Termination Without Cause or for Good Reason. Subject to the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein: (i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly. (ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company. (iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended. (iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full. (v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses).
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to If the terms and conditions of eligibility for ExecutiveEmployee’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums employment by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
is terminated (ivx) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of by the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without other than for Cause, or (by) Executive terminates by the Employee for Good Reason, the Company shall pay or provide the Employee with the following:
(I) accelerate the vesting of (xi) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, Accrued Benefits; and
(ii) subject to the extent that such awards would have vested solely upon the ExecutiveEmployee’s continued employmentcompliance with the obligations in Sections 8, such 9 and 10 hereof:
(A) an amount (the “Severance”) equal to two (2) times the Base Salary (disregarding any reduction in Base Salary that one hundred percent (100%) of such awards become vested in full , (II) continue Executivewould give rise to the Employee’s Base Salary, as provided under SECTION 3.4(i) right to termination for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) monthsGood Reason), and payable in a single lump sum on the first payroll date occurring on or after the sixtieth (IV60th) pay Executive day following the date of termination (such payroll date, the “First Payroll Date”);
(B) an amount equal to the ExecutiveAnnual Bonus paid to the employee in the prior year, payable in a single lump sum on the First Payroll Date (the “Annual Bonus”);
(C) an amount equal to the Prior Year Bonus, payable in a single lump sum on the First Payroll Date;
(D) the Pro-Rata Bonus, payable in a single lump sum on the date on which annual bonuses are paid to the Company’s Target Bonus senior executives generally for such calendar year, but no later than March 15 of the calendar year following the calendar year in which the date of termination occurs;
(under SECTION 2.1 E) during the period commencing on the date of termination and ending on the earlier of (b), based upon her Base Salary as i) the twenty-four (24) month anniversary of the date of terminationtermination or (ii) the date on which the Employee becomes eligible for coverage under the group health plan of a subsequent employer (of which eligibility the Employee hereby agrees to give prompt notice to the Company), subject to the Employee’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall continue to provide the Employee and the Employee’s eligible dependents with coverage under its group health plans at the same levels and the same cost to the Employee as would have applied if the Employee’s employment had not been terminated based on the Employee’s elections in effect on the date of termination, provided that (1) if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the period of continuation coverage to be, exempt from the application of Section 409A of the Code under Treasury Regulation Section 1.409A-1(a)(5), or (2) the Company is otherwise unable to continue to cover the Employee under its group health plans without penalty under applicable law (including without limitation, Section 2716 of the Public Health Service Act or the Patient Protection and Affordable Care Act), then, in either case, an amount equal to NY\2533556.8 each remaining Company subsidy shall thereafter be paid to Executive when the Employee in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof) (such coverage being hereinafter referred to as the “Health Benefits Continuation”); and
(F) full vesting of each outstanding Company pays equity award that vests based solely on the Annual Cash Bonus for passage of time held by the calendar year Employee on the date of termination; provided, however, that commences immediately after Executive’s termination (and for clarity, any such award intended to be exempt from Code Section 409A as a “short-term deferral” shall be in addition distributed to the Target Bonus paid Employee within such time as is required for such equity award to Executive under SECTION 3.4(ii) – constitute a “short-term deferral”; provided, further, however, the accelerated vesting of the equity awards shall not change the time or form of payment for any equity award that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A (such that Executive receives two Target Bonusesvesting being hereinafter referred to as the “Accelerated Equity Vesting”).
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject If the Executive’s employment with the Company is terminated by the Company (other than for Cause, Disability or death) or the Executive resigns for Good Reason, during the applicable Post-CiC Period, then, provided that the Executive has delivered to the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery Company (and non-revocationthe applicable revocation period has expired with respect to) by Executive the Release within 60 days of the Separation Agreement Date of Termination, the Executive shall be entitled to the payments and General Release as benefits set forth in SECTION 6.10the following clauses (i) through (iv), paid on the Company shall pay to Executive, as severance benefits, which amounts are same timing described in addition to the Compensation upon Termination set forth in SECTION 3.3 hereinSection 4.1:
(i) An amount equal to her current annualized Base Salary which The Company shall be paid to Executive on a salary continuation basis according pay to the Company’s normal payroll practices over Executive in a lump sum, in cash, the 12 month period aggregate of the following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.amounts:
(iiA) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as sum of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election base salary through the Date of continuation coverage under Termination, and (2) any accrued vacation pay, in each case to the Consolidated Omnibus Budget Reconciliation Act extent not previously paid;
(B) the sum of 1985, as amended (“COBRA”)1) 1.5 multiplied by the Executive’s annual base salary, and (2) the higher of the Executive’s target bonus for the then-prior fiscal year or the Executive’s target bonus for the then-current fiscal year; and
(C) an amount equal to 18 times the excess of (1) the monthly premium payable by former employees for continued copayment of premiums at coverage under COBRA for the same level and cost of coverage, including dependents, provided to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in under the Company’s group health plan benefit plans in which the Executive participates immediately prior to the Notice of Termination over (2) the monthly premium paid by active employees for the same coverage immediately prior to the Notice of Termination; and
(D) in lieu of any further benefits under Other Plans, an amount equal to the cost to the Executive of providing such benefits (based on the applicable premiums charged to the Company for such coverage under the Other Plans), to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible to receive such benefits immediately prior to the Notice of Termination, for the Severance Period.
(ii) To the extent not previously paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive following the Executive’s termination of employment under any plan, program, policy, practice, contract or agreement of the Company and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(iiaffiliated companies.
(iii) With respect to all of the Executive’s equity-based awards (including any awards granted from and after the Change in Control Date, including an Emerson Change in Control Date), and only to the extent reasonably necessary the following are not less favorable to avoid the Executive than the relevant provisions of the equity plan or award agreement: (1) all of the then-unvested options to purchase shares of stock of the Company and/or its successor held by the Executive shall become fully vested and immediately exercisable in full , and shares of the Company received upon exercise of any penalty options will no longer be subject to any right of repurchase by the Company, (2) all of the restricted stock then otherwise subject to repurchase by the issuer shall be deemed to be fully vested (i.e., no longer subject to a right of repurchase or excise taxes imposed on it restriction by the issuer or otherwise subject to a risk of forfeiture), (3) all of the shares underlying restricted stock units then otherwise subject to future grant or award shall be fully granted, vested and distributed and no longer subject to a right of repurchase by the issuer or to any other risk of forfeiture, including performance conditions, and (4) all then-vested and exercisable options (including for the avoidance of doubt the options becoming exercisable pursuant to this paragraph) shall continue to be exercisable by the Executive for the Severance Period (but not later than the original expiration date of such options). For the avoidance of doubt, for any such award subject to a performance condition, subject to the adjustments to the award and its performance conditions in connection with the continued payment Change in Control (including an Emerson Change in Control Date) in accordance with the terms of premiums the equity plan or award agreement (if applicable), vesting upon termination of employment under this clause (iii) shall be based on assumed performance at the greater of target or the level of performance achieved immediately prior to the date of termination of employment, as determined by the Company under the Patient Protection and Affordable Care Act of 2010, as amendedBoard.
(iv) The Company shall accelerate the vesting provide outplacement services through one or more outside firms of the Executive’s then-outstanding choosing and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, reasonably acceptable to the extent that Company up to an aggregate of $45,000, with such awards would have vested solely upon services to extend until the earlier of (A) 18 months following the termination of Executive’s continued employment, such that one hundred percent employment or (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1B) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) date the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued secures full time employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses).
Appears in 1 contract
Samples: Executive Retention Agreement (Aspen Technology, Inc.)
Termination Without Cause or for Good Reason. Subject to If the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including employment by the timely execution and delivery Company is terminated (and non-revocationx) by the Company other than for Cause or Disability, (y) by the Executive for Good Reason or (z) as a result of the Separation Company’s election not to renew this Agreement and General Release as set forth in SECTION 6.10accordance with Section 2, the Company shall pay to Executive, as severance benefits, which amounts are in addition to or provide the Compensation upon Termination set forth in SECTION 3.3 herein:
Executive with (i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
Accrued Benefits and (ii) An subject to the Executive’s continued compliance with the obligations in Sections 8 and 9 hereof, (A) the Pro-Rata Bonus, (B) an amount equal to the sum of two (2) times the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her ’s Base Salary as of plus one (1) times the date of termination) which Executive’s Target Bonus, payable in substantially equal installments for 24 months following the termination date; provided, that the first installment shall be paid on the next payroll date after the 60th day following the termination date and shall include payment of any amounts that would be due prior thereto, and (C) to the extent that the Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended 1985 (“COBRA”), and (2) reimbursement for the Executive’s continued copayment of premiums at the same level and cost to the Executive as applicable COBRA premiums, if the Executive were an employee of the Company (excludingany, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in under the Company’s group health plan (to the extent permitted under or its subsidiaries’, as applicable law medical, dental and the terms of such plan) which covers the vision plans for Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at dependents until the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting earlier of (x) 18 months following the Executive’s then-outstanding termination or (y) until the Executive obtains new employment that provides substantially similar medical, dental and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as vision coverage. Payments and benefits provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii7(d) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to lieu of any termination or severance payments or benefits for which the Target Bonus paid to Executive may be eligible under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)any of the plans, policies or programs of the Company or any of its subsidiaries or affiliates.
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery of the “Release” described in Section 3.6(c) below as to subparagraphs (and non-revocationii) through (v) inclusive, if Executive’s employment by the Company is terminated by the Company without Cause or by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10for Good Reason, the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 hereinExecutive will be entitled to:
(i) An amount equal to her current annualized payment of all accrued and unpaid Base Salary which shall be paid to Executive on a salary continuation basis according to through the date of such termination in the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.cycle;
(ii) An amount a lump sum payment, which shall be paid within 45 days of Executive’s termination of employment, equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her ’s annual Base Salary as of the date of such termination;
(iii) a lump sum payment, which shall be paid within 45 days of Executive’s termination of employment, equal to Executive when the Annual Cash Bonus greater of (A) Executive’s target annual bonus for the year of such year is paid to other executives termination, or (B) the average of his actual bonus as received for the last three completed fiscal years; and
(iv) waiver of the Company.
(iii) Subject to (1) the Executive’s timely election of applicable premium otherwise payable for COBRA continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985for Executive (and, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under covered immediately prior to the date of Executive’s termination, his spouse and dependents) with respect to medical insurance for a period equal to 12 months; and
(v) a lump sum payment, which shall be paid within 45 days of Executive’s termination of employment, equal to the cost that would be incurred by the Company, as reasonably determined by the Company, to waive the applicable law and the terms of such plan) which covers the premium otherwise payable for COBRA continuation coverage for Executive (and and, to the extent covered immediately prior to the date of Executive’s eligible termination, his spouse and dependents) with respect to dental insurance for a period of twelve (12) 12 months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of following the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)termination.
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to If, during the terms and conditions of eligibility for Employment Period, the Employer shall Terminate Executive’s receipt employment Without Cause or the Executive shall Terminate Executive’s employment for Good Reason, then in consideration of severance benefits under this Agreement, including Executive’s services rendered prior to such Termination;
(i) the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company Employer shall pay to Executive, as severance benefits, which amounts are :
A. a lump sum in addition cash on the 30th day after the Date of Termination equal to (1) Executive’s Base Salary through the Date of Termination to the Compensation upon extent not theretofore paid, and (2) any accrued vacation, sick and other leave pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1) and (2) shall be hereinafter referred to as the “Accrued Obligations”); and
B. a lump sum in cash on the 30th day after the Date of Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be the product of (1) Executive’s aggregate cash bonus for the last completed fiscal year, whether paid to Executive under Section 6 above or otherwise paid to Executive, and (2) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365; and
C. in 24 as nearly as equal as possible monthly installments, beginning on a salary continuation basis according the 30th day after the Date of Termination an aggregate sum equal to the Companytwo (2) times Executive’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthlyBase Salary.
(ii) An amount for a period of two (2) years after the Date of Termination the Employer shall continue to provide benefits to Executive and/or Executive’s family at least equal to those which would have been provided to them in accordance with the Insurance Benefit Plans if Executive's Target Bonus referenced ’s employment had not been Terminated; provided, however, that if Executive becomes employed with another employer and is eligible to receive substantially the same benefits under the other employer’s plans as Executive would receive under the Insurance Benefit Plans under this item (ii), the benefits provided under this item (ii) shall be secondary to those provided under such other employer’s plans during such applicable period of eligibility; and, provided further, that with respect Insurance Benefit Plans, upon the conclusion of any applicable COBRA period, the Employer may elect to discontinue the coverages under such Insurance Benefit Plans and to pay Executive in SECTION 2.1(b) (based upon her Base Salary as cash the amount of the date of terminationapplicable annual premium paid by the Employer for the preceding twelve (12) which shall be paid to Executive when the Annual Cash Bonus month period for such discontinued coverages multiplied by the fraction of which the number of days remaining in such two (2) year period is paid the numerator and 365 is the denominator (the election set forth in this proviso being referred to other executives of herein as the Company.“Employer Benefit Election”);
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and not theretofore paid or provided, the terms of such plan) Employer shall timely pay or provide to Executive any other amounts or benefits required to be paid or provided herein or which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation to receive under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.Welfare Benefit Plan; and
(iv) The Company provided, however, that if during the Restricted Period Executive violates Section 12, no payments shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent be due under item (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (iii)(C) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount payment previously made shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after repaid by Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses).
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to If the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including employment by the timely execution and delivery Company is terminated (and non-revocationi) by the Company other than for Cause, or (ii) by the Executive of the Separation Agreement and General Release as set forth in SECTION 6.10for Good Reason, the Company shall pay to Executiveor provide the Executive with the following, as severance benefits, which amounts are in addition subject to the Compensation upon Termination set forth in SECTION 3.3 hereinprovisions of Section 21 hereof:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.Accrued Benefits; and
(ii) An subject to the Executive’s compliance with the obligations in Sections 8, 9 and 10 hereof, and, subject to Section 23 hereof in the case of amounts in excess of the Separation Pay Limit to the extent that the Separation Pay Limit is applicable, the “Severance Payment.” The Severance Payment shall be an amount equal to the sum of (a) the Executive’s annual Base Salary in effect on the date of termination and (b) the Executive’s most recently paid Annual Bonus; provided, that if the Executive is terminated on or before December 31, 2013, then the Severance Payment shall be $1,500,000. The Severance Payment shall be payable to you in a lump sum no later than 60 days after your termination date and within 5 days after the release described below becomes effective and is no longer subject to revocation, provided that, to the extent the Severance Payment is subject to Code Section 409A, if the date of execution of the release could result in the payment of the Severance Payment occurring in either the calendar year in which your termination date occurs or the following calendar year, then the Severance Payment shall be paid on the first payroll date occurring in such following calendar year; and
(iii) an amount equal to the Executive's Target Bonus referenced ’s estimated COBRA premiums for medical, dental, and vision coverage for a twelve-month period, paid monthly and calculated based on the coverage in SECTION 2.1(b) effect for the Executive and his dependents on his termination date (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRACOBRA Payments”); provided, and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection ; and Affordable Care Act of 2010provided, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock optionsfurther, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change the Executive obtains other employment that offers group health benefits, the COBRA Payments shall immediately cease. Payments and benefits provided in Control this Section 7(d) 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 and (1) or under the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting Worker Adjustment Retraining Notification Act of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, 1988 or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)similar state statute or regulation.
Appears in 1 contract
Samples: Employment Agreement (DS Services of America, Inc.)
Termination Without Cause or for Good Reason. Subject If Executive’s employment is terminated by the Company without Cause or the Executive terminates his employment for Good Reason, Executive shall be entitled to receive from the Company all Accrued Amounts through the Date of Termination and a Prorata Bonus (as defined in Section 9(a). Such Accrued Amounts and Prorata Bonus shall be paid within ten (10) days after the Date of Termination. Contingent upon Executive delivering to the terms Company a release in the form attached hereto as Exhibit C, and conditions the expiration of eligibility for Executive’s receipt of severance benefits under this Agreementall revocation periods related thereto, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay to Executive, as severance benefits, which amounts are in addition be entitled to the Compensation upon Termination set forth in SECTION 3.3 hereinfollowing:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period within ten (10) days following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as Date of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good ReasonTermination, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target then-applicable full Base Salary, the targeted bonus amount for the year in which the Termination without Cause or for Good Reason occurs minus the amount of the Prorata Bonus (determined under SECTION 2.1 (bSection 9(d), and the targeted bonus amounts for the remaining balance of the Initial Term or any Renewal Term; provided that if Executive’s targeted bonus amount has not been determined for any period of the remainder of the Initial Term or any Renewal Term as of the Date of Termination, it shall be deemed for the remainder of the Initial Term or any Renewal Term to be on the terms most recently determined, based upon her 100% achievement of the targeted amount, and all applicable criteria shall be deemed to have been satisfied for the remainder of the Initial Term or any Renewal Term (including the year in which the Date of Termination occurs) to achieve the targeted bonus amounts; and provided further that in no event shall the payment of Base Salary be for a period of less than one year, even if less than one year remains in the Initial Term or any Renewal Term as of the Date of Termination; and
(ii) Executive shall be entitled to his COBRA rights under the Company’s group health plans and Company shall reimburse Executive for any premiums paid by Executive for COBRA health, dental, and vision coverage (including coverage for Executive’s family) for the balance of the Initial Term or any Renewal Term or the period that Executive is eligible for coverage pursuant to COBRA, whichever is less. If the period of COBRA coverage expires prior to the expiration of the Initial Term or any Renewal Term, the Company shall provide Executive with an insurance policy or policies that provide benefits comparable to the health, dental, and vision coverage provided to Executive and his family immediately prior to the expiration of the period of COBRA coverage, provided he and his family are insurable at standard or reasonably standard rates. The Company will provide such policies through the remainder of the Initial Term or any Renewal Term or, if earlier, the last day of the second calendar year following the calendar year of the Date of Termination or until Executive obtains employment that offers similar or improved benefits. The Executive shall notify the Company within thirty (30) days after becoming eligible for coverage of any such benefits. To the extent permitted by the terms of any other welfare benefit program sponsored by the Company and to the extent such coverage can be provided in a manner that will not result in a violation of Code Section 409A (based upon applicable regulations and other published guidance thereunder), Executive shall continue to be eligible to participate in any other welfare benefit program sponsored by the Company for the remainder of the Initial Term or any Renewal Term; and
(iii) all of Executive’s options to purchase stock of the Company and all restricted stock that has been granted to him shall be fully vested, effective as of the date of termination), which amount shall the termination of his employment. No amounts paid under this Section 9 will be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such reduced by any earnings that Executive receives two Target Bonuses)may receive from any other source.
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to If this Agreement is terminated by the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery Company without Cause (and which includes any non-revocationrenewal under Section 3) or by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10for Good Reason, then the Company shall will pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
Executive (i) An amount equal to her all accrued but unpaid wages through the termination date, based on Executive’s then current annualized Base Salary which shall be paid to Executive Salary; (ii) all accrued but unpaid vacation through the termination date, based on Executive’s then current Base Salary; (iii) all approved, but unreimbursed, business expenses, provided that a salary continuation basis according to request for reimbursement of business expenses is submitted in accordance with the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
policies and submitted within five (ii5) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as business days of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of termination date; (iv) all earned and accrued but unpaid bonuses; and (v) any COBRA continuation coverage under premiums required for the Consolidated Omnibus Budget Reconciliation Act coverage of 1985, as amended (“COBRA”), Executive and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in eligible dependents under the Company’s major medical group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) up to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather or, if less, the period that Executive and Executive’s eligible dependents are entitled to under the applicable provisions of COBRA), provided, however, that Executive and Executive’s eligible dependents shall be solely responsible for any requirements which must be satisfied or actions that must be taken in order to obtain such COBRA continuation coverage other than twelve the payment of COBRA premiums. Payment of the amounts listed in Section 6(d)(i), (12ii), (iii) months)and (iv) shall be made by the Company within thirty (30) days of Executive’s termination date, with the payment date determined by the Company in its sole discretion. In addition, the Company will pay Executive a separation payment equal to the sum of (A) three times (3.0x) Executive’s then current Base Salary, and (IVB) pay three times (3.0x) Executive’s average Bonus for the two (2) annual Bonus periods completed prior to the termination. In the event this Agreement is terminated by the Company without Cause or by Executive an amount equal to for Good Reason before Executive completes two (2) annual Bonus periods, then part (B) will be three times (3.0x) Executive’s Bonus for the most recent completed annual Bonus period, or if Executive has not been employed for a complete annual Bonus period, then it will be three times (3.0x) the Minimum First Year Bonus. Payment of the separation payment shall commence on the 60th day following the Executive’s Target Bonus termination date and will be paid over a period of thirty-six (under SECTION 2.1 (b36) months in accordance with the Company’s regular payroll practices. Except as set forth in this Section 6(d), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after shall have no other obligations to Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses).
Appears in 1 contract
Samples: Executive Employment Agreement (Education Realty Trust, Inc.)
Termination Without Cause or for Good Reason. Subject If the Company terminates the employment of Executive without Cause, or if Executive voluntarily terminates employment with Good Reason, (i) Executive shall receive all Accrued Benefits, (ii) Executive's pension benefit under the Non-Qualified Plan shall be based on the amount accrued to the terms date of termination, plus the additional amount that would have accrued during the next two years if Executive would have remained employed and conditions received compensation described in clause (iii) below, such pension benefit to be paid in accordance with the Non-Qualified Plan, (iii) Executive's Base Salary and target bonus under the Annual Bonus Plan shall continue for a period of eligibility 24 months following such termination, (iv) Executive will be entitled to a pro rata annual bonus under the Annual Bonus Plan for Executive’s receipt the year of severance termination, based on actual performance and payable when bonuses are paid to other senior executives; and (vi) Executive and his dependents shall be entitled to continued participation in all health and welfare plans or programs in which Executive and such dependents were participating on the date of the termination until the earlier of (a) the second anniversary of termination of employment, and (b) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverages and benefits to be determined on a coverage-by-coverage, or benefit-by-benefit basis); provided that, to the extent Executive is precluded from continuing participation in any such plan or program as provided in this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10Section, the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus sum of (under SECTION 2.1 x) with respect to insured benefits, the present value (b), based upon her Base Salary as discounted using the then published 2-year Treasury rate) of the date premiums expected for coverage less any active employee portion of termination)the premiums for the 2-year period, which amount shall be paid plus (y) with respect to Executive when benefits not insured, the present value (discounted using the then published 2-year Treasury rate) of the expected gross cost per employee to the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – provide such that Executive receives two Target Bonuses)benefits less active employee contributions.
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to the terms and conditions of eligibility for Except as otherwise provided in this Section 3.7, if Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) employment by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay to Executiveis terminated by the Company for any reason other than Cause (i.e., as severance benefitswithout Cause) or if Executive terminates his employment for Good Reason, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 hereinExecutive will be entitled to:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.Payment of all Accrued Obligations;
(ii) An amount Cash severance payments equal to the sum of (A) one-twelfth of Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her ’s Base Salary as of the Date of such Termination plus (B) one-twelfth of Executive’s average annual bonus payable for performance in the three calendar years ending before the date of terminationtermination (or, if Executive has not been eligible for a bonus for three calendar years of service, his average annual bonus payable for performance for each calendar year for which he was eligible to receive a bonus) which shall be paid to Executive when (collectively, the Annual Cash Bonus “Monthly Severance Payment”) for such year is paid to other executives a period of 24 months from the Date of Termination, payable in accordance with the Company.’s payroll practices;
(iii) Subject to (1) Payment by the Executive’s timely election Company of the applicable premiums otherwise payable for COBRA continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985for Executive (and, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and covered immediately prior to the terms date of such plan) which covers the Executive (and the Executive’s eligible termination, his spouse and dependents) for a period of twelve 24 months (12) months at the Company’s expenseor if COBRA continuation coverage expires or is otherwise unavailable, provided that the then, in lieu thereof, Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) will receive monthly payments equal to the extent reasonably necessary monthly “applicable premium,” as that term is defined under COBRA, for a period equal to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.24 months); and
(iv) The Payment by the Company shall accelerate the vesting to an outplacement firm of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units choice of a lump sum cash payment of $30,000 (or shares, performance stock units such greater amount as the Bank Board or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(iParent Board may approve) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)outplacement assistance.
Appears in 1 contract
Samples: Employment Agreement (Penseco Financial Services Corp)
Termination Without Cause or for Good Reason. Subject to In the terms and conditions of eligibility for event the Executive’s receipt of severance benefits under this Agreementemployment with the Company is terminated by the Company without Cause or by the Executive for Good Reason, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth at any time, and, provided no Change in SECTION 6.10Control shall have occurred, the Company shall pay to the Executive, as in cash, aggregate severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount payments equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which Severance. The Company shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost pay to the Executive as if any such severance payments due hereunder in twenty four (24) equal monthly payments on the first day of each month following such termination. In addition, (a) Executive were an employee of shall have the Company (excludingright to exercise any stock options, for purposes of calculating costlong-term incentive awards or other similar awards held by him in accordance with the relevant plan documents or grant letter; provided, an employee’s ability to pay premiums with pre-tax dollars)however, continued participation in the Company’s group health plan (that to the extent permitted under applicable law and the any option or award would expire by its terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of following the date of termination, then the Executive may exercise said option or award until the earlier of (i) six (6) months following the date of termination or (ii) the later of the December 31 of the calendar year in which said option or award would otherwise expire or the fifteenth (15th) day of the third (3rd) month after the option or award would otherwise expire; and (b) the Company shall provide Executive with continuing coverage under the life, disability, accident and health insurance programs for employees of the Company generally and under any supplemental programs covering executives of the Company, as from time to time in effect, for the twenty four (24) month period from such termination or until Executive becomes eligible for substantially similar coverage under the employee plans of a new employer, whichever occurs earlier, provided that Executive’s right to elect continued medical coverage after termination of employment under Part 6 of Title I of the Employee Retirement Income Security Act of 1974, as amended, shall be deemed satisfied by the coverage provided in this clause (b). Executive shall also be entitled to a continuation of all other benefits and reimbursements in effect at the time of termination for the twenty four (24) month period following such termination or until Executive becomes eligible for substantially similar benefits from a new employer, whichever is earlier. In addition, all stock options and restricted stock held by Executive on the date of termination under any of the Company’s 1994, 1996 or 2000 Incentive Plans that would become exercisable within the twenty four (24) months following such termination of employment had the Executive stayed in the employ of the Company shall become immediately exercisable. Any part of the foregoing benefits that are attributable to participation in a plan in which amount the Executive can no longer participate under applicable law, shall be paid to Executive when by the Company pays from other sources such that the Annual Cash Bonus Executive receives substantially similar benefits to those provided for under the calendar year that commences immediately after Executive’s termination (and for clarity, plan. All amounts payable hereunder shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(iimonthly during such twenty four (24) – such that Executive receives two Target Bonuses)month period.
Appears in 1 contract
Samples: Change in Control and Severance Agreement (Terex Corp)
Termination Without Cause or for Good Reason. Subject to the terms and conditions of eligibility for ExecutiveIf Employee’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) employment by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay ceases due to Executivea termination by the Company without Cause (as defined below) or a resignation by Employee for Good Reason (as defined below), as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
Employee will be entitled to: (i) An amount equal to her current annualized payment of all accrued and unpaid Base Salary which shall be paid through the date of such cessation and payment of any Performance Bonus otherwise payable (but for the cessation of Employee’s employment) with respect to Executive on a salary continuation basis according performance period ended prior to the Companycessation of Employee’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
employment; (ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of continuation for 12 months following the termination date of termination) which shall be paid to Executive when (the Annual Cash Bonus for such year is paid to other executives of the Company.
“Severance Period”); (iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as sum of the date Performance Bonuses earned by Employee for all bonus periods occurring in the preceding two fiscal years, divided by two (or, if such termination occurs prior to the January 29, 2017: (x) the sum of terminationall Performance Bonuses earned by Employee during his employment, divided by (y) the quotient of (I) the total number of months contained in the performance periods with respect to which such bonuses were earned, and (II) 12), which amount shall be paid in equal installments over the 12 month period following Employee’s termination pursuant to Executive when the Company pays the Annual Cash Company’s normal payroll practices; (iv) payment of a pro-rata Performance Bonus for the calendar year applicable performance period in which termination occurs, determined and paid in the same manner and at the same time as Employee’s Performance Bonus would otherwise have been had Employee remained employed by the Company; (v) continued coverage under the Company’s medical plan during the Severance Period (or tax equivalent payment if continued coverage would result in adverse tax consequences); (vi) with respect to each outstanding grant of time-based restricted stock, time-based restricted stock units or stock options, the vesting on the tranche that commences immediately after Executive’s termination (and for clarity, was next scheduled to vest pursuant to each such grant shall be accelerated; and (vii) a pro-rata portion (based on the full number of completed days of Employee’s employment with the Company in addition the applicable performance period divided by the total number of days in the applicable performance period) of any outstanding performance-based restricted stock units will remain outstanding and will vest to the Target Bonus paid extent earned based on the actual performance of the Company through the end of the applicable performance period and will be settled (x) within 2 1⁄2 months of the end of the applicable performance period for any award that is exempt from Section 409A or (y) on the date otherwise specified in the award agreement for any award that is subject to Executive Section 409A; provided however, if a Change in Control occurs during the performance period of any still outstanding performance-based restricted stock units, the applicable pro-rata portion of such units, as determined under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)this Section, will then vest at the target level and be immediately settled.
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject BENEFITS. In the event there is a termination by the Company without Cause, or if Executive terminates for Good Reason (a "Termination Event"), this Agreement shall terminate and Executive shall be entitled to the terms and conditions following severance benefits:
(1) For the remainder of eligibility for Executive’s receipt of severance benefits the Basic Term after the Termination Date, Base Salary (as defined in Paragraph 3(a)), payable in a lump sum, appropriately discounted to take into consideration the lump sum early payment;
(2) If there is a Termination Event, any stock options ("Stock Awards") which Executive has received under this AgreementAgreement or otherwise shall vest immediately and all such Stock Awards shall be exercisable for thirty (30) days from the date of such Termination Event or the remainder of their term, including whichever is less;
(3) To the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10extent not theretofore paid or provided, the Company shall timely pay or provide to ExecutiveExecutive any other amounts or benefits required to be paid or provided or which Executive is eligible to receive under any plan, as severance benefitsprogram, which amounts are in addition policy or practice, or contract or agreement of the Company and its affiliated companies for the period of time equal to the Compensation upon lesser of six months following Executive's Termination set forth in SECTION 3.3 herein:or the date Executive begins new employment. The Company, at its sole expense, shall continue to provide (through its own plan and/or individual policies) Executive (and Executive's dependents) with health benefits no less favorable than the group health plan benefits provided generally during such period to the senior executive officers of the Company or any affiliated company (to the extent any such coverage or benefits are taxable to Executive by reason of being provided under a self-insured health plan of the Company or an affiliate, the Company shall make Executive "whole" for the same on an after-tax basis), provided, however, such coverage shall be secondary to any group health plan coverage Executive (or his dependents) receive from another employer, (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits");
(i4) An amount equal to her current annualized Base Salary which All accrued compensation and unreimbursed expenses through the Termination Date. Such amounts shall be paid to Executive on in a salary continuation basis according to lump sum in cash within thirty (30) days after the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.Termination Date; and
(ii5) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which Executive shall be paid free to accept other employment during such period, and there shall be no offset of any employment compensation earned by Executive when the Annual Cash Bonus for in such year is paid to other executives of the Company.
employment during such period against payments due Executive under this Paragraph (iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”4), and (2) there shall be no offset in any compensation received from such other employment against the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)set forth above.
Appears in 1 contract
Samples: Employment Agreement (HCC Insurance Holdings Inc/De/)
Termination Without Cause or for Good Reason. Subject If the Company terminates the employment of Executive without Cause, or if Executive voluntarily terminates employment with Good Reason, (i) Executive shall receive all Accrued Benefits, (ii) Executive’s pension benefit under the Non-Qualified Plan shall be based on the amount accrued to the terms date of termination, plus the additional amount that would have accrued during the next two years if Executive would have remained employed and conditions received compensation described in clause (iii) below, such pension benefit to be paid in accordance with the Non-Qualified Plan, (iii) Executive's Base Salary and target bonus under the Annual Bonus Plan shall continue for a period of eligibility 24 months following such termination, (iv) Executive will be entitled to a pro rata annual bonus under the Annual Bonus Plan for Executive’s receipt the year of severance termination, based on actual performance and payable when bonuses are paid to other senior executives; and (v) Executive and his dependents shall be entitled to continued participation in all health and welfare plans or programs in which Executive and such dependents were participating on the date of the termination until the earlier of (a) the second anniversary of termination of employment, and (b) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverages and benefits to be determined on a coverage-by-coverage, or benefit-by-benefit basis); provided that, to the extent Executive is precluded from continuing participation in any such plan or program as provided in this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10Section, the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus sum of (under SECTION 2.1 x) with respect to insured benefits, the present value (b), based upon her Base Salary as discounted using the then published 2-year Treasury rate) of the date premiums expected for coverage less any active employee portion of termination)the premiums for the 2-year period, which amount shall be paid plus (y) with respect to Executive when benefits not insured, the present value (discounted using the then published 2-year Treasury rate) of the expected gross cost per employee to the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – provide such that Executive receives two Target Bonuses)benefits less active employee contributions.
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to (other than within the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth Change in SECTION 6.10, the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”Control Period), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii)If, in each case, during the event that there is Term and not within a Change in Control of the Company Period (as defined below), (A) Employee terminates Employee’s employment pursuant to Section 6.c.i. and (1) the successor fails Employer could not have terminated Employee’s employment for Cause pursuant to assume and continue this AgreementSection 6.b.ii., or (2B) Employer terminates Employee’s employment pursuant to Section 6.b.iii., then Employee shall be entitled to:
i. cash severance, payable in a single lump sum within ninety 60 days following the Termination Date, in an aggregate amount equal to 1.5 times the sum of the: (90x) days preceding or within six Base Salary Amount and (6) months after the Change in Control (ay) the Executive Target Annual Bonus;
ii. a prorated portion of the Target Annual Bonus, with proration based on a fraction, the numerator of which is terminated the number of days from January 1 of the year in which the Termination Date occurs and the denominator of which is the total number of days in such year, payable in a single lump sum within 60 days following the Termination Date (the “Prorated Bonus”);
iii. if Employee timely elects continued coverage under COBRA, Employer shall pay the same portion of the monthly premium under COBRA as it pays for active employees and their eligible dependents until the earliest of (A) the expiration of Employee’s continuation coverage under COBRA and (B) the date when Employee becomes eligible for substantially equivalent health insurance coverage in connection with new employment. Notwithstanding the foregoing, if Employer determines in its sole discretion that it cannot provide the foregoing subsidy of COBRA coverage without Causepotentially violating or causing Employer or Carlyle to incur additional expense as a result of noncompliance with applicable law (including, or (b) Executive terminates for Good Reasonwithout limitation, Section 2716 of the Public Health Service Act), the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested instead will pay Employee a taxable monthly payment in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executivemonthly COBRA premium that Employee would be required to pay to continue the group health coverage in effect on the date of Termination Date for Employee and Employee’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary eligible dependents pursuant to Employer’s health insurance plans in which Employee or Employee’s eligible dependents participated as of the date of termination), Termination Date (which amount shall be paid to Executive when based on the Company pays the Annual Cash Bonus premium for the calendar year that commences immediately after Executive’s termination (and for clarityfirst month of COBRA coverage), which payments shall be made regardless of whether Employee elects COBRA continuation coverage; this Section 7.a.iii. is referred to, collectively, as the “Healthcare Benefit”;
iv. payment of the Make-Whole Award if such payment has not previously been made in addition accordance with Section 4.d.;
v. continued right, subject to any reasonable limitations imposed by Employer, to make recommendations regarding the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonusesdonation of funds in the New DAF (if applicable); and
vi. treatment of any outstanding Company equity awards held by Employee, including the Initial Equity Awards, in accordance with the terms of the applicable award agreements.
Appears in 1 contract
Samples: Employment Agreement (Firefly Neuroscience, Inc.), Employment Agreement (Carlyle Group Inc.)
Termination Without Cause or for Good Reason. Subject to the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her his current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her his Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company time-based equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) employment within twelve months following the date of such awards become vested in fulltermination.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company time-based equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full and (y) the target level of the Executive’s then-outstanding performance stock units or other Company equity compensation awards that vest based on achievement of specified performance criteria, such that such awards become fully vested at the target level of award, (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, and (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her his Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses).
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to If the terms and conditions of eligibility for ExecutiveEmployee’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums employment by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
is terminated (ivx) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of by the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without other than for Cause, or (by) Executive terminates by the Employee for Good Reason, the Company shall pay or provide the Employee with the following:
(I) accelerate the vesting of (xi) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, Accrued Benefits; and
(ii) subject to the extent that such awards would have vested solely upon the ExecutiveEmployee’s continued employmentcompliance with the obligations in Sections 8, such 9 and 10 hereof:
(A) an amount (the “Severance”) equal to two (2) times the Base Salary (disregarding any reduction in Base Salary that one hundred percent (100%) of such awards become vested in full , (II) continue Executivewould give rise to the Employee’s Base Salary, as provided under SECTION 3.4(i) right to termination for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) monthsGood Reason), and payable in a single lump sum on the first payroll date occurring on or after the sixtieth (IV60th) pay Executive day following the date of termination (such payroll date, the “First Payroll Date”);
(B) an amount equal to the ExecutiveAnnual Bonus paid to the employee in the prior year, payable in a single lump sum on the First Payroll Date (the “Annual Bonus”);
(C) an amount equal to the Prior Year Bonus, payable in a single lump sum on the First Payroll Date;
(D) the Pro-Rata Bonus, payable in a single lump sum on the date on which annual bonuses are paid to the Company’s Target Bonus senior executives generally for such calendar year, but no later than March 15 of the calendar year following the calendar year in which the date of termination occurs;
(under SECTION 2.1 E) during the period commencing on the date of termination and ending on the earlier of (b), based upon her Base Salary as i) the twenty-four (24) month anniversary of the date of terminationtermination or (ii) the date on which the Employee becomes eligible for coverage under the group health plan of a subsequent employer (of which eligibility the Employee hereby agrees to give prompt notice to the Company), subject to the Employee’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall continue to provide the Employee and the Employee’s eligible dependents with coverage under its group health plans at the same levels and the same cost to the Employee as would have applied if the Employee’s employment had not been terminated based on the Employee’s elections in effect on the date of termination, provided that (1) if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the period of continuation coverage to be, exempt from the application of Section 409A of the Code under Treasury Regulation Section 1.409A-1(a)(5), or (2) the Company is otherwise unable to continue to cover the Employee under its group health plans without penalty under applicable law (including without limitation, Section 2716 of the Public Health Service Act or the Patient Protection and Affordable Care Act), then, in either case, an amount equal to LA\2420372.9 each remaining Company subsidy shall thereafter be paid to Executive when the Employee in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof) (such coverage being hereinafter referred to as the “Health Benefits Continuation”); and
(F) full vesting of each outstanding Company pays equity award that vests based solely on the Annual Cash Bonus for passage of time held by the calendar year Employee on the date of termination; provided, however, that commences immediately after Executive’s termination (and for clarity, any such award intended to be exempt from Code Section 409A as a “short-term deferral” shall be in addition distributed to the Target Bonus paid Employee within such time as is required for such equity award to Executive under SECTION 3.4(ii) – constitute a “short-term deferral”; provided, further, however, the accelerated vesting of the equity awards shall not change the time or form of payment for any equity award that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A (such that Executive receives two Target Bonusesvesting being hereinafter referred to as the “Accelerated Equity Vesting”).
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject If the Employee’s employment and the Employment Term are terminated by the Company other than for Cause (and other than due to the terms and conditions of eligibility Employee’s death or Disability) or by the Employee for Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10Good Reason, the Company shall pay to Executive, as severance benefits, which amounts are in addition to or provide the Compensation upon Termination set forth in SECTION 3.3 hereinEmployee with the following:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.Accrued Benefits;
(ii) An subject to the Employee’s continued compliance with the obligations in Sections 9 and 10 hereof, an amount equal to two times the Executive's sum of (A) the Base Salary in effect on the termination date, and (B) the Target Bonus referenced for the Company fiscal year in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which such termination occurs. Such amount shall be paid monthly in equal installments for a period of 12 months; provided that the commencement of such installments is subject to Executive when the Annual Cash Bonus for such year restrictions in Section 24(b)(iii) if Employee is paid to other executives of the Company.a “specified employee” as described therein;
(iii) Subject subject to (1A) the ExecutiveEmployee’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), COBRA and (2B) the ExecutiveEmployee’s continued copayment of premiums compliance with the obligations in Sections 9 and 10 hereof, Employee may participate in COBRA continuation coverage at the same level and cost to the Executive as if the Executive were an employee premium rate that is paid by active employees for coverage of the Company Employee (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in or his eligible dependents) under the Company’s major medical group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) , for a period of twelve 18 months (12) or up to 24 months at the Company’s expenseif eligibility is extended under COBRA), provided or such period of time that the Executive is Employee and his eligible and remains dependents are eligible for COBRA continuation coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by ; provided, that if the Company under determines that the provision of this benefit would result in a violation of applicable law (including, but not limited to, the 2010 Patient Protection and Affordable Care Act of 2010Act, as amended.amended by the 2010 Health Care and Education Reconciliation Act) or penalties or adverse tax consequences to the Employee or the Company, then in lieu of providing such benefit, the Company shall pay the Employee on the last day of each remaining month in which the benefit would have been provided a fully taxable cash payment equal to the portion of the COBRA premium the Company otherwise would have paid for such month. Upon the Employee and his dependents becoming ineligible for COBRA continuation coverage, Employee shall be reimbursed for the premiums paid by Employee for medical insurance for himself and his dependents for a period of time extending to 24 months following termination of employment; provided, however, that Company’s obligation to make additional payments under this paragraph will cease during any period that Employee is employed by a third party that provides comparable coverage to Employee; and
(iv) The Company shall accelerate the vesting all of the ExecutiveEmployee’s thenequity-based awards that are outstanding on the termination date shall immediately become fully vested and, as applicable, exercisable, without any action by the Board. Payments and unvested stock optionsbenefits provided in this Section 8(d) shall be in lieu of any termination or severance payments or benefits for which the Employee may be eligible under any of the plans, stock appreciation rights, restricted stock units policies or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control programs of the Company or under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation. For purposes of Sections 8(a), 8(b), and (1) the successor fails to assume and continue this Agreement8(d)(iv), or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of performance-based equity awards will vest (x) at target levels or (y) if the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units Board or shares, or any other Company equity compensation awards, to the extent a committee thereof determines in its sole discretion that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of actual performance is measurable through the date of termination), which amount shall be paid to Executive when at the Company pays greater of target levels or at the Annual Cash Bonus for levels achieved based on actual performance through the calendar year that commences immediately after Executive’s date of termination (and for clarity, shall be in addition to as determined by the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target BonusesBoard or a committee thereof)).
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to If the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including employment by the timely execution and delivery Company is terminated (and non-revocationi) by the Company other than for Cause, or (ii) by the Executive of the Separation Agreement and General Release as set forth in SECTION 6.10for Good Reason, the Company shall pay to Executiveor provide the Executive with the following, as severance benefits, which amounts are in addition subject to the Compensation upon Termination set forth in SECTION 3.3 hereinprovisions of Section 21 hereof:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.Accrued Benefits; and
(ii) An subject to the Executive’s compliance with the obligations in Sections 8, 9 and 10 hereof, and, subject to Section 23 hereof in the case of amounts in excess of the Separation Pay Limit to the extent that the Separation Pay Limit is applicable, the “Severance Payment.” The Severance Payment shall be an amount equal to the sum of (a) the Executive’s annual Base Salary in effect on the date of termination and (b) the Executive’s most recently paid Annual Bonus. The Severance Payment shall be payable in a lump sum no later than sixty (60) days after the Executive’s termination date and within five (5) days after the release described below becomes effective and is no longer subject to revocation, provided that, to the extent the Severance Payment is subject to Code Section 409A, if the date of execution of the release could result in the payment of the Severance Payment occurring in either the calendar year in which the Executive’s termination date occurs or the following calendar year, then the Severance Payment shall be paid commencing on the first payroll date occurring in such following calendar year; and
(iii) an amount equal to the Executive's Target Bonus referenced ’s estimated COBRA premiums for medical, dental, and vision coverage for a twelve-month period, paid monthly and calculated based on the coverage in SECTION 2.1(b) effect for the Executive and his dependents on his termination date (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRACOBRA Payments”); provided, and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection ; and Affordable Care Act of 2010provided, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock optionsfurther, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change the Executive obtains other employment that offers group health benefits, the COBRA Payments shall immediately cease. Payments and benefits provided in Control this Section 7(d) 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 and (1) or under the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting Worker Adjustment Retraining Notification Act of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, 1988 or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)similar state statute or regulation.
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject If Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason more than three (3) months prior to a Change of Control or more than twelve (12) months following a Change of Control, Executive shall be entitled to receive, in lieu of any severance benefits to which Executive may otherwise be entitled under any severance plan or program of the Company (other than as provided in Section 3(g) of this Agreement), the benefits provided below:
(A) the Company shall pay to Executive his or her fully earned but unpaid base salary, when due, through the date of termination at the rate then in effect, plus all other amounts to which Executive is entitled under any compensation plan or practice of the Company at the time of termination (plus all accrued and unpaid expenses reimbursable in accordance with Section 3(c));
(B) subject to Executive’s continued compliance with Section 5, Executive shall be entitled to receive a lump sum cash payment equal to Executive’s annual base salary as in effect immediately prior to the terms and conditions date of eligibility for termination, payable within ten (10) days following the effective date of Executive’s receipt Release (as defined below); plus
(C) subject to Executive’s continued compliance with Section 5, for the period beginning on the date of severance benefits termination and ending on the date which is twelve (12) full months following the date of termination (or, if earlier, the date on which the applicable continuation period under this AgreementCOBRA expires), including the timely execution Company shall reimburse Executive for the costs associated with continuation coverage pursuant to COBRA for Executive and delivery (and non-revocation) by Executive his or her eligible dependents who were covered under the Company’s health plans as of the Separation Agreement date of Executive’s termination (provided that Executive shall be solely responsible for all matters relating to his or her continuation of coverage pursuant to COBRA, including, without limitation, his or her election of such coverage and General Release as set forth in SECTION 6.10his or her timely payment of premiums); and
(D) subject to Executive’s continued compliance with Section 5, the Company shall pay for and provide Executive and such eligible dependents with a lump sum payment sufficient to pay the premiums for life insurance benefits coverage for the twelve (12) month period commencing on the date of termination to the extent such Executive and/or such dependents were receiving such benefits prior to the date of Executive, as severance benefits’s termination, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which payment shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period within ten (10) days following the effective date the Executive incurs a Separation from Service, but in no event less frequently than monthly.of Executive’s Release; and
(iiE) An amount equal subject to Executive’s continued compliance with Section 5, for the Executive's Target Bonus referenced in SECTION 2.1(bperiod beginning on the date of termination and ending on the date which is twelve (12) (based upon her Base Salary as of full months following the date of termination) which , Executive shall be paid entitled to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same executive-level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months outplacement services at the Company’s expense, not to exceed $15,000. Such services shall be provided that the by a firm selected by Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums from a list compiled by the Company under the Patient Protection and Affordable Care Act of 2010, as amendedCompany.
(ivF) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to To the extent that such awards would have vested solely upon Executive is entitled to payments or benefits under Section 4(d)(ii), then Executive shall receive the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the payments and benefits described in SECTION 3.4(a)(i), (iiSection 4(d)(ii) and (iii), in the event that there is a Change in Control lieu of the Company payments and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as benefits described in this Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses4(d)(i).
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to In the terms and conditions case of eligibility for termination of the Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocationemployment hereunder pursuant to Section 9(d) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10or Section 9(e), the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
Executive will receive (i) An amount equal to her current annualized all Base Salary which shall to be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Serviceunder this Agreement through the Date of Termination, but in no event less frequently than monthly.
(ii) An amount a lump sum payment equal to two times the Executive's Target Bonus referenced in SECTION 2.1(b) sum of (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1A) the Executive’s timely election of continuation coverage under then current Base Salary or such higher Base Salary as in effect within the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), 12 months preceding the termination and (2B) the Executive’s continued copayment annual bonus for the preceding fiscal year or the target bonus for the then current fiscal year, whichever is great, (iii) any unpaid benefits to which the Executive is entitled under any employee benefit plan, policy or program of premiums at the same level and cost Company applicable to the Executive as if of the Date of Termination, (iv) in the event the Date of Termination occurs after the completion of any fiscal year, but prior to the date any cash bonus related to such fiscal year has been determined or paid to the Executive, the amount of the cash bonus related to such fiscal year that the Executive were an employee would have otherwise been entitled to receive had the Executive’s employment not been terminated, (v) the amount of any target cash bonus for the fiscal year in which the Date of Termination occurs, pro-rated based on the portion of the Company applicable fiscal year that the Executive worked for the Company, and (excluding, vi) reimbursement for purposes the costs of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in continuation of medical and dental insurance coverage for the Executive and his eligible dependents under the Company’s group health plan (to insurance plans in effect on the extent permitted under applicable law and Date of Termination, or following the terms of such plan) which covers date that the Executive (and his dependents no longer are eligible to participate in such plans, under comparable health insurance purchased by the Executive’s eligible dependents) , for a period of twelve (12) 24 months at following the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverageDate of Termination. The Company may modify its obligation under this SECTION 3.4(a)(iiamounts referred to in clauses (i), (iii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, above will be paid to the extent that such awards Executive when the same would have vested solely upon been paid to the Executive’s continued employment, such that one hundred percent (100%) Executive in the absence of such awards become vested termination, and the amount referred to in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), clauses (ii) and (iii)v) will be paid to the Executive within 60 days following the Date of Termination. The Executive will be reimbursed for incurred costs pursuant to clause (vi) within 30 days of submission to the Company of reasonable documentation of any costs so incurred. Further, all unvested equity-based awards held by the Executive as of the Date of Termination will immediately vest in full, except in the case of awards that remain subject to objective performance-based determinations, in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-which case such awards will remain outstanding and unvested stock optionswill immediately vest upon, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, and to the extent of, the determination that such awards would performance criteria have vested solely upon been satisfied. All stock options held by the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the Date of Termination will remain exercisable for one year following the later of the Date of Termination or the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)awards vest as provided above.
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to If the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including employment with the timely execution Company and delivery its affiliates is terminated (x) by the Company other than for Cause (and non-revocationother than due to death or Disability), or (y) by the Executive for Good Reason, in each case, within the twelve (12) month period following the occurrence of the Separation Agreement and General Release as set forth a Change in SECTION 6.10Control, the Company shall pay to Executive, as severance or provide the Executive with the following benefits, which amounts are in addition subject to the Compensation upon Termination set forth Executive’s continued compliance with the obligations in SECTION 3.3 hereinSections 3 and 4 hereof:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.The Accrued Benefits;
(ii) An amount equal to the Executive's Target Bonus referenced [—], payable in SECTION 2.1(ba single lump sum within five (5) (based upon her Base Salary as of days following the date of terminationthe release described in Section 3 hereof becomes effective, subject to Section 2(a)(vi) which shall be paid below (to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.extent applicable);
(iii) An amount equal to [—] times the Executive’s target annual bonus opportunity for the year of termination, as provided under the Company’s annual cash incentive compensation plan or program, any applicable employment agreement between the Executive and the Company or as otherwise determined by the Board or the Committee, payable in a single lump sum within five (5) days following the date the release described in Section 3 hereof becomes effective, subject to Section 2(a)(vi) below (to the extent applicable);
(iv) A pro-rata portion of the Executive’s annual bonus for the fiscal year in which the Executive’s termination occurs based on actual results for such year (determined by multiplying the amount of such bonus which would be due for the full fiscal year by a fraction, the numerator of which is the number of days during the fiscal year of termination that the Executive is employed by the Company and the denominator of which is 365), payable at the same time bonuses for such year are paid to other senior executives of the Company but, in any event, during the calendar year following the year of termination; and
(v) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars)eligibility therefor, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve eighteen (1218) months at the Company’s expenseexpense (together with the payments and benefits provided in Section 2(a)(ii)-(iv), collectively, the “Severance Benefits”); provided that in the event that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment obtains other employment that offers group health benefits, such continuation of premiums coverage by the Company under the Patient Protection and Affordable Care Act of 2010, as amendedthis Section 2(a)(v) shall immediately cease.
(ivvi) The Company shall accelerate Notwithstanding the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awardsforegoing, to the extent that the Executive is a U.S. taxpayer and any of the Severance Benefits constitutes “nonqualified deferred compensation” for purposes of Section 409A of the Code, any such awards would have vested solely upon payment scheduled to occur during the first sixty (60) days following such termination shall not be paid until the sixtieth (60th) day following such termination and shall include payment of any amount that was otherwise scheduled to be paid prior thereto.
(vii) The impact of the Executive’s continued employment, such that one hundred percent (100%termination of employment under this Section 2(a) with respect to any outstanding long-term incentive program awards shall be governed by all of the terms and conditions of such awards become vested in full.
(v) In addition program and the applicable award documentation thereunder. Notwithstanding the foregoing, the Severance Benefits shall only be payable to the benefits described extent that the aggregate value of the Severance Benefits exceeds any termination or severance payments or benefits, including any applicable notice period or payment in SECTION 3.4(a)(i)lieu thereof, for which the Executive may be eligible under (i) any of the plans, policies or programs of the Company, (ii) any employment or any such similar agreement between the Executive and the Company or any of its subsidiaries or affiliates or (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awardsapplicable law; provided that, to the extent that such awards would have vested solely upon applicable, the Executive’s continued employmentSeverance Benefits shall be reduced (offset) by any statutory entitlements of the Executive (including notice of termination, such that one hundred percent (100%) of such awards become vested in full termination pay and/or severance pay, (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) monthsbut excluding statutory unemployment benefits), and (IV) pay Executive any payment related to an amount equal to actual or potential liability under the Executive’s Target Bonus (under SECTION 2.1 (b)Worker Adjustment and Retraining Notification Act of 1988 or similar state, based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)local or foreign law.
Appears in 1 contract
Samples: Change in Control Severance Agreement (TAMINCO Corp)
Termination Without Cause or for Good Reason. Subject to If the terms and conditions of eligibility for ExecutiveEmployee’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums employment by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
is terminated (ivx) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of by the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without other than for Cause, or (by) Executive terminates by the Employee for Good Reason, the Company shall pay or provide the Employee with the following:
(Ii) accelerate the vesting Accrued Benefits; and
(ii) subject to the Employee’s continued compliance with the obligations in Sections 8, 9 and 10 hereof:
(A) an amount (the “Severance”) equal to two (2) times the Base Salary (disregarding any reduction in Base Salary at any time), payable in a single lump sum on the first payroll date occurring on or after the sixtieth (60th) day following the date of termination (such payroll date, the “First Payroll Date”);
(B) an amount (the “Bonus Severance”) equal to one (1) times the Target Bonus (disregarding any reduction in the Target Bonus at any time), payable in a single lump sum on the First Payroll Date;
(C) the Prior Year’s Bonus, payable in a single lump on the First Payroll Date;
(D) the Pro-Rata Bonus, payable in a single lump sum on the date on which annual bonuses are paid to the Company’s senior executives generally for such calendar year, but no later than March 15 of the calendar year following the calendar year in which the date of termination occurs;
(E) during the period commencing on the date of termination and ending on the earlier of (xi) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) monthsmonth anniversary of the date of termination or (ii) the date on which the Employee becomes eligible for coverage under the group health plan of a subsequent employer (of which eligibility the Employee hereby agrees to give prompt notice to the Company), subject to the Employee’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall continue to provide the Employee and the Employee’s eligible dependents with coverage under its group health plans at the same levels and the same cost to the Employee as would have applied if the Employee’s employment had not been terminated based on the Employee’s elections in effect on the date of termination, provided that (IV1) pay Executive if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the period of continuation coverage to be, exempt from the application of Section 409A of the Code under Treasury Regulation Section 409A-1(a)(5), or (2) the Company is otherwise unable to continue to cover the Employee under its group health plans without penalty under applicable law (including, without limitation, Section 2716 of the Public US-DOCS\128769458.1 Health Service Act or the Patient Protection and Affordable Care Act) or the Employee would be subject to tax under Section 105(h) of the Code, then, in either case, an amount equal to each remaining Company subsidy shall thereafter be paid to the Executive’s Target Bonus Employee in substantially equal monthly installments over the continuation coverage period (under SECTION 2.1 or the remaining portion thereof) (bsuch coverage being hereinafter referred to as the “Health Benefits Continuation”), ;
(F) full vesting of each outstanding Company equity and/or long-term incentive award that vests solely based upon her Base Salary as on the passage of time held by the Employee on the date of termination); provided, which amount however, that any such award intended to be exempt from Code Section 409A as a “short-term deferral” shall be paid distributed to Executive when the Employee within such time as is required for such equity award to constitute a “short-term deferral”; provided, further, however, the accelerated vesting of the equity awards shall not change the time or form of payment for any equity award that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A (such vesting being hereinafter referred to as the “Accelerated Time Equity Vesting”); and
(G) with respect to any outstanding Company pays equity and/or long-term incentive awards which vest and/or are earned based on the Annual Cash Bonus for attainment of certain performance conditions, (i) with respect to any such award granted prior to 2020, vesting (or earned) at “target” and (ii) with respect to any such award granted in or after 2020, vesting (or earned) at the calendar year greater of “target” and actual performance based on the achievement of the performance goals on the termination date, in each case delivered in accordance with the applicable award agreement; provided, however, that commences immediately after Executive’s termination (and for clarity, any such award intended to be exempt from Code Section 409A as a “short-term deferral” shall be in addition distributed to the Target Bonus paid Employee within such time as is required for such equity award to Executive under SECTION 3.4(ii) – constitute a “short-term deferral”; provided, further, however, the accelerated vesting of the equity awards shall not change the time or form of payment for any equity award that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A (such that Executive receives two Target Bonusesvesting being hereinafter referred to as the “Accelerated Performance Equity Vesting”).
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to If the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including employment by the timely execution and delivery Company is terminated by the Company without Cause (and non-revocationnot due to Disability or death) or by the Executive of the Separation Agreement and General Release as set forth in SECTION 6.10for Good Reason, then the Company shall pay or provide the Executive with the Accrued Amounts and subject to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 hereincompliance with Section 12:
(i) An payment of an amount equal to her current annualized 1.00 times the sum of Executive’s annual Base Salary plus Executive’s Annual Target Bonus amount for the year of termination, assuming payment in full of the Annual Target Bonus, which shall be paid payable to Executive on a salary continuation basis according to in equal installments in accordance with the Company’s normal payroll practices over the 12 month period practices, for twelve (12) months following the date that the Executive incurs a Separation from Service, but in no event less frequently than monthly.release of claims becomes effective and irrevocable;
(ii) An amount effective as of immediately prior to such termination of employment, accelerated vesting of all then unvested equity awards (with any applicable performance-based awards deemed earned at the target level of achievement) with such awards (other than stock options) settled as soon as practicable thereafter and in all events by March 15th of the calendar year following the year in which such termination occurs or to remain exercisable (with respect to stock options) and the Company will extend exercise all equity award(s) granted to the Executive for a period equal to the Executive's Target Bonus referenced in SECTION 2.1(bshorter of: (i) twenty-four (based upon her Base Salary as 24) months after termination, or (ii) the remaining term of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.award(s); and
(iii) Subject subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the subject to Executive’s continued copayment of premiums premium amounts at the same level and cost to active employees’ rate, the Executive as if Company shall pay the Executive were an employee remainder of the Company (excluding, premiums for purposes of calculating cost, an employeeExecutive’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (plans pursuant to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) COBRA for a period ending on the earlier of twelve (12i) months at the Company12 month anniversary of the date of termination; (ii) Executive becoming eligible for other group health benefits, or (iii) the expiration of Executive’s expenserights under COBRA; provided, provided however, that in the event that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by benefits provided herein would subject the Company or any of its affiliates to any tax or penalty under the Patient Protection and Affordable Care Act or Section 105(h) of 2010the Internal Revenue Code of 1986, as amended.
amended (iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i“Code”), (ii) Executive and (iii), in the event that there is a Change in Control of the Company and (1) agree to work together in good faith to restructure the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)foregoing benefit.
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject If the Executive’s employment with the Company is terminated by the Company (other than for Cause, Disability or death) or the Executive resigns for Good Reason, in either case within 12 months following the Change in Control Date, then, provided that Executive has delivered to the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery Company (and non-revocationthe applicable revocation period has expired with respect to) by Executive the Release within 60 days of the Separation Agreement and General Release as set forth in SECTION 6.10Date of Termination, the Company Executive shall pay to Executive, as severance benefits, which amounts are in addition be entitled to the Compensation upon Termination set forth following payments and benefits paid on the same timing described in SECTION 3.3 hereinSection 4.1:
(i) An amount equal to her current annualized Base Salary which The Company shall be paid to Executive on a salary continuation basis according pay to the Company’s normal payroll practices over Executive in a lump sum, in cash, the 12 month period aggregate of the following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.amounts:
(iiA) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as sum of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election base salary through the Date of continuation coverage under Termination, and (2) any accrued vacation pay, in each case to the Consolidated Omnibus Budget Reconciliation Act extent not previously paid;
(B) the sum of 1985, as amended (“COBRA”)1) 1.0 multiplied by the Executive’s annual base salary, and (2) the higher of the Executive’s target bonus for the then-prior fiscal year or the Executive’s target bonus for the then-current fiscal year; and
(C) an amount equal to 12 times the excess of (1) the monthly premium payable by former employees for continued copayment of premiums at coverage under COBRA for the same level and cost of coverage, including dependents, provided to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in under the Company’s group health plan benefit plans in which the Executive participates immediately prior to the Notice of Termination over (2) the monthly premium paid by active employees for the same coverage immediately prior to the Notice of Termination; and
(D) in lieu of any further benefits under Other Plans, an amount equal to the cost to the Executive of providing such benefits (based on the applicable premiums charged to the Company for such coverage under the Other Plans), to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible to receive such benefits immediately prior to the Notice of Termination, for the Severance Period.
(ii) To the extent not previously paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive following the Executive’s termination of employment under any plan, program, policy, practice, contract or agreement of the Company and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(iiaffiliated companies.
(iii) [INTENTIONALLY OMITTED]
(iv) With respect to all of the Executive’s equity-based awards (including any awards granted from and after the Change in Control Date), and only to the extent reasonably necessary the following are not less favorable to avoid the Executive than the relevant provisions of the equity plan or award agreement: (1) all of the then-unvested options to purchase shares of stock of the Company and/or its successor held by the Executive shall become fully vested and immediately exercisable in full , and shares of the Company received upon exercise of any penalty options will no longer be subject to any right of repurchase by the Company, (2) all of the restricted stock then otherwise subject to repurchase by the issuer shall be deemed to be fully vested (i.e., no longer subject to a right of repurchase or excise taxes imposed on it restriction by the issuer or otherwise subject to a risk of forfeiture), (3) all of the shares underlying restricted stock units then otherwise subject to future grant or award shall be fully granted, vested and distributed and no longer subject to a right of repurchase by the issuer or to any other risk of forfeiture, including performance conditions, and (4) all then-vested and exercisable options (including for the avoidance of doubt the options becoming exercisable pursuant to this paragraph) shall continue to be exercisable by the Executive for the Severance Period (but not later than the original expiration date of such options). For the avoidance of doubt, for any such award subject to a performance condition, subject to the adjustments to the award and its performance conditions in connection with the continued payment Change in Control in accordance with the terms of premiums by the Company equity plan or award agreement (if applicable), vesting upon termination of employment under the Patient Protection and Affordable Care Act of 2010, as amended.
this clause (iv) The Company shall accelerate be based on assumed performance at the vesting greater of target or the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, level of performance stock units or any other Company equity compensation awards, achieved immediately prior to the extent that such awards would have vested solely upon the Executive’s continued date of termination of employment, such that one hundred percent (100%) of such awards become vested in fullas determined by the Board. .
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the The Company shall (I) accelerate the vesting provide outplacement services through one or more outside firms of (x) the Executive’s then-outstanding choosing and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, reasonably acceptable to the extent that Company up to an aggregate of $45,000, with such awards would have vested solely upon services to extend until the earlier of (A) 12 months following the termination of Executive’s continued employment, such that one hundred percent employment or (100%B) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount shall be paid to the Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)secures full time employment.
Appears in 1 contract
Samples: Executive Retention Agreement (Aspen Technology Inc /De/)
Termination Without Cause or for Good Reason. Subject to the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release 2.1 Other than as set forth in SECTION 6.10Section 3 below, if, at any time, the Employee’s employment with the Company shall pay to Executive, as severance benefits, which amounts are in addition is terminated by the Company without Cause or due to the Compensation upon Termination set forth in SECTION 3.3 hereinEmployee’s Disability, or by the Employee for Good Reason, then the Company shall:
(ia) An amount equal continue to her current annualized Base Salary which shall be paid to Executive pay the Employee his base salary in effect on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall , to be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums in accordance with pre-tax dollars), continued participation in the Company’s group health plan (customary payroll practices as are established or modified from time to time, until the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting earlier of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or sharesdate eighteen (18) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any other base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company equity compensation awards, then in effect; and
(d) to the extent that the Employee and any qualified beneficiary with respect to such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent Employee elects continuation of health benefit coverage under Section 4980B (100%“COBRA”) of such awards become vested in full , (II) continue Executive’s Base Salarythe Internal Revenue Code of 1986, as provided under SECTION 3.4(iamended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (12y) months), the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and (IV) pay Executive an amount equal benefits to the Executive’s Target Bonus Employee under this Section 2 shall (under SECTION 2.1 i) be contingent upon the execution and non-revocation by the Employee of a release of claims (b), based upon her Base Salary as the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, which amount the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall be paid to Executive when cease following the Company pays Release Period and (ii) constitute the Annual Cash Bonus for sole remedy of the calendar year that commences immediately after ExecutiveEmployee in the event of a termination of the Employee’s termination (and for clarity, shall be employment in addition the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the Target Bonus paid contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Samples: Severance and Change in Control Agreement (Aveo Pharmaceuticals Inc)
Termination Without Cause or for Good Reason. Subject to If Executive terminates his employment by the terms and conditions of eligibility Company for Good Reason or the Company terminates Executive’s receipt employment hereunder without Cause (other than a termination by reason of severance benefits death or Disability), and Executive has not received and is not entitled to receive any payment under this AgreementSection 5(d)(iii) hereof, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, then the Company shall pay or provide Executive the Amounts and Benefits plus, subject to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 hereinSection 9 hereof:
1. Within ten (i10) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period days following the date the Executive incurs signed Release provided for in Section 5(f) hereof is delivered to the Company, a Separation from Service, but lump sum cash payment (the “Severance Payment”) in no event less frequently than monthly.
(ii) An an amount equal to the sum of (x) Executive's ’s then current annual Base Salary, plus (y) the Target Bonus referenced Amount for the year in SECTION 2.1(b) which such termination of employment occurs; plus
2. any Annual Bonus earned but unpaid for a prior year (based upon her Base Salary as of the date of termination) “Prior Year Bonus”), which shall be paid payable in full in a lump sum cash payment to be made to Executive when within ten (10) days following the Annual Cash Bonus date the signed Release provided for such year in Section 5(f) hereof is paid delivered to other executives of the Company.; plus
(iii) Subject 3. subject to (1) the Executive’s (a) timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), with respect to the Company’s group health insurance plans in which Executive participated immediately prior to the Date of Termination (“COBRA Continuation Coverage”), and (2b) the Executive’s continued copayment payment by Executive of premiums for such plans at the same level and cost to the Executive as if the Executive were an employee of the Company “active employee” rate (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate provide COBRA Continuation Coverage for Executive and his eligible dependents until the vesting earliest of (x) Executive or his eligible dependents, as the Executive’s then-outstanding and unvested stock optionscase may be, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, ceasing to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full be eligible under COBRA, (IIy) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months)following the Date of Termination, and (IVz) pay Executive an amount equal to becoming eligible for coverage under the Executive’s Target Bonus health insurance plan of a subsequent employer (the benefits provided under SECTION 2.1 this sub-section (b3), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses“Medical Continuation Benefits”).
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to the terms The Employment Term and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) employment hereunder may be terminated by Executive for Good Reason or by Company without Cause. In the event of such termination, Executive shall be entitled to receive the Separation Accrued Amounts and subject to Executive’s compliance with Section 6, Section 7, Section 8 and Section 9 of this Agreement and General Executive’s execution of a release of claims in favor of Company, its affiliates and their respective officers and directors in the form attached hereto as “Exhibit D” (the “Release”) and such Release as set forth in SECTION 6.10becoming effective within twenty-eight (28) days following the Termination Date (such 28-day period, the Company “Release Execution Period”), Executive shall pay be entitled to Executive, as severance benefits, which amounts are in addition to receive the Compensation upon Termination set forth in SECTION 3.3 hereinfollowing:
(ia) An amount a lump sum payment equal to her current annualized two (2) times the sum of Executive’s Base Salary and Target Bonus for the year in which the Termination Date occurs, which shall be paid to Executive on no later than thirty (30) days following the expiration of the Release Execution Period; provided that, if the Release Execution Period begins in one taxable year and ends in another taxable year, payments shall not be made until the beginning of the second taxable year;
(b) a salary continuation basis according payment equal to the Company’s normal payroll practices over product of (i) the 12 month period following Annual Bonus, if any, that Executive would have earned for the calendar year in which the Date of Termination occurs based on achievement of the applicable performance goals for such year and (ii) a fraction, the numerator of which is the number of days Executive was employed by Company during the year of termination and the denominator of which is the number of days in such year (the “Pro-Rata Bonus”). This amount, if any, shall be paid on the date the Executive incurs a Separation from Servicethat annual bonuses are paid to similarly situated executives, but in no event less frequently later than monthly.two-and-a-half (2 1/2) months following the end of the calendar year in which the Termination Date occurs;
(iic) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to If Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of and properly elects continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended 1985 (“COBRA”), Company shall reimburse Executive for the monthly COBRA premium paid by Executive for Executive and Executive’s dependents. Executive shall be eligible to receive such reimbursement until the earliest of: (2i) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months month anniversary of the Termination Date; (rather than twelve ii) the date Executive is no longer eligible to receive COBRA continuation coverage; or (12iii) monthsthe date on which Executive either receives or becomes eligible to receive substantially similar coverage from another employer. To the extent the medical benefits provided for in this Section are not permissible after termination of employment under the terms of the health plans of Company then in effect (and cannot be provided through Company’s paying the applicable premium for Executive under COBRA), and (IV) Company shall pay to Executive such amounts as are necessary to provide Executive with an amount equal to the cost of Executive acquiring on a non-group basis, for the required period, those health benefits that would otherwise be lost to Executive and Executive’s Target Bonus eligible dependents as a result of Executive’s termination.
(under SECTION 2.1 (b), based upon her Base Salary as d) The treatment of any outstanding equity awards shall be determined in accordance with the terms of the date applicable Plan and the applicable award agreements. If, at the time of termination), which amount the Board of Directors of Company is aware of the existence of any circumstances reasonably likely to give rise to claims by Company against Executive, Company shall be paid to give Executive when notice of such circumstances at the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)time of termination.
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to If the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including employment by the timely execution and delivery Company is terminated by the Company other than for Cause (and other than a termination due to Disability or death), upon expiration of the Employment Term then in effect by reason of the Company’s delivery of a non-revocation) renewal notice pursuant to Section 2 if the Company did not have Cause to deliver such non-renewal notice, or by the Executive of the Separation Agreement and General Release as set forth in SECTION 6.10for Good Reason, subject to Section 9(e), the Company shall pay to Executive, as severance benefits, which amounts are in addition to or provide the Compensation upon Termination set forth in SECTION 3.3 hereinExecutive with the following:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthlyThe Accrued Amounts.
(ii) An amount equal to A pro-rata portion of the Executive's Target ’s Bonus referenced for the performance year in SECTION 2.1(b) (based upon her Base Salary as of which the date of termination) Executive’s termination occurs, which shall be paid to Executive when at the Annual Cash Bonus for such year is time that annual Bonuses are paid to other executives senior executives, but in any event within seventy-four (74) days after the conclusion of the CompanyFiscal Year to which such Bonus relates (determined by multiplying the amount the Executive would have received based upon actual performance had employment continued through the end of the performance year by a fraction, the numerator of which is the number of days during the performance year of termination that the Executive is employed by the Company and the denominator of which is 365).
(iii) Subject Payment of an aggregate amount equal to two (12) times the Executive’s timely election Base Salary at the annualized rate in effect on the Severance Date, subject to tax withholding and other authorized deductions. However, if the Severance Date occurs within twelve (12) months before, upon, or within two (2) years after a Change in Control, such aggregate amount shall equal the sum of continuation (A) two (2) times the Executive’s Base Salary at the annualized rate in effect on the Severance Date plus (B) two (2) times the Executive’s target annual Bonus amount under Section 5 and as in effect on the Severance Date, subject to tax withholding and other authorized deductions. The applicable amount provided for in this Section 9(d)(iii) is referred to hereinafter as the “Severance Benefit” and shall be payable as set forth in Section 9(e) below.
(iv) The Company’s obligation to reimburse the Executive for premiums incurred to obtain life insurance of up to Ten Thousand Dollars ($10,000) a year pursuant to Section 7(e) shall continue for two (2) years following the Severance Date or, if earlier, until the Executive’s death or should the Executive lose or terminate such coverage.
(v) The Company shall pay or reimburse the Executive for the Executive’s premiums charged to continue medical coverage under pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, or reasonably equivalent medical coverage for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and and, if applicable, the Executive’s eligible dependents) as in effect immediately prior to the Severance Date, to the extent that the Executive elects such continued coverage; provided, however, that the Company’s obligation to make any payment or reimbursement pursuant to this clause (v) shall commence with continuation coverage for the month following the month in which the Executive’s Severance Date occurs and shall cease with continuation coverage in the twenty fourth (24th) month following the month in which the Executive’s Severance Date occurs (or, if earlier, shall cease upon the first to occur of the Executive’s death, the date on which the Executive becomes eligible for coverage under the health plan of a period future employer, or when the Company is no longer obligated to provide COBRA coverage). The Company’s obligations pursuant to this Section 9(d)(v) are subject to compliance with all applicable law, and subject to the Company’s payment or reimbursement obligation pursuant to this Section not resulting in unintended tax consequences or penalties for the Company, any applicable Company benefit plan, or the participants in any such benefit plan.
(vi) Notwithstanding anything contained in the restricted stock unit award agreement evidencing the Initial Restricted Stock Unit Award or the Equity Plan to the contrary, to the extent that the Initial Restricted Stock Unit Award is then outstanding and otherwise unvested, the service-based vesting condition applicable to the Initial Restricted Stock Unit Award shall no longer apply and such award shall remain outstanding following the Severance Date pending satisfaction of the applicable performance-based vesting condition and, if the applicable performance-based vesting condition is satisfied, such award shall become fully vested on the Compensation Committee’s certification of the satisfaction of such condition.
(vii) As to each other stock option, restricted stock, restricted stock unit or similar equity award granted to the Executive by the Company that is outstanding and otherwise unvested on the Severance Date, and notwithstanding anything contained in the applicable award agreement or the Equity Plan (or any successor equity compensation plan) to the contrary, the equity award will vest as of the Severance Date as to a pro-rata portion of the next time and service-based vesting installment applicable to the award that is otherwise scheduled to vest after the Severance Date. The pro-ration shall be based on the number of shares subject to the award covered by such next vesting installment multiplied by the applicable Equity Award Pro-Rata Fraction. This Section 9(d)(vii) shall not apply as to an award if a portion of the award otherwise vested on the Severance Date pursuant to the normal vesting schedule applicable to the award. As to an award that is subject to performance-based vesting requirements, the award will remain subject to the applicable performance-based vesting conditions and the pro-rata vesting provided for in this Section 9(d)(vii) will apply only as to the next installment scheduled to vest pursuant to the time and service-based vesting conditions applicable to the award. However, if the Severance Date occurs within twelve (12) months at the Company’s expensebefore, provided that upon, or within two (2) years after a Change in Control, each such stock option, restricted stock, restricted stock unit or similar equity award granted to the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under that was outstanding and otherwise unvested on the Patient Protection Severance Date (and Affordable Care Act did not otherwise accelerate pursuant to the foregoing provisions of 2010this Section 9(d)(vii)), as amended.
(iv) The Company the time and service-based vesting condition applicable to the equity award shall accelerate the vesting no longer apply in its entirety, and any performance-based condition and timing of payment of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), award will be as provided in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)applicable award agreement.
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject In the event that the Executive's employment is terminated involuntarily without Cause by the Company or the Executive terminates his employment with Good Reason, the Company shall pay to the Executive and provide him with total Severance Benefits equal to all of the following:
(a) A lump-sum amount equal to the Executive's unpaid Base Salary, accrued vacation pay, unreimbursed business expenses, and all other items earned by and owed to the Executive through and including the Effective Date of Termination.
(b) A lump-sum amount equal to the Executive's annual bonus amount for the bonus plan year in which the Executive's Effective Date of Termination occurs that the Executive would have earned had he remained employed through the end of such bonus plan year (and employed through such other period as may be required under the annual bonus plan in order for the Executive to be vested in such annual bonus amount), multiplied by a fraction, the numerator of which is the number of days in the bonus plan year through the Effective Date of Termination and the denominator of which is three hundred and sixty-five (365). This payment will be in lieu of any other payment to be made to the Executive under the annual bonus plan in which the Executive is then participating for that bonus plan year (except as provided in Section 3.1(c) below).
(c) A lump-sum amount equal to two (2) multiplied by the sum of: (i) the Executive's highest annual rate of Base Salary in effect during the twelve (12) months preceding the Executive's Effective Date of Termination, and (ii) the Executive's highest annual target bonus in effect during the twelve (12) months preceding the Executive's Effective Date of Termination. Such amount shall be paid regardless of actual performance under the annual bonus plan.
(d) All long-term incentive awards shall be subject to the treatment provided under the applicable long-term incentive plans and/or the applicable award agreements thereunder, unless determined otherwise by the Board in its discretion.
(e) A continuation for a twenty-four (24) month period of the Executive's medical insurance and dental insurance coverage (including family coverage if applicable). These benefits shall be provided by the Company to the Executive beginning immediately upon the Executive's Effective Date of Termination. Such benefits shall be provided to the Executive at the same coverage level (with all premium costs borne by the Company) as in effect as of the Executive's Effective Date of Termination for a period of twenty-four (24) months following the Executive's Effective Date of Termination. Notwithstanding the above, these medical and dental insurance benefits shall be discontinued prior to the end of the twenty-four (24) month continuation period in the event the Executive receives substantially similar benefits from a subsequent employer, as determined solely by the Company in good faith. However, if the benefits received from the subsequent employer do not cover the preexisting medical conditions of the Executive or a covered member of the Executive's family, the continuation period shall continue, but not beyond the twenty-fourth (24th) month following the Executive's Effective Date of Termination. For purposes of enforcing this offset provision, the Executive shall have a duty to keep the Company informed as to the terms and conditions of eligibility for Executive’s receipt of severance any subsequent employment and the corresponding benefits under this Agreementearned from such employment and shall provide, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10or cause to provide, to the Company shall pay to Executivein writing correct, as severance benefitscomplete, which amounts are in addition to and timely information concerning the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthlysame.
(iif) An amount equal For a period of up to twenty-four (24) months following the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as Effective Date of Termination, the date of termination) which Executive shall be paid to Executive when entitled, at the Annual Cash Bonus for such year is paid to other executives expense of the Company.
(iii) Subject , to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for receive standard outplacement services from a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting nationally recognized outplacement firm of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason's selection. However, the Company Company's total obligation shall not exceed seventy-five thousand dollars (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses$75,000).
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject If Executive’s employment by Cue is terminated by Cue other than for Cause, death or Disability or by Executive for Good Reason, Cue shall pay or provide Executive the following:
(i) the Accrued Benefits;
(ii) subject to Executive’s compliance with Section 10 below and Executive’s continued compliance with Section 11 below, and subject to Section 21, a lump sum cash severance payment in an amount equal to the terms and conditions sum of eligibility (A) the target Annual Bonus for the year of termination, prorated based on the number of days that Executive is employed in such year through the date of termination (provided, notwithstanding the foregoing if termination occurs on or prior to March 31, 2020 the amount so paid shall equal the full target Annual Bonus for 2019 which shall be in lieu of any Annual Bonus payment for 2019), plus (B) 12 months of Base Salary, with such lump sum payable on the first payroll date of Cue that occurs more than 60 days after Executive’s receipt of severance benefits under this Agreementtermination (collectively, including the “Severance Amount”); ActiveUS 185070741v.3
(iii) subject to Executive’s compliance with Section 10 below and Executive’s continued compliance with Section 11 below, if Executive elects COBRA coverage for health and/or dental insurance in a timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10manner, the Company shall pay to Executive, as severance benefits, which amounts are the monthly premium payments for such timely elected coverage (consistent with what was in addition to place at termination) when each premium is due until the Compensation upon Termination set forth in SECTION 3.3 herein:
earliest of the following: (i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation 18 months from Service, but in no event less frequently than monthly.
termination; (ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid Executive obtains new employment that offers health and/or dental insurance that is reasonably comparable to Executive when the Annual Cash Bonus for such year is paid to other executives of that offered by the Company.
; or (iii) Subject to (1) the Executive’s timely election of date COBRA continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation would otherwise terminate in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection accordance with the continued payment provisions of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.COBRA; and
(iv) The Company shall accelerate the time vesting and exercisability of the one hundred percent (100%) of Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other and restricted shares in each case that are issued and outstanding under a Company equity compensation awardsplan (“Equity Awards”) shall accelerate by a period of 12 months; and Executive shall be entitled to exercise such Equity Awards (if exercisable) in accordance with this paragraph. For purposes of Equity Awards with performance-based vesting conditions (“Performance Awards”), Executive shall be treated under this paragraph as having remained in service for an additional 12 months following actual termination/resignation, provided that Performance Awards shall not become vested or earned solely as a result of this paragraph, and such vesting and earning shall remain subject to the attainment of all applicable performance goals, and such Performance Awards, if and to the extent that such awards would have they become vested solely upon or earned, shall be payable at the same time as under the applicable award agreement. For purposes of determining the accelerated vesting of Equity Awards and the additional service credit for Performance Awards, Executive’s continued employmentEquity Awards and Performance Awards, such that one hundred percent (100%) as applicable, shall be presumed to vest ratably on a monthly basis over the number of such awards become vested in full.
(v) In addition calendar months of the time-based vesting or service-based vesting period established on the Grant Date of the Equity Award or Performance Award. Notwithstanding any provision of this Agreement or any applicable Equity Award agreement to the benefits described in SECTION 3.4(a)(i), (ii) and (iii)contrary, in the event that there is a Change in Control of Executive’s termination/resignation initiated by the Company and (1) the successor fails to assume and continue this Agreement, without Cause or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the by Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding vested and unvested stock optionsexercisable Equity Awards shall remain exercisable (if exercisable) until the date on which those Equity Awards expire, stock appreciation rightsdetermined without regard to such termination/resignation. Payments and benefits provided under this Section 9(c) shall be in lieu of any termination or severance payments or benefits to which Executive may be eligible under any of the plans, restricted stock units policies or sharesprograms of Cue or under the Worker Adjustment Retraining Notification Act of 1988, as amended, or any other Company equity compensation awards, similar state statute or regulation. Should Executive die prior to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as payment of the date of termination)Severance Amount, which amount the Severance Amount shall be paid to the heirs or estate of Executive when in accordance with the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)schedule set forth herein.
Appears in 1 contract
Samples: Executive Employment Agreement (Cue Biopharma, Inc.)
Termination Without Cause or for Good Reason. Subject to If the terms and conditions of eligibility for ExecutiveEmployee’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums employment by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
is terminated (ivx) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of by the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without other than for Cause, or (by) Executive terminates by the Employee for Good Reason, the Company shall pay or provide the Employee with the following:
(I) accelerate the vesting of (xi) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, Accrued Benefits; and
(ii) subject to the extent that such awards would have vested solely upon the ExecutiveEmployee’s continued employmentcompliance with the obligations in Sections 8, such 9 and 10 hereof:
(A) an amount (the “Severance”) equal to one and a half (1.5) times the Base Salary (disregarding any reduction in Base Salary that one hundred percent (100%) of such awards become vested in full , (II) continue Executivewould give rise to the Employee’s Base Salary, as provided under SECTION 3.4(i) right to termination for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) monthsGood Reason), and payable in a single lump sum on the first payroll date occurring on or after the sixtieth (IV60th) pay Executive day following the date of termination (such payroll date, the “First Payroll Date”); and
(B) an amount equal to the Executive’s Target Bonus Prior Year Cash Bonus, payable in a single lump sum on the first payroll date occurring on or after the sixtieth (under SECTION 2.1 (b), based upon her Base Salary as of 60th) day following the date of termination), which amount shall be paid to Executive when termination as well a pro-rata portion of the Company pays the Employee’s Annual Cash Bonus for the calendar year that commences immediately after Executivein which the Employee’s termination occurs based on actual results for such year (determined by multiplying the amount of such bonus which would be due for the full calendar year by a fraction, the numerator of which is the number of days during the calendar year of termination that the Employee is employed by the Company and for claritythe denominator of which is three hundred sixty-five (365)), shall be as a pro-rated bonus.
(C) the Pro-Rata bonus as defined above in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonusessection 7(a)(vi).
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to the terms and conditions of eligibility for If Executive’s receipt employment is terminated by the Company without Cause or by Executive for Good Reason more than three (3) months prior to a Change of Control or more than twelve (12) months following a Change of Control, Executive shall be entitled to receive, in lieu of any severance benefits to which Executive may otherwise be entitled under any severance plan or program of the Company (other than as provided in Section 3(g) of this Agreement), including the timely execution and delivery benefits provided below:
(and non-revocationA) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay to Executive his or her fully earned but unpaid base salary, when due, through the date of termination at the rate then in effect, plus all other amounts to which Executive is entitled under any compensation plan or practice of the Company at the time of termination;
(B) subject to Executive’s continued compliance with Section 5, Executive shall be entitled to receive a lump sum cash payment equal to Executive’s annual base salary as severance benefits, which amounts are in addition effect immediately prior to the Compensation upon Termination set forth in SECTION 3.3 herein:
date of termination, payable within thirty (i30) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period days following the effective date the Executive incurs a Separation from Serviceof Executive’s Release (as defined below), but in no event less frequently later than monthly.two and one-half (2 1/2) months following the last day of the calendar year in which the date of Executive’s termination of employment occurs; plus
(iiC) An amount equal subject to Executive’s continued compliance with Section 5, (1) for the Executive's Target Bonus referenced in SECTION 2.1(bperiod beginning on the date of termination and ending on the date which is twelve (12) full months following the date of termination (based upon or, if earlier, the date on which the applicable continuation period under COBRA expires), the Company shall reimburse Executive for the costs associated with continuation coverage pursuant to COBRA for Executive and his or her Base Salary eligible dependents who were covered under the Company’s health plans as of the date of termination) which Executive’s termination (provided that Executive shall be paid solely responsible for all matters relating to Executive when the Annual Cash Bonus for such year is paid his or her continuation of coverage pursuant to other executives of the Company.
(iii) Subject to (1) the Executive’s timely COBRA, including, without limitation, his or her election of continuation such coverage under the Consolidated Omnibus Budget Reconciliation Act and his or her timely payment of 1985, as amended (“COBRA”premiums), and (2) the Executive’s continued copayment of premiums at the same level Company shall pay for and cost to the provide Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability and such eligible dependents with a lump sum payment sufficient to pay the premiums with pre-tax dollars), continued participation in for life insurance benefits coverage for the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) month period commencing on the date of termination to the extent such Executive and/or such dependents were receiving such benefits prior to the date of Executive’s termination, which payment shall be paid within thirty (30) days following the effective date of Executive’s Release, but in no event later than two and one-half (2 1/2) months following the last day of the calendar year in which the date of Executive’s termination of employment occurs; and
(D) subject to Executive’s continued compliance with Section 5, for the period beginning on the date of termination and ending on the date which is twelve (12) full months following the date of termination, Executive shall be entitled to executive-level outplacement services at the Company’s expense, not to exceed $15,000. Such services shall be provided that by a firm selected by Executive from a list compiled by the Executive Company.
(E) The payments and benefits provided for in this Section 4(d)(i) shall only be payable in the event Executive’s employment is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums terminated by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
without Cause or by Executive for Good Reason more than three (iv3) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, months prior to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in of Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather more than twelve (12) months), and (IV) pay Executive an amount equal to the months following a Change of Control. If Executive’s Target Bonus employment is terminated by the Company without Cause or by Executive for Good Reason within three (under SECTION 2.1 3) months prior to or twelve (b)12) months following a Change of Control, based upon her Base Salary as then Executive shall receive the payments and benefits described in Section 4(d)(ii) in lieu of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (payments and for clarity, shall be benefits described in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonusesthis Section 4(d)(i).
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to If, during the terms and conditions effectiveness of eligibility for Executive’s receipt of severance benefits under this Agreement, including the timely execution Executive terminates his employment for Good Reason, or the Company terminates the Executive’s employment without Cause, and delivery the Executive executes (and non-revocationdoes not later revoke) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10Agreement, the Company shall pay to Executivethen, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:Accrued Obligations, the Executive will be entitled to the following, subject to Section 7(d):
(i) An The Company shall pay the Executive an amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to two times the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her ’s annual rate of Base Salary as of the date of termination) which termination (the “Severance Payment”). The Severance Payment shall be paid in a single lump sum payment on the 60th day following Executive’s “separation from service” from the Company within the meaning of Treas. Reg. § 1.409A-l(h). All severance benefits due from the Company or any of its affiliates shall be payable to the Executive when solely under this Agreement and the Annual Cash Bonus for such year is paid to other executives of the Companyexecuted Release Agreement.
(iiiii) Subject to (1) Section 7(d), upon the Executive’s timely election of termination, the Executive will be eligible to elect individual and dependent continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985group health and dental coverage, as amended provided under Section 4980B(f) of the Code (“COBRA”), for the maximum COBRA coverage period available, subject to all conditions and limitations (2including payment of premiums and cancellation of coverage upon obtaining duplicate coverage or Medicare entitlement). If the Executive executes (and does not revoke) the Release Agreement, and if the Executive or one or more of the Executive’s continued copayment of premiums at covered dependents elects COBRA coverage, then the same level and Company shall pay the cost to the Executive as if the Executive were an employee of the Company (excluding, COBRA coverage for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and 18 month period following the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coveragetermination date. The Company may modify its obligation Executive (or dependents, as applicable) shall be responsible for paying the full cost of the COBRA coverage (including any administrative charge) after the earlier of (x) the expiration of 18 months following Executive’s termination date, or (y) eligibility for comparable coverage under another employer’s medical plan. Executive will receive a Form W-2 reporting any income imputed to Executive due to the benefits provided pursuant to this Section 7(b)(ii).
(iii) The Executive shall not be entitled to, and his Accrued Obligations shall not include, payment for vacation that would have accrued during any applicable 45-day notice provision for the termination of employment under this SECTION 3.4(a)(ii) Agreement, nor is Executive entitled to payment for unused vacation from years other than the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with calendar year of the continued payment Executive’s termination of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amendedemployment.
(iv) The Company Executive shall accelerate be credited with service for equity, long-term incentive and all employee benefit vesting purposes (other than vesting under any tax qualified retirement plan) as if he had worked the vesting entirety of the Executive’s thenany applicable 45-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, day notice provision to the extent that such awards would have vested solely upon credit can be provided without violating the Executive’s continued employment, such that one hundred percent (100%) nondiscrimination or other requirements of such awards become vested in fullapplicable law.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses).
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject Officer's employment under this Agreement may be terminated by the Company at any time without Cause or by the Officer for Good Reason (as defined in Section 18). In the event Officer's employment under this Agreement is terminated by the Company without Cause or by the Officer for Good Reason, the Company shall pay Officer the following payments and benefits:
a. The Accrued Rights.
b. Two years of annual base salary as of the date of the Officer's Separation from Service payable to the terms Officer on a bi-weekly basis over two calendar years.
c. If Officer’s employment is terminated following the end of a fiscal year and conditions of eligibility prior to the payment date for Executivethe bonus described in Section 4(a), if any, that Officer would have been entitled to receive with respect to such completed fiscal year, based upon the Company’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10actual results, the Company shall pay to ExecutiveOfficer, as severance benefits, which amounts are in addition to at the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for time such year bonus is paid to other executives of the Company according to the terms of the applicable bonus program adopted by the Company, the amount of such bonus described in Section 4(a), if any, that Officer would have been entitled to receive with respect to such completed fiscal year had Officer’s employment not terminated prior to the payment date for such bonus; and a pro rata portion of the bonus described in Section 4(a), if any, that Officer would have been entitled to receive for the fiscal year in which the termination of employment occurs, based upon the Company’s actual results for the year of termination and the percentage of the fiscal year that shall have elapsed through the date of termination of employment, payable to Officer pursuant to Section 4(a) had Officer’s employment not terminated, which pro-rata bonus shall be paid at the time such bonus is paid to other executives of the Company according to the terms of the applicable bonus program adopted by the Company.
(iii) Subject d. Officer shall also continue to (1) the Executive’s timely election of continuation coverage be covered under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), health and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee life insurance plans of the Company for six (excluding6) months; provided, for purposes that upon completion of calculating costeach full calendar year of employment commencing January 1, an employee’s ability 2018, Officer shall be entitled to pay premiums with pre-tax dollarsone additional month of coverage under health and life insurance plans of the Company under this Section 8(c); provided, continued participation that in no event shall Officer be entitled to coverage under health and life insurance plans of the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) Company for a period in excess of twelve (12) months at months, or the Company shall provide the economic equivalent thereof if such continuation is not permissible under the terms of the Company’s expense's insurance plans. Benefits due under Section 8 shall be payable (or commence) within sixty (60) days of the Officer's Separation from Service, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued date of such payment of premiums determined by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting in its sole discretion in accordance with Section 10 below. Receipt by Officer of the Executive’s then-outstanding payment and unvested stock optionsother benefits under this Section 8 shall be subject to Officer's execution and delivery, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awardspursuant to the terms of Section 10 below, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) Company of such awards become vested a General Release in full.
(v) In addition form and substance reasonably acceptable to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)Officer.
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to In the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, event the Company shall pay terminates Executive's employment as the Company's President and Chief Executive Officer without Cause pursuant to Executive, as severance benefits, which amounts are in addition Section 9(a)(iv) hereof or Executive terminates such employment for Good Reason pursuant to the Compensation upon Termination set forth in SECTION 3.3 herein:Section 9(c) hereof,
(i) An amount equal to her current annualized Base Salary which Executive shall be paid to Executive on receive a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount lump sum cash payment equal to the Executive's Target Bonus referenced in SECTION 2.1(bsum of (1) (based upon her any Base Salary payable through the date of termination and any Earned Bonus which remains unpaid as of the date of termination; (2) which shall be paid an amount equal to Executive when the Annual Cash Bonus for such year is paid to other executives 400% of the Company.Executive's Base Salary in effect at the time of his termination (or, if greater, the highest Base Salary in effect for any prior year); and (3) the pro rata portion of the Target Bonus (based on the Base Salary described in (i)(2) above) for the period worked during the fiscal year in which his termination occurs;
(iiiii) Subject to if Executive, and any spouse and/or dependents (1"Family Members") has medical and dental coverage on the Executive’s timely election date of continuation 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 will pay the full cost of continuing medical and dental coverage for the Executive and his covered family members under the Consolidated Omnibus Budget Reconciliation Act of 19851986, 29 U.S.C. Sections 1161-1168; 26 U.S.C. Section 4980B(f), as amended amended, and all applicable regulations (“referred to collectively as "COBRA”"), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of provided, that the Company (excluding, for purposes of calculating cost, an employee’s ability shall have no obligation to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (for such COBRA coverage if and to the extent permitted under applicable law the Executive and his Family Members become entitled to receive comparable benefits from and at the expense of a subsequent employer;
(iii) the restricted stock (and/or cash equivalent, if any) granted to Executive pursuant to Section 3(b)(ii) and the terms of such planRestricted Stock granted pursuant to Section 4(f) which covers the Executive hereof shall vest immediately upon termination;
(and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(iiiv) to the extent reasonably necessary the Option granted to avoid any penalty or excise taxes imposed on it in connection with Executive pursuant to Section 4(e) hereof has not vested at the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) time of such awards become vested in full.termination the Option will vest immediately upon termination;
(v) In addition the Option granted to Executive pursuant to Section 4(e) hereof which has vested or become vested at the benefits described in SECTION 3.4(a)(i), time or as a result of such termination will remain exercisable until its expiration date; and
(ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (bvi) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting continue to be entitled to any deferred compensation and other unpaid amounts and benefits earned and vested prior to or as a result of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of 's termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses).
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject If a Change in Control shall have occurred and Executive’s employment is subsequently terminated under circumstances described in the first paragraph of Article 3, or if Executive incurs a Deemed Eligible Termination, Executive shall be entitled to the terms following benefits, provided that within fifty (50) days following the Date of Termination Executive signs a general release in substantially the form set forth on Exhibit A, and conditions Executive affirmatively agrees not to violate the provisions of eligibility Article 6:
(a) Callon shall pay to the Executive in a lump sum, in cash, on the date which is six (6) months following his Date of Termination, an amount equal to three (3) times the sum of: (i) the Executive’s annual base salary as in effect immediately prior to the Change in Control or, if higher, in effect immediately prior to the Date of Termination, and (ii) the greatest of: (A) the average bonus (under all Callon bonus plans for which the Executive is eligible) earned with respect to the three (3) most recently completed full fiscal years, (B) the target bonus (under all Callon bonus plans for which the Executive is eligible) for the fiscal year in which the Change in Control occurs or (C) the target bonus (under all Callon bonus plans for which the Executive is eligible) for the fiscal year in which the Date of Termination occurs.
(b) Callon shall, at its expense, maintain in full force and effect for Executive’s receipt continued benefit until twenty-four (24) months after the Date of severance benefits Termination all medical, dental, and vision insurance coverage to which Executive was entitled immediately prior to the Notice of Termination. The continued coverage under this AgreementSection 4.1(b) shall be provided in a manner that is intended to satisfy an exception to Section 409A of the Code, and therefore not treated as an arrangement providing for nonqualified deferred compensation that is subject to taxation under Code Section 409A, including the timely execution and delivery (and non-revocationi) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay providing such benefits on a nontaxable basis to Executive, (ii) providing for the reimbursement of medical expenses incurred during the time period during which Executive would be entitled to continuation coverage under a group health plan of Callon pursuant to Section 4980B of the Code (i.e., COBRA continuation coverage), (iii) providing that such benefits constitute the reimbursement or provision of in-kind benefits payable at a specified time or pursuant to a fixed schedule as severance benefitspermitted under Code Section 409A and the authoritative guidance thereunder, which amounts are or (4) such other manner as determined by Callon in addition compliance with an exception from being treated as nonqualified deferred compensation subject to Code Section 409A. Further, the Compensation upon Termination set forth in SECTION 3.3 herein:
continued coverage under this Section 4.1(b) shall be provided as alternative coverage to continuation coverage under Section 4980B of the Code (“COBRA”) and if Executive accepts such continued coverage under this Section 4.1(b), he or she will be deemed to have declined COBRA continuation coverage. In the event of a Deemed Eligible Termination, (i) An amount equal the Executive will be entitled to her current annualized Base Salary which shall be a make-up payment (paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but Executive’s severance payment is made pursuant to Section 4.1(a)) in no event less frequently than monthly.
(ii) An an amount equal to the value of the coverage that would have been provided from the Date of Termination until the date of the Change in Control had Executive been treated as eligible for benefits pursuant to Section 4.1(b) as of the Date of Termination, and (ii) Executive's Target Bonus referenced in SECTION 2.1(b’s benefits pursuant to this Section 4.1(b) (based upon her Base Salary will begin as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the CompanyChange in Control.
(iiic) Subject Xxxxxx’x obligation to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost pay severance amounts due to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability pursuant to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awardsSection 4.1, to the extent that not already paid, shall cease immediately and such awards would have vested solely upon payments will be forfeited if the Executive’s continued employment, such that one hundred percent (100%) Executive violates any of such awards become vested in full.
(v) In addition to the benefits covenants or conditions described in SECTION 3.4(a)(i)Sections 6.1, (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, 6.2 or (2) within ninety (90) days preceding or within six (6) months 6.3 after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting Date of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)Termination.
Appears in 1 contract
Samples: Change in Control Severance Compensation Agreement (Callon Petroleum Co)
Termination Without Cause or for Good Reason. Subject to If the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) employment is terminated by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company without Cause or by the Executive with Good Reason, then Executive shall pay be entitled to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 hereinreceive:
(i) An an amount equal to her current annualized Executive’s Base Salary which shall be paid to Executive on through the Termination Date, plus continuation of Executive’s Base Salary for a salary continuation basis according to period of 18 months from and after the Termination Date (the “Severance Period”), in each case payable ratably over such period in regular installments in accordance with the Company’s normal general payroll practices over as in effect on the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.Termination Date;
(ii) An amount equal any Performance Bonus amounts pursuant to Section 3(b) (if any) awarded, but not yet paid, to Executive in respect of a fiscal year that ended prior to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination)Termination Date, which amount shall be paid at the same time and on the same terms it would have been paid pursuant to Executive when Section 3(b); and if Executive’s employment ends during a fiscal year, his Performance Bonus shall be prorated based upon the Company pays portion of the Annual Cash fiscal year worked and the Performance Bonus for the calendar year that commences immediately after prior fiscal year;
(iii) reimbursement of reimbursable expenses incurred on or prior to the Termination Date in accordance with Section 3(f); and
(iv) direct payment of Executive’s COBRA premiums for continued health insurance coverage for the Executive and his dependents through the end of the Severance Period or until such earlier date as Executive is eligible for substantially similar health insurance benefits from a subsequent employer;
(v) payment to an accountant reasonably satisfactory to Executive for tax planning services (provided that the aggregate amounts paid pursuant to this clause (v) and clause (vi) below shall not exceed $50,000);
(vi) payment for executive-level outplacement for Executive for up to one year after notice of termination at Xxxxxxxx Associates or substantial equivalent (provided that the aggregate amounts paid pursuant to clause (v) above and this clause (vi) shall not exceed $50,000); in each case, the payments under (i), (iii), (iv), (v) and (vi) above shall continue beyond 60 days following the termination of employment if and only if Executive has executed and delivered to the Company a General Release in form and substance as set forth in Exhibit B attached hereto (the “General Release”) prior to the 45th day following the termination of his employment and the General Release has become effective prior to the 60th day following the termination of his employment. In addition, the continued payments under (i), (iii) , (iv), (v) and (vi) above shall continue only so long as Executive has not revoked or materially breached the provisions of the General Release or materially breached the provisions of Sections 5(a) and 6 hereof; and Executive shall not be entitled to any other salary, bonuses, employee benefits or other compensation after termination of the Employment Period, except as otherwise specifically provided for clarityunder the Company’s employee benefit plans, the Company’s compensation plans (including the stock option plan and agreement) or as otherwise required by applicable law. If the Executive’s employment is terminated due to Executive’s death or Disability, then Executive or his guardian, administrator, heirs or successors, as the case may be, shall be entitled to receive:
(i) an amount equal to Executive’s Base Salary through the Termination Date, payable ratably in addition accordance with the Company’s general payroll practices as in effect on the Termination Date;
(ii) any Performance Bonus amounts pursuant to Section 3(b) (if any) awarded, but not yet paid, to Executive in respect of a fiscal year that ended prior to the Target Bonus Termination Date, which amount shall be paid at the same time and on the same terms it would have been paid pursuant to Section 3(b); and
(iii) reimbursement of reimbursable expenses incurred on or prior to the Termination Date in accordance with Section 3(f); and Executive shall not be entitled to any other salary, bonuses, employee benefits or other compensation after termination of the Employment Period, except as otherwise specifically provided for under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)the Company’s employee benefit plans or as otherwise required by applicable law.
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to In the terms and conditions of eligibility for event the Executive’s receipt of severance benefits under this Agreementemployment with the Company is terminated by the Company without Cause or by the Executive for Good Reason, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth at any time, and, provided no Change in SECTION 6.10Control shall have occurred, the Company shall pay to the Executive, as in cash, aggregate severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount payments equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which Severance. The Company shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost pay to the Executive as if any such severance payments due hereunder in twenty four (24) equal monthly payments on the first day of each month following such termination. In addition, (a) the Executive were an employee of shall have the Company (excludingright to exercise any stock options, for purposes of calculating costlong-term incentive awards or other similar awards held by him in accordance with the relevant plan documents or grant letter; provided, an employee’s ability to pay premiums with pre-tax dollars)however, continued participation in the Company’s group health plan (that to the extent permitted under applicable law and the any option or award would expire by its terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of following the date of termination, then the Executive may exercise said option or award until the earliest of (i) six (6) months following the Date of Termination, (ii) ten (10) years following the date of grant or (iii) the end of the original term of the option grant had the Executive continued employment with the Company; and (b) the Company shall provide theExecutive with continuing coverage under the life, disability, accident and health insurance programs for employees of the Company generally and under any supplemental programs covering executives of the Company, as from time to time in effect, for the twenty four (24) month period from such termination or until the Executive becomes eligible for substantially similar coverage under the employee plans of a new employer, whichever occurs earlier, provided that the Executive’s right to elect continued medical coverage after termination of employment under Part 6 of Title I of the Employee Retirement Income Security Act of 1974, as amended, shall be deemed satisfied by the coverage provided in this clause (b). The Executive shall also be entitled to a continuation of all other benefits and reimbursements in effect at the time of termination for the twenty four (24) month period following such termination or until the Executive becomes eligible for substantially similar benefits from a new employer, whichever is earlier. In addition, all stock options and restricted stock held by the Executive on the date of termination under any of the Company’s equity plans that would become exercisable within the twenty four (24) months following such termination of employment had the Executive stayed in the employ of the Company shall become immediately exercisable. Any part of the foregoing benefits that are attributable to participation in a plan in which amount the Executive can no longer participate under applicable law, shall be paid to Executive when by the Company pays from other sources such that the Annual Cash Bonus Executive receives substantially similar benefits to those provided for under the calendar year that commences immediately after Executive’s termination (and for clarity, plan. All amounts payable hereunder shall be paid monthly during such twenty four (24) month period and any amounts payable hereunder are in lieu of, not in addition to the Target Bonus paid to Executive to, amounts payable under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)Section 4.
Appears in 1 contract
Samples: Change in Control and Severance Agreement (Terex Corp)
Termination Without Cause or for Good Reason. Subject to If the terms and conditions of eligibility for ExecutiveEmployee’s receipt of severance benefits under this Agreement, including employment by the timely execution and delivery Company is terminated on or after the Effective Date (and non-revocationx) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10Company without Cause (other than for death or Disability), or (y) by the Employee for Good Reason, the Company shall pay to Executiveor provide the Employee with the CIC Accrued Benefits and, as severance benefits, which amounts are in addition subject to the Compensation upon Termination set forth Employee’s compliance with 6 the obligations in SECTION 3.3 hereinSections 10, 11 and 12 hereof, the following, subject to the provisions of Section 24 hereof:
(i) An amount a lump sum payment equal to her current annualized (x) three times the Employee’s Initial Base Salary which shall be or Continuing Base Salary Rate, as the case may be, plus (y) three times the Employee’s average Annual Bonus paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month prior three years (or over such lesser period in which the Annual Bonus was paid), paid on the 60th day following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.termination of employment; and
(ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject subject to (1A) the ExecutiveEmployee’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2B) the ExecutiveEmployee’s continued copayment co-payment of premiums at the same level and cost to the Executive Employee as if the Executive Employee were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars) (the “active employee rate”), continued participation in the Company’s group health plan and life insurance plan (to the extent permitted under applicable law and the terms of such plan) ), which covers the Executive (and the Executive’s eligible dependents) Employee for a period of twelve (12) up to 12 months at the Company’s expenseexpense (other than as set forth in sub-section (B)), provided provided, that the Executive Employee is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection ; and Affordable Care Act of 2010provided, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock optionsfurther, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control the Employee obtains other employment that offers group health benefits, Company’s contribution to the coverage under this Section 9(d)(ii) shall immediately cease and thereafter shall be the sole responsibility of the Company and (1) Employee. Notwithstanding the successor fails foregoing, if the benefits under the Company’s group health plan will be taxable to assume and continue this Agreementthe Employee, or (2) within ninety (90) days preceding or within six (6) months after then in lieu of the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates Company’s payments for Good Reasonsuch continued participation, the Company shall (I) accelerate reimburse the vesting of (x) the Executive’s then-outstanding and unvested stock optionsEmployee, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, subject to the extent terms herein, for his premiums for continued coverage under such plan in the amount that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) cost of such awards become vested coverage exceeds the active employee rate (as determined based on the Employee’s premium rate in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of effect on the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (. Payments and for clarity, benefits provided in this Section 9(d)(ii) shall be in addition to lieu of any termination or severance payments or benefits for which the Target Bonus paid to Executive Employee may be eligible under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)any of the plans, policies or programs of the Company.
Appears in 1 contract
Samples: Employment Agreement (Reunion Hospitality Trust, Inc.)
Termination Without Cause or for Good Reason. Subject to the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company time-based equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) employment within twelve months following the date of such awards become vested in fulltermination.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company time-based equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full and (y) the target level of the Executive’s then-outstanding performance stock units or other Company equity compensation awards that vest based on achievement of specified performance criteria, such that such awards become fully vested at the target level of award, (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, and (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses).
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to the If Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums employment by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of terminated by the Company and (1) the successor fails to assume and continue this Agreement, without Cause or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the by Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company Executive shall be entitled to:
(Ia) accelerate payment of all accrued and unpaid Annual Salary and Benefits through the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) date of such awards become vested in full , termination (IIincluding any earned but unpaid Annual Bonus for a fiscal year ending prior to such termination);
(b) continue payment of monthly severance payments equal to one-twelfth of Executive’s Base Salary, as provided under SECTION 3.4(i's Annual Salary for a period of twenty-four (24) for 24 months rather than 12 months, (III) provide or, at the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months)discretion of the Board, and (IV) pay Executive an amount a single sum payment equal to the discounted present value of such monthly payments (discounted at the highest interest rate in effect under any credit agreement to which the Company is then a party); and
(c) continuation of group health benefits for Executive until the earlier of (i) the end of the COBRA continuation coverage period due to Executive having other group health coverage or the Company ceasing to maintain group health coverage or (ii) twenty-four (24) months following termination, provided that if the continuation of group health benefits extends beyond the COBRA continuation coverage period applicable to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary the provision of coverage beyond such period shall be subject to the Company's insurance carrier agreeing to provide such coverage at a cost not in excess of 125% of the cost of providing such coverage to employees as of any date following the date expiration of termination), which amount shall the Executive's COBRA continuation coverage period. The continuation of group health benefits provided hereby will be in lieu of any benefits otherwise available to Executive pursuant to COBRA. The severance benefits described in this Section 6.1 will be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (in lieu of and for clarity, shall be not in addition to any other severance arrangement maintained by the Target Bonus Company. Notwithstanding the foregoing, no amount will be paid under this Section 6.1 unless Executive executes and delivers to Executive under SECTION 3.4(ii) – such the Company a release substantially identical to that Executive receives two Target Bonuses)attached hereto as Exhibit I in a manner consistent with the requirements of the Older Workers Benefit Protection Act.
Appears in 1 contract
Samples: Employment Agreement (Kirklands Inc)
Termination Without Cause or for Good Reason. Subject to the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to If the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year employment is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums terminated by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units without Cause or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) by the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall pay or provide the Executive with the following payments and benefits:
(Ii) accelerate the vesting Accrued Benefits;
(ii) a lump sum cash payment within 15 days after the date of termination equal to two (2) times the sum of:
(A) the Base Salary; and
(B) the MIP Bonus, based on the greater of (1) the target bonus for the year of termination and (2) the average of the MIP Bonuses earned by the Executive in the last two full fiscal years completed prior to termination.
(iii) at such time as MIP Bonuses are paid to other executives generally, a pro-rata portion of the MIP Bonus the Executive would have earned for the year of her termination of employment (determined by multiplying the amount of said actual earned bonus by a fraction, the numerator of which is the number of days during the applicable year of termination that the Executive was employed by the Company and the denominator of which is 365);
(iv) at such time as the LTIP Bonuses are paid to other executives generally with respect to the cycle ending in the year of termination, a pro-rata portion of the LTIP Bonus for each then open cycle, equal to the product of (x) for the Executive’s then-outstanding cycle ending in the year of termination, the actual bonus earned for that cycle, and unvested stock optionsfor each other cycle, stock appreciation rightsthe target LTIP for such cycle, restricted stock units or sharesand (y) a fraction, or any the numerator of which is the number of days the Executive was employed during the applicable cycle and the denominator of which is the number of days in such cycle;
(v) the Accelerated Vesting with regard to the Initial RSUs and, with regard to all other Company equity compensation awardsgrants, pro rata vesting of the next tranche, to be vested based upon the extent relative number of days employed from the prior vesting date (or grant date if no prior vesting) to the next vesting date and the Post-Termination Exercise Period;
(vi) for a period of two (2) years after such termination, the Company, at its sole expense, shall provide the Executive (and her dependents) with health insurance coverage under the Company's group health insurance plan, provided that such awards would have vested solely obligation shall cease upon the Executive’s continued employment, such that one hundred percent 's becoming eligible for the health plan of another employer of Executive;
(100%vii) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus lump sum value (based on the actuarial assumptions used under SECTION 2.1 the respective plan) of two years of additional service and age credit for pension purposes under any qualified or nonqualified defined benefit type pension plan or arrangement of the Company (bwith the Base Salary used as the salary component of "final average earnings" for purposes of this calculation), based upon her Base Salary as which payments shall be made within thirty (30) days after termination of employment;
(viii) an amount equal to two (2) years of the date maximum Company matching contribution (assuming the Executive deferred the maximum amount and continued to earn her then current Base Salary) under any type of termination)qualified or nonqualified deferred compensation plan sponsored by the Company, which amount shall be paid to Executive when within thirty (30) days after termination of employment; and
(ix) outplacement services at a level commensurate with the Company pays Executive's position and, for a period of six months after the Annual Cash Bonus for Executive's termination, office space and secretarial support at a level commensurate with the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)'s position.
Appears in 1 contract
Samples: Executive Employment Agreement (Phoenix Companies Inc/De)
Termination Without Cause or for Good Reason. Subject to If the terms and conditions of eligibility for ExecutiveEmployee’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums employment by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
is terminated (ivx) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of by the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without other than for Cause, or (by) Executive terminates by the Employee for Good Reason, the Company shall pay or provide the Employee with the following:
(Ii) accelerate the vesting Accrued Benefits; and
(ii) subject to the Employee’s continued compliance with the obligations in Sections 8, 9 and 10 hereof:
(A) an amount (the “Severance”) equal to two (2) times the Base Salary (disregarding any reduction in Base Salary at any time), payable in a single lump sum on the first payroll date occurring on or after the sixtieth (60th) day following the date of termination (such payroll date, the “First Payroll Date”);
(B) an amount (the “Bonus Severance”) equal to one (1) times the Target Bonus (disregarding any reduction in the Target Bonus at any time), payable in a single lump sum on the First Payroll Date;
(C) the Prior Year’s Bonus, payable in a single lump on the First Payroll Date;
(D) the Pro-Rata Bonus, payable in a single lump sum on the date on which annual bonuses are paid to the Company’s senior executives generally for such calendar year, but no later than March 15 of the calendar year following the calendar year in which the date of termination occurs;
(E) during the period commencing on the date of termination and ending on the earlier of (xi) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) monthsmonth anniversary of the date of termination or (ii) the date on which the Employee becomes eligible for coverage under the group health plan of a subsequent employer (of which eligibility the Employee hereby agrees to give prompt notice to the Company), subject to the Employee’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall continue to provide the Employee and the Employee’s eligible dependents with coverage under its group health plans at the same levels and the same cost to the Employee as would have applied if the Employee’s employment had not been terminated based on the Employee’s elections in effect on the date of termination, provided that (IV1) pay Executive if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the period of continuation coverage to be, exempt from the application of Section 409A of the Code under Treasury Regulation Section 409A-1(a)(5), or (2) the Company is otherwise unable to continue to cover the Employee under its group health plans without penalty under applicable law (including, without limitation, Section 2716 of the Public Health Service Act or the Patient Protection and Affordable Care Act) or the Employee would be subject to tax under Section 105(h) of the Code, then, in either case, an amount equal to each remaining Company subsidy shall thereafter be paid to the Executive’s Target Bonus Employee in substantially equal US-DOCS\128774742.1 monthly installments over the continuation coverage period (under SECTION 2.1 or the remaining portion thereof) (bsuch coverage being hereinafter referred to as the “Health Benefits Continuation”), ;
(F) full vesting of each outstanding Company equity and/or long-term incentive award that vests solely based upon her Base Salary as on the passage of time held by the Employee on the date of termination); provided, which amount however, that any such award intended to be exempt from Code Section 409A as a “short-term deferral” shall be paid distributed to Executive when the Employee within such time as is required for such equity award to constitute a “short-term deferral”; provided, further, however, the accelerated vesting of the equity awards shall not change the time or form of payment for any equity award that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A (such vesting being hereinafter referred to as the “Accelerated Time Equity Vesting”); and
(G) with respect to any outstanding Company pays equity and/or long-term incentive awards which vest and/or are earned based on the Annual Cash Bonus for attainment of certain performance conditions, (i) with respect to any such award granted prior to 2020, vesting (or earned) at “target” and (ii) with respect to any such award granted in or after 2020, vesting (or earned) at the calendar year greater of “target” and actual performance based on the achievement of the performance goals on the termination date, in each case delivered in accordance with the applicable award agreement; provided, however, that commences immediately after Executive’s termination (and for clarity, any such award intended to be exempt from Code Section 409A as a “short-term deferral” shall be in addition distributed to the Target Bonus paid Employee within such time as is required for such equity award to Executive under SECTION 3.4(ii) – constitute a “short-term deferral”; provided, further, however, the accelerated vesting of the equity awards shall not change the time or form of payment for any equity award that constitutes “nonqualified deferred compensation” for purposes of Code Section 409A (such that Executive receives two Target Bonusesvesting being hereinafter referred to as the “Accelerated Performance Equity Vesting”).
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to If the terms and conditions of eligibility for ExecutiveEmployee’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums employment by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
is terminated (ivx) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of by the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without other than for Cause, or (by) Executive terminates by the Employee for Good Reason, the Company shall pay or provide the Employee with the following: (Ii) accelerate the vesting Accrued Benefits; and (ii) subject to the Employee’s continued compliance with the obligations in Sections 8, 9 and 10 hereof: (A) an amount (the “Severance”) equal to two (2) times the Base Salary (disregarding any reduction in Base Salary at any time), payable in a single lump sum on the first payroll date occurring on or after the sixtieth (60th) day following the date of termination (such payroll date, the “First Payroll Date”); (B) an amount (the “Bonus Severance”) equal to one (1) times the Target Bonus (disregarding any reduction in the Target Bonus at any time), payable in a single lump sum on the First Payroll Date; (C) the Prior Year’s Bonus, payable in a single lump on the First Payroll Date; (D) the Pro-Rata Bonus, payable in a single lump sum on the date on which annual bonuses are paid to the Company’s senior executives generally for such calendar year, but no later than March 15 of the calendar year following the calendar year in which the date of termination occurs; (E) during the period commencing on the date of termination and ending on the earlier of (xi) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) monthsmonth anniversary of the date of termination or (ii) the date on which the Employee becomes eligible for coverage under the group health plan of a subsequent employer (of which eligibility the Employee hereby agrees to give prompt notice to the Company), subject to the Employee’s valid election to continue healthcare coverage under Section 4980B of the Code and the regulations thereunder, the Company shall continue to provide the Employee and the Employee’s eligible dependents with coverage under its group health plans at the same levels and the same cost to the Employee as would have applied if the Employee’s employment had not been terminated based on the Employee’s elections in effect on the date of termination, provided that (IV1) pay Executive if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the period of continuation coverage to be, exempt from the application of Section 409A of the Code under Treasury Regulation Section 409A-1(a)(5), or (2) the Company is otherwise unable to continue to cover the Employee under its group health plans without penalty under applicable law (including, without limitation, Section 2716 of the Public Health Service Act or the Patient Protection and Affordable Care Act) or the Employee would be subject to tax under Section 105(h) of the Code, then, in either case, an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount each remaining Company subsidy shall thereafter be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be Employee in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses).substantially equal
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to In the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreementevent that, including during the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10Term, the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the terminates Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty employment without Cause or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates his employment for Good Reason, Executive shall be entitled to the Accrued Amounts and, subject to Executive’s compliance with Sections 5, 6 and 7, the following payments and benefits in lieu of any payments or benefits under any severance program or policy of the Company shall or its Affiliates:
(IA) accelerate payment of a Pro Rata Bonus, payable at the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as time described in Section 3.4(a)(iii3(b);
(B) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive payment of an amount equal to the product of 2 and the sum of (X) Executive’s Base Salary (excluding any reductions thereto that serve as the basis for a termination for Good Reason) and (Y) Target Bonus for the year of termination, such amount to be paid in a lump sum as soon as practicable after the Date of Termination but no later than the earliest time permitted under Section 4(c) and Section 19;
(C) at the Company’s election, either (X) continued coverage for a period of twenty-four (24) months commencing on the Date of Termination or until Executive receives comparable coverage (determined on a benefit-by-benefit basis) from a subsequent employer for Executive (and his eligible dependents, if any) under SECTION 2.1 the Company’s health plans (b)including medical and dental) and life insurance plans on the same basis as such coverage is made available to executives employed by the Company (including, based upon her Base Salary without limitation, co-pays, deductibles and other required payments and limitations) and Executive’s qualifying event for purposes of COBRA shall be treated as occurring at the end of such continuation period or (Y) a cash lump sum payment equal to (i) twenty-four (24) multiplied by (ii) the excess of the monthly applicable COBRA premium as of the date Executive’s Date of termination)Termination for health care coverage and the monthly premium for life insurance Executive (and Executive’s eligible dependents, which if any) had from the Company immediately prior to the Executive’s Date of Termination over the monthly dollar amount shall be Executive would have paid to Executive when the Company pays the Annual Cash Bonus for such health care coverage and life insurance coverage if Executive remained employed for the calendar twenty-four (24) month period commencing on the Date of Termination; and
(D) all of the Equity Awards shall fully vest, with all vested options and stock appreciation rights remaining exercisable for the shorter of their originally scheduled respective terms and one year that commences immediately after following Executive’s termination (Date of Termination and for clarity, Executive shall continue as a participant and be in addition entitled to earn Shares under the Company’s Project 750 Program with respect to the Target Bonus paid to Executive under SECTION 3.4(iiaward described in Section 3(c) – such that Executive receives two Target Bonuses)even though no longer employed.
Appears in 1 contract
Samples: Employment Agreement (Six Flags Entertainment Corp)
Termination Without Cause or for Good Reason. Subject to If the terms Employee’s employment and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery Employment Term are terminated (and non-revocationx) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10Company other than for Cause (other than death or Disability), or (y) by the Employee for Good Reason, the Company shall pay to Executive, as severance benefits, which amounts are in addition to or provide the Compensation upon Termination set forth in SECTION 3.3 hereinEmployee with the following:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.Accrued Benefits;
(ii) An subject to the Employee’s continued compliance with the obligations in Sections 9 and 10 hereof, an amount equal to one and a half (1.5) times the Executive's Target Bonus referenced in SECTION 2.1(bsum of (A) (based upon her the Base Salary in effect on the termination date, (B) the average Annual Bonus earned by the Employee for the two (2) Company fiscal years ending during the Employment Period and immediately preceding the Company fiscal year in which such termination occurs (regardless of whether such amount was paid out on a current basis or deferred), plus (C) the average Equity Award Value (as defined below) of the date of terminationtwo (2) which shall be most recent Annual Grants (as defined below) made to the Employee by Farmland, paid to Executive when the Annual Cash Bonus for such year is paid to other executives of monthly in equal installments in accordance with the Company.’s payroll practice for a period of eighteen (18) months following such termination, commencing within 60 days after the Date of Termination; provided that if the 60-day period begins in one calendar year and ends in a second calendar year, payment shall commence in the second calendar year by the last day of such 60-day period; provided, further, that the initial payment shall include a catch-up payment to cover amounts retroactive to the day immediately following the termination date;
(iii) Subject subject to (1A) the ExecutiveEmployee’s timely election of continuation coverage under COBRA and (B) the Consolidated Omnibus Budget Reconciliation Act Employee’s continued compliance with the obligations in Sections 9 and 10 hereof, Employee shall be reimbursed for the amount equal to the COBRA continuation coverage premiums paid by the Employee that is required for coverage of 1985the Employee (or his eligible dependents) under the Company’s major medical group health plan, for a period of eighteen (18) months, or, if less, until the Employee or his eligible dependents are no longer entitled to such COBRA coverage, provided, that if at any time the Company determines that its payment of Employee’s premiums would result in a violation of the nondiscrimination rules of Section 105(h)(2) of the Internal Revenue Code of 1986, as amended (the “COBRACode”), and or any statute or regulation of similar effect (2) the Executive’s continued copayment of premiums at the same level and cost including but not limited to the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the 2010 Patient Protection and Affordable Care Act of 2010Act, as amended.amended by the 2010 Health Care and Education Reconciliation Act), then in lieu of providing the premiums described above, the Company will instead pay a fully taxable monthly cash payment in an amount such that, after payment by Employee of all taxes on such payment, Employee retains an amount equal to the applicable premiums for such month, with such monthly payment being made on the last day of each month for the remainder of the eighteen (18) month period; and
(iv) The Company shall accelerate the vesting all of the ExecutiveEmployee’s thenequity-based awards that are outstanding and unvested stock optionson the termination date shall immediately become fully vested and, stock appreciation rightsas applicable, restricted stock units exercisable, without any action by the Board or sharesCompensation Committee; provided, performance stock units or any other Company equity compensation awards, that to the extent that an award is intended to qualify as performance-based compensation for purposes of Internal Revenue Code Section 162(m), such awards would have vested solely upon award shall not vest as a result of the Executivetermination of the Employee’s employment and shall, instead, remain outstanding after such termination and shall be subject to the terms and conditions of the applicable award agreement and plan document (other than continued employment). Payments and benefits provided in this Section 8(d) shall be in lieu of any termination or severance payments or benefits for which the Employee may be eligible under any of the plans, such that one hundred percent (100%) policies or programs of such awards become vested in full.
(v) In addition the Company or under the Worker Adjustment Retraining Notification Act of 1988 or any similar state statute or regulation. For the avoidance of doubt, the Employee shall not be entitled to any severance payments or benefits under this Agreement as a result of the expiration of the Term pursuant to the benefits described in SECTION 3.4(a)(i)first sentence of Section 2 hereof, (ii) and (iiior as a result of any termination of the Employee’s employment occurring at or after such expiration. For purposes of Section 8(d)(ii)(B), in the event that there is a Change in Control the Employee’s termination occurs prior to the end of the Company and (1) the successor fails to assume and continue this Agreement, or completion of two (2) within ninety (90) days preceding or within six (6) months after Company fiscal years during the Change in Control (a) Employment Term, then the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described amount in Section 3.4(a)(iii8(d)(ii)(B) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to shall be determined by using the ExecutiveEmployee’s Target Bonus for any such fiscal year not yet completed, together with Annual Bonus actually earned by the Executive for the fiscal year completed during the Employment Term (under SECTION 2.1 (bif any), based upon her Base Salary as annualized for any such partial fiscal year. For purposes of the date of terminationSection 8(d)(ii)(C), which in the event that the Employee’s termination occurs prior Executive receiving two (2) Annual Grants, then the amount in Section 8(d)(ii)(C) shall be paid determined based on the Equity Award Value of Annual Grants made to Executive when the Company pays Employee during the Annual Cash Bonus for Employment Term prior to the calendar year that commences immediately after ExecutiveEmployee’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonusesif any).. For purposes of this Agreement:
Appears in 1 contract
Termination Without Cause or for Good Reason. Subject to the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreement, including the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10, the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on If the Executive’s employment by the Company is terminated by the Company other than for Cause (other than a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal termination for Disability or due to the Executive's Target Bonus referenced in SECTION 2.1(b’s death) (based upon her Base Salary as of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to or by the Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change in Control of the Company and (1) the successor fails to assume and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall pay or provide the Executive with the Accrued Amounts. In addition, upon such termination, the Buy-Out Restricted Stock Awards shall fully vest and all restrictions thereon shall lapse, and the Executive shall be entitled to the Supplemental Pension benefit accrued through the date of termination as provided in Section 6(b), above (including additional credit for Supplemental Pension service as provided therein).
(ii) Upon such termination, subject to the Six-Month Delay Requirement, the Executive shall also be entitled to severance and any welfare benefit continuation provided in accordance with any applicable Company plan (in the form and when provided herein), but in no event less than (I) accelerate a lump sum payment equal to two (2) times the vesting sum of (xA) the Executive’s Base Salary plus (B) his then-outstanding current target bonus amount; (II) a lump-sum cash payment equal to product of twenty-four (24) multiplied by the premium amount charged by the Company in providing continued medical benefit coverage under COBRA; and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon (III) a pro-rata portion of the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested bonus for the performance year in full , (II) continue which the Executive’s Base Salarytermination occurs, as provided under SECTION 3.4(ipayable at the time that annual bonuses are paid to other senior executives, but in no event later than 2 1/2 months following the end of the performance year in which the Executive’s termination occurred, determined by multiplying the amount the Executive would have received based upon actual performance had employment continued through the end of the performance year by a fraction, the numerator of which is the number of days during the performance year of termination that the Executive is employed by the Company and the denominator of which is 365 (the “Pro Rata Bonus”). The Executive and his covered dependents shall also be entitled to participate in the Company’s medical benefit plans and programs for two (2) for 24 months rather than 12 months, (III) provide years after such termination subject to the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay payment by the Executive monthly of an amount equal to the then COBRA premium charged by the Company to its former employees. In the event that the Executive obtains other employment that offers substantially similar or improved benefits as to any particular medical plan, such COBRA (or COBRA-equivalent) benefits and any retiree medical benefits shall not cease but they shall become secondary to the extent permitted by law (or suspended in the case of COBRA or COBRA equivalent benefits) while such other benefits are in effect. Any termination by the Company other than for Cause (other than a termination for Disability or due to the Executive’s Target Bonus death) or by the Executive for Good Reason will be treated as a “layoff” under Company layoff plans that are applicable to senior executives (under SECTION 2.1 (bwith severance and benefits payable as provided in this Section 8(d)). Provided, based upon her Base Salary as this Section 8(d)(ii) shall not apply to any termination of the date of termination), which amount shall be paid to Executive when Executive’s employment by the Company pays or by the Annual Cash Bonus Executive at or after the Executive has attained age 62. Each payment under this Section 8(d)(ii) or any Company plan pursuant thereto is intended to be treated as one of a series of separate payments for the calendar year that commences immediately after Executive’s termination (purposes of 409A and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target BonusesTreas. Reg. §1.409A-2(b)(2)(iii).
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Termination Without Cause or for Good Reason. Subject to (i) The Company may terminate Executive's employment without Cause and Executive may terminate his employment for Good Reason, in each case upon thirty days prior written notice. In the terms and conditions of eligibility for Executive’s receipt of severance benefits under this Agreementevent that, including during the timely execution and delivery (and non-revocation) by Executive of the Separation Agreement and General Release as set forth in SECTION 6.10Term, the Company terminates Executive's employment without Cause or Executive terminates his employment for Good Reason, Executive shall pay to Executive, as severance benefits, which amounts are in addition be entitled to the Compensation upon Termination set forth following in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over the 12 month period following the date the Executive incurs a Separation from Service, but in no event less frequently than monthly.
(ii) An amount equal to the Executive's Target Bonus referenced in SECTION 2.1(b) (based upon her Base Salary as lieu of the date of termination) which shall be paid to Executive when the Annual Cash Bonus for such year is paid to other executives any payments or benefits under any severance program or policy of the Company.
(iii) Subject to (1i) the Accrued Amounts plus a lump sum cash amount equal to the Target Bonus for Executive for the year of termination pro-rated based on the number of days from the beginning of the year through the date of termination divided by the total number of days in the year of termination;
(ii) a lump sum cash severance payment equal to the unpaid balance of the Base Salary and the Target Bonuses Executive would have been entitled to for the balance of the then-current Term measured from the Date of Termination to the expiration date of the Term, but in no event shall such lump sum be less than three times the sum of (X) Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), 's Base Salary and (2Y) annual bonus; the severance payable shall be computed based upon (A) Executive’s continued copayment of premiums 's highest Base Salary in effect at any time during his employment with the same level Company and cost to (B) Executive's actual annual bonus as provided for in this Agreement for the Executive as if the Executive were an employee most recent completed fiscal year of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (prior to the extent permitted under applicable law and the terms Date of such planTermination;
(iii) which covers the Executive (and the Executive’s eligible dependents) continued coverage for a period of twelve thirty-six months commencing on the date of termination or until Executive receives comparable coverage (12determined on a benefit-by-benefit basis) months at from a subsequent employer (A) for Executive (and his eligible dependents, if any) under the Company’s expense, provided that 's health plans (including medical and dental) and other welfare benefit plans on the Executive same basis as such coverage is eligible and remains eligible for COBRA coverage. The Company may modify its obligation under this SECTION 3.4(a)(ii) made available to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums executives employed by the Company (including, without limitation, co-pays, deductibles and other required payments and limitations) and (B) under any Company-provided life insurance and disability insurance policies and plan under which Executive was insured immediately prior to the Patient Protection and Affordable Care Act date of 2010, as amended.termination; and
(iv) The Company shall accelerate notwithstanding any contrary provisions of the grants of Options and Restricted Shares or Section 3(c) above, full vesting of all Options and Restricted Shares previously granted to Executive (without regard to whether the Executive’s thentime requirements of the Time-outstanding Vesting Option have been met and unvested stock options, stock appreciation rights, restricted stock units or shares, without regard to whether the performance stock units or any other Company equity compensation awards, to requirements of the extent that such awards would Performance-Vesting Options have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (iibeen met) and (iii), in the event that there is a Change in Control of the Company restrictions thereon shall immediately lapse and (1) the successor fails to assume all Options not previously exercisable shall become exercisable immediately and continue this Agreement, or (2) within ninety (90) days preceding or within six (6) months after the Change in Control (a) the Executive is terminated without Cause, or (b) Executive terminates all outstanding Options shall remain exercisable for Good Reason, the Company shall (I) accelerate the vesting of (x) the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)their originally scheduled respective terms.
Appears in 1 contract
Samples: Employment Agreement (Six Flags Inc)
Termination Without Cause or for Good Reason. Subject to the terms and conditions of eligibility for Executive’s receipt of severance benefits under this AgreementSection 5, including if the timely execution and delivery Employment Period is terminated by the Company without Cause (and non-revocationother than due to death or Disability) or by Executive with Good Reason, provided Executive has satisfied the Release Condition (defined below), Executive shall be entitled to receive (i) continued payment of Base Salary (as in effect immediately prior to the Termination Date) during the Severance Period, payable in the same manner and in the same installments as previously paid, (ii) a payment (payable at the same time as the Company pays bonuses to other senior executives but in no event later than two-and-a-half months following the end of the Separation Agreement fiscal year in which the Termination Date occurs) equal to the product of (A) the Annual Bonus (if any) Executive would have otherwise earned for the year in which the Termination Date occurs based on achievement of the applicable performance goals for such year, and General Release (B) a fraction, the numerator of which is the number of days Executive was employed by the Company during the year of termination and the denominator of which is the number of days in such year and (iii) provided that Executive timely elects COBRA coverage, the Company will pay 100% of the premiums for the COBRA coverage for the greater of (a) the months remaining in the Employment Period during which the Termination Date occurs (or if lesser, for such period as Executive remains eligible for COBRA) or (b) twelve months, and (iv) all outstanding stock options and restricted stock, if any, will be 100% vested as of the Termination Date ((i)-(iv) are collectively referred to as the “Severance Payments”), and, except as set forth in SECTION 6.10Section 5(e), the Company shall pay to Executive, as severance benefits, which amounts are in addition to the Compensation upon Termination set forth in SECTION 3.3 herein:
(i) An amount equal to her current annualized Base Salary which shall be paid to Executive on a salary continuation basis according to the Company’s normal payroll practices over obligation to make any other payments or provide any other benefits under this Agreement shall cease as of the Termination Date. When used herein, the “Severance Period” means the 12 month period following commencing on the date Termination Date. Executive shall forfeit the Executive incurs a Separation from ServiceSeverance Payments upon any breach of this Agreement, but in no event less frequently than monthly.
(ii) An amount equal any other agreement with or obligation to the Company Group, or where Executive fails to fulfill the Release Condition (as defined herein). "Release Condition" means Executive's Target Bonus referenced ’s execution and nonrevocation of a separation agreement and release, in SECTION 2.1(b) (based upon her Base Salary as of the date of termination) which shall be paid a form provided to Executive when the Annual Cash Bonus for such year is paid to other executives of the Company.
(iii) Subject to (1) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and (2) the Executive’s continued copayment of premiums at the same level and cost to the Executive as if the Executive were an employee of by the Company (excludingand containing Executive obligations for non-disparagement, for purposes of calculating costcooperation, an employee’s ability to pay premiums with pre-tax dollarsconfidentiality, etc.), continued participation in within sixty (60) days following the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverageTermination Date. The Company may modify its obligation under this SECTION 3.4(a)(ii) to the extent reasonably necessary to avoid any penalty or excise taxes imposed on it in connection with the continued payment of premiums by the Company under the Patient Protection and Affordable Care Act of 2010, as amended.
(iv) The Company shall accelerate the vesting of the Executive’s then-outstanding and unvested stock options, stock appreciation rights, restricted stock units or shares, performance stock units or any other Company equity compensation awards, to the extent that such awards would have vested solely upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full.
(v) In addition to the benefits described in SECTION 3.4(a)(i), (ii) and (iii), in the event that there is a Change any review period for such separation agreement and release spans two calendar years, such separation agreement and release will be deemed effective (subject to it being executed and not revoked) in Control the latter of the Company two calendar years and (1) Executive will not be permitted to choose the successor fails to assume effective date of any such separation agreement and continue this Agreementrelease, or (2) within ninety (90) days preceding or within six (6) months after the Change except as would not result in Control (a) the Executive is terminated without Cause, or (b) Executive terminates for Good Reason, the Company shall (I) accelerate the vesting a violation of (x) the Executive’s then-outstanding Code Section 409A. Any payments due and unvested stock options, stock appreciation rights, restricted stock units or shares, or any other Company equity compensation awards, payable prior to the extent that such awards would have vested solely satisfaction of the Release Condition will be accumulated and paid upon the Executive’s continued employment, such that one hundred percent (100%) of such awards become vested in full , (II) continue Executive’s Base Salary, as provided under SECTION 3.4(i) for 24 months rather than 12 months, (III) provide the COBRA subsidy as described in Section 3.4(a)(iii) above for eighteen (18) months (rather than twelve (12) months), and (IV) pay Executive an amount equal to the Executive’s Target Bonus (under SECTION 2.1 (b), based upon her Base Salary as first payroll following satisfaction of the date of termination), which amount shall be paid to Executive when the Company pays the Annual Cash Bonus for the calendar year that commences immediately after Executive’s termination (and for clarity, shall be in addition to the Target Bonus paid to Executive under SECTION 3.4(ii) – such that Executive receives two Target Bonuses)Release Condition.
Appears in 1 contract
