11, 2017, subject only to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided notice provisions set forth in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended7(g), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1.
Appears in 1 contract
Samples: Employment Agreement (Pennymac Financial Services, Inc.)
Termination Other Than for Cause. If If, during the COC Employment Period, the Corporation shall terminate the Executive’s employment with the Company is terminated (i) by the Company other than for Cause or the Executive shall terminate his employment following a Change of Control for Good Reason (termination in any such case referred to as “Cause” Termination”) and subject to the Executive entering into and not revoking a release (unless the Corporation determines not to request such release) substantially in the form set forth as defined hereinExhibit B hereto:
(1) the Corporation shall pay the Executive in a lump sum in cash within 30 days after the Date of Termination the sum of
(a) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid,
(b) to the extent that the Annual Bonus has not been paid to the Executive in respect of the fiscal year in which the Date of Termination occurs, the product of (x) the Executive’s target annual bonus in effect under the ACP as of the Date of Termination (which, for purposes of Section 3(J) and notwithstanding any reduction following the Change of Control Date, shall not be less than the Executive’s target annual bonus as of immediately prior to the Change of Control Date) and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365, and
(c) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (a), including (b), and (c) shall be hereinafter referred to as the “Accrued Obligations”); and
(2) The Corporation shall pay the Executive in a lump sum in cash within 30 days after the Date of Termination an amount equal to the Executive’s Severance Compensation for the period from the Date of Termination until the earlier of (x) the third anniversary of the Date of Termination and (y) the date upon which the Executive attains the age of sixty-five (65) years (the “Termination Period”); provided, however, that such amount would be reduced by any other amounts payable to the Executive in respect of salary or bonus continuation to be received by the Executive under any severance plan, policy or arrangement of the Corporation; and
(3) During the Termination Period, or such longer period as any plan, program, practice or policy may provide, the Corporation shall continue benefits to the Executive and/or the Executive’s family at least equal to those which would have been pro- vided to them in accordance with the plans, programs, practices and policies described in Section 3(D) above if the Company provides notice Executive’s employment had not been terminated in accordance with the most favorable plans, practices, programs or policies of nonrenewal within 90 days the Corporation and its Affiliated Companies as in effect and applicable generally to other senior executives of the Corporation and its Affiliated Companies and their families during the 90-day period immediately preceding the Date of Termination or, if more favorable to the Executive, as in effect at any time thereafter or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other senior executives of the Corporation and its Affiliated Companies and their families or, if more favorable to the Executive, as in effect immediately prior to the Change of Control, if applicable, provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive medical or other welfare benefits under another employer-provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility. For purposes of determining eligibility of the Executive for retirement benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until the end of the Termination Period and to have retired on the date of the end of the Initial Termination Period. To the extent that any benefits referred to in this Section 5(A)(3) shall not be payable or provided under any such plan by reason of the Executive’s no longer being an employee of the Corporation as the result of Termination, the Corporation shall itself pay, or provide for payment of, such benefits and the service credit for benefits provided for in Section 5(A)(4) below, to the Executive, his dependents and Beneficiary; and
(4) The period from the Date of Termination until the end of the Termination Period shall be considered:
(a) Service with the Corporation for the purpose of continued credits under the employee benefit plans referred to in Section 3(D) above and all other benefit plans of the Corporation applicable to the Executive or his Beneficiary as in effect immediately prior to Termination but prior to any Extensionreduction of benefits thereunder as the result of amendment or termination during the COC Employment Period, and
(iib) Employment with the Corporation for purposes of determining payments and other rights in respect of awards made or accrued and award opportunities granted prior to Termination under the executive incentive plans referred to in Section 3(C) above and all other incentive plans of the Corporation in which the Executive was a participant prior to Termination; and
(5) In addition to the severance and other benefits described in Sections 5(A)(1) through 5(A)(4) above, to the extent not theretofore paid or provided, the Corporation shall timely pay or provide to the Executive and/or the Executive’s dependents and/or heirs any other amounts or benefits required to be paid or provided to such individuals under any plan, program, policy or practice or contract or agreement of the Corporation and its Affiliated Companies as in effect and applicable generally to other senior executives of the Corporation and its Affiliated Companies and their families during the 90-day period immediately preceding the Date of Termination or, if more favorable to the Executive, as in effect generally thereafter with respect to other senior executives of the Corporation and its Affiliated Companies and their families (such other amounts and benefits shall be referred to below as the “Other Benefits”); and
(6) During the Termination Period, the Corporation shall continue to provide to the Executive the financial, estate and tax planning services that were provided to the Executive during the 90-day period immediately prior to the Change of Control or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other senior executives of the Corporation and its Affiliated Companies; and
(7) The Corporation shall pay on behalf of Executive the fee of an independent outplacement firm selected by the Executive for Good Reason, or (iii) as a result of Executive’s Death or Disability (as provided outplacement services in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date an amount equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following actual fee for such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount service up to a total of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1$35,000.
Appears in 1 contract
Termination Other Than for Cause. If Executive’s employment with the Company is terminated (i) Subject to Sections 9(b)(ii), 9(b)(iii) and 28 below, if Executive's employment is terminated by the Company Holdings other than for “Cause” with Cause (including by reason of Holdings' written notice to Executive of its decision not to extend the Term, as defined herein)contemplated in Section 1, and not including if the Company provides notice termination by reason of nonrenewal within 90 days of the end of the Initial Period death or any Extension, (iiDisability) or by the Executive for Good Reason, Holdings' sole obligation hereunder shall be as follows:
(A) Holdings shall pay Executive the Accrued Compensation;
(B) Holdings shall pay Executive a Bonus with respect to the Bonus Period in which occurs the Termination Date, such Bonus (x) to be equal to the Bonus which would have been payable under Section 4 for such Bonus Period had Executive continued to be an employee of Holdings during such Bonus Period, multiplied by a ratio, the numerator of which is the number of days in such Bonus Period during which Executive was an employee at Holdings and the denominator of which is the total number of days in such Bonus Period (the "Pro Rata Bonus"), and (y) to be payable when bonuses for such Bonus Period are paid to the Company's employees generally; and
(C) Holdings shall take such actions as may be necessary to immediately vest Executive's then unvested stock options (other than any Return Vest Options) or other unvested long term incentive awards that, by their terms, would have vested during the calendar year in which Executive's employment was terminated; and
(iiiD) as a result As consideration for the continued observance by Executive in all material respects of Executive’s Death or Disability (as provided the covenants contained in Section 5.1 herein11(b), then:
6.1.1 Holdings shall continue to pay Executive the Company shall provide Executive (or Executive’s estate, if applicable) (i) Base Salary in effect on the Termination Date (as such term is defined Date, in Section 6.3)accordance with Holdings' customary practices applicable to its executives, for a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the period of two years after Executive's Termination Date; , and (ii) subject to Section 6.1.5 and Section 10.10.5, shall pay Executive a lump sum payment on bonus for each of the sixtieth (60th) day following the first four consecutive Bonus Periods commencing after Executive's Termination Date equal to the amount Executive would have earned Spring Target Bonus or Fall Target Bonus, as applicable, based on Executive's Base Salary as of Executive's Termination Date, payable semi-annually in accordance with prior practice.
(ii) Following the IPO Effective Date, if, within twenty-four (24) months following a Change of Control, Executive's employment is terminated by Holdings other than for Cause (including by reason of Holdings' written notice to Executive of its decision not to extend the Term, as contemplated in Section 1, but only if as a result thereof the Term would expire within twenty-four (24) months following the Change of Control, and Minimum Annual not including termination by reason of death or Disability), or by Executive for Good Reason, Holdings' sole obligation hereunder shall be as follows:
(A) Holdings shall pay Executive the Accrued Compensation;
(B) Holdings shall pay Executive a Pro Rata Bonus during with respect to the two-year period following Bonus Period in which occurs the Termination Date, such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments Pro Rata Bonus to be made payable when bonuses for such Bonus Period are paid to Executive during the two-year period following Company's employees generally;
(C) Holdings shall take such actions as may be necessary to immediately vest any of Executive’s termination under any 's then unvested stock options (other than the Return Vest Options) or other unvested long-term disability insurance policy maintained by the Company for Executive’s benefitincentive awards; and
6.1.2 subject (D) Holdings shall pay Executive, in a lump sum within ten (10) business days after his Termination Date, an amount equal to Section 6.1.5, 3.0 times the sum of (ix) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest Base Salary in effect on the Termination Date, plus (y) the greater of (1) the aggregate Bonus paid to Executive for the latest fiscal year ended prior to Executive's Termination Date, and (ii2) all stock options and stock appreciation rights that have been granted 50% of the aggregate Bonus paid to Executive by for the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately latest two fiscal years ended prior to Executive's Termination Date. Such premiums will The parties agree that, of the total lump sum amount received by Executive as described in the preceding sentence of this Section 9(b)(ii)(D), 2/3 of such total lump sum amount shall be paid treated by the Company during parties as consideration for the 18 month period immediately following continued observance by Executive in all material respects of the covenants contained in Section 11(b).
(iii) For the avoidance of doubt, the parties agree that (A) the provisions of Section 9(b)(ii) shall not apply prior to the IPO Effective Date and (B) as of the IPO Effective Date, the provisions of Section 9(b)(ii) shall apply, and the provisions of Section 9(b)(i) shall not apply, with respect to any termination of Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided 's employment of the type described in Section 9(b)(ii) (i.e. that Executive timely elects COBRA coverage (“COBRA Benefits”Sections 9(b)(i) and provided 9(b)(ii) are mutually exclusive, and that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees Section 9(b)(ii) shall control with respect to promptly inform the Company in writing if Executive becomes eligible any termination to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amendedapplies), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1.
Appears in 1 contract
Termination Other Than for Cause. If During the Employment Period, if the Corporation shall terminate the Executive’s employment with (other than in the Company is terminated case of a termination for Cause) or the Executive’s employment shall terminate by reason of death or Disability (termination in any such case referred to as “Termination”):
(i) by the Company Corporation shall pay to the Executive in a lump sum in cash the sum of (1) the Executive’s Annual Base Salary through the Date of Termination to the extent not theretofore paid and (2) any accrued vacation pay, to the extent not theretofore paid. The sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the “Accrued Obligations.” The Accrued Obligations specified in this Section 5(a)(i) shall be paid within 30 days after the Date of Termination; and
(ii) in the event of Termination other than for “Cause” (as defined herein)by reason of the Executive’s death or Disability, including if then beginning on the Company provides notice of nonrenewal within 90 days of biweekly payment date next following the Termination and on each biweekly payment date thereafter until the end of the Initial Employment Period or any Extension(the period from such Date of Termination until the end of the Employment Period herein called the “Severance Period”), (ii) by the Corporation shall pay to the Executive for Good Reason, or an amount equal to the biweekly installment of the Executive’s Annual Base Salary in effect as of such Date of Termination; and
(iii) as a result in the event of Termination other than by reason of the Executive’s Death death or Disability Disability, the Corporation shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination a bonus in an amount equal to the maximum incentive compensation as outlined in Section 3(b) of this Agreement, whether or not earned; and
(iv) in the event of Termination other than by reason of the Executive’s death or Disability, then, during the Severance Period, the Corporation shall continue medical and dental benefits on a monthly basis to the Executive and/or the Executive’s family at least equal to those which would have been provided if the Executive’s employment had not been terminated, such benefits to be in accordance with the most favorable plans, practices, programs or policies (the “M&W Plans”) of the Corporation as in effect and applicable generally to other executives of the Corporation and their families during the 90-day period immediately preceding the Date of Termination or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other executives of the Corporation (but on a prospective basis only unless, and then only to the extent, such more favorable M&W Plans are by their terms retroactive), provided, however, that if the Executive becomes re-employed with another employer and is eligible to receive medical or dental benefits under another employer-provided plan, the benefits under the M&W Plans shall be reduced as provided in Section 5.1 herein6 of this Agreement. For purposes of determining eligibility of the Executive for benefits under the M&W Plans, the Executive shall be considered to have remained employed until the end of the Severance Period. The parties intend that continued coverage under the M&W Plans shall not constitute a ‘deferral of compensation’ under Treas. Reg. Section 1.409A-1(b) during the period the Executive would be entitled to continuation coverage under Section 4980B (COBRA) (typically 18 months) or during any period in which such continued coverage qualifies as a ‘limited payment’ of an ‘in kind’ benefit under Treas. Reg. Section 1.409A-1(b)(9)(v)(C) and (D). Any portion of the continued coverage under the M&W Plans that is subject to Section 409A of the Code is intended to qualify as a ‘reimbursement or in-kind benefit plan’ under Treas. Reg. Section 1.409A-3(i)(1)(iv). If the Corporation reimburses the Executive for the amount of any benefit under this subsection (iv), then:
6.1.1 such reimbursement shall be made on or before the Company shall provide Executive (or last day of the Executive’s estatetaxable year following the taxable year in which the expense was incurred. In no event shall the amount that the Corporation pays for any such benefit in any one year affect the amount that it will pay in any other year, and in no event shall the benefits described in this paragraph be subject to liquidation or exchange.
(v) Notwithstanding the payment schedules contained elsewhere in this Section 5, to the extent necessary to comply with the requirements of Section 409A of the Code, if applicablethe Executive is a ‘specified employee’ (as defined below) at the time of his termination of employment, the payments under Section 5(a)(ii) shall not be made before the date which is six (i6) on months and one (1) day after the Termination Date date of the Executive’s termination of employment (or, if earlier, the date of his death). For purposes of the preceding sentence, a ‘specified employee’ shall have the meaning set forth in Section 1.409A-1(i) of the Final Regulations under Section 409A of the Code. As provided by Section 409A of the Code and the regulations thereunder, however, no delay shall apply to payments under Section 5(a)(ii) of the Agreement to the extent the payments (A) constitute a short-term deferral under Section 409A of the Code, and for this purpose, any installments under this Agreement shall be treated as a separate payment for purposes of Section 409A; or (B) do not exceed the lesser of: two (2) times the Executive’s annualized compensation based upon his annual rate of pay for services provided to the Corporation for the calendar year preceding the Corporation’s taxable year in which the Executive has a ‘separation from service’ (as such term is defined used in Section 6.3), a lump sum payment equal to all accrued and unpaid salary and other 409A of the Code) or two (2) times the limit on compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided set forth in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan401(a)(17) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period Code for the year in which the Company will pay Executive has a separation from service (the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided ‘Designated Compensation Amount’). Any (1) amounts otherwise payable under the terms of Section 5(a)(ii) during the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to six (6) month period beginning on the contrary, it shall be a condition to date of the Executive’s right to receive termination of employment that are in excess of the amounts Designated Compensation Amount and that do not constitute a short-term deferral and (2) other payments under this Section 5 that are delayed as provided for in this Section 3.2.1.25(c) will be paid in full without interest within thirty (30) days after the end of such six (6) month period, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to with the Company, a general release substantially remaining payments made on the schedule provided in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days applicable subsection of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in this Section 6.1.15.
Appears in 1 contract
Termination Other Than for Cause. If Executive’s employment with the Company is Executive may be terminated (i) by the Company other than for “Cause” (as defined herein), including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason, or (iii) as a result of Executive’s Death or Disability (as provided in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date Term at any time and for any (or until Executive becomes eligible for group health plan benefits from another employerno) reason, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under upon the general terms and provisions giving of such Company Group Health Plans. Executive agrees to promptly inform notice by the Company in writing if to Executive becomes eligible to receive group health coverage from another employerof termination. The period of Unless such COBRA Benefits will be considered part termination satisfies all the conditions for a Termination for Cause or a termination on account of Executive’s COBRA coverage entitlement periodDisability, such termination shall be treated as a Termination other than for Cause. At In the conclusion event of a Termination other than for Cause, the Company may, in the notice of termination, discharge Executive immediately or as of such future date, not to exceed one month, as the Company may determine to be appropriate. In the event that Executive is given notice of termination pursuant to this subsection:
(i) on or prior to the second anniversary of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided aboveEffective Date, Executive mayshall receive at termination (I) a lump sum payment covering the Accrued Obligations; (II) a lump sum cash severance payment equal to three (3) times the sum of Base Salary plus Annual Bonus (calculated by assuming the target level of performance was attained), at Executive’s sole expense(III) for a period of three (3) years following the date of such termination (or until such earlier date as equivalent benefits are provided from other employment), continue to receive COBRA Benefits for continuation of benefits provided in accordance with Section 4 hereof; and (IV) Full Option Vesting and Extended Exercise Rights;
(ii) following the remainder second anniversary of the COBRA coverage entitlement period, if any, provided under Effective Date but on or prior to the terms third anniversary of the Company Group Health PlansEffective Date, Executive shall receive at termination (I) a lump sum payment covering the Accrued Obligations; (II) a lump-sum payment equal to two (2) times the sum of Base Salary plus Annual Bonus (calculated by assuming that target level performance was attained); (III) for a period of two (2) years following the date of such termination (or until such earlier date as equivalent benefits are provided from other employment), continuation of benefits provided in accordance with Section 4 hereof; and (IV) Full Option Vesting and Extended Exercise Rights; and
6.1.5 notwithstanding anything herein (iii) following the third anniversary of the Effective Date, Executive shall receive at termination (I) a lump sum payment covering the Accrued Obligations; (II) a lump-sum payment equal to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (211) days times the sum of its delivery to Executive Base Salary plus Annual Bonus (calculated by assuming that target level performance was attained); (III) for a period of one (1) year following the date of such termination (or until such longer period earlier date as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance equivalent benefits will commence as provided in Section 6.1.1.are provided
Appears in 1 contract
Termination Other Than for Cause. If If
(a) Avatech terminates Executive’s employment with the Company and such termination is terminated not a Termination for Cause or (ib) by the Company other than Executive terminates his employment for “CauseGood Reason” (as defined hereinin Section 3.5), including if such termination shall constitute a “Termination Other Than for Cause” and, subject to Section 3.7, Executive shall be entitled to payment of his Base Salary and other benefits existing at the Company provides notice time of nonrenewal within 90 days such termination (a) in the event such termination occurs at any time prior to June 30, 2011, for a period of the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason24 months thereafter, or (iiib) as in the event such termination occurs at any time on or after June 30, 2011 but before June 30, 2012, for a result period of Executivemonths equal to 12 plus the number of full months remaining before July 1, 2012, or (c) in the event such termination occurs at any time on or after June 30, 2012, for a period of 12 months thereafter, with all such payments to be made periodically pursuant to Avatech’s Death policies in force at the time of payment, provided, however, that Avatech shall not be obligated to continue any benefit if the plan or Disability (as policy under which such benefit is provided limits the provision of the benefit to full-time employees of Avatech, or if the validity of the plan or policy would be adversely impacted by the continuation of the benefit, and further provided that Executive satisfies the conditions set forth in the next sentence. The parties agree that Executive shall not be eligible for the payments set forth in this Section 5.1 herein), then:
6.1.1 3.3 unless and until Executive has first satisfied the Company shall provide Executive (or Executive’s estate, if applicable) following conditions: (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company compliance through the Termination Datedate of execution of the Release (defined below) with Executive’s obligations under this Agreement; and (ii) subject execution and delivery on or before the 21st day after the date of termination of a waiver and release of claims in favor of Avatech related to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release Avatech substantially in the form set forth in Exhibit A attached hereto as “Exhibit A” (the “General Release”) within twenty-one ). Subject to the satisfaction of the foregoing conditions, such payments shall commence on the 28th day following the date of termination (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent assuming no revocation of the General Release). Avatech shall be entitled to terminate payments under this Section 3.3 in the event Executive fails to continue to comply with his obligations under this Agreement and the Release. Upon satisfaction For purposes of the General Release conditionclarity, the payment notwithstanding that Executive may have more than one basis for a Termination Other Than for Cause (e.g., under Section 3.4 and 3.5), Executive shall be entitled to only one set of the severance benefits will commence payments, as provided set forth in this Section 6.1.13.3.
Appears in 1 contract
Termination Other Than for Cause. If Executive’s employment with the Company is terminated (ia) by the Company other than for “Cause” (as defined herein)Upon a Termination Other Than For Cause following December 1, including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension2008, (ii) by the but prior to March 1, 2009, and provided Executive for Good Reason, or (iii) as a result of Executive’s Death or Disability (as provided in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment equal to all accrued executes and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive delivers to the Company through the Termination Date; a release and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount waiver of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially claims in the form attached hereto as “Exhibit A” (C and such release and waiver of claims is not revoked and has become effective pursuant to its terms, the “General Release”) within twenty-one (21) days of its delivery to Executive (Company will pay or such longer period as may be required under the Age Discrimination in Employment Act of 1967reimburse, as amendedapplicable, the Executive upon the effectiveness of such release and waiver of claims:
(a) Accrued Compensation, if any, (b) a monthly cash severance payment equal to (x) Executive’s then Base Salary, divided by (y) twelve (12), without for a period of time equal to the total number of whole months which have then elapsed since the Effective Date, and (c) Executive’s COBRA-related expenses for such period, provided that such COBRA-related reimbursement shall cease upon such date that Executive is afforded health benefits from a subsequent revocation employer.
(b) Upon a Termination Other Than For Cause upon or following March 1, 2009, and provided Executive executes and delivers to the Company a release and waiver of claims in the General Release. Upon satisfaction form attached hereto as Exhibit C and such release and waiver of the General Release conditionclaims is not revoked and has become effective pursuant to its terms, the Company will pay or reimburse, as applicable, the Executive upon the effectiveness of such release and waiver of claims:
(a) Accrued Compensation, if any, (b) a monthly cash severance payment of equal to (x) Executive’s then Base Salary, divided by (y) twelve (12), for the severance following twelve (12) month period, and (c) Executive’s COBRA-related expenses for such period, provided that such COBRA-related reimbursement shall cease upon such date that Executive is afforded health benefits will commence as provided in Section 6.1.1from a subsequent employer.
Appears in 1 contract
Termination Other Than for Cause. If Upon termination of Executive’s 's employment with on the Company is terminated (i) Retirement Date, or earlier in the event of death, disability, or upon an involuntary termination by the Company other than for “Cause” (as defined herein), including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period Cause or any Extension, (ii) by the Executive for Good Reason (within 6 months after learning of the event constituting Good Reason) prior to the Retirement Date, Executive will receive the payments or other benefits described in this paragraph as liquidated damages and in lieu of any other damages or compensation under this Agreement or otherwise; provided (A) Executive does not enter into Competition (as defined in the Agreement) with the Company for a period of two years following the termination of Executive's employment (it being understood that the duration of this non-compete requirement shall not delay payment of any amounts otherwise due hereunder), and (B) Executive executes, and does not revoke a written waiver and release, in a form prescribed by the Company, of all claims against the Company and related parties arising out of the Executive's employment or the termination of that employment except that the condition specified in Clause (A) shall not apply if such termination occurs during the two-year period after the consummation of a transaction approved by the stockholders of the Company and described in Section 13(c) or (d) of the Company's 2001 Long-Term Incentive Plan ("LTIP"), such event being hereafter referred to as a "Section 13(c) Change in Control") (and such two-year period being hereafter referred to as the "CIC Period")
(i) Executive will receive a lump sum severance payment, payable within 60 days after termination of Executive's employment, of $4,764,006.00; provided, however, if the termination occurs during a CIC Period such lump sum severance payment shall be payable within 10 days after the termination of Executive's employment.
(ii) Executive will have Executive's period of employment service used to calculate retirement extended as if Executive had worked an additional three years, and the compensation used to calculate Executive's retirement benefits will be determined as if Executive had continued to receive for an additional three years salary and incentive compensation equal to the highest annual base salary and highest annual incentive compensation Executive received from the Company or its Affiliates within three years prior to Executive's date of termination (such amounts to be payable from a non-qualified, supplemental retirement plan);
(iii) as Subject to subsection 11(d) below, Executive will be entitled to exercise, in accordance with their terms, any remaining stock options that had been granted prior to Executive's termination (all of which will become vested under such circumstances) for the maximum period permitted under the terms of the grant;
(iv) Executive will receive a result pro-rated portion of his target annual incentive compensation award in or around March of the year following Executive's termination based on the number of months (rounded to the next highest number for a partial month) of the year elapsed prior to Executive's termination; provided, however, that if the termination occurs during a CIC Period any such awards which have become vested under the terms of the Annual Incentive Plan or the Operating Committee Incentive Plan shall be payable within 10 days after the termination of Executive’s Death 's employment;
(v) Executive and Executive's dependents will continue to participate (with the same level of coverage) for three years in all medical, dental, hospitalization, accident, disability, life insurance and any other benefit plans of the Company on the same terms as in effect immediately prior to Executive's termination unless changed for senior executives generally; provided, however, that such benefits will be offset to the extent that Executive or Disability Executive's dependents receive benefits from another source (in such event, Executive agrees to provide reasonable notice of the receipt of benefits from another source); and, provided that in the event adverse tax consequences may result if medical benefits are provided to Executive directly, the Company will pay Executive the amount necessary to purchase the coverage, adjusted for taxes, on an after-tax basis;
(vi) Executive shall be entitled to continue any and all current individual life insurance and individual disability insurance plans at Executive's own cost. Within twenty (20) days after Executive's termination date, the Company's share of cash value under Policy #CUL0021952, determined in accordance with the terms of the Split Dollar Life Insurance Plan and as provided in Section 5.1 herein)of the termination date, then:
6.1.1 will be returned to the Company; the Company shall provide then release the collateral assignment agreement. At that point, all ownership rights in connection with Policy #CUL0021952 will be vested in the Executive or his designee. The Executive or his designee will then have the option to maintain the policy by paying the future premiums, use the remaining cash value (if any) to purchase paid-up life insurance, withdraw any remaining cash value and cancel the policy, or exercise any other ownership rights in accordance with the terms of the life insurance policy;
(vii) Executive will be entitled to outplacement services, at the expense of the Company, from a provider selected by Executive’s estate, if applicable) (i) subject to a maximum expense of $25,000; provided, however, Executive shall not be entitled to such services upon his retirement from the Company on the Termination Date Retirement Date;
(viii) Executive will be entitled to participate in the Company's Financial Planning Assistance program for three (3) consecutive years from the date of termination in accordance with the policies of the Company as in effect immediately prior to the Change in Control (as such term is defined in Section 6.3the LTIP), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5(ix) Executive will receive any other amounts earned, (i) all restricted stock and restricted stock units that have been granted accrued or owing to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, plans and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion programs of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1.
Appears in 1 contract
Termination Other Than for Cause. If Executive’s employment with the Company is terminated (i) Subject to Sections 9(b)(ii), 9(b)(iii) and 28 below, if Executive's employment is terminated by the Company Holdings other than for “Cause” with Cause (including by reason of Holdings' written notice to Executive of its decision not to extend the Term, as defined herein)contemplated in Section 1, and not including if the Company provides notice termination by reason of nonrenewal within 90 days of the end of the Initial Period death or any Extension, (iiDisability) or by the Executive for Good Reason, Holdings' sole obligation hereunder shall be as follows:
(A) Holdings shall pay Executive the Accrued Compensation;
(B) Holdings shall pay Executive a Bonus with respect to the Bonus Period in which occurs the Termination Date, such Bonus (x) to be equal to the Bonus which would have been payable under Section 4 for such Bonus Period had Executive continued to be an employee of Holdings during such Bonus Period, multiplied by a ratio, the numerator of which is the number of days in such Bonus Period during which Executive was an employee at Holdings and the denominator of which is the total number of days in such Bonus Period (the "Pro Rata Bonus"), and (y) to be payable when bonuses for such Bonus Period are paid to the Company's employees generally; and
(C) Holdings shall take such actions as may be necessary to immediately vest Executive's then unvested stock options (other than any Return Vest Options) or other unvested long term incentive awards that, by their terms, would have vested during the calendar year in which Executive's employment was terminated; and
(iiiD) as a result As consideration for the continued observance by Executive in all material respects of Executive’s Death or Disability (as provided the covenants contained in Section 5.1 herein11(b), then:
6.1.1 Holdings shall continue to pay Executive the Company shall provide Executive (or Executive’s estate, if applicable) (i) Base Salary in effect on the Termination Date (as such term is defined Date, in Section 6.3)accordance with Holdings' customary practices applicable to its executives, for a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the period of two years after Executive's Termination Date; , and (ii) subject to Section 6.1.5 and Section 10.10.5, shall pay Executive a lump sum payment on bonus for each of the sixtieth (60th) day following the first four consecutive Bonus Periods commencing after Executive's Termination Date equal to the amount Executive would have earned Spring Target Bonus or Fall Target Bonus, as applicable, based on Executive's Base Salary as of Executive's Termination Date, payable semi-annually in accordance with prior practice.
(ii) Following the IPO Effective Date, if, within twenty-four (24) months following a Change of Control, Executive's employment is terminated by Holdings other than for Cause (including by reason of Holdings' written notice to Executive of its decision not to extend the Term, as contemplated in Section 1, but only if as a result thereof the Term would expire within twenty-four (24) months following the Change of Control, and Minimum Annual not including termination by reason of death or Disability), or by Executive for Good Reason, Holdings' sole obligation hereunder shall be as follows:
(A) Holdings shall pay Executive the Accrued Compensation;
(B) Holdings shall pay Executive a Pro Rata Bonus during with respect to the two-year period following Bonus Period in which occurs the Termination Date, such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments Pro Rata Bonus to be made payable when bonuses for such Bonus Period are paid to Executive during the two-year period following Company's employees generally;
(C) Holdings shall take such actions as may be necessary to immediately vest any of Executive’s termination under any 's then unvested stock options (other than the Return Vest Options) or other unvested long-term disability insurance policy maintained by the Company for Executive’s benefitincentive awards; and
6.1.2 subject (D) Holdings shall pay Executive, in a lump sum within ten (10) business days after his Termination Date, an amount equal to Section 6.1.5, 3.0 times the sum of (ix) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest Base Salary in effect on the Termination Date, plus (y) the greater of (1) the aggregate Bonus paid to Executive for the latest fiscal year ended prior to Executive's Termination Date, and (2) 50% of the aggregate Bonus paid to Executive for the latest two fiscal years ended prior to Executive's Termination Date. The parties agree that, of the total lump sum amount received by Executive as described in the preceding sentence of this Section 9(b)(ii)(D), 2/3 of such total lump sum amount shall be treated by the parties as consideration for the continued observance by Executive in all material respects of the covenants contained in Section 11(b).
(iii) For the avoidance of doubt, the parties agree that (A) the provisions of Section 9(b)(ii) shall not apply prior to the IPO Effective Date and (B) as of the IPO Effective Date, the provisions of Section 9(b)(ii) shall apply, and the provisions of Section 9(b)(i) shall not apply, with respect to any termination of Executive's employment of the type described in Section 9(b)(ii) (i.e. that Sections 9(b)(i) and 9(b)(ii) are mutually exclusive, and that Section 9(b) (ii) all stock options and stock appreciation rights that have been granted shall control with respect to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service any termination to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amendedapplies), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1.
Appears in 1 contract
Termination Other Than for Cause. If The Company may terminate Executive’s 's employment with without Cause (as defined in this Agreement) at any time and without prior notice, written or otherwise. In the event the Company is terminated terminates Executive's employment for other than Cause, Disability or death, and subject to the other provisions of this Agreement, Executive will be entitled to:
(i) by continued coverage under the Company other than for “Cause” (as defined herein), including if Company's benefit plans through the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension, termination date;
(ii) by payment of all earned but unpaid compensation through the Executive for Good Reasoneffective date of termination, payable on or before the termination date;
(iii) as a result reimbursement of Executive’s Death any monies advanced or Disability (as provided in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered incurred by Executive to in connection with his Employment for reasonable and necessary Company-related business expenses incurred on or before the Company through termination date;
(iv) payment of the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on equivalent of the sixtieth (60th) day following the Termination Date equal to the amount Base Salary Executive would have earned as over the next 24 months (the “Severance Period”) (less necessary withholdings and authorized deductions) at his then current Base Salary and Minimum Annual Bonus during rate ("Severance Payment");
(v) an amount equal to the twopro-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount rata portion of any bonus payments that would have been due to be made to the Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained Section 3(b) of this Agreement had Executive been employed by the Company as of the last day of the fiscal year during which such termination occurred, calculated as the product of the bonus (as determined pursuant to Section 3(b)) multiplied by a fraction, the numerator equal to the number days from the start of the applicable fiscal year through the termination date of Executive's employment with the Company, and the denominator being 365;
(vi) at Executive's option, reimbursement of insurance premiums payable to continue Executive's group health for Executive’s benefitthe first twenty-four (24) months following the termination date, including coverage pursuant to the provisions of COBRA, if applicable; and
6.1.2 subject to Section 6.1.5, (ivii) all restricted the number of outstanding unvested stock options and restricted stock units that have been previously granted to Executive by the Company and that would have vested during over the threetwenty-year four (24) month period following the Termination Date solely after such termination as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to if Executive remained employed by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately shall vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to upon such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1termination.
Appears in 1 contract
Samples: Employment Agreement (Ddi Corp)
Termination Other Than for Cause. a. If the Company terminates the Executive’s 's employment without Cause, the Company's obligations under this Agreement shall be as follows:
i. The Company will continue to pay to the Executive, or in the case of death of the Executive after such termination without Cause to his successors or legal representatives or to his estate, during the 365 days immediately following such termination of employment (such period is hereinafter referred to as the "Severance Period"), his Base Salary on a monthly basis as would have been paid to the Executive had his employment with the Company is terminated (i) by continued; provided, however, that to the Company other than for “Cause” (as defined hereinextent any payment under this Paragraph 8.i. fails to satisfy the requirements set forth in Treasury Regulation Section 1.409A-1(b)(9)(iii), including the amount shall not be paid to the Executive before the date that is six (6) months after the date of the Executive’s separation from service, or if earlier, date of death.
ii. The Company shall pay to the Company provides notice Executive his proportionate share of nonrenewal within 90 days of any bonus compensation to which he would have been entitled had he continued to be employed until the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason, or (iii) as a result of Executive’s Death or Disability (as provided relevant bonus calculation period. Such bonus compensation shall be payable in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum within 30 days of determination of Executive's bonus amount but in any event no later than March 15th following the taxable year to which such bonus applies, except as permitted under Section 409A of the Internal Revenue Code (the “Code”); it being intended that the payment equal contemplated by this Paragraph 8.ii. comply with the short-term deferral exception to all accrued and unpaid salary and other compensation payable to Executive by Section 409A of the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive Internal Revenue Code under Treasury Regulation Section 1.409A-1(b)(4) and, to the Company through the Termination Date; and (ii) subject to extent applicable, with Treasury Regulation Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and1.409A-2(b)(7).
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the iii. The Company will continue to provide all benefits to the Executive during the Severance Period that would have been provided had Executive’s employment continued, including medical, disability and life insurance. In the case of the death of the Executive, during his lifetimemedical insurance will be continued for Executive's spouse and children for the duration of the Severance Period; and
iv. The Company will promptly, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5the Executive’s submission of reasonably required documentation, reimburse the Company will pay Executive for all reimbursable expenses accrued (but unpaid) to the cost for continuation coverage under date of termination; and within 10 business days after such termination, any accrued but unused vacation days paid at Executive's Base Salary.
b. If a termination without Cause takes effect prior to the Company Group Health Plans (as defined hereinexpiration of the Term, all of the Executive's stock options which would have vested and become exercisable had the Executive's employment continued to the end of the Term in which such termination without Cause occurred shall immediately vest and become exercisable, and to the extent permitted Executive may thereafter exercise all options held by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company him during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under ending on the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for last day on which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided may exercise any such options under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein applicable option plan or 90 days from the date of termination, whichever is later. Additionally, if a termination without Cause takes effect prior to the contraryexpiration of the Term, it shall be a condition to all of the Executive’s right to receive 's restricted stock which would have vested had the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver Executive's employment continued to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation end of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided Term in Section 6.1.1which such termination without Cause has occurred shall immediately vest.
Appears in 1 contract
Termination Other Than for Cause. PNMAC or PFSI may terminate Executive’s employment other than for Cause (including the expiration of Executive’s Term pursuant to Section 1 above) or Executive may terminate his employment for Good Reason as that term is defined in this Section 7(d). If Executive’s employment with the Company is terminated terminates pursuant to this Section 7(d), then Executive shall be entitled to (i) by the Company other than for “Cause” (his base salary in effect as defined herein), including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason, or (iii) as a result of Executive’s Death or Disability (as provided in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on Termination Date through and including the Termination Date (as such that term is defined in Section 6.37(g) herein), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive ; (ii) if not previously paid prior to the Company Termination Date, incentive based compensation as described in Section 5(b) of this Agreement for the year prior to the Fiscal Year in which the Termination Date occurs; (iii) accrued but unused PTO through the Termination Date; and (iiiv) subject reimbursement of any unreimbursed expenses incurred by Executive pursuant to Section 6.1.5 and 6 of this Agreement; (v) a prorated share of the incentive based compensation described in Section 10.10.5, a lump sum payment on 5(b) for the sixtieth (60th) day following Fiscal Year in which the Termination Date occurs, payable in accordance with such Section; and (vi) continuing medical benefits as set forth in Section 5(e) herein; (vii) an amount equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result two years of Executive’s continued service to the Company will immediately vest on base salary (as described in Section 5(a) above) as of the Termination Date, payable in twenty-four monthly installments beginning on the first day of the first full month following the month in which the Termination Date occurs; and (iiviii) all stock options and stock appreciation rights an amount equal to two years of Executive’s cash incentive compensation (as described in Section 5(b) above), as calculated based on the average Bonus Executive received in the most recent two years in which Executive received a Bonus. In addition, in the event Executive’s employment is terminated pursuant to this Section 7(d) (unless such termination is the result of the expiration of Executive’s Term pursuant to Section 1 above), any Award (as that have been term is defined in the EIP) granted to Executive by pursuant to the Company EIP, shall become immediately and that would have vested during fully vested. If such termination is the three-year period following result of the expiration of Executive’s Term pursuant to Section 1 above, any such Awards shall continue to vest, if applicable, in accordance with their terms, and the Termination Date solely of this Agreement shall be deemed to be the Retirement Date as defined in the related award document; provided, however, that if the related award document does not contain any reference to Retirement or a result Retirement Date, then the affected Awards shall become immediately and fully vested. For purposes of this Agreement, Executive will have “Good Reason” to terminate this Agreement if PFSI (or any resulting or surviving entity in the event of a Transaction as defined in Section 5(c) of this Agreement) or PNMAC (1) materially breaches this Agreement; (2) requires Executive to report to anyone other than the CEO; (3) requires that Executive be based anywhere more than fifteen (15) miles from the office where Executive is located as of Effective Date; (4) takes any other action which results in a material diminution or adverse change in Executive’s continued service status, title, position, compensation, or responsibilities as set forth herein, other than an insubstantial action not taken in bad faith and remedied promptly after receipt of notice by Executive; or (5) fails to the Company will immediately vest indemnify and become exercisable on the Termination Date advance all expenses to Executive in response to a proper request for indemnity and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide advancement by Executive, during his lifetimeprovided, with however, Executive’s resignation for Good Reason will only be effective if Executive provides written notice to PNMAC or PFSI of the use events constituting the Good Reason within ninety (90) days after the occurrence of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined hereinany such event, and to the extent permitted by applicable law and the terms of each Company Group Health PlanPNMAC or PFSI does not cure said events within thirty (30) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion days after receipt of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1notice.
Appears in 1 contract
Samples: Employment Agreement (PennyMac Financial Services, Inc.)
Termination Other Than for Cause. If (i) In the event that Executive’s employment with the Company is terminated (i) by Employer during the Company term hereof for reasons other than for “Cause” (Cause as defined hereinin subsection 6.02(a) or Executive terminates this Agreement for Good Reason in accordance with subsection 6.02(c), including if Employer will pay to Executive:
(1) all Base Salary accrued through the Company provides notice date of nonrenewal termination, any unreimbursed expenses incurred pursuant to section 2.05, and any other benefits specifically provided to Executive under any benefit plan, payable within 90 10 days after the termination date;
(2) continuation of the end Base Salary for the period from the date of Termination and for an additional six months, payable in a single lump sum within ninety days from the Initial Period or any Extension, date of Termination;; and
(ii3) by the Executive for Good Reason, or (iii) as a result of Executive’s Death or Disability (as provided in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump lump-sum payment equal to all accrued three months of health insurance premiums at the monthly rate in effect for Executive at the time of termination, after which the Executive would be entitled to participate in any COBRA program offered by Employer’s medical insurance provider, if any. The amounts under (2) and unpaid salary and other compensation (3) above will be payable to Executive by on the Company and all accrued and unpaid vacation and sick pay payable to Executive by first day of the Company with respect to services rendered by Executive to seventh month following the Company through the Termination Date; and date of termination of Executive’s employment.
(ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal In addition to the amount Executive would have earned foregoing payments, in the event of termination as Base Salary and Minimum Annual Bonus during referred to above, except to the two-year period following such date had Executive’s employment not been terminatedextent expressly prohibited by any applicable law or regulation, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5all unvested options, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Datepurchase awards, and (ii) all stock options and stock appreciation rights that have been granted to Executive by other equity awards whose vesting is not contingent on reaching any performance benchmarks in the Company and that would have vested during future, other than merely the three-year period following the Termination Date solely as a result passage of Executive’s continued service to the Company time, will immediately automatically vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined hereinimmediately exercisable, and all forfeiture provisions pursuant to the extent permitted by applicable law restricted stock or other awards will automatically and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employerterminate. The period vesting of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefitsany unvested options, as provided aboverestricted stock purchase awards, or other equity awards whose vesting is contingent on reaching any Employer or Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially performance benchmarks in the form attached hereto as “Exhibit A” (future, other than merely the “General Release”) within twenty-one (21) days passage of its delivery to Executive (or such longer period as may time, will not be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1accelerated.
Appears in 1 contract
Termination Other Than for Cause. The Company may terminate Executive’s employment without Cause (as defined in this Agreement) at any time and without prior notice, written or otherwise. If the Company terminates Executive’s employment for other than Cause, Disability or death, then, in addition to the payment of those benefits listed in Section 5(a), and subject to the other provisions of this Agreement, Executive will be entitled to:
(i) payment of an amount equal to the Base Salary Executive would have earned over the 24 month period following the date of termination of Executive’s employment without Cause (the “Severance Period”) (less necessary withholdings and authorized deductions) at his then current Base Salary rate (“Severance Payment”);
(ii) an amount equal to the pro-rata portion of any bonus payment that would have been due to the Executive under Section 3(b) of the Employment Agreement for the fiscal year in which the termination occurred, calculated as the product of 100% of the target bonus multiplied by a fraction, the numerator equal to the number days from the start of the applicable fiscal year through the termination date of Executive’s employment with the Company is terminated (i) by Company, and the Company other than for “Cause” (as defined herein), including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason, or denominator being 365;
(iii) an amount equal to 200% of the target amount of incentive bonuses under Section 3(b) of this Agreement as a result in effect for the fiscal year during which such termination occurred;
(iv) reimbursement of insurance premiums payable to continue Executive’s group health (for Executive and his spouse and eligible dependents), at the level in effect and upon substantially the same terms and conditions as existed under applicable insurance plans immediately prior to the date of termination of employment (including without limitation contributions required by Executive, if any, for such benefits), for the first twenty-four (24) months following the date of termination of Executive’s Death or Disability (as provided in Section 5.1 herein)employment without Cause, then:
6.1.1 including coverage pursuant to the Company shall provide Executive (or Executive’s estateprovisions of COBRA, if applicable; and
(v) the number of outstanding unvested stock options and restricted stock previously granted to Executive that would have vested had the Executive remained employed during the Severance Period shall vest upon such termination, and the post-termination exercise period for all of Executive’s stock options shall be extended until the one-year anniversary of the termination date (ior their expiration date if earlier). Such amounts payable under this subsection (e) on the Termination Date (as such term is defined shall be paid in Section 6.3), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by 30 days after the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) date Executive’s employment terminated, subject to Section 6.1.5 17 below. Executive shall not receive the payments and Section 10.10.5benefits under subsections (i)-(iv), a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus above, unless, during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period 21 days following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5of employment, (i) all restricted stock Executive signs and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5does not thereafter properly revoke, the Company will pay separation agreement and general release attached as Exhibit A. In addition, if Executive accepts other employment within the cost Severance Period, the Company’s obligation under (iv) above to reimburse premiums for continuation of group health insurance coverage under will be extinguished as of the Company Group Health Plans (as defined herein, and to date the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members becomes covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that of the Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another new employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1.
Appears in 1 contract
Samples: Employment Agreement (Ddi Corp)
Termination Other Than for Cause. If Executive’s If, during the Employment Period, the employment with the Company of Executive is terminated by OUTFRONT other than for Cause (as defined above), death, disability or other incapacity (hereinafter collectively referred to as “Termination Other Than for Cause”), then, upon execution of a release that becomes effective and irrevocable as provided in paragraph 19 below, Executive shall be entitled to receive:
(i) by a severance payment in the Company other than for amount of eighteen (18) months of base salary continuance at Executive’s then current base salary, payable in accordance with OUTFRONT’s regular payroll practices (the “Cause” (as defined hereinSeverance Payment”), including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension, ;
(ii) by a prorated bonus for that portion of the year of such termination during which Executive for Good Reasonactively rendered services, or (iii) as a result of Executive’s Death or Disability (as provided in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable paid in accordance with the terms EBP (the “Pro-Rata Bonus”). The precise amount of bonus payable, if any, will be determined in a manner consistent with the manner bonus pay determinations are made for comparable executives, -4- and conditions such bonus, if any, less applicable to such equity awarddeductions and withholding taxes, shall be payable by March 15 of the calendar year following the calendar year in which the termination occurs in accordance with EBP guidelines; and
6.1.3 (iii) to the Company will continue to provide Executive, during his lifetime, with extent that the use Termination Other Than for Cause is considered a “separation from service” within the meaning of a Company provided automobileSection 409A of the Internal Revenue Code of 1986, as provided amended, and the rules and regulations promulgated thereunder (“Section 409A”), and which results in Section 3.3.2the Executive’s loss of eligibility for medical and/or dental benefits under OUTFRONT’s then effective benefit plans, including payment of all insurance and maintenance costs, Executive shall be eligible for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation continued coverage under the Company Group Health Plans (as defined herein, existing plans applicable to Executive and/or continued medical and dental coverage pursuant to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 Act, 29 U.S.C. section 1161 et seq. (“COBRA”) until the earlier of (A) the date that is eighteen (18) months from the date of Executive’s termination, or (B) the date on which Executive becomes eligible for medical and dental coverage from a third-party employer. If Executive elects to continue Executive’s coverage under OUTFRONT’s medical and/or dental plans under COBRA, and his eligible family members if Executive signs the release described in paragraph 19 hereof, OUTFRONT will provide Executive’s coverage at no cost for a time period up to twelve (12) months (assuming Executive does not become covered under the Company Group Health Plan immediately prior to Termination Dateanother group plan sooner). Such premiums Any COBRA coverage beyond this time period will be paid by the Company during the 18 month period immediately at Executive’s own cost. The amount OUTFRONT will pay for continued medical and/ or dental COBRA coverage following Executive’s Termination Date or until Executive becomes eligible Other Than for group health plan benefits Cause, if any, will be treated as taxable income and will be reported on a Form W-2, and OUTFRONT may withhold taxes from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under compensation for this purpose. The parties agree that, consistent with the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform Section 409A, the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period following in-kind benefit rules shall also apply: (x) the amount of such COBRA Benefits in-kind benefits paid during a calendar year will be considered part of Executive’s COBRA coverage entitlement period. At not affect the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement periodin-kind benefits, if any, provided under the terms of the Company Group Health Plansto Executive in any other calendar year; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to and (y) Executive’s right to receive the amounts in-kind benefits is not subject to liquidation or exchange for another benefit. The Severance Payment provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 this paragraph 7(d) is in lieu of any other severance payment or protection under any plan that may now or hereafter exist and Section 6.1.4, that Executive timely execute shall be the sole and deliver to the Company, a general release substantially exclusive compensation payable in the form attached hereto as “Exhibit A” (event of a Termination Other Than for Cause. For the “General Release”) within twenty-one (21) days avoidance of its delivery doubt, following Executive’s Termination Other Than for Cause, OUTFRONT shall have no further obligation to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967any nature, as amended)including, without subsequent revocation of the General Release. Upon satisfaction of the General Release conditionbut not limited to, the payment of cash compensation, the vesting of equity compensation, and/or the accrual of vacation time, except for the payments and benefit entitlements expressly provided for in this paragraph 7(d). Notwithstanding the foregoing, Executive shall be entitled to receive any base salary due and not yet paid and any accrued but unused vacation should Executive’s employment be terminated pursuant to this paragraph 7(d), and in the event of Executive’s death, Executive’s estate shall receive any severance benefits will commence payment due and not yet paid through the date of Executive’s death. Nothing herein shall obligate OUTFRONT to utilize Executive’s services. Each payment under this paragraph 7(d) shall be considered a separate payment and not one of a series of payments for purposes of Section 409A. Any payment under this paragraph 7(d) that is not made during the period following Executive’s Termination Other Than for Cause because Executive has not executed the release described in paragraph 19, shall be paid to Executive in a single lump sum on the first payroll date following the last day of the Release Effective Date (as defined in paragraph 19); provided that Executive executes and does not revoke the release in accordance with the requirements of paragraph 19. Notwithstanding the foregoing, in the event that Executive is a “specified employee” (within the meaning of Section 6.1.1409A and as determined pursuant to procedures adopted by OUTFRONT) and has actually, or is deemed to have, incurred a “separation from service” within the meaning of Section 409A (a “409A Termination”) and if any portion of Executive’s base salary or Pro-Rata Bonus that would be paid to the Executive (for Termination Other Than for Cause) during the six-month period following such 409A Termination constitutes deferred compensation (within the meaning of Section 409A), such portion shall be paid to Executive on the earlier of (i) the first business day of the seventh month following the month in which Executive’s 409A Termination occurs or (ii) Executive’s death (the applicable date, the “Permissible Payment Date”) rather than as described in the prior sentence, and remaining payments of base salary and/or Pro-Rata Bonus, if any, shall be paid to Executive or to Executive’s estate, as applicable, by payment of Executive’s base salary on regular payroll dates commencing with the payroll date that follows the Permissible Payment Date and by payment of any Pro-Rata Bonus on the first payroll date that follows the Permissible Payment Date.
Appears in 1 contract
Termination Other Than for Cause. (a) If Executive’s the Company terminates the Employee's employment other than for Cause or Disability or if the Employee terminates her employment for "Good Reason" (as defined below), the Employee shall be entitled to receive (a) all base salary earned and accrued to the date of death, plus (b) any compensation previously deferred by the Employee to the extent then unpaid (to the extent that such payment is consistent with the terms of any plan or arrangement relating to such deferral), plus (c) an amount equal to two times her then current base salary if such termination occurs before the first anniversary of the Commencement Date and one year's base salary if such termination occurs after the first anniversary of the Commencement Date, plus (d) an amount equal to the maximum percentage award to which the Employee is then entitled under the Company's Annual Incentive Plan and in the Company's Long-Term Performance-Based Incentive Plan (at the then current percentage of the then current midpoint under each plan), prorated for the period from the date each plan cycle began to the date of termination.
(b) The amount provided for in clauses 5.3(c) and (d) above shall be payable in equal monthly installments over the twelve months following termination of the Employee's employment under this Section 5.3, but the Company's obligation to pay such amounts is conditioned on the Employee's continuing compliance with Sections 6, 7 and 11 of this Agreement, and the employee having delivered to the Company is terminated a full release from all liability arising out of such termination. The payments provided for in this Section 5.3 will be the Employee's sole and exclusive remedy for a termination arising under this Section.
(c) As used in this Section 5.3, Good Reason shall mean any of the following: (i) the assignment to the Employee by the Company other than for “Cause” (as defined herein)Company, including if without the Company provides notice Employee's express written approval, of nonrenewal within 90 days of duties inconsistent with the end of Employee's position, duties, responsibilities, titles, offices or status with the Initial Period or any Extension, Company; (ii) a reduction by the Executive Company, not consistent with the Company's general salary practice for Good ReasonEmployees, in the Employee's base salary as in effect on the date of this Agreement or as the same is increased from time to time during the term of this Agreement; (iii) as a result of Executive’s Death or Disability (as provided in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment equal Company's failure to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable review in accordance with the terms and conditions applicable Company's general salary practice for executives the Employee's base salary; (iv) the Company's failure to such equity award; and
6.1.3 continue in effect any benefit plan or arrangement in which the Company will continue to provide ExecutiveEmployee is participating except for Company-wide modifications, during his lifetime, with or the use taking of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid any action by the Company during which would adversely affect the 18 month period immediately following Executive’s Termination Date Employee's participation in and/or materially reduce the Employee's benefits under any such benefit plan or until Executive becomes eligible arrangement or which would deprive the Employee of any material fringe benefit enjoyed by the Employee, except for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1wide modifications.
Appears in 1 contract
Termination Other Than for Cause. The Company may terminate Executive’s employment without Cause (as defined in this Agreement) at any time and without prior notice, written or otherwise. If the Company terminates Executive’s employment for other than Cause, Disability or Death, then, in addition to the payment of those benefits listed in Section 5(a), and subject to the other provisions of this Agreement, Executive will be entitled to:
(i) payment of an amount equal to the Base Salary Executive would have earned over the next twelve (12) months (the “Severance Period”) (less necessary withholdings and authorized deductions) at his then current Base Salary rate (“Severance Payment”), provided, however, that this Severance Payment will be distributed to Executive as follows:
(1) a lump sum amount equal to one (1) month of the Executive’s former Base Salary, thirty (30) days after the date Executive’s employment terminated;
(2) Commencing within the first day of the second month following Executive’s employment termination, an amount equal to eleven (11) months of the Executive’s former Base Salary, paid in the form of salary continuation, and
(ii) an amount equal to the pro-rata portion of any bonus payments that would have been due to the Executive under Section 3(b) of this Agreement had Executive been employed by the Company as of the eligibility date for the fiscal year during which such termination occurred, calculated as the product of the bonus (as determined pursuant to Section 3(b)) multiplied by a fraction, the numerator equal to the number days from the start of the applicable fiscal year through the termination date of Executive’s employment with the Company is terminated (i) by Company, and the Company denominator being 365, subject to Section 17 below, and payable promptly after the date that all bonus payments to other than eligible employees are made for “Cause” (as defined herein), including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason, or applicable period;
(iii) as a result reimbursement of insurance premiums payable to continue Executive’s Death or Disability group health (as provided in Section 5.1 hereinfor Executive and his spouse and eligible dependents), then:
6.1.1 at the Company shall provide Executive level in effect and upon substantially the same terms and conditions as existed under applicable insurance plans immediately prior to the date of termination of employment (or including without limitation contributions required by Executive’s estate, if any, for such benefits), for the Severance Period, including coverage pursuant to the provisions of COBRA, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (iiv) all restricted the number of outstanding unvested stock options and restricted stock units that have been previously granted to Executive by the Company and that would have vested had the Executive remained employed during the threeSeverance Period shall vest upon such termination, and the post-year termination exercise period following the Termination Date solely as a result for all of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options shall be extended until the one-year anniversary of the termination date (or their expiration date if earlier). Executive shall not receive the payments and stock appreciation rights that have been granted to Executive by the Company and that would have vested benefits under subsections (i)-(iv), above, unless, during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days following Executive’s termination of its delivery employment, Executive signs and does not thereafter properly revoke, the separation agreement and general release attached as Exhibit A. In addition, if Executive accepts other employment within the Severance Period, the Company’s obligation under (iii) above to reimburse premiums for continuation of group health insurance coverage will be extinguished as of the date the Executive (or such longer period as may be required becomes covered under the Age Discrimination group health plan of the Executive’s new employer. If within twelve (12) months following a Change of Control, (A) Executive’s employment is terminated without Cause, or (B) Executive terminates Executive’s employment for Good Reason as a result of such Change of Control, then, in Employment Act lieu of 1967, as amendedthe pro-rated bonus payable under subsection (ii), without subsequent revocation above, Executive shall be entitled to an amount equal to one hundred percent (100%) of the General Release. Upon satisfaction target amount of incentive bonuses that would have been available to be earned by the General Release condition, Executive under Section 3(b) of this Agreement for the payment of the severance benefits will commence as provided in Section 6.1.1fiscal year during which such termination occurred.
Appears in 1 contract
Samples: Employment Agreement (Ddi Corp)
Termination Other Than for Cause. The Company may terminate Executive’s employment without Cause (as defined in this Agreement) at any time and without prior notice, written or otherwise. If the Company terminates Executive’s employment for other than Cause, Disability or death, then, in addition to the payment of those benefits listed in Section 5(a), and subject to the other provisions of this Agreement, Executive will be entitled to:
(i) payment of an amount equal to the Base Salary Executive would have earned over the next 12 months (the “Severance Period”) (less necessary withholdings and authorized deductions) at his then current Base Salary rate (“Severance Payment”), provided, however, that this Severance Payment will be distributed to Executive as follows:
(1) a lump sum amount equal to 1/12th of the Severance Payment, 30 days after the date Executive’s employment terminated, subject to Section 17 below; and
(2) the balance of the Severance Payment shall be paid in approximately equal installments over the remainder of the Severance Period on the Company’s regular paydays commencing on the first regular payday of the second month following the termination of Executive’s employment, subject to Section 17 below; and
(ii) an amount equal to the pro-rata portion of any bonus payments that would have been due to the Executive under Section 3 (b) of this Agreement had Executive been employed by the Company as of the eligibility date for the fiscal year during which such termination occurred, calculated as the product of the bonus (as determined pursuant to Section 3(b)) multiplied by a fraction, the numerator equal to the number days from the start of the applicable fiscal year through the termination date of Executive’s employment with the Company Company, and the denominator being 365, and payable promptly after the date that all bonus payments to other eligible employees are made for the applicable period, subject to Section 17 below;
(iii) reimbursement of insurance premiums payable to continue Executive’s group health (for Executive and his spouse and eligible dependents), at the level in effect and upon substantially the same terms and conditions as existed under applicable insurance plans immediately prior to the date of termination of employment (including without limitation contributions required by Executive, if any, for such benefits), for the Severance Period, including coverage pursuant to the provisions of COBRA, if applicable; and
(iv) the number of outstanding unvested stock options and restricted stock previously granted to Executive that would have vested had the Executive remained employed during the Severance Period shall vest upon such termination, and the post-termination exercise period for all of Executive’s stock options shall be extended until the one-year anniversary of the termination date (or their expiration date if earlier). Executive shall not receive the payments and benefits under subsections (i)-(iv), above, unless, during the 21 days following Executive’s termination of employment, Executive signs and does not thereafter properly revoke, the separation agreement and general release attached as Exhibit A. In addition, if Executive accepts other employment within the Severance Period, the Company’s obligation under (iii) above to reimburse premiums for continuation of group health insurance coverage will be extinguished as of the date the Executive becomes covered under the group health plan of the Executive’s new employer. If within 12 months following a Change of Control, (A) Executive’s employment is terminated (i) by the Company other than for “without Cause” (as defined herein), including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason, or (iiiB) Executive terminates Executive’s employment for Good Reason as a result of Executive’s Death or Disability such Change of Control, then, in lieu of the pro- rated bonus payable under subsection (as provided in Section 5.1 hereinii), then:
6.1.1 the Company above, Executive shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment be entitled to an amount equal to all accrued and unpaid salary and other compensation payable to Executive by 100% of the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable target amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and incentive bonuses that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service been available to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive be earned by the Company and that would have vested during the three-year period following the Termination Date solely as a result Executive under Section 3(b) of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits this Agreement for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or fiscal year during which such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1termination occurred.
Appears in 1 contract
Samples: Employment Agreement (Ddi Corp)
Termination Other Than for Cause. If Executive’s employment with the Company is terminated (i) by the Company other than for “Cause” (as defined herein), including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason, or (iii) as a result of Executive’s Death or Disability (as provided in Section 5.1 herein) (collectively, subsections (i), (ii) and (iii), a “Qualifying Termination”), then:
6.1.1 the Company shall will provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 6.1.6 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to 200% of the amount Executive would have earned as equal to the sum of Executive’s then current Base Salary and Minimum Annual Target Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; andamount;
6.1.2 subject to Section 6.1.56.1.6, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, (ii) all restricted stock and restricted stock units that have been granted to Executive by the Company and that are subject to performance based vesting will immediately vest on the Termination Date at the target vesting level, and (iiiii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and;
6.1.3 if a Qualifying Termination occurs on or before December 31, 2018, in addition to the vesting provided in Section 6.1.2, the Company will continue immediately issue to provide Executive, during his lifetimeon a fully vested basis, such number of shares of the Company’s common stock with a value equal to $7,000,000, determined by the use of a Company provided automobile, as provided closing price per share on the Termination Date reported in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional monthsthe Wall Street Journal;
6.1.4 [reserved];
6.1.5 subject to Section 6.1.56.1.6, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans. In addition to paying the cost of COBRA Benefits, the Company will pay Executive a lump sum payment on the sixtieth (60th) day following the Termination Date equal to $10,800, which is intended to enable Executive to obtain six months additional health insurance coverage in excess of the COBRA Benefits; and
6.1.5 6.1.6 notwithstanding anything herein to the contrary, it shall will be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 6.1.3, Section 6.1.4 and Section 6.1.46.1.5, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.16.1.1 and Section 10.10.5.
Appears in 1 contract
Termination Other Than for Cause. If The Company may terminate Executive’s employment without Cause (as defined in this Agreement) at any time and without prior notice, written or otherwise. In the event the Company terminates Executive’s employment for other than Cause, Disability or death, and subject to the other provisions of this Agreement, Executive will be entitled to:
(i) continued coverage under the Company’s benefit plans through the termination date;
(ii) payment of all earned but unpaid compensation through the effective date of termination, payable on or before the termination date;
(iii) reimbursement of any monies advanced or incurred by Executive in connection with his Employment for reasonable and necessary Company-related business expenses incurred on or before the termination date;
(iv) payment of the equivalent of the Base Salary Executive would have earned over the next 24 months (the “Severance Period”) (less necessary withholdings and authorized deductions) at his then current Base Salary rate (“Severance Payment”), payable in eighteen (18) equal monthly installments starting on the first business day after six (6) months from the termination date;
(v) an amount equal to the pro-rata portion of any bonus payments that would have been due to the Executive under Section 3(b) of this Agreement had Executive been employed by the Company as of the last day of the fiscal year during which such termination occurred, calculated as the product of the bonus (as determined pursuant to Section 3(b)) multiplied by a fraction, the numerator equal to the number days from the start of the applicable fiscal year through the termination date of Executive’s employment with the Company is terminated Company, and the denominator being 365;
(ivi) by at Executive’s option, reimbursement of insurance premiums payable to continue Executive’s group health for the Company other than for “Cause” first twenty-four (as defined herein)24) months following the termination date, including if coverage pursuant to the Company provides notice provisions of nonrenewal within 90 days of the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason, or (iii) as a result of Executive’s Death or Disability (as provided in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estateCOBRA, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (ivii) all restricted the number of outstanding unvested stock options and restricted stock units that have been previously granted to Executive by the Company and that would have vested during over the threetwenty-year four (24) month period following the Termination Date solely after such termination as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to if Executive remained employed by the Company shall vest upon such termination. Executive shall not receive the payments and that would have vested during benefits under subsections (iv)-(vi), above, unless he signs the threeseverance agreement and general release document in the form attached as Exhibit A. In addition, if Executive accepts other employment within twenty-year period following four (24) months of the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5termination date, the Company will Company’s obligation to pay the cost premiums for continuation of group health insurance coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by extinguished as of the Company during date of the 18 month period immediately following Executive’s Termination Date or until date the Executive becomes eligible for coverage under the group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that of the Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another new employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1.
Appears in 1 contract
Samples: Employment Agreement (Ddi Corp)
Termination Other Than for Cause. If Executive’s employment with the Company is terminated (i) by the Company other than for “Cause” (as defined herein), including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason, or (iii) as a result of Executive’s Death or Disability (as provided in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 6.1.4 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.56.1.4, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.56.1.4, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 6.1.4 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 6.1.2 and Section 6.1.46.1.3, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1.
Appears in 1 contract
Termination Other Than for Cause. PNMAC or PFSI may terminate Executive’s employment other than for Cause (including the expiration of Executive’s Term pursuant to Section 1 above) or Executive may terminate his employment for Good Reason as that term is defined in this Section 7(d). If Executive’s employment with the Company is terminated terminates pursuant to this Section 7(d), then Executive shall be entitled to (i) by the Company other than for “Cause” (his base salary in effect as defined herein), including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason, or (iii) as a result of Executive’s Death or Disability (as provided in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on Termination Date through and including the Termination Date (as such that term is defined in Section 6.37(g) herein), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive ; (ii) if not previously paid prior to the Company Termination Date, incentive based compensation as described in Section 5(b) of this Agreement for the year prior to the Fiscal Year in which the Termination Date occurs; (iii) accrued but unused PTO through the Termination Date; and (iiiv) subject reimbursement of any unreimbursed expenses incurred by Executive pursuant to Section 6.1.5 and 6 of this Agreement; (v) a prorated share of the incentive based compensation described in Section 10.10.5, a lump sum payment on 5(b) for the sixtieth (60th) day following Fiscal Year in which the Termination Date occurs, payable in accordance with such Section; and (vi) continuing medical benefits as set forth in Section 5(e) herein; (vii) an amount equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result two years of Executive’s continued service to the Company will immediately vest on base salary (as described in Section 5(a) above) as of the Termination Date, payable in twenty-four monthly installments beginning on the first day of the first full month following the month in which the Termination Date occurs; and (iiviii) all stock options and stock appreciation rights an amount equal to two years of Executive’s cash incentive compensation (as described in Section 5(b) above), as calculated based on the average Bonus Executive received in the most recent two years in which Executive received a Bonus. In addition, in the event Executive’s employment is terminated pursuant to this Section 7(d) (unless such termination is the result of the expiration of Executive’s Term pursuant to Section 1 above), any Award (as that have been term is defined in the EIP) granted to Executive by pursuant to the Company EIP, shall become immediately and that would fully vested. If such termination is the result of the expiration of Executive’s Term pursuant to Section 1 above, the Retirement (as defined in the related award document) of the Executive shall be deemed to have vested during occurred. In the three-year period following event of such deemed Retirement, any such Awards shall continue to vest, if applicable, in accordance with their terms, and the Termination Date solely of this Agreement shall be deemed to be the Retirement Date as defined in the related award document. Notwithstanding the foregoing, if the related award document does not contain any reference to Retirement or a result Retirement Date, then the affected Awards shall become immediately and fully vested. For purposes of this Agreement, Executive will have “Good Reason” to terminate this Agreement if PFSI (or any resulting or surviving entity in the event of a Transaction as defined in Section 5(c) of this Agreement) or PNMAC (1) materially breaches this Agreement; (2) requires Executive to report to anyone other than the Board; (3) requires that Executive be based anywhere more than fifty (50) miles from the office where Executive is located as of Effective Date; (4) takes any other action which results in a material diminution or adverse change in Executive’s continued service status, title, position, compensation, or responsibilities as set forth herein, other than an insubstantial action not taken in bad faith and remedied promptly after receipt of notice by Executive; or (5) fails to the Company will immediately vest indemnify and become exercisable on the Termination Date advance all expenses to Executive in response to a proper request for indemnity and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide advancement by Executive, during his lifetimeprovided, with however, Executive’s resignation for Good Reason will only be effective if Executive provides written notice to PNMAC or PFSI of the use events constituting the Good Reason within ninety (90) days after the occurrence of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined hereinany such event, and to the extent permitted by applicable law and the terms of each Company Group Health PlanPNMAC or PFSI does not cure said events within thirty (30) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion days after receipt of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1notice.
Appears in 1 contract
Samples: Employment Agreement (PennyMac Financial Services, Inc.)
Termination Other Than for Cause. The Company may terminate Executive’s employment without Cause (as defined in this Agreement) at any time and without prior notice, written or otherwise. If the Company terminates Executive’s employment for other than Cause, Disability or death, then, in addition to the payment of those benefits listed in Section 5(a), and subject to the other provisions of this Agreement, Executive will be entitled to:
(i) payment of an amount equal to the Base Salary Executive would have earned over the next 12 months (the “Severance Period”) (less necessary withholdings and authorized deductions) at his then current Base Salary rate (“Severance Payment”), provided, however, that this Severance Payment will be distributed to Executive as follows:
(1) a lump sum amount equal to 1/12th of the Severance Payment, 30 days after the date Executive’s employment terminated, subject to Section 17 below; and
(2) the balance of the Severance Payment shall be paid in approximately equal installments over the remainder of the Severance Period on the Company’s regular paydays commencing on the first regular payday of the second month following the termination of Executive’s employment, subject to Section 17 below; and
(ii) an amount equal to the pro-rata portion of any bonus payments that would have been due to the Executive under Section 3(b) of this Agreement had Executive been employed by the Company as of the eligibility date for the fiscal year during which such termination occurred, calculated as the product of the bonus (as determined pursuant to Section 3(b)) multiplied by a fraction, the numerator equal to the number days from the start of the applicable fiscal year through the termination date of Executive’s employment with the Company Company, and the denominator being 365, and payable promptly after the date that all bonus payments to other eligible employees are made for the applicable period, subject to Section 17 below;
(iii) reimbursement of insurance premiums payable to continue Executive’s group health (for Executive and his spouse and eligible dependents), at the level in effect and upon substantially the same terms and conditions as existed under applicable insurance plans immediately prior to the date of termination of employment (including without limitation contributions required by Executive, if any, for such benefits), for the Severance Period, including coverage pursuant to the provisions of COBRA, if applicable; and
(iv) the number of outstanding unvested stock options and restricted stock previously granted to Executive that would have vested had the Executive remained employed during the Severance Period shall vest upon such termination, and the post-termination exercise period for all of Executive’s stock options shall be extended until the one-year anniversary of the termination date (or their expiration date if earlier). Executive shall not receive the payments and benefits under subsections (i)-(iv), above, unless, during the 21 days following Executive’s termination of employment, Executive signs and does not thereafter properly revoke, the separation agreement and general release attached as Exhibit A. In addition, if Executive accepts other employment within the Severance Period, the Company’s obligation under (iii) above to reimburse premiums for continuation of group health insurance coverage will be extinguished as of the date the Executive becomes covered under the group health plan of the Executive’s new employer. If within 12 months following a Change of Control, (A) Executive’s employment is terminated (i) by the Company other than for “without Cause” (as defined herein), including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason, or (iiiB) Executive terminates Executive’s employment for Good Reason as a result of Executive’s Death or Disability such Change of Control, then, in lieu of the pro-rated bonus payable under subsection (as provided in Section 5.1 hereinii), then:
6.1.1 the Company above, Executive shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment be entitled to an amount equal to all accrued and unpaid salary and other compensation payable to Executive by 100% of the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date had Executive’s employment not been terminated, reduced by the fixed and determinable target amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and incentive bonuses that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service been available to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive be earned by the Company and that would have vested during the three-year period following the Termination Date solely as a result Executive under Section 3(b) of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits this Agreement for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or fiscal year during which such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1termination occurred.
Appears in 1 contract
Samples: Employment Agreement (Ddi Corp)
Termination Other Than for Cause. If The Company may terminate Executive’s 's employment with without Cause (as defined in this Agreement) at any time and without prior notice, written or otherwise. In the event the Company is terminated terminates Executive's employment for other than Cause, Disability or death, and subject to the other provisions of this Agreement, Executive will be entitled to:
(i) by continued coverage under the Company other than for “Cause” (as defined herein), including if the Company provides notice of nonrenewal within 90 days of the end of the Initial Period or any Extension, (ii) by the Executive for Good Reason, or (iii) as a result of Executive’s Death or Disability (as provided in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment equal to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company Company's benefit plans through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, a lump sum payment on the sixtieth (60th) day following the Termination Date equal to the amount Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such termination date had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms of the plans;
(ii) payment of all earned but unpaid compensation through the effective date of termination, payable on or before the termination date;
(iii) reimbursement of any monies advanced or incurred by Executive in connection with his Employment for reasonable and conditions necessary Company-related business expenses incurred on or before the termination date;
(iv) payment of the equivalent of the Base Salary Executive would have earned over the next twelve (12) months (the "Severance Period") (less necessary withholdings and authorized deductions) at his then current Base Salary rate ("Severance Payment"), payable in six equal monthly installments starting on the first business day after six (6) months from the termination date;
(v) an amount equal to the pro-rata portion of any bonus payments that would have been due to the Executive under Section 3(b) of this Agreement had Executive been employed by the Company as of the last day of the fiscal year during which such termination occurred, calculated as the product of the bonus (as determined pursuant to Section 3(b)) multiplied by a fraction, the numerator equal to the number days from the start of the applicable fiscal year through the termination date of Executive's employment with the Company, and the denominator being 365;
(vi) at Executive's option, reimbursement of insurance premiums payable by Executive to such equity awardcontinue Executive's group health coverage oursuant to COBRA (if Executive timely elects COBRA coverage) for the first twelve (12) months following the termination date; and
6.1.3 (vii) the Company will continue number of outstanding unvested stock options and restricted stock previously granted to provide Executive, during his lifetime, with Executive that would have vested over the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans twelve (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan12) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for month period after such termination if Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid remained employed by the Company during shall vest upon such termination. Executive shall not receive the 18 month period immediately following Executive’s Termination Date or until payments and benefits under subsections (iv)-(vii), above, unless he signs the severance agreement and general release document in the form attached as Exhibit A. In addition, if Executive accepts other employment within twelve (12) months of the termination date, the Company's obligation under (vi) above to reimburse premiums for COBRA continuation of group health insurance coverage will be extinguished as of the date of the date the Executive becomes eligible for coverage under the group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits for the remainder of the COBRA coverage entitlement period, if any, provided under the terms of the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twenty-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence as provided in Section 6.1.1's new employer.
Appears in 1 contract
Samples: Employment Agreement (Ddi Corp)
Termination Other Than for Cause. If The Company may terminate the Executive’s 's employment with the Company is terminated (i) by the Company other than for “Cause” (as defined herein)under this Agreement without Cause at any time, including if the Company provides notice of nonrenewal within 90 days in which event any rights of the end Executive to continued employment under the Agreement shall thereupon cease. In the event of the Initial Period or any Extensionsuch a termination without Cause, (ii) by the Executive for Good Reason, or (iii) as a result of Executive’s Death or Disability (as provided in Section 5.1 herein), then:
6.1.1 the Company shall provide Executive (or Executive’s estate, if applicable) (i) on the Termination Date (as such term is defined in Section 6.3), a lump sum payment equal be entitled to all accrued and unpaid salary and other compensation payable to Executive by the Company and all accrued and unpaid vacation and sick pay payable to Executive by the Company with respect to services rendered by Executive to the Company through the Termination Date; and (ii) subject to Section 6.1.5 and Section 10.10.5, receive a lump sum payment on the sixtieth (60th) day following the Date of Termination Date equal to the greater of (i) 25% of Base Salary then in effect or (ii) the amount of Base Salary then in effect that the Executive would have earned as Base Salary and Minimum Annual Bonus during the two-year period following such date received had Executive’s employment not been terminated, reduced by the fixed and determinable amount of any payments to be made to Executive during the two-year period following Executive’s termination under any long-term disability insurance policy maintained by the Company for Executive’s benefit; and
6.1.2 subject to Section 6.1.5, (i) all restricted stock and restricted stock units that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest on the Termination Date, and (ii) all stock options and stock appreciation rights that have been granted to Executive by the Company and that would have vested during the three-year period following the Termination Date solely as a result of Executive’s continued service to the Company will immediately vest and become exercisable on the Termination Date and will remain exercisable in accordance with the terms and conditions applicable to such equity award; and
6.1.3 the Company will continue to provide Executive, during his lifetime, with the use of a Company provided automobile, as provided in Section 3.3.2, including payment of all insurance and maintenance costs, for 24 additional months;
6.1.4 subject to Section 6.1.5, the Company will pay the cost for continuation coverage under the Company Group Health Plans (as defined herein, and to the extent permitted by applicable law and the terms of each Company Group Health Plan) under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for Executive and his eligible family members covered under the Company Group Health Plan immediately prior to Termination Date. Such premiums will be paid by the Company during the 18 month period immediately following Executive’s Termination Date or until Executive becomes eligible for group health plan benefits from another employer, whichever occurs first, provided that Executive timely elects COBRA coverage (“COBRA Benefits”) and provided that Executive’s continued participation is possible under the general terms and provisions of such Company Group Health Plans. Executive agrees to promptly inform the Company in writing if Executive becomes eligible to receive group health coverage from another employer. The period of such COBRA Benefits will be considered part of Executive’s COBRA coverage entitlement period. At the conclusion of the maximum 18 month period for which the Company will pay the cost of COBRA Benefits, as provided above, Executive may, at Executive’s sole expense, continue to receive COBRA Benefits he remained employed for the remainder of the COBRA coverage entitlement periodTerm. The Executive shall also be entitled to receive continued health and medical benefits for the longer of three (3) months from the Date of Termination or the remainder of the Term. In addition, if anythe Company shall pay to the Executive the amounts set forth in Section 6(c) hereof. All outstanding stock options, whether vested or unvested, exercisable or not exercisable, shall as of the Date of Termination, vest and become exercisable, provided under that the terms Incentive Grant shall vest only if, and to the extent, the condition for exercisability thereof set forth in subparagraph 5(c)(ii) hereof shall have been satisfied on or before the Date of Termination. All vested options shall remain exercisable by the Executive for a period of ninety (90) days from the Date of Termination, but in no event beyond the original term of the option, and shall thereafter terminate. In the event the Company Group Health Plans; and
6.1.5 notwithstanding anything herein to the contrary, it shall be sends a condition to Executive’s right to receive the amounts provided for in Section 3.2.1.2, Section 6.1.1, Section 6.1.2, Section 6.1.3 and Section 6.1.4, that Executive timely execute and deliver to the Company, a general release substantially in the form attached hereto as “Exhibit A” (the “General Release”) within twentyNotice of Non-one (21) days of its delivery to Executive (or such longer period as may be required under the Age Discrimination in Employment Act of 1967, as amended), without subsequent revocation of the General Release. Upon satisfaction of the General Release condition, the payment of the severance benefits will commence Renewal as provided in Section 6.1.1paragraph 2 hereof, then (i) the Company shall pay to the Executive the amounts set forth in section 6(c) hereof, (ii) the Executive shall be entitled to receive a lump sum payment on the Date of Termination equal to twenty-five percent (25%) of Base Salary as then in effect, (iii) the Executive shall receive continued health and medical benefits for a period of three (3) months from the date of Termination, and (iv) all the provisions of this section 6(f) regarding all outstanding stock options shall be applicable.
Appears in 1 contract
