Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this paragraph 10(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct, to the extent such cure is possible. (ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death), (2) by reason of a Constructive Termination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to: (A) Base Salary through the date of termination of the Executive's employment; (B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then the Base Salary in effect immediately prior to such reduction), payable over a 12-month period following such termination (the "Severance Period") as follows: (1) with respect to each of the first two months of the Severance Period, an amount equal to two months' Base Salary; and (2) with respect to each of the remaining ten months of the Severance Period, an amount equal to eighty percent (80%) of monthly Base Salary; provided, however, that the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment); (C) a prorated annual bonus for the year in which such termination occurs, based on the actual performance for such year, the amount of which prorated bonus, if any, shall be determined and paid promptly following the end of the year to which such bonus relates; provided, however, that in the event the Executive's employment is terminated pursuant to this Section 10(d)(ii) during fiscal year 2003, the bonus amount, if any, determined and paid in accordance with this clause (C) of this Section 10(d)(ii) shall not be subject to proration; (D) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs; (E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement; (F) continued participation during the Severance Period to the extent provided in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination; provided, that the Company's obligations under this clause (F) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clause, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (F) of this Section 10(d), (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit herself on an individual basis, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance; and (G) other or additional benefits in accordance with applicable plans and programs of the Company or its affiliates. The Executive agrees to notify the Company immediately upon subsequent employment (including self-employment) so that the Company may determine and administer the offsets provided under subparagraphs (B) and (F) of this Section 10(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this paragraph 10(d)(i11(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct, to the extent such cure is possible.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death), (2) by reason of a Constructive Termination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then the Base Salary in effect immediately prior to such reduction), payable over a for the 12-month period following such termination (the "Severance Period") as follows:
(1) with respect to each of the first two months of the Severance Period, an amount equal to two months' Base Salary; and (2) with respect to each of the remaining ten months of the Severance Period, an amount equal to eighty percent (80%) of monthly Base Salary); provided, however, that the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment)) during the Severance Period;
(C) an amount equal to a prorated annual bonus incentive award for the year in which such termination occurs, based on the actual performance for such year, the amount of which prorated bonus, if any, shall be determined and paid promptly following the end of the year to which such bonus relates; provided, however, that in the event the Executive's employment is terminated pursuant to this Section 10(d)(ii) during fiscal year 2003, the bonus amount, if any, determined and paid in accordance with this clause (C) of this Section 10(d)(ii) shall not be subject to proration;
(D) the balance of any annual or long-term cash incentive awards earned (but not yet paid) paid pursuant to the terms of the applicable programsprograms (Executive shall be vested pro-rata on any outstanding long-term cash incentive award if the Company was ahead of plan at date of termination);
(E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(F) continued participation during the Severance Period to the extent provided in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination; provided, that the Company's obligations under this clause (F) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clauseclause on account of his employment status or for any other reason, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (F) of this Section 10(d11(d), ; (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit herself himself on an individual basisbasis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance; and
(G) other or additional benefits in accordance with applicable plans and programs of the Company or its affiliates. The Executive agrees to notify the Company immediately upon subsequent employment (including self-employment) so that the Company may determine and administer the offsets provided under subparagraphs (B) and (F) of this Section 10(d)(ii11(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this paragraph 10(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct, to the extent such cure is possible.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death), (2) by reason of a Constructive Termination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then the Base Salary in effect immediately prior to such reduction), payable over for a 12period equal to the longer of (i) the 24-month period following such termination and (ii) the number of months remaining in the Term of Employment following such termination (the "Severance Period") as follows:
(1) with respect to each of the first two months of the Severance Period, an amount equal to two months' Base Salary; and (2) with respect to each of the remaining ten months of the Severance Period, an amount equal to eighty percent (80%) of monthly Base Salary; provided, however, that the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment);
(C) an amount equal to a prorated annual bonus incentive award for the year in which such termination occurs, based on the actual performance for such year, the amount of which prorated bonus, if any, shall be determined and paid promptly following the end of the year to which such bonus relates; provided, however, that in the event the Executive's employment is terminated pursuant to this Section 10(d)(ii) during fiscal year 2003, the bonus amount, if any, determined and paid in accordance with this clause (C) of this Section 10(d)(ii) shall not be subject to proration;
(D) an amount equal to two (2) times the highest bonus paid to the Executive during the previous three (3) years shall be paid by the Company in equal installments for a period of twenty-four (24) months in accordance with its customary payroll practices;
(E) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs;
(EF) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(FG) continued participation during the Severance Period all equity granted to the extent provided in medical, dental, hospitalization Executive shall become fully vested and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination; provided, that the Company's obligations under this clause (F) restrictions thereon shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clause, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (F) of this Section 10(d), (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit herself on an individual basis, and (z) payment of such after-tax economic equivalent shall be made quarterly in advancelapse; and
(GH) other or additional benefits in accordance with applicable plans and programs of the Company or its affiliates. The Notwithstanding the preceding provisions of Section 9(d), because the Executive agrees is a “specified employee” as defined under Section 409A of the Internal Revenue Code, the above severance payments payable during the Severance Period as a result of a termination of employment under this Section 9(d) shall be limited to notify the Company immediately upon subsequent employment (including self-employment) so that the Company may determine and administer the offsets provided under subparagraphs (B) and (Flimitation on compensation set forth in Section 401(a)(17) of this the Internal Revenue Code (i.e., $225,000 for 2007). Any severance payments payable to the Executive above in excess of said amount shall be deferred for six months as required under Section 10(d)(ii)409A(a)(2)(B) of the Internal Revenue Code.
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this paragraph 10(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his her employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct, to the extent such cure is possible.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death), (2) by reason of a Constructive Termination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then the Base Salary in effect immediately prior to such reduction), payable over a 12-month period following such termination (the "Severance Period") as follows:
(1) with respect to each of the first two months of the Severance Period, an amount equal to two months' Base Salary; and (2) with respect to each of the remaining ten months of the Severance Period, an amount equal to eighty percent (80%) of monthly Base Salary); provided, however, that the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment)) during the Severance Period;
(C) an amount equal to a prorated annual bonus incentive award for the year in which such termination occurs, based on the actual performance for such year, the amount of which prorated bonus, if any, shall be determined and paid promptly following the end of the year to which such bonus relates; provided, however, that in the event the Executive's employment is terminated pursuant to this Section 10(d)(ii) during fiscal year 2003, the bonus amount, if any, determined and paid in accordance with this clause (C) of this Section 10(d)(ii) shall not be subject to proration;
(D) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs;
(E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(F) continued participation during the Severance Period to the extent provided in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he she was participating on the date of termination; provided, that the Company's obligations under this clause (F) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his her participation in any employee benefit plan or program as provided in this clauseclause on account of her employment status or for any other reason, he she shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he she is unable to participate for the period specified in this clause (F) of this Section 10(d), ; (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit herself on an individual basisbasis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance;
(G) all Restricted Stock granted to the Executive that would have otherwise vested within twelve (12) months after the date of termination shall become fully vested and the restrictions thereon, as set forth in Section 5, shall lapse; and
(GH) other or additional benefits in accordance with applicable plans and programs of the Company or its affiliates. The Executive agrees to notify the Company immediately upon subsequent employment (including self-employment) so that the Company may determine and administer the offsets provided under subparagraphs (B) and (F) of this Section 10(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this paragraph 10(d)(i11(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct, to the extent such cure is possible.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death), (2) by reason of a Constructive Termination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then the Base Salary in effect immediately prior to such reduction), payable over for a period equal to the longer of (i) the 12-month period following such termination and (ii) the number of months remaining in the initial Term of Employment following such termination (the "Severance Period") as follows:
(1) with respect to each of the first two months of the Severance Period, an amount equal to two months' Base Salary; and (2) with respect to each of the remaining ten months of the Severance Period, an amount equal to eighty percent (80%) of monthly Base Salary); provided, however, that the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment)) during the Severance Period;
(C) an amount equal to a prorated annual bonus incentive award for the year in which such termination occurs, based on the actual performance for such year, the amount of which prorated bonus, if any, shall be determined and paid promptly following the end of the year to which such bonus relates; provided, however, that in the event the Executive's employment is terminated pursuant to this Section 10(d)(ii) during fiscal year 2003, the bonus amount, if any, determined and paid in accordance with this clause (C) of this Section 10(d)(ii) shall not be subject to proration;
(D) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs;
(E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(F) continued participation during the Severance Period to the extent provided in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination; provided, that the Company's obligations under this clause (F) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clauseclause on account of his employment status or for any other reason, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (F) of this Section 10(d11(d), ; (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit herself himself on an individual basisbasis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance;
(G) all Restricted Stock granted to the Executive shall become fully vested and the restrictions thereon, as set forth in Section 6, shall lapse; and
(GH) other or additional benefits in accordance with applicable plans and programs of the Company or its affiliates. The Executive agrees to notify the Company immediately upon subsequent employment (including self-employment) so that the Company may determine and administer the offsets provided under subparagraphs (B) and (F) of this Section 10(d)(ii11(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this paragraph 10(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct, to the extent such cure is possible.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death), (2) by reason of a Constructive Termination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then the Base Salary in effect immediately prior to such reduction), payable over a 12-month period following such termination (the "Severance Period") as follows:
(1) with respect to each of the first two months of the Severance Period), an amount equal to two months' Base Salary; and (2) with respect to each of the remaining ten months of the Severance Period, an amount equal to eighty percent (80%) of monthly Base Salary; provided, however, that if such termination occurs within two years following the Effective Date said monthly Base Salary payments shall continue until the end of the initial Term of Employment (i.e., until no later than October 15, 2006); and provided, further, that, in any event, the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment)) during the Severance Period;
(C) an amount equal to a prorated annual bonus incentive award for the year in which such termination occurs, based on the actual performance for such year, the amount of which prorated bonus, if any, shall be determined and paid promptly following the end of the year to which such bonus relates; provided, however, that in the event the Executive's employment is terminated pursuant to this Section 10(d)(ii) during fiscal year 2003, the bonus amount, if any, determined and paid in accordance with this clause (C) of this Section 10(d)(ii) shall not be subject to proration;
(D) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs;
(E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(F) continued participation during the Severance Period to the extent provided in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination; provided, that the Company's obligations under this clause (F) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clauseclause on account of his employment status or for any other reason, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (F) of this Section 10(d), ; (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit herself on an individual basisbasis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance;
(G) all Restricted Stock granted to the Executive shall become fully vested and the restrictions thereon, as set forth in Section 5, shall lapse; and
(GH) other or additional benefits in accordance with applicable plans and programs of the Company or its affiliates. The Executive agrees to notify the Company immediately upon subsequent employment (including self-employment) so that the Company may determine and administer the offsets provided under subparagraphs (B) and (F) of this Section 10(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this paragraph 10(d)(iSection 13(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct. If such conduct is not cured within that period, to the extent such cure is possibleExecutive may then terminate his employment by reason of Constructive Termination.
(ii) In the event the Executive's ’s employment is terminated (1) by the Company without Cause (other than due to Disability or death), ) or (2) by reason of a Constructive Termination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of EmploymentTermination, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's ’s employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's ’s employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then at the Base Salary rate in effect immediately prior to such reduction), payable over for a 12-month period following such termination (the "“Severance Period"”) as follows:
from the date of termination through the later of (1i) with respect to each the third anniversary of the first two months date of termination or, if sooner, the last day of the Severance PeriodEmployment Term, an amount equal to two months' Base Salary; and (2ii) with respect to each the first anniversary of the remaining ten months date of the Severance Period, an amount equal to eighty percent (80%) of monthly Base Salary; provided, however, that the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment)termination;
(C) an amount equal to a prorated annual bonus Annual Bonus for the year Fiscal Year in which such termination occurs, based on the actual performance for such yearFiscal Year, the amount of which prorated bonusAnnual Bonus, if any, shall be determined and paid promptly following the end of the year Fiscal Year to which such bonus Annual Bonus relates; provided, however, that in the event the Executive's employment is terminated pursuant to this Section 10(d)(ii) during fiscal year 2003, the bonus amount, if any, determined and paid in accordance with this clause (C) of this Section 10(d)(ii) shall not be subject to proration;
(D) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs;
(E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(FE) continued participation during the Severance Period to the extent provided in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination, on the same basis as such coverage is provided to active employees from time to time during the Severance Period; provided, that the Company's ’s obligations under this clause (FE) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clauseclause on account of his employment status or for any other reason, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (FE) of this Section 10(d13(d), ; (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit herself himself on an individual basisbasis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance; and;
(GF) other or additional benefits benefits, if any, in accordance with applicable plans and programs of the Company or its affiliates. , other than severance plans and programs.
(iii) The Executive agrees to notify the Company immediately upon obtaining subsequent employment (including self-employment) ), and to provide all information related to the terms thereof that the Company may reasonably request, so that the Company may determine and administer the offsets offset provided under subparagraphs clause (B) and (FE) of this Section 10(d)(ii13(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this paragraph 10(d)(iSection 12(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct. If such conduct is not cured within that period, to the extent such cure is possibleExecutive may then terminate his employment by reason of Constructive Termination.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death), ) or (2) by reason of a Constructive Termination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of EmploymentTermination, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then at the Base Salary rate in effect immediately prior to such reduction), payable over for a 12-month period following such termination (the "Severance Period") as follows:
from the date of termination through the later of (1i) with respect to each the third anniversary of the first two months date of termination or, if sooner, the last day of the Severance PeriodEmployment Term, an amount equal to two months' Base Salary; and (2ii) with respect to each the first anniversary of the remaining ten months date of the Severance Period, an amount equal to eighty percent (80%) of monthly Base Salary; provided, however, that the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment)termination;
(C) an amount equal to a prorated annual bonus Annual Bonus for the year Fiscal Year in which such termination occurs, based on the actual performance for such yearFiscal Year, the amount of which prorated bonusAnnual Bonus, if any, shall be determined and paid promptly following the end of the year Fiscal Year to which such bonus Annual Bonus relates; provided, however, that in the event the Executive's employment is terminated pursuant to this Section 10(d)(ii) during fiscal year 2003, the bonus amount, if any, determined and paid in accordance with this clause (C) of this Section 10(d)(ii) shall not be subject to proration;
(D) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs;
(E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(FE) continued participation during the Severance Period to the extent provided in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination, on the same basis as such coverage is provided to active employees from time to time during the Severance Period; provided, that the Company's obligations under this clause (FE) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clauseclause on account of his employment status or for any other reason, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (FE) of this Section 10(d12(d), ; (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit herself himself on an individual basisbasis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance; and;
(GF) other or additional benefits benefits, if any, in accordance with applicable plans and programs of the Company or its affiliates. , other than severance plans and programs.
(iii) The Executive agrees to notify the Company immediately upon obtaining subsequent employment (including self-employment) ), and to provide all information related to the terms thereof that the Company may reasonably request, so that the Company may determine and administer the offsets offset provided under subparagraphs clause (B) and (FE) of this Section 10(d)(ii12(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this paragraph 10(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his her employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct, to the extent such cure is possible.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death), (2) by reason of a Constructive Termination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then the Base Salary in effect immediately prior to such reduction), payable over a 12-month period following such termination (the "Severance Period") as follows:
(1) with respect to each of the first two months of the Severance Period, an amount equal to two months' Base Salary; and (2) with respect to each of the remaining ten months of the Severance Period, an amount equal to eighty percent (80%) of monthly Base Salary); provided, however, that the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment)) during the Severance Period;
(C) an amount equal to a prorated annual bonus incentive award for the year in which such termination occurs, based on the actual performance for such year, the amount of which prorated bonus, if any, shall be determined and paid promptly following the end of the year to which such bonus relates; provided, however, that in relates (if the event the Executive's employment is terminated pursuant to this Section 10(d)(ii) termination occurs during fiscal year 2003, the amount of said bonus amount, if any, determined and shall be paid in accordance with this clause (C) of this Section 10(d)(ii) full and shall not be subject to prorationpro-rated);
(D) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs;
(E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(F) continued participation during the Severance Period to the extent provided in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he she was participating on the date of termination; provided, that the Company's obligations under this clause (F) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his her participation in any employee benefit plan or program as provided in this clauseclause on account of her employment status or for any other reason, he she shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he she is unable to participate for the period specified in this clause (F) of this Section 10(d), ; (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit herself on an individual basisbasis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance;
(G) all Restricted Stock granted to the Executive shall become fully vested and the restrictions thereon, as set forth in Section 5(b), shall lapse; and
(GH) other or additional benefits in accordance with applicable plans and programs of the Company or its affiliates. The Executive agrees to notify the Company immediately upon subsequent employment (including self-employment) so that the Company may determine and administer the offsets provided under subparagraphs (B) and (F) of this Section 10(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this paragraph 10(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct, to the extent such cure is possible.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death), (2) by reason of a Constructive Termination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then the Base Salary in effect 7 immediately prior to such reduction), payable over a 12-month the remaining months of the Term of Employment or 12 months, whichever period following such termination is longer (the "Severance Period") as follows:
(1) with respect to each of the first two months of the Severance Period, an amount equal to two months' Base Salary; and (2) with respect to each of the remaining ten months of the Severance Period, an amount equal to eighty percent (80%) of monthly Base Salary); provided, however, that the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment)) during the Severance Period;
(C) an amount equal to a prorated annual bonus incentive award for the year in which such termination occurs, based on the actual performance for such year, the amount of which prorated bonus, if any, shall be determined and paid promptly following the end of the year to which such bonus relates; provided, however, that in relates payable only if the event Company was ahead of plan as of the Executive's employment is terminated pursuant to this Section 10(d)(ii) during fiscal year 2003, the bonus amount, if any, determined and paid in accordance with this clause (C) of this Section 10(d)(ii) shall not be subject to prorationtermination date;
(D) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs;
(E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(F) continued participation during the Severance Period to the extent provided in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination; provided, that the Company's obligations under this clause (F) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clauseclause on account of his employment status or for any other reason, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (F) of this Section 10(d), ; (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit herself himself on an individual basisbasis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance;
(G) all Restricted Stock granted to the Executive shall become fully vested and the restrictions thereon, as set forth in Section 5, shall lapse; and
(GH) other or additional benefits in accordance with applicable plans and programs of the Company or its affiliates. The Executive agrees to notify the Company immediately upon subsequent employment (including self-employment) so that the Company may determine and administer the offsets provided under subparagraphs (B) and (F) of this Section 10(d)(ii).
Appears in 1 contract
Termination Without Cause; Constructive Termination. (i) A Constructive Termination shall not take effect unless the provisions of this paragraph 10(d)(i) are complied with. The Company shall be given written notice by the Executive of the intention to terminate his employment on account of a Constructive Termination, such notice (A) to state in detail the particular act or acts or failure or failures to act that constitute the grounds on which the proposed Constructive Termination is based and (B) to be given within six months of the Executive learning of such act or acts or failure or failures to act. The Company shall have 30 days after the date that such written notice has been given to the Company in which to cure such conduct, to the extent such cure is possible.
(ii) In the event the Executive's employment is terminated (1) by the Company without Cause (other than due to Disability or death), (2) by reason of a Constructive Termination or (3) upon expiration of the Term of Employment following the Company's having given a notice of non-extension of the Term of Employment, the Executive shall be entitled to:
(A) Base Salary through the date of termination of the Executive's employment;
(B) Base Salary, at the monthly rate in effect on the date of termination of the Executive's employment (or in the event a reduction in Base Salary is the basis for a Constructive Termination, then the Base Salary in effect immediately prior to such reduction), payable over a 12-month the remaining months of the Term of Employment or 12 months, whichever period following such termination is longer (the "Severance Period") as follows:
(1) with respect to each of the first two months of the Severance Period, an amount equal to two months' Base Salary; and (2) with respect to each of the remaining ten months of the Severance Period, an amount equal to eighty percent (80%) of monthly Base Salary); provided, however, that the Company's obligations under this clause (B) shall be reduced on a dollar-for-dollar basis (but not below zero) to the extent that the Executive earns fees, salary or wages from a subsequent employer (including those arising from self-employment)) during the Severance Period;
(C) an amount equal to a prorated annual bonus incentive award for the year in which such termination occurs, based on the actual performance for such year, the amount of which prorated bonus, if any, shall be determined and paid promptly following the end of the year to which such bonus relates; provided, however, that in the event the Executive's employment is terminated pursuant to this Section 10(d)(ii) during fiscal year 2003, the bonus amount, if any, determined and paid in accordance with this clause (C) of this Section 10(d)(ii) shall not be subject to proration;
(D) the balance of any annual or long-term cash incentive awards earned (but not yet paid) pursuant to the terms of the applicable programs;
(E) any amounts earned, accrued or owing to the Executive but not yet paid under this Agreement;
(F) continued participation during the Severance Period to the extent provided in medical, dental, hospitalization and life insurance coverage and in all other employee welfare plans and programs (other than disability plans and programs) in which he was participating on the date of termination; provided, that the Company's obligations under this clause (F) shall be reduced to the extent that the Executive receives similar coverage and benefits under the plans and programs of a subsequent employer; and provided, further, that (x) if the Company determines that the Executive is precluded from continuing his participation in any employee benefit plan or program as provided in this clauseclause on account of his employment status or for any other reason, he shall be provided with the after-tax economic equivalent of the benefits provided under the plan or program in which he is unable to participate for the period specified in this clause (F) of this Section 10(d), ; (y) the economic equivalent of any benefit foregone shall be deemed to be the lowest cost that would be incurred by the Executive in obtaining such benefit herself himself on an individual basisbasis through payment of COBRA continuation coverage premiums or by other means, and (z) payment of such after-tax economic equivalent shall be made quarterly in advance;
(G) all Restricted Stock granted to the Executive shall become fully vested and the restrictions thereon, as set forth in Section 5, shall lapse; and
(GH) other or additional benefits in accordance with applicable plans and programs of the Company or its affiliates. The Executive agrees to notify the Company immediately upon subsequent employment (including self-employment) so that the Company may determine and administer the offsets provided under subparagraphs (B) and (F) of this Section 10(d)(ii).
Appears in 1 contract
