Termination without Cause or for Good Reason in Connection with a Change in Control. If the Executive’s employment by the Company is terminated in a Qualifying Termination during the three (3) months preceding or twenty four (24) months following a “Change in Control” (as defined in the Company Severance Policy), the Company shall pay or provide the Executive with the following: (i) the Accrued Benefits set forth in Sections 8(a)(i) and 8(a)(iii) through (vi), provided that the benefits described in Section 8(a)(iii) hereof shall be subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof; and (ii) subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms of the Executive’s participation agreement relating to the Company Severance Policy (and for the avoidance of doubt, such amounts shall not duplicate any amounts payable under this Agreement). Payments and benefits provided in this Section 8(e) shall be in lieu of any termination or severance payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of the Company, including without limitation under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation, subject to the following. Notwithstanding anything to the contrary in the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason for the Executive’s termination shall be resolved by binding arbitration in accordance with Section 19 of this Agreement), (ii) to the extent that a release of claims is required to receive such severance, the release shall be substantially in the form of Exhibit B attached hereto, as may be updated by the Company from time to time to reflect changes in law or practice, and (iii) the restrictive covenants in this Agreement shall apply instead of any restrictive covenants of the Company Severance Policy.
Appears in 1 contract
Termination without Cause or for Good Reason in Connection with a Change in Control. If the ExecutiveEmployee’s employment by with the Company is terminated by the Company (other than for Cause, Disability or death) or by the Employee for Good Reason, in a Qualifying Termination each case during the three Term of this Agreement, following a Signing Date and no later than twelve (312) months preceding or twenty four (24) full months following a “the Change in Control” (as defined Control Date, and provided the Change in Control is consummated, the Employee shall be entitled to the following benefits, provided that the Employee signs and does not revoke the Release within the period required by the Release, inclusive of any revocation period set forth in the Company Severance Policy)Release:
1. Subject to Section VIII.J, the Company shall pay or provide to the Executive with Employee an amount equal to the following:
product of (iA) the Accrued Benefits applicable Multiple set forth in Sections 8(a)(iExhibit A and (B) the sum of (x) the Employee’s annual base salary on the Date of Termination and 8(a)(iii(y) through one hundred percent (vi100%) the Employee’s bonus at “target” for the calendar year in which the Date of Termination occurs (such product, the “Severance [****] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. Payment”); provided, provided however, that if the benefits described Employee’s employment with the Company is terminated by the Employee for Good Reason due to a material reduction in Section 8(a)(iii) hereof the Employee’s annual base salary, the base salary under this subsection will be the Employee’s base salary in effect immediately before the reduction.
2. To the extent not previously paid or provided, the Company shall be subject timely pay or provide to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof; and
(ii) subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms of the Executive’s participation agreement relating to the Company Severance Policy (and for the avoidance of doubt, such Employee any other amounts shall not duplicate any amounts payable under this Agreement). Payments and benefits provided in this Section 8(e) shall be in lieu of any termination or severance payments or benefits for required to be paid or provided or which the Executive may be Employee is eligible to receive following the Employee’s termination of employment under any of the plansplan, policies or programs of the Companyprogram, including without limitation under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulationpolicy, subject to the following. Notwithstanding anything to the contrary in the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason for the Executive’s termination shall be resolved by binding arbitration in accordance with Section 19 of this Agreement), (ii) to the extent that a release of claims is required to receive such severance, the release shall be substantially in the form of Exhibit B attached hereto, as may be updated by the Company from time to time to reflect changes in law or practice, and (iii) the restrictive covenants in this Agreement shall apply instead of any restrictive covenants contract or agreement of the Company Severance Policy(such other amounts and benefits shall be referred to as the “Other Benefits”).
Appears in 1 contract
Termination without Cause or for Good Reason in Connection with a Change in Control. If the Executive’s employment hereunder shall be terminated by the Company is terminated without Cause, or by Executive for Good Reason, in a Qualifying Termination during the three (3) months preceding or twenty four (24) either case within 12 months following a “Change in Control” , then, subject to Executive’s execution and non-revocation of the release contemplated in Section 4(f) of this Agreement and Executive’s continuing compliance with the Confidentiality and Work Product Assignment Agreement (as defined below), in lieu of the payments and benefits described in Section 4(c) of this Agreement:
(i) The Company shall pay Executive continuation of eighteen (18) months of Executive’s annual Base Salary, as in effect immediately prior to Executive’s termination of employment hereunder, payable during the 6-month period following Executive’s termination of 262941651 v4 employment in the form of salary continuation in accordance with the Company’s normal payroll practices;
(ii) The Company Severance Policy)shall pay Executive an annual cash bonus equal to Executive’s annual target bonus as set forth in Section 3(b) for the year in which the termination of employment occurs, payable at the same time as annual cash bonuses are paid to senior management;
(iii) All equity awards, to the extent outstanding as of immediately prior to such termination, will be (or will be deemed to have been) fully vested and exercisable as of immediately prior to the latter of: (1) the date of termination and (2) the date of the Change in Control;
(iv) If the Executive timely elects to receive continued coverage under the Company’s group health care plan pursuant to the COBRA, the Company shall pay or provide the Executive with COBRA Subsidy until the following:
earlier of: (i1) the Accrued Benefits set forth in Sections 8(a)(ieighteen (18) and 8(a)(iii) through (vi), provided that the benefits described in Section 8(a)(iii) hereof shall be subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof; and
(ii) subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms of the Executive’s participation agreement relating to the Company Severance Policy (and for the avoidance of doubt, such amounts shall not duplicate any amounts payable under this Agreement). Payments and benefits provided in this Section 8(e) shall be in lieu of any termination or severance payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of the Company, including without limitation under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation, subject to the following. Notwithstanding anything to the contrary in the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason for months following the Executive’s termination of employment, or (2) the date upon which the Executive obtains or becomes eligible for other health care coverage from a new employer or otherwise (such period referred to as the “COBRA Subsidy Period”). The Executive shall promptly inform the Company in writing when Executive obtains or becomes eligible for any such other health care coverage. The Executive shall be resolved by binding arbitration responsible for paying a share of such COBRA premiums during the COBRA Subsidy Period at active employee rates as in accordance with Section 19 of this Agreement), (ii) to the extent that a release of claims is required to receive such severance, the release shall be substantially in the form of Exhibit B attached hereto, as may be updated by the Company effect from time to time to reflect changes in law or practicetime, and (iii) shall be responsible for the restrictive covenants in this Agreement shall apply instead full unsubsidized costs of any restrictive covenants of the Company Severance Policysuch COBRA coverage thereafter.
Appears in 1 contract
Samples: Employment Agreement (Exicure, Inc.)
Termination without Cause or for Good Reason in Connection with a Change in Control. If In the Executive’s employment by event the Company is terminated in a Qualifying Termination during terminates Executive's employment as the three Company's Executive Vice President and Chief Scientific Officer without Cause pursuant to Section 9(a)(iv) hereof or Executive terminates such employment for Good Reason pursuant to Section 9(c) hereof within the period which commences ninety (390) months preceding or twenty four days before and ends one (241) months year following a “Change in Control” (as defined , in lieu of the Company Severance Policy), the Company shall pay provisions of Section 10(a) or provide the Executive with the following:10(e) above,
(i) Executive shall receive a lump sum cash payment within ten (10) days after the date of termination of employment in an amount equal to his Accrued Benefits set forth in Sections 8(a)(i) and 8(a)(iii) through (vi), provided that the benefits described in Section 8(a)(iii) hereof shall be subject Obligations plus an amount equal to the Executive’s continued compliance with pro rated portion of the obligations in Sections 9, 10 and 11 hereof; andTarget Bonus (based on the Base Salary at the time of such termination) which would have been payable to Executive for the fiscal year during which such termination occurs;
(ii) subject Executive shall receive a lump sum cash payment within ten (10) days after the date of termination in an amount equal to two (2) times the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms sum of the Executive’s participation agreement relating to following: (1) his Base Salary at the Company Severance Policy time of such termination and (and 2) the Target Bonus (based on the Base Salary at the time of such termination) for the avoidance fiscal year in which such termination occurs;
(iii) if Executive and his Family Members have medical and dental coverage on the date of doubt, such amounts shall not duplicate any amounts payable termination under this Agreement). Payments and benefits provided in this Section 8(e) shall be in lieu of any termination or severance payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of a group health plan sponsored by the Company, including without limitation under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation, subject to the following. Notwithstanding anything to the contrary in the Company Severance Policywill reimburse Executive for the total applicable premium cost for medical and dental coverage under COBRA for Executive and his Family Members for a period of up to eighteen (18) months commencing on the date of such termination and will continue to pay Executive an amount equal to such COBRA reimbursement during the six (6) month period following such initial eighteen (18) month period after such termination; provided, (i) that the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import Company shall have the definition provided in this Agreement (and any dispute over the reason no obligation to reimburse Executive for the Executive’s termination shall be resolved by binding arbitration in accordance with Section 19 premium cost of this Agreement), (ii) to the extent that a release of claims is required to receive such severance, the release shall be substantially in the form of Exhibit B attached hereto, COBRA coverage as may be updated by the Company from time to time to reflect changes in law or practice, and (iii) the restrictive covenants in this Agreement shall apply instead of any restrictive covenants of the Company Severance Policydate Executive and his Family Members become eligible to obtain comparable benefits from a subsequent employer;
(iv) Executive shall continue to be entitled to any deferred compensation and other unpaid amounts and benefits earned and vested prior to Executive's termination.
Appears in 1 contract
Termination without Cause or for Good Reason in Connection with a Change in Control. If In the Executive’s employment by event the Company is terminated in a Qualifying Termination during terminates Executive's employment as the three Company's Executive Vice President of Strategic Planning and Corporate Communications without Cause pursuant to Section 9(a)(iv) hereof or Executive terminates such employment for Good Reason pursuant to Section 9(c) hereof within the period which commences ninety (390) months preceding or twenty four days before and ends one (241) months year following a “Change in Control” (as defined , in lieu of the Company Severance Policy), the Company shall pay provisions of Section 10(a) or provide the Executive with the following:10(e) above,
(i) Executive shall receive a lump sum cash payment within ten (10) days after the date of termination of employment in an amount equal to his Accrued Benefits set forth in Sections 8(a)(i) and 8(a)(iii) through (vi), provided that the benefits described in Section 8(a)(iii) hereof shall be subject Obligations plus an amount equal to the Executive’s continued compliance with pro rated portion of the obligations in Sections 9, 10 and 11 hereof; andTarget Bonus (based on the Base Salary at the time of such termination) which would have been payable to Executive for the fiscal year during which such termination occurs;
(ii) subject Executive shall receive a lump sum cash payment within ten (10) days after the date of termination in an amount equal to two (2) times the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms sum of the Executive’s participation agreement relating to following: (1) his Base Salary at the Company Severance Policy time of such termination and (and 2) the Target Bonus (based on the Base Salary at the time of such termination) for the avoidance fiscal year in which such termination occurs;
(iii) if Executive and his Family Members have medical and dental coverage on the date of doubt, such amounts shall not duplicate any amounts payable termination under this Agreement). Payments and benefits provided in this Section 8(e) shall be in lieu of any termination or severance payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of a group health plan sponsored by the Company, including without limitation under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation, subject to the following. Notwithstanding anything to the contrary in the Company Severance Policywill reimburse Executive for the total applicable premium cost for medical and dental coverage under COBRA for Executive and his Family Members for a period of up to eighteen (18) months commencing on the date of such termination and will continue to pay Executive an amount equal to such COBRA reimbursement during the six (6) month period following such initial eighteen (18) month period after such termination; provided, (i) that the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import Company shall have the definition provided in this Agreement (and any dispute over the reason no obligation to reimburse Executive for the Executive’s termination shall be resolved by binding arbitration in accordance with Section 19 premium cost of this Agreement), (ii) to the extent that a release of claims is required to receive such severance, the release shall be substantially in the form of Exhibit B attached hereto, COBRA coverage as may be updated by the Company from time to time to reflect changes in law or practice, and (iii) the restrictive covenants in this Agreement shall apply instead of any restrictive covenants of the Company Severance Policydate Executive and his Family Members become eligible to obtain comparable benefits from a subsequent employer;
(iv) Executive shall continue to be entitled to any deferred compensation and other unpaid amounts and benefits earned and vested prior to Executive's termination.
Appears in 1 contract
Termination without Cause or for Good Reason in Connection with a Change in Control. If the ExecutiveEmployee’s employment by with the Company is terminated by the Company (other than for Cause, Disability or death) or by the Employee for Good Reason, in a Qualifying Termination each case during the three (3) Term of this Agreement and within 3 full calendar months preceding prior to or twenty four (24) 12 full calendar months following a “the Change in Control” Control Date, then, instead of the benefits provided for in Section IV.A, the Employee shall be entitled to the following benefits, provided that the Employee signs and does not revoke the Release within the period required by the Release and in no event later than fifty-two (as defined 52) days following such termination, inclusive of any revocation period set forth in the Company Severance Policy)Release:
1. Subject to Section VIII.J, the Company shall pay to the Employee in a lump sum in cash, on or after the date the Release becomes effective and within sixty (60) days after the Date of Termination, the aggregate of the sum of (A) 30 months of the Employee’s annual base salary for the calendar year in which the Date of Termination occurs and (B) the product of (x) the Employee’s total on target [semi-annual and annual bonuses] for the current fiscal year [(including any merit bonuses and any bonuses under the Company’s 2008 Performance-Based Incentive Plan)] (the “Target Bonus”), and (y) 2.5.
2. For 30 full calendar months after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Executive Employee (other than any benefits under the executive bonus plan, the Company 401(k) Savings Plan, the 2005 Long Term Retention Plan or the 2008 Performance-Based Incentive Plan) and the Employee’s family at least equal to those which would have been provided to them if the Employee’s employment had not been terminated, in accordance with the following:
(i) applicable Benefit Plans in effect on the Accrued Benefits set forth Measurement Date or, if more favorable to the Employee and his or her family, in Sections 8(a)(i) effect generally at any time thereafter with respect to other peer employees of the Company; provided, however, that if the Employee becomes reemployed with another employer and 8(a)(iii) through (vi)is eligible to receive comparable life, medical, dental, health, and accident or disability insurance benefits under another employer-provided that plan, on terms at least as favorable to the Employee and his or her family, then the benefits described in Section 8(a)(iiithis clause (b) hereof shall be subject reduced to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof; and
(ii) subject extent such other benefits are available to the Executive’s continued compliance Employee and his or her family; and provided further that the benefits set forth in this clause (b) are intended to be exempt from Section 409A, as set forth in U.S. Treasury Regulation section 1.409A-1(b)(9), and shall be provided in a manner that complies with such intent.
3. To the obligations in Sections 9, 10 and 11 hereofextent not previously paid or provided, the benefits payable Company shall timely pay or provide to the Employee the Other Benefits.
4. 100 percent of the then-unvested portion of each outstanding stock option or other equity award granted to the Employee pursuant to the Company’s Amended and Restated 1993 Stock Incentive Plan, the Company’s 2003 Stock Option Plan, or the Company’s 2011 Stock Incentive Plan, and each outstanding stock option or other equity award granted to the Employee after the Effective Date and prior to a Change in Control, [in each case other than performance-based restricted stock units, which performance-based restricted stock units shall be governed by their terms,] shall immediately vest upon the Date of Termination.
5. [Notwithstanding any provision of this Agreement, the Company’s 2011 Stock Incentive Plan or any other Company equity plan, (A) awards (“LTRP Awards”) that have been granted to the Employee under the Company Severance Policy, subject to its terms and Company’s 2005 Long Term Retention Plan (the “LTRP”) that have not been paid in accordance with the terms of the Executive’s participation agreement relating to the Company Severance Policy (and for the avoidance of doubt, such amounts LTRP shall not duplicate any amounts payable under this Agreement). Payments and benefits provided in this Section 8(e) shall be in lieu of any termination or severance payments considered Target Bonus or benefits for which the Executive may to be eligible under any of the plans, policies or programs of the Company, including without limitation under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation, subject to the following. Notwithstanding anything to the contrary in the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason for the Executive’s termination shall be resolved by binding arbitration in accordance with Benefit Plans for purposes of determining amounts to be paid under this Section 19 of this Agreement)IV.B.1 and Section IV.B.2, (ii) to the extent that a release of claims is required to receive such severance, the release shall be substantially in the form of Exhibit B attached hereto, as may be updated by the Company from time to time to reflect changes in law or practicerespectively, and (iiiB) LTRP Awards are Other Benefits that will be paid or not paid, as the restrictive covenants case may be, in this Agreement shall apply instead of any restrictive covenants accordance with the terms of the Company Severance PolicyLTRP.]
Appears in 1 contract
Termination without Cause or for Good Reason in Connection with a Change in Control. If the ExecutiveEmployee’s employment by with the Company is terminated by the Company (other than for Cause, Disability or death) or by the Employee for Good Reason, in a Qualifying Termination each case during the three (3) Term of this Agreement and within 3 full calendar months preceding prior to or twenty four (24) 12 full calendar months following a “the Change in Control” Control Date, then, instead of the benefits provided for in Section IV.A, the Employee shall be entitled to the following benefits, provided that the Employee signs and does not revoke the Release within the period required by the Release and in no event later than fifty-two (as defined 52) days following such termination, inclusive of any revocation period set forth in the Company Severance Policy)Release:
1. Subject to Section VIII.J, the Company shall pay to the Employee in a lump sum in cash, on or after the date the Release becomes effective and within sixty (60) days after the Date of Termination, the aggregate of the sum of (A) 24 months of the Employee’s annual base salary for the calendar year in which the Date of Termination occurs and (B) the product of (x) the Employee’s total on target [semi-annual and annual bonuses] for the current fiscal year [(including any merit bonuses and any bonuses under the Company’s 2008 Performance-Based Incentive Plan)] (the “Target Bonus”), and (y) 2.0.
2. For 24 full calendar months after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Executive Employee (other than any benefits under the executive bonus plan, the Company 401(k) Savings Plan, the 2005 Long Term Retention Plan or the 2008 Performance-Based Incentive Plan) and the Employee’s family at least equal to those which would have been provided to them if the Employee’s employment had not been terminated, in accordance with the following:
(i) applicable Benefit Plans in effect on the Accrued Benefits set forth Measurement Date or, if more favorable to the Employee and his or her family, in Sections 8(a)(i) effect generally at any time thereafter with respect to other peer employees of the Company; provided, however, that if the Employee becomes reemployed with another employer and 8(a)(iii) through (vi)is eligible to receive comparable life, medical, dental, health, and accident or disability insurance benefits under another employer-provided that plan, on terms at least as favorable to the Employee and his or her family, then the benefits described in Section 8(a)(iiithis clause (b) hereof shall be subject reduced to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof; and
(ii) subject extent such other benefits are available to the Executive’s continued compliance Employee and his or her family; and provided further that the benefits set forth in this clause (b) are intended to be exempt from Section 409A, as set forth in U.S. Treasury Regulation section 1.409A-1(b)(9), and shall be provided in a manner that complies with such intent.
3. To the obligations in Sections 9, 10 and 11 hereofextent not previously paid or provided, the benefits payable Company shall timely pay or provide to the Employee the Other Benefits.
4. 100 percent of the then-unvested portion of each outstanding stock option or other equity award granted to the Employee pursuant to the Company’s Amended and Restated 1993 Stock Incentive Plan, the Company’s 2003 Stock Option Plan, or the Company’s 2011 Stock Incentive Plan, and each outstanding stock option or other equity award granted to the Employee after the Effective Date and prior to a Change in Control, [in each case other than performance-based restricted stock units, which performance-based restricted stock units shall be governed by their terms,] shall immediately vest upon the Date of Termination.
5. [Notwithstanding any provision of this Agreement, the Company’s 2011 Stock Incentive Plan or any other Company equity plan, (A) awards (“LTRP Awards”) that have been granted to the Employee under the Company Severance Policy, subject to its terms and Company’s 2005 Long Term Retention Plan (the “LTRP”) that have not been paid in accordance with the terms of the Executive’s participation agreement relating to the Company Severance Policy (and for the avoidance of doubt, such amounts LTRP shall not duplicate any amounts payable under this Agreement). Payments and benefits provided in this Section 8(e) shall be in lieu of any termination or severance payments considered Target Bonus or benefits for which the Executive may to be eligible under any of the plans, policies or programs of the Company, including without limitation under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation, subject to the following. Notwithstanding anything to the contrary in the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason for the Executive’s termination shall be resolved by binding arbitration in accordance with Benefit Plans for purposes of determining amounts to be paid under this Section 19 of this Agreement)IV.B.1 and Section IV.B.2, (ii) to the extent that a release of claims is required to receive such severance, the release shall be substantially in the form of Exhibit B attached hereto, as may be updated by the Company from time to time to reflect changes in law or practicerespectively, and (iiiB) LTRP Awards are Other Benefits that will be paid or not paid, as the restrictive covenants case may be, in this Agreement shall apply instead of any restrictive covenants accordance with the terms of the Company Severance PolicyLTRP.]
Appears in 1 contract
Termination without Cause or for Good Reason in Connection with a Change in Control. If In the Executive’s employment by event the Company is terminated terminates Executive's employment as the Company's President and Chief Executive Officer without Cause pursuant to Section 9(a)(iv) hereof or Executive terminates such employment for Good Reason pursuant to Section 9(c) hereof within the period which commences ninety (90) days before and ends two (2) years following a Change in Control, in lieu of the provisions of Section 10(a) hereof,
(i) Executive shall receive a Qualifying Termination lump sum cash payment equal to the sum of (1) any Base Salary payable through the date of termination and any Earned Bonus which remains unpaid as of the date of termination, (2) the pro rated portion of the Target Bonus (based on the Base Salary at the time of such termination or, if higher, at the time during the three 12 months preceding the Change in Control) for the period worked during the fiscal year in which such termination occurs, and (3) the product of 6 and Executive's annual rate of Base Salary at the time of such termination (or, if higher, at any time during the 12 months preceding or twenty four (24) months following a “the Change in Control” );
(as defined in ii) if Executive and his Family Members have medical and dental coverage on the date of such termination under a group health plan sponsored by the Company, then, for the first 18 months following the date of such termination, the Company Severance Policywill pay the full cost of continuing medical and dental coverage for the Executive and his covered family members under COBRA; provided, that the Company shall have no obligation to pay for COBRA coverage if and to the extent the Executive and his Family Members become entitled to receive comparable benefits from and at the expense of a subsequent employer; and
(iii) Executive shall continue to be entitled to any deferred compensation and other unpaid amounts and benefits earned and vested prior to Executive's termination. In the event the Executive becomes entitled to payments and/or the accelerated vesting of the Option and/or restricted stock under this Section 10(f) or Section 10(h) or any other payments or benefits which are deemed to contingent upon a change in ownership or control pursuant to Section 280G of the Internal Revenue Code ("Code"), the Company shall pay cause its independent auditors promptly to review, at the Company's expense, the applicability of Section 4999 of the Code to such payments and/or vesting. If such auditors shall determine that any payment or provide distribution of any type by the Executive with Company to Executive, whether paid or payable or distributed or distributable pursuant to the following:
terms of this Agreement or otherwise (i) the Accrued Benefits set forth in Sections 8(a)(i) and 8(a)(iii) through (vi"Total Payments"), provided that the benefits described in Section 8(a)(iii) hereof shall would be subject to the Executive’s continued compliance excise tax imposed by Section 4999 of the Code, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the obligations in Sections 9"Excise Tax"), 10 and 11 hereof; and
then Executive shall be entitled to receive an additional cash payment (iia "Gross-Up Payment") subject within 30 days of such determination equal to an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, Executive would retain an amount of the Gross-Up Payment equal to the Executive’s continued compliance with Excise Tax imposed upon the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms Total Payments. For purposes of the foregoing determination, Executive’s participation agreement relating 's tax rate shall be deemed to be the highest statutory marginal state and Federal tax rate (on a combined basis) (including his share of F.I.C.A. and Medicare taxes) then in effect. If no determination by the Company's auditors is made prior to the Company Severance Policy (and for time a tax return reflecting the avoidance of doubt, such amounts shall not duplicate any amounts payable under this Agreement). Total Payments and benefits provided in this Section 8(e) shall be in lieu of any termination or severance payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of the Company, including without limitation under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation, subject to the following. Notwithstanding anything to the contrary in the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason for the Executive’s termination shall be resolved by binding arbitration in accordance with Section 19 of this Agreement), (ii) to the extent that a release of claims is required to be filed by Executive, Executive will be entitled to receive a Gross-Up Payment calculated on the basis of the Total Payments reported by Executive in such severancetax return, within 30 days of the filing of such tax return. In all events, if any tax authority determines that a greater Excise Tax should be imposed upon the Total Payments than is determined by the Company's independent auditors or reflected in Executive's tax return pursuant to this Section 10(f), the release Executive shall be substantially in entitled to receive the form full Gross-Up Payment calculated on the basis of Exhibit B attached hereto, as may the amount of Excise Tax determined to be updated payable by such tax authority from the Company from time to time to reflect changes in law or practice, and (iii) the restrictive covenants in this Agreement shall apply instead within 30 days of any restrictive covenants of the Company Severance Policysuch determination.
Appears in 1 contract
Termination without Cause or for Good Reason in Connection with a Change in Control. If the ExecutiveEmployee’s employment by with the Company is terminated by the Company (other than for Cause, Disability or death) or by the Employee for Good Reason, in a Qualifying Termination each case during the three Term of this Agreement, following a Signing Date and no later than twelve (312) months preceding or twenty four (24) full months following a “the Change in Control” (as defined Control Date, and provided the Change in Control is consummated, the Employee shall be entitled to the following benefits, provided that the Employee signs and does not revoke the Release within the period required by the Release, inclusive of any revocation period set forth in the Company Severance Policy)Release:
1. Subject to Section VIII.J, the Company shall pay or provide to the Executive with Employee an amount equal to the following:
product of (iA) the Accrued Benefits applicable Multiple set forth in Sections 8(a)(iExhibit A and (B) the sum of (x) the Employee’s annual base salary on the Date of Termination and 8(a)(iii(y) through one hundred percent (vi100%) the Employee’s bonus at “target” for the calendar year in which the Date of Termination occurs (such product, the “Severance Payment”); provided, however, that if the Employee’s employment with the Company is terminated by the Employee for Good Reason due to a material reduction in the Employee’s annual base salary, the base salary under this subsection will be the Employee’s base salary in effect immediately before the reduction.
2. To the extent not previously paid or provided, the Company shall timely pay or provide to the Employee any other amounts or benefits required to be paid or provided that or which the Employee is eligible to receive following the Employee’s termination of employment under any plan, program, policy, practice, contract or agreement of the Company (such other amounts and benefits described in Section 8(a)(iii) hereof shall be subject referred to as the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof; and“Other Benefits”).
(ii) subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms of the Executive’s participation agreement relating to the Company Severance Policy (and for 3. For the avoidance of doubt, such amounts shall not duplicate any amounts payable under this Agreement). Payments and benefits provided in this Section 8(e2.6(b) shall be in lieu of any termination or severance payments or benefits for which the Executive may be eligible under any of the plansEmployee’s Employment Agreement dated August 25, policies or programs of 2014, which provides for certain repayments and returns to the Company, including without limitation under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation, subject shall cease to the following. Notwithstanding anything to the contrary in the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason for the Executive’s termination shall be resolved by binding arbitration in accordance with Section 19 of this Agreement), (ii) to the extent that a release of claims is required to receive such severance, the release shall be substantially in the form of Exhibit B attached hereto, as may be updated by the Company from time to time to reflect changes in law or practice, and (iii) the restrictive covenants in this Agreement shall apply instead of any restrictive covenants of the Company Severance Policyapply.
Appears in 1 contract
Termination without Cause or for Good Reason in Connection with a Change in Control. If In the Executive’s employment by event the Company is terminated in a Qualifying Termination during terminates Executive's employment as the three Company's President and Chief Executive Officer without Cause pursuant to Section 9(a)(iv) hereof or Executive terminates such employment for Good Reason pursuant to Section 9(c) hereof within the period which commences ninety (390) months preceding or twenty four days before and ends two (242) months years following a “Change in Control” (as defined , in lieu of the Company Severance Policy), the Company shall pay provisions of Section 10(a) or provide the Executive with the following:10(f) above,
(i) Executive shall receive cash payments equal to any unpaid Base Salary through the Accrued Benefits set forth date of termination, plus an amount equal to the pro rated portion of the Target Bonus (based on the Base Salary at the time of such termination) which would have been payable to Executive for the fiscal year during which such termination occurs;
(ii) Executive shall receive cash payments equal to three times the sum of the following: (1) his Base Salary at the time of such termination and (2) the Target Bonus (based on the Base Salary at the time of such termination) for the fiscal year in Sections 8(a)(iwhich such termination occurs,
(iii) if Executive and 8(a)(iiihis Family Members have medical and dental coverage on the date of such termination under a group health plan sponsored by the Company, the Company will reimburse Executive for the total applicable premium cost for medical and dental coverage under COBRA for Executive and his Family Members for a period of up to eighteen (18) through months commencing on the date of such termination and will continue to pay Executive an amount equal to such COBRA reimbursement during the eighteen (vi)18) month period following such initial eighteen (18) month period after such termination; provided, provided that the Company shall have no obligation to reimburse Executive for the premium cost of COBRA coverage as of the date Executive and his Family Members become eligible to obtain comparable benefits described in from a subsequent employer;
(iv) all Restricted Stock granted to Executive pursuant to Section 8(a)(iii4(f) hereof shall vest immediately upon such termination; (v) the options granted to Executive pursuant to Section 4(e) hereof shall be subject to the Executive’s continued compliance with the obligations in Sections 9, 10 fully vested and 11 hereofshall remain exercisable until their expiration dates; and
(ii) subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms of the Executive’s participation agreement relating to the Company Severance Policy (and for the avoidance of doubt, such amounts shall not duplicate any amounts payable under this Agreement). Payments and benefits provided in this Section 8(e) shall be in lieu of any termination or severance payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of the Company, including without limitation under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation, subject to the following. Notwithstanding anything to the contrary in the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason for the Executive’s termination shall be resolved by binding arbitration in accordance with Section 19 of this Agreement), (ii) to the extent that a release of claims is required to receive such severance, the release shall be substantially in the form of Exhibit B attached hereto, as may be updated by the Company from time to time to reflect changes in law or practice, and (iii) the restrictive covenants in this Agreement shall apply instead of any restrictive covenants of the Company Severance Policy.
Appears in 1 contract
Samples: Employment Agreement (Enzon Inc)
Termination without Cause or for Good Reason in Connection with a Change in Control. If the Executive’s 's employment hereunder shall be terminated by the Company is terminated without Cause, or by Executive for Good Reason, in a Qualifying Termination during the three (3) months preceding or twenty four (24) either case within 12 months following a “Change in Control” , then, subject to Executive's execution and non-revocation of the release contemplated in Section 4(f) of this Agreement and Executive's continuing compliance with the Confidentiality and Work Product Assignment Agreement (as defined in the Company Severance Policybelow), in addition to the Company shall pay or provide the Executive with the followingpayments and benefits described in Section 4(c) of this Agreement:
(i) the Accrued Benefits set forth Company shall pay Executive's full target bonus under the Annual Incentive Program for the year in Sections 8(a)(i) and 8(a)(iii) through (vi), provided that which the benefits described termination of employment occurs. This full target bonus will be paid in Section 8(a)(iii) hereof shall be subject to the Executive’s continued compliance full with the obligations in Sections 9, 10 and 11 hereoffirst salary continuation payment made pursuant to Section 4(c) of this Agreement; and
(ii) subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms of the Executive’s participation agreement relating to the Company Severance Policy (and for the avoidance of doubt, such amounts shall not duplicate any amounts payable under this Agreement). Payments and benefits provided in this Section 8(e) shall be in lieu of any termination or severance payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of the Company, including without limitation under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation, subject to the following. Notwithstanding notwithstanding anything to the contrary in any applicable option agreement or other stock-based award agreement, all time-based stock options and other stock-based awards subject to time-based vesting held by Executive (the Company Severance Policy, "Time-Based Equity Awards") shall immediately accelerate and become fully exercisable or nonforfeitable as of the later of (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” date of termination or terms (ii) the effective date of similar import shall have the definition provided release contemplated in Section 4(f) of this Agreement (and the "Accelerated Vesting Date"); provided that any dispute over termination or forfeiture of the reason for unvested portion of such Time-Based Equity Awards that would otherwise occur on the Executive’s date of termination shall be resolved by binding arbitration in accordance with Section 19 the absence of this Agreement), (ii) Agreement will be delayed until the effective date of the release and will only occur if the vesting pursuant to this subsection does not occur due to the extent that a release absence of claims is required to receive such severance, the release shall be substantially in becoming fully effective within the form of Exhibit B attached heretotime period set forth therein. Notwithstanding the foregoing, as may be updated by the Company from time to time to reflect changes in law or practice, and (iii) the restrictive covenants in this Agreement shall apply instead of any restrictive covenants no additional vesting of the Company Severance PolicyTime-Based Equity Awards shall occur during the period between Executive's date of termination and the Accelerated Vesting Date.
Appears in 1 contract
Samples: Employment Agreement (Exicure, Inc.)
Termination without Cause or for Good Reason in Connection with a Change in Control. If the Executive’s employment hereunder shall be terminated by the Company is terminated without Cause, or by Executive for Good Reason, in a Qualifying Termination during the three (3) months preceding or twenty four (24) either case within 12 months following a Change in Control then, in addition to the payments and benefits described in Section 5(b) and subject to Executive’s execution and non-revocation of the release contemplated in Section 5(f) of this Agreement and Executive’s continuing compliance with the Company's Confidential Information Agreement (as defined below):
(i) The Company shall pay Executive continuation of fifteen (15) months (“Benefit Period”) of Executive’s annual Base Salary, as in effect immediately prior to Executive’s termination of employment hereunder, payable during the 15-month period following Executive’s termination of employment in the form of salary continuation in accordance with the Company’s normal payroll practices.
(ii) The Company shall pay Executive an annual cash bonus equal to Executive’s annual Target Bonus as set forth in Section 3(b) for the year in which the termination of employment occurs, payable by the later of (A) the same date as annual cash bonuses are paid to senior management for the calendar year in which Executive’s termination occurs; or (B) 30 days after the effective date of the release contemplated in Section 5(f);
(iii) All equity awards, to the extent outstanding as of immediately prior to such termination, will be (or will be deemed to have been) fully vested and exercisable as of immediately prior to the latter of: (1) the date of termination and (2) the date of the Change in Control” ;
(iv) If the Executive timely elects to receive continued coverage under the Company’s group health care plan pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as defined in the Company Severance Policyamended (“COBRA”), the Company shall pay or provide the Executive with the following:
(i) the Accrued Benefits set forth in Sections 8(a)(i) and 8(a)(iii) through (vi), provided that the benefits described in Section 8(a)(iii) hereof shall be subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof; and
(ii) subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms employer portion of the Executive’s participation agreement relating to the Company Severance Policy (and for the avoidance of doubt, such amounts shall not duplicate any amounts payable under this Agreement). Payments and benefits provided in this Section 8(e) shall be in lieu of any termination or severance applicable COBRA premium payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of the Company, including without limitation under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation, subject to the following. Notwithstanding anything to the contrary in the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason for the Executive’s termination shall be resolved by binding arbitration in accordance with Section 19 of this Agreement), (ii) to the extent that a release of claims is required to receive such severance, the release shall be substantially in the form of Exhibit B attached heretoand, as may be updated by the Company applicable, Executive’s dependents’, continued health coverage under such plan (as in effect or amended from time to time) (the “COBRA Subsidy”) until the earlier of: (1) twelve (12) months following the Executive’s termination of employment, or (2) the date upon which the Executive obtains or becomes eligible for other health care coverage from a new employer or otherwise (such period referred to as the “COBRA Subsidy Period”). The Executive shall promptly inform the Company in writing when Executive obtains or becomes eligible for any such other health care coverage. The Executive shall be responsible for paying a share of such COBRA premiums during the COBRA Subsidy Period at active employee rates as in effect from time to reflect changes in law or practicetime, and (iii) shall be responsible for the restrictive covenants in this Agreement shall apply instead full unsubsidized costs of any restrictive covenants of the Company Severance Policysuch COBRA coverage thereafter.
Appears in 1 contract
Samples: Employment Agreement (Exicure, Inc.)
Termination without Cause or for Good Reason in Connection with a Change in Control. If In the event the Company terminates Executive’s employment by as the Company is terminated Company’s President and Chief Executive Officer without Cause pursuant to Section 9(a)(iv) hereof or Executive terminates such employment for Good Reason pursuant to Section 9(c) hereof within the period which commences ninety (90) days before and ends two (2) years following a Change in Control, in lieu of the provisions of Section 10(a) hereof,
(i) Executive shall receive a Qualifying Termination lump sum cash payment equal to the sum of (1) any Base Salary payable through the date of termination and any Earned Bonus which remains unpaid as of the date of termination, (2) the pro rated portion of the Target Bonus (based on the Base Salary at the time of such termination or, if higher, at the time during the three 12 months preceding the Change in Control) for the period worked during the fiscal year in which such termination occurs, and (3) the product of 6 and Executive’s annual rate of Base Salary at the time of such termination (or, if higher, at any time during the 12 months preceding or twenty four (24) months following a “the Change in Control” );
(as defined in ii) if Executive and his Family Members have medical, dental and vision coverage on the date of such termination under a group health plan sponsored by the Company, then, for the first six (6) years following the date of such termination, the Company Severance Policywill pay the full cost of continuing at least comparable medical, dental and vision coverage for the Executive and his covered Family Members and the full cost of continuing at least comparable term life and long-term disability insurance benefits; provided, that the Company shall have no obligation to pay for coverage if and to the extent the Executive and his Family Members become entitled to receive comparable benefits from and at the expense of a subsequent employer; and
(iii) Executive shall continue to be entitled to any deferred compensation and other unpaid amounts and benefits earned and vested prior to Executive’s termination. In the event the Executive becomes entitled to payments and/or the accelerated vesting of the Option and/or restricted stock under this Section 10(f) or Section 10(h) or any other payments or benefits which are deemed to contingent upon a change in ownership or control pursuant to Section 280G of the Internal Revenue Code (“Code”), the Company shall pay cause its independent auditors promptly to review, at the Company’s expense, the applicability of Section 4999 of the Code to such payments and/or vesting. If such auditors shall determine that any payment or provide distribution of any type by the Executive with Company to Executive, whether paid or payable or distributed or distributable pursuant to the following:
terms of this Agreement or otherwise (i) the Accrued Benefits set forth in Sections 8(a)(i) and 8(a)(iii) through (vi“Total Payments”), provided that the benefits described in Section 8(a)(iii) hereof shall would be subject to the excise tax imposed by Section 4999 of the Code, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the “Excise Tax”), then Executive shall be entitled to receive an additional cash payment (a “Gross-Up Payment”) within 30 days of such determination equal to an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, Executive would retain an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. For purposes of the foregoing determination, Executive’s continued compliance with tax rate shall be deemed to be the obligations highest statutory marginal state and Federal tax rate (on a combined basis) (including his share of F.I.C.A. and Medicare taxes) then in Sections 9, 10 and 11 hereof; and
(ii) subject effect. If no determination by the Company’s auditors is made prior to the Executive’s continued compliance with time a tax return reflecting the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms of the Executive’s participation agreement relating to the Company Severance Policy (and for the avoidance of doubt, such amounts shall not duplicate any amounts payable under this Agreement). Total Payments and benefits provided in this Section 8(e) shall be in lieu of any termination or severance payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of the Company, including without limitation under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation, subject to the following. Notwithstanding anything to the contrary in the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason for the Executive’s termination shall be resolved by binding arbitration in accordance with Section 19 of this Agreement), (ii) to the extent that a release of claims is required to be filed by Executive, Executive will be entitled to receive a Gross-Up Payment calculated on the basis of the Total Payments reported by Executive in such severancetax return, within 30 days of the filing of such tax return. In all events, if any tax authority determines that a greater Excise Tax should be imposed upon the Total Payments than is determined by the Company’s independent auditors or reflected in Executive’s tax return pursuant to this Section 10(f), the release Executive shall be substantially in entitled to receive the form full Gross-Up Payment calculated on the basis of Exhibit B attached hereto, as may the amount of Excise Tax determined to be updated payable by such tax authority from the Company from time to time to reflect changes in law or practice, and (iii) the restrictive covenants in this Agreement shall apply instead within 30 days of any restrictive covenants of the Company Severance Policysuch determination.
Appears in 1 contract
Termination without Cause or for Good Reason in Connection with a Change in Control. If the Executive’s employment hereunder shall be terminated by the Company is terminated without Cause, or by Executive for Good Reason, in a Qualifying Termination during the three (3) months preceding or twenty four (24) either case within 12 months following a Change in Control then, in addition to the payments and benefits described in Section 5(b) and subject to Executive’s execution and non-revocation of the release contemplated in Section 5(f) of this Agreement and Executive’s continuing compliance with the Company's Confidential Information Agreement (as defined below):
(i) The Company shall pay Executive continuation of fifteen (15) months (“Benefit Period”) of Executive’s annual Base Salary, as in effect immediately prior to Executive’s termination of employment hereunder, payable during the 15-month period following Executive’s termination of employment in the form of salary continuation in accordance with the Company’s normal payroll practices.
(ii) The Company shall pay Executive an annual cash bonus equal to Executive’s annual Target Bonus as set forth in Section 3(b) for the year in which the termination of employment occurs, payable by the later of (A) the same date as annual cash bonuses are paid to senior management for the calendar year in which Executive’s 252092631 v3 termination occurs; or (B) 30 days after the effective date of the release contemplated in Section 5(f);
(iii) All equity awards, to the extent outstanding as of immediately prior to such termination, will be (or will be deemed to have been) fully vested and exercisable as of immediately prior to the latter of: (1) the date of termination and (2) the date of the Change in Control” ;
(iv) If the Executive timely elects to receive continued coverage under the Company’s group health care plan pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as defined in the Company Severance Policyamended (“COBRA”), the Company shall pay or provide the Executive with the following:
(i) the Accrued Benefits set forth in Sections 8(a)(i) and 8(a)(iii) through (vi), provided that the benefits described in Section 8(a)(iii) hereof shall be subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof; and
(ii) subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms employer portion of the Executive’s participation agreement relating to the Company Severance Policy (and for the avoidance of doubt, such amounts shall not duplicate any amounts payable under this Agreement). Payments and benefits provided in this Section 8(e) shall be in lieu of any termination or severance applicable COBRA premium payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of the Company, including without limitation under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation, subject to the following. Notwithstanding anything to the contrary in the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason for the Executive’s termination shall be resolved by binding arbitration in accordance with Section 19 of this Agreement), (ii) to the extent that a release of claims is required to receive such severance, the release shall be substantially in the form of Exhibit B attached heretoand, as may be updated by the Company applicable, Executive’s dependents’, continued health coverage under such plan (as in effect or amended from time to time) (the “COBRA Subsidy”) until the earlier of: (1) twelve (12) months following the Executive’s termination of employment, or (2) the date upon which the Executive obtains or becomes eligible for other health care coverage from a new employer or otherwise (such period referred to as the “COBRA Subsidy Period”). The Executive shall promptly inform the Company in writing when Executive obtains or becomes eligible for any such other health care coverage. The Executive shall be responsible for paying a share of such COBRA premiums during the COBRA Subsidy Period at active employee rates as in effect from time to reflect changes in law or practicetime, and (iii) shall be responsible for the restrictive covenants in this Agreement shall apply instead full unsubsidized costs of any restrictive covenants of the Company Severance Policysuch COBRA coverage thereafter.
Appears in 1 contract
Samples: Employment Agreement (Exicure, Inc.)
Termination without Cause or for Good Reason in Connection with a Change in Control. If In the Executive’s employment by event the Company is terminated in a Qualifying Termination during terminates Executive's employment as the three Company's Chief Scientific Officer without Cause pursuant to Section 9(a)(iv) hereof or Executive terminates such employment for Good Reason pursuant to Section 9(c) hereof within the period which commences ninety (390) months preceding or twenty four days before and ends one (241) months year following a “Change in Control” , in lieu of the provisions of Section 10(a) or 10(e) above,
(as defined i) Executive shall receive cash payments equal to any unpaid Base Salary through the date of termination, plus an amount equal to the pro rated portion of the Target Bonus (based on the Base Salary at the time of such termination) which would have been payable to Executive for the fiscal year during which such termination occurs;
(ii) Executive shall receive cash payments equal to the sum of the following: (1) his Base Salary at the time of such termination and (2) the Target Bonus (based on the Base Salary at the time of such termination) for the fiscal year in which such termination occurs;
(iii) if Executive and his Family Members have medical and dental coverage on the date of such termination under a group health plan sponsored by the Company, the Company Severance Policywill reimburse Executive for the total applicable premium cost for medical and dental coverage under COBRA for Executive and his Family Members for a period of up to eighteen (18) months commencing on the date of such termination and will continue to pay Executive an amount equal to such COBRA reimbursement during the eighteen (18) month period following such initial eighteen (18) month period after such termination; provided, that the Company shall have no obligation to reimburse Executive for the premium cost of COBRA coverage as of the date Executive and his Family Members become eligible to obtain comparable benefits from a subsequent employer;
(iv) the options granted to Executive pursuant to Section 4(e) hereof shall be fully vested and shall remain exercisable until their expiration dates; and
(v) Executive shall continue to be entitled to any deferred compensation and other unpaid amounts and benefits earned and vested prior to Executive's termination. In the event the Executive becomes entitled to payments under this Section 10(f), the Company shall pay cause its independent auditors promptly to review, at the Company's expense, the applicability of Section 4999 of the Internal Revenue Code (the "Code") to such payments. If such auditors shall determine that any payment or provide distribution of any type by the Executive with Company to Executive, whether paid or payable or distributed or distributable pursuant to the following:
terms of this Agreement or otherwise (i) the Accrued Benefits set forth in Sections 8(a)(i) and 8(a)(iii) through (vi"Total Payments"), provided that the benefits described in Section 8(a)(iii) hereof shall would be subject to the Executive’s continued compliance excise tax imposed by Section 4999 of the Code, or any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are collectively referred to as the obligations in Sections 9"Excise Tax"), 10 and 11 hereof; and
then Executive shall be entitled to receive an additional cash payment (iia "Gross-Up Payment") subject within 30 days of such determination equal to an amount such that after payment by Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, Executive would retain an amount of the Gross-Up Payment equal to the Executive’s continued compliance with Excise Tax imposed upon the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms Total Payments. For purposes of the foregoing determination, Executive’s participation agreement relating 's tax rate shall be deemed to be the highest statutory marginal state and Federal tax rate (on a combined basis) (including his share of F.I.C.A. and Medicare taxes) then in effect. If no determination by the Company's auditors is made prior to the Company Severance Policy (and for time a tax return reflecting the avoidance of doubt, such amounts shall not duplicate any amounts payable under this Agreement). Total Payments and benefits provided in this Section 8(e) shall be in lieu of any termination or severance payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of the Company, including without limitation under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation, subject to the following. Notwithstanding anything to the contrary in the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason for the Executive’s termination shall be resolved by binding arbitration in accordance with Section 19 of this Agreement), (ii) to the extent that a release of claims is required to be filed by Executive, Executive will be entitled to receive such severance, a Gross-Up Payment calculated on the release shall be substantially in the form of Exhibit B attached hereto, as may be updated by the Company from time to time to reflect changes in law or practice, and (iii) the restrictive covenants in this Agreement shall apply instead of any restrictive covenants basis of the Company Severance Policy.Total Payments reported by Executive in such tax return, within 30 days of the filing of such
Appears in 1 contract
Samples: Employment Agreement (Enzon Inc)
Termination without Cause or for Good Reason in Connection with a Change in Control. If In the event the Company terminates Executive’s employment by as the Company is terminated in a Qualifying Termination during Company’s Executive Vice President of Finance and Chief Financial Officer without Cause pursuant to Section 9(a)(iv) hereof or Executive terminates such employment for Good Reason pursuant to Section 9(c) hereof within the three period which commences ninety (390) months preceding or twenty four days before and ends one (241) months year following a “Change in Control” (as defined , in lieu of the Company Severance Policy), the Company shall pay provisions of Section 10(a) or provide the Executive with the following:10(e) above,
(i) Executive shall receive a lump sum cash payment within ten (10) days after the date of termination of employment in an amount equal to his Accrued Benefits set forth in Sections 8(a)(i) and 8(a)(iii) through (vi), provided that the benefits described in Section 8(a)(iii) hereof shall be subject Obligations plus an amount equal to the Executive’s continued compliance with pro rated portion of the obligations in Sections 9, 10 and 11 hereof; andTarget Bonus (based on the Base Salary at the time of such termination) which would have been payable to Executive for the fiscal year during which such termination occurs;
(ii) subject Executive shall receive a lump sum cash payment within ten (10) days after the date of termination in an amount equal to two (2) times the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms sum of the Executive’s participation agreement relating to following: (1) his Base Salary at the Company Severance Policy time of such termination and (and 2) the Target Bonus (based on the Base Salary at the time of such termination) for the avoidance fiscal year in which such termination occurs;
(iii) if Executive and his Family Members have medical and dental coverage on the date of doubt, such amounts shall not duplicate any amounts payable termination under this Agreement). Payments and benefits provided in this Section 8(e) shall be in lieu of any termination or severance payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of a group health plan sponsored by the Company, including without limitation under the Worker Adjustment Retraining Notification Act Company will continue such health plan coverage for Executive and his Family Members for a period of 1988 or any similar state statute or regulationthirty six (36) months commencing on the date of such termination, subject at a cost to Executive equal to the following. Notwithstanding anything monthly premium rate he would have paid had he been actively employed during such period; provided, (x) such continuation coverage shall be coterminous with Executive’s entitlement to the contrary in COBRA continuation coverage, (y) the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason no obligation to reimburse Executive for the premium cost of such health plan continuation coverage as of the date Executive and his Family Members become eligible to obtain comparable benefits from a subsequent employer;
(iv) Executive shall continue to be entitled to any deferred compensation and other unpaid amounts and benefits earned and vested prior to Executive’s termination shall be resolved by binding arbitration in accordance with Section 19 of this Agreement), (ii) to the extent that a release of claims is required to receive such severance, the release shall be substantially in the form of Exhibit B attached hereto, as may be updated by the Company from time to time to reflect changes in law or practice, and (iii) the restrictive covenants in this Agreement shall apply instead of any restrictive covenants of the Company Severance Policytermination.
Appears in 1 contract
Termination without Cause or for Good Reason in Connection with a Change in Control. If the Executive’s employment is terminated by the Company is terminated without Cause (and not due to Disability or death) or by the Executive for Good Reason within thirty (30) days immediately prior to a Change in a Qualifying Termination during the three Control (3as defined below), or within twelve (12) months preceding or twenty four (24) months immediately following a “Change in Control” (as defined in the Company Severance Policy), then the Company shall pay or provide the Executive with the following:
Accrued Amounts and subject to compliance with Section 13, plus an amount equal to (i) the Accrued Benefits set forth in Sections 8(a)(itwenty four (24) and 8(a)(iii) through (vi), provided that the benefits described in Section 8(a)(iii) hereof shall be subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof; and
(ii) subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms months of the Executive’s participation agreement relating Base Salary as in effect immediately preceding the last day of the Employment Term, plus (ii) the amount of the Executive’s Annual Bonus for the prior calendar year, and such amounts will be payable immediately upon the completion of the Change in Control, subject to compliance with Section 13. In addition, the Executive and the Executive’s qualified beneficiaries, if participating in the Company’s health insurance and dental insurance plans immediately prior to termination, shall be entitled to elect continuation coverage at the Company’s expense, and the Company shall continue to pay the Executive’s life and disability insurance premiums, for a period of two years from the date of termination, in accordance with and subject to the terms, conditions and requirements of applicable laws. In addition, the Company Severance Policy shall provide that all outstanding unvested equity awards granted to the Executive shall become fully vested. For purposes of this Agreement, “Change of Control” shall mean (i) a merger, consolidation or reorganization approved by the Company’s stockholders, unless securities representing more than forty percent (40%) of the total combined voting power of the voting securities of the successor Company are immediately thereafter beneficially owned, directly or indirectly and in substantially the same proportion, by the persons who beneficially owned the Company’s outstanding voting securities immediately prior to such transaction, (ii) any stockholder-approved transfer or other disposition of all or substantially all of the Company’s assets, (iii) the acquisition, directly or indirectly, by any person or related group of persons (other than the Company or a person that directly or indirectly controls, is controlled by, or is under common control with, the Company), of beneficial ownership (within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934) of securities possessing more than forty percent (40%) of the total combined voting power of the Company’s outstanding securities pursuant to a tender or exchange offer made directly to the Company’s stockholders, (iv) any approval by the stockholders of the Company of any plan or proposal for the avoidance of doubt, such amounts shall not duplicate any amounts payable under this Agreement). Payments and benefits provided in this Section 8(e) shall be in lieu of any termination liquidation or severance payments or benefits for which the Executive may be eligible under any of the plans, policies or programs dissolution of the Company, including without limitation under or (v) a change in the Worker Adjustment Retraining Notification Act composition of 1988 the Board over a period of 36 months or any similar state statute or regulation, subject less such that a majority of the Board members (rounded up to the following. Notwithstanding anything next whole number) ceases, by reason of one or more contested elections for Board membership, to be comprised of individuals who are member of the contrary Board who either (A) have been Board members continuously for a period of at least 24 months, or (B) have been Board members for less than 24 months and were appointed or nominated for election as Board members by at least a majority of the Board members described in clause (A) who were still in office at the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” time such appointment or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason for the Executive’s termination shall be resolved by binding arbitration in accordance with Section 19 of this Agreement), (ii) to the extent that a release of claims is required to receive such severance, the release shall be substantially in the form of Exhibit B attached hereto, as may be updated nomination was approved by the Company from time Board. In no event, however, shall a Change in Control be deemed to time to reflect changes occur in law or practice, and (iii) the restrictive covenants in this Agreement shall apply instead of connection with any restrictive covenants public offering of the Company Severance PolicyCompany’s common stock.
Appears in 1 contract
Samples: Executive Employment Agreement (Avadim Health, Inc.)
Termination without Cause or for Good Reason in Connection with a Change in Control. If the Executive’s employment by the Company is terminated in a Qualifying Termination during the three (3) months preceding or twenty four (24) months following a “Change in Control” (as defined in the Company Severance Policy)) which Change in Control occurs on or prior to the third anniversary of the Effective Date, the Company shall pay or provide the Executive with the following:
(i) the Accrued Benefits set forth in Sections 8(a)(i) and 8(a)(iii) through (vi)Benefits, provided that the benefits benefit described in Section 8(a)(iii9(a)(ii) hereof shall be replaced by a pro rata Annual Bonus for the Bonus Plan performance period in which the Termination Date occurs, calculated by multiplying the Target Bonus by a fraction, the numerator of which is the number of days during the applicable performance period during which the Executive was actively employed by the Company and the denominator of which is the total number of days comprising the applicable performance period, payable at the same time bonuses for such performance period are otherwise paid to the Company’s senior executives, and subject to the Executive’s continued compliance with the obligations in Sections 910, 10 11 and 11 12 hereof; and;
(ii) subject to the Executive’s continued compliance with the obligations in Sections 910, 10 11 and 12 hereof, the payment described in Section 9(d)(ii) hereof, except that “three times” shall be substituted for “two times” where it appears therein, and “thirty-six (36) months” shall be substituted for “twenty-four (24) months” where it appears therein; and
(iii) subject to the Executive’s continued compliance with the obligations in Sections 10, 11 and 12 hereof, the benefits payable under the Company Severance Policy, subject to its terms described in Sections 9(d)(iii) and the terms of the Executive’s participation agreement relating to the Company Severance Policy (and for the avoidance of doubt, such amounts shall not duplicate any amounts payable under this Agreement)9(d)(iv) hereof. Payments and benefits provided in this Section 8(e9(e) shall be in lieu of any termination or severance payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of the Company, including without limitation the Company Severance Policy, or under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation; provided for the avoidance of doubt that as of the third anniversary of the Effective Date, the Executive shall become eligible to participate in the Company Severance Policy, subject to the following. Notwithstanding anything to the contrary in the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason for the Executive’s termination shall be resolved by binding arbitration in accordance with Section 19 20 of this Agreement), (ii) to the extent that a release of claims is required to receive such severance, the release shall be substantially in the form of Exhibit B C attached hereto, as may be updated by the Company from time to time to reflect changes in law or practice, and (iii) the restrictive covenants in this Agreement shall apply instead of any restrictive covenants of the policy. If a Change in Control occurs on or prior to the third anniversary of the Effective Date, and the twenty four (24) month period after the Change in Control ends after the third anniversary of the Effective Date, the provisions of this Section 9(e) shall apply if the Executive is terminated in a Qualifying Termination within the twenty four (24) month period following the Change in Control, and, if the Executive is not so terminated, the Executive shall become eligible to participate in the Company Severance PolicyPolicy as set forth above at the end of such twenty four (24) month period. If the Executive’s employment is terminated in a Qualifying Termination prior to the third anniversary of the Effective Date, and prior to a Change in Control, and a Change in Control subsequently occurs within three (3) months after the date of the Qualifying Termination and on or prior to the third anniversary of the Effective Date, the provisions of this Section 9(e) shall apply, but any benefits payable pursuant to this Section 9(e) shall be offset by comparable benefits paid pursuant to Section 9(d).
Appears in 1 contract
Termination without Cause or for Good Reason in Connection with a Change in Control. If the Executive’s employment by the Company is terminated in a Qualifying Termination during the three (3) months preceding or twenty four (24) months following a “Change in Control” (as defined in the Company Severance Policy), the Company shall pay or provide the Executive with the following:
(i) the Accrued Benefits set forth same benefits described in Sections 8(a)(i) and 8(a)(iii) through (viSection 9(d), provided that the benefits described in Section 8(a)(iii9(d)(ii) hereof shall be subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof; and
(ii) subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms of the Executive’s participation agreement relating to the Company Severance Policy (and for the avoidance of doubt, such amounts shall not duplicate any amounts payable under this Agreement)doubled. Payments and benefits provided in this Section 8(e9(e) shall be in lieu of any termination or severance payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of the Company, including without limitation the Company Severance Policy, or under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation, subject to the following. Notwithstanding anything to the contrary in the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason for the Executive’s termination shall be resolved by binding arbitration in accordance with Section 19 20 of this Agreement), (ii) to the extent that a release of claims is required to receive such severance, the release shall be substantially in the form of Exhibit B C attached hereto, as may be updated by the Company from time to time to reflect changes in law or practice, and (iii) the restrictive covenants in this Agreement shall apply instead of any restrictive covenants of the policy. If a Change in Control occurs on or prior to the third anniversary of the Effective Date, and the twenty four (24) month period after the Change in Control ends after the third anniversary of the Effective Date, the provisions of this Section 9(e) shall apply if the Executive is terminated in a Qualifying Termination within the twenty four (24) month period following the Change in Control, and, if the Executive is not so terminated, the Executive shall become eligible to participate in the Company Severance PolicyPolicy as set forth above at the end of such twenty four (24) month period. If the Executive’s employment is terminated in a Qualifying Termination prior to the third anniversary of the Effective Date, and prior to a Change in Control, and a Change in Control subsequently occurs within three (3) months after the date of the Qualifying Termination and on or prior to the third anniversary of the Effective Date, the provisions of this Section 9(e) shall apply, but any benefits payable pursuant to this Section 9(e) shall be offset by comparable benefits paid pursuant to Section 9(d).
Appears in 1 contract
Termination without Cause or for Good Reason in Connection with a Change in Control. If the Executive’s employment hereunder shall be terminated by the Company is terminated without Cause, or by Executive for Good Reason, in a Qualifying Termination during the three (3) months preceding or twenty four (24) either case within 12 months following a Change in Control then, in addition to the payments and benefits described in Section 4(b) and subject to Executive’s execution and non-revocation of the release contemplated in Section 4(f) of this Agreement and Executive’s continuing compliance with the Company's Confidentiality, Non-Hire, Non-Disparagement, and Work Product Agreement (as defined below):
a. The Company shall pay Executive continuation of fifteen (15) months (“Benefit Period”) of Executive’s annual Base Salary, as in effect immediately prior to Executive’s termination of employment hereunder, payable during the 6-month period following Executive’s termination of employment in the form of salary continuation in accordance with the Company’s normal payroll practices;
b. The Company shall pay Executive an annual cash bonus equal to Executive’s annual target bonus as set forth in Section 3(b) for the year in which the termination of employment occurs, payable at the same time as annual cash bonuses are paid to senior management;
c. All equity awards, to the extent outstanding as of immediately prior to such termination, will be (or will be deemed to have been) fully vested and exercisable as of immediately prior to the latter of: (1) the date of termination and (2) the date of the Change in Control” ;
d. If the Executive timely elects to receive continued coverage under the Company’s group health care plan pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (as defined in the Company Severance Policy“COBRA”), the Company shall pay or provide the Executive with the following:
(i) the Accrued Benefits set forth in Sections 8(a)(i) and 8(a)(iii) through (vi), provided that the benefits described in Section 8(a)(iii) hereof shall be subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof; and
(ii) subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms employer portion of the Executive’s participation agreement relating to the Company Severance Policy (and for the avoidance of doubt, such amounts shall not duplicate any amounts payable under this Agreement). Payments and benefits provided in this Section 8(e) shall be in lieu of any termination or severance applicable COBRA premium payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of the Company, including without limitation under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation, subject to the following. Notwithstanding anything to the contrary in the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason for the Executive’s termination shall be resolved by binding arbitration in accordance with Section 19 of this Agreement), (ii) to the extent that a release of claims is required to receive such severance, the release shall be substantially in the form of Exhibit B attached heretoand, as may be updated by the Company applicable, Executive’s dependents’, continued health coverage under such plan (as in effect or amended from time to time) (the “COBRA Subsidy”) until the earlier of: (1) fifteen (15) months following the Executive’s termination of employment, or (2) the date upon which the Executive obtains or becomes eligible for other health care coverage from a new employer or otherwise (such period referred to as the “COBRA Subsidy Period”). The Executive shall promptly inform the Company in writing when Executive obtains or becomes eligible for any such other health care coverage. The Executive shall be responsible for paying a share of such COBRA premiums during the COBRA Subsidy Period at active employee rates as in effect from time to reflect changes in law or practicetime, and (iii) shall be responsible for the restrictive covenants in this Agreement shall apply instead full unsubsidized costs of any restrictive covenants of the Company Severance Policysuch COBRA coverage thereafter.
Appears in 1 contract
Samples: Employment Agreement (Exicure, Inc.)
Termination without Cause or for Good Reason in Connection with a Change in Control. If the Executive’s employment hereunder shall be terminated by the Company is terminated without Cause, or by Executive for Good Reason, in a Qualifying Termination during the three (3) months preceding or twenty four (24) either case within 12 months following a Change in Control then, in addition to the payments and benefits described in Section 4(b) and subject to Executive’s execution and non-revocation of the release contemplated in Section 4(e) of this Agreement and Executive’s continuing compliance with the Company's Confidential Information Agreement (as defined below):
(i) The Company shall pay Executive continuation of twelve (12) months (“Benefit Period”) of Executive’s annual Base Salary, as in effect immediately prior to Executive’s termination of employment hereunder, payable during the 12-month period following Executive’s termination of employment in the form of salary continuation in accordance with the Company’s normal payroll practices;
(ii) The Company shall pay Executive an annual cash bonus equal to Executive’s annual target bonus as set forth in Section 3(b) for the year in which the termination of employment occurs, payable by the later of (A) the same date as annual cash bonuses are paid to senior management for the calendar year in which Executive’s termination occurs; or (B) 30 days after the effective date of the release contemplated in Section 4(e);
(iii) All equity awards, to the extent outstanding as of immediately prior to such termination, will be (or will be deemed to have been) fully vested and exercisable as of immediately prior to the latter of: (1) the date of termination and (2) the date of the Change in Control” ;
(iv) If the Executive timely elects to receive continued coverage under the Company’s group health care plan pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as defined in the Company Severance Policyamended (“COBRA”), the Company shall pay or provide the Executive with the following:
(i) the Accrued Benefits set forth in Sections 8(a)(i) and 8(a)(iii) through (vi), provided that the benefits described in Section 8(a)(iii) hereof shall be subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof; and
(ii) subject to the Executive’s continued compliance with the obligations in Sections 9, 10 and 11 hereof, the benefits payable under the Company Severance Policy, subject to its terms and the terms employer portion of the Executive’s participation agreement relating to the Company Severance Policy (and for the avoidance of doubt, such amounts shall not duplicate any amounts payable under this Agreement). Payments and benefits provided in this Section 8(e) shall be in lieu of any termination or severance applicable COBRA premium payments or benefits for which the Executive may be eligible under any of the plans, policies or programs of the Company, including without limitation under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation, subject to the following. Notwithstanding anything to the contrary in the Company Severance Policy, (i) the terms “Cause”, “Good Reason”, and “Qualifying Termination” or terms of similar import shall have the definition provided in this Agreement (and any dispute over the reason for the Executive’s termination shall be resolved by binding arbitration in accordance with Section 19 of this Agreement), (ii) to the extent that a release of claims is required to receive such severance, the release shall be substantially in the form of Exhibit B attached heretoand, as may be updated by the Company applicable, Executive’s dependents’, continued health coverage under such plan (as in effect or amended from time to time) (the “COBRA Subsidy”) until the earlier of: (1) twelve (12) months following the Executive’s termination of employment, or (2) the date upon which the Executive obtains or becomes eligible for other health care coverage from a new employer or otherwise (such period referred to as the “COBRA Subsidy Period”). The Executive shall promptly inform the Company in writing when Executive obtains or becomes eligible for any such other health care coverage. The Executive shall be responsible for paying a share of such COBRA premiums during the COBRA Subsidy Period at active employee rates as in effect from time to reflect changes in law or practicetime, and (iii) shall be responsible for the restrictive covenants in this Agreement shall apply instead full unsubsidized costs of any restrictive covenants of the Company Severance Policysuch COBRA coverage thereafter.
Appears in 1 contract
Samples: Employment Agreement (Exicure, Inc.)
