Termination Without Cause or Resignation for Good Reason After a Change of Control. (a) If a Change of Control occurs and, during the period commencing six months prior to and one year following the date of the Change of Control, the Company terminates Executive’s employment without Cause or Executive resigns for Good Reason (as defined in, and in accordance with the notice provisions set forth in Section 3.8) prior to expiration of the then-current Employment Period, this Section 3.2 shall apply in lieu of Section 3.1. (b) Upon termination under this Section 3.2, Executive shall receive the Guaranteed Payments. With the exception of unreimbursed business expenses, which shall be paid in accordance with Company policy and Section 19 of this Agreement, or as otherwise provided in the applicable benefit plan, Executive will be paid the Guaranteed Payments on the Company’s first (1st) payroll date after Executive’s date of termination, or earlier if required by applicable law. (c) If Executive’s employment terminates as described in Section 3.2(a) above and if, upon such termination, Executive (i) executes within twenty-one (21) days (or forty-five (45) days to the extent required by applicable law) thereafter and does not revoke a Release, (ii) complies with the terms and conditions of the Release, including, without limitation, any return of property, non-disparagement, and confidentiality provisions contained therein, and (iii) complies with the terms and conditions of Sections 5, 6, 7, and 8 below, Executive shall be entitled to receive the following payments (collectively, the “Change of Control Severance”): (i) Executive shall receive cash severance in an amount equal to the sum of (A) four (4) months of Executive’s then-current Base Salary per each completed year of service, with a minimum of twelve (12) months’ Base Salary and a maximum of twenty-four (24) months’ Base Salary plus (B) an amount equal to Executive’s Target Bonus. The severance amount shall be paid in a single lump-sum payment, less all required withholdings and deductions, subject to Section 3.2(d) below. (ii) Provided that Executive timely and properly elects continuation coverage under COBRA, the Company shall, for a period of twelve (12) months following the date of Executive’s termination of employment (the “COBRA Period”), pay the COBRA Payment (as defined in Section 3.1(c)(ii) above). Any payment under this Section 3.2(c)(ii) shall be subject to applicable tax withholdings. Notwithstanding the foregoing, payments specified under this Section 3.2(c)(ii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for any reason before the expiration of the COBRA Period, including but not limited to Executive’s failure to timely elect continuation coverage under COBRA. (iii) Any outstanding unvested portion of the Option will vest immediately. (d) Except as otherwise required by Section 3.9, the benefits described in subsections (i) and (ii) above shall be paid or begin, as the case may be, within sixty (60) days after Executive’s termination date, provided Executive has timely executed and not revoked the Release within such sixty (60) day period; and provided that notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of Executive’s execution of the Release, directly or indirectly, result in Executive’s designating the calendar year of payment, and if a payment that is “nonqualified deferred compensation” as defined under Section 409A is subject to execution of the Release and could be made in more than one taxable year, payment shall be made in the later taxable year. (e) Executive agrees and acknowledges that the Change of Control Severance provided to Executive pursuant to Section 3.2(c) is in lieu of, and not in addition to, any benefits to which Executive may otherwise be entitled under any Company severance plan, policy, or program, other than the Guaranteed Payments. (f) Executive agrees and acknowledges that if Executive fails to comply with Section 5, 6, 7 or 8 below, all payments under Section 3.2(c) shall immediately cease and Executive shall be required to repay immediately any Change of Control Severance previously paid by the Company thereunder.
Appears in 2 contracts
Samples: Executive Employment Agreement (Immunomedics Inc), Executive Employment Agreement (Immunomedics Inc)
Termination Without Cause or Resignation for Good Reason After a Change of Control. (a) If a Change of Control occurs and, during the one-year period commencing six months prior to and one year following on the date of the Change of Control, the Company terminates Executive’s employment without Cause or Executive resigns for Good Reason (as defined in, and in accordance with the notice provisions set forth in Section 3.8) prior to expiration of the then-current Employment Period2.9), this Section 3.2 2.2 shall apply in lieu of Section 3.1apply.
(b) Upon termination under this Section 3.2, Executive shall receive the Guaranteed Payments. With the exception of unreimbursed business expenses, which shall be paid in accordance with Company policy and Section 19 of this Agreement, or as otherwise provided in the applicable benefit plan, Executive will be paid the Guaranteed Payments on the Company’s first (1st) payroll date after Executive’s date of termination, or earlier if required by applicable law.
(c) If Executive’s employment terminates as described in Section 3.2(asubsection (a) above and if, upon such termination, Executive (i) executes within twenty-one (21) days (or forty-five (45) days to the extent required by applicable law) thereafter and does not revoke a Release, (ii) complies with the terms and conditions of the Release, including, without limitation, any return of property, non-disparagement, and confidentiality provisions contained therein, and (iii) complies with the terms and conditions of Sections 5, 6, 7, and 8 below, Executive shall be entitled to receive the following payments (collectivelyseverance compensation, as long as Executive complies with the “Change terms of Control Severance”):Sections 4, 5, 6 and 7 below:
(i) Executive shall receive cash a lump sum severance payment in an amount equal to 3.00 times the sum of (A) four (4) months Executive’s annual Base Salary at the rate in effect at the time of Executive’s then-current Base Salary per each completed year of service, with a minimum of twelve (12) months’ Base Salary termination and a maximum of twenty-four (24) months’ Base Salary plus (B) an amount equal to Executive’s Target Bonus. The severance amount shall be paid target bonus for the calendar year in a single lump-sum payment, less all required withholdings and deductions, subject to Section 3.2(d) belowwhich the date of termination occurs.
(ii) Provided that Executive timely and properly elects continuation coverage under COBRA, the The Company shall, for a period of twelve (12) 36 months following the date of Executive’s termination of employment (the “COBRA Period”)employment, pay Executive each month an amount equal to the monthly COBRA Payment (as defined in Section 3.1(c)(ii) above). Any payment medical insurance cost under this Section 3.2(c)(ii) shall be subject to applicable tax withholdings. Notwithstanding the foregoing, payments specified under this Section 3.2(c)(ii) shall cease if the Company’s statutory obligation medical plan for Executive, and, where applicable, her spouse and dependents, less an amount equal to provide the required monthly employee payment for such COBRA healthcare continuation coverage terminates for any reason before the expiration calculated as if Executive had continued to be an employee of the COBRA Period, including but not limited to Executive’s failure to timely elect continuation coverage under COBRACompany throughout such period.
(iii) Any outstanding unvested portion Executive shall receive any benefits accrued in accordance with the terms of any applicable benefit plans and programs of the Option will vest immediatelyCompany. In addition, Executive shall be entitled to the annual bonus, if any, payable for the fiscal year in which the termination occurs (prorated to reflect Executive’s actual period of service during such fiscal year) without regard to the last sentence of Section 1.5.
(div) Except as otherwise required by Section 3.92.10, the benefits lump sum payment described in subsections subsection (i) shall be made, and the monthly payments described in subsection (ii) above shall be paid begin, within 30 days after Executive’s termination date (or beginat the end of the revocation period for the Release, if later). The Company shall provide the Release to Executive on or before the termination date, and Executive shall execute the Release during the time period permitted by applicable law.
(c) Notwithstanding any provision to the contrary in the Company’s 2006 Stock Incentive Plan or any applicable plan, program or agreement, upon the occurrence of a Change of Control, all stock options, restricted stock and other equity rights held by the Executive will become fully vested and/or exercisable, as the case may be, within sixty on the date on which the Change in Control occurs, and all stock options held by the Executive shall remain exercisable, notwithstanding anything in any other agreement governing such options, for a period of twenty-four (6024) days after Executive’s termination datemonths following the end of the remaining balance of the Term of the Agreement; provided, provided Executive has timely executed and not revoked the Release within such sixty (60) day period; and provided however, that notwithstanding any provision of this Agreement to the contrary, in no event shall will the timing of Executive’s execution of option be exercisable (a) beyond its original term; or (b) beyond the Release, directly or indirectly, result in Executive’s designating the calendar year of payment, and if a payment that is “nonqualified deferred compensation” as defined extension period permitted under Section 409A is subject to execution of the Release Code.
(d) Notwithstanding any provision to the contrary in any applicable plan, program or agreement providing for supplemental retirement benefits or deferred compensation, upon the occurrence of a Change of Control, Executive’s accrued benefit under such plans, programs or agreements shall become fully vested on the date on which the Change in Control occurs, and could be made in more than one taxable year, payment shall be immediately payable on the Executive’s date of termination, unless the Executive has made in the later taxable yeara valid election under such plan, program or agreement to defer payment of such accrued benefits.
(e) Executive agrees and acknowledges that the Change of Control Severance provided to Executive pursuant to Section 3.2(c) is in lieu of, and not in addition to, any benefits to which Executive may otherwise be entitled under any Company severance plan, policy, or program, other than the Guaranteed Payments.
(f) Executive agrees and acknowledges that if Executive fails to comply with materially breaches Section 4, 5, 6, 6 or 7 or 8 below, all payments and benefits under this Section 3.2(c) 2.2 shall immediately cease and Executive shall be required to repay immediately any Change of Control Severance previously paid by the Company thereundercease.
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Termination Without Cause or Resignation for Good Reason After a Change of Control. (a) If a Change of Control occurs and, during the period commencing six months prior to and one year following the date of the Change of Control, the Company terminates Executive’s 's EAST\172290509.4
1. In addition, a tem1ination of Executive's employment without Cause or Executive resigns for Good Reason (as defined in, and in accordance with upon the notice provisions set forth in Section 3.8) prior to expiration of the then-then current Employment Period in Section 1.1, following a Company notice to Executive of a non renewal of the Employment Period, shall be deemed a termination by the Company without Cause for all purposes under this Section 3.2 shall apply in lieu of Section 3.13.2.
(b) Upon termination under this Section 3.2, Executive shall receive the Guaranteed Payments. With the exception of unreimbursed business expenses, which shall be paid in accordance with Company policy and Section 19 2.7 of this Agreement, or as otherwise provided in the applicable benefit plan, Executive will be paid the Guaranteed Payments on the Company’s 's first (1st) payroll date after Executive’s 's date of termination, or earlier if required by applicable law.
(c) If Executive’s 's employment terminates as described in Section 3.2(a) above and if, upon such termination, Executive (i) executes within twenty-one (21) days (or forty-five (45) days to the extent required by applicable law) thereafter and does not revoke a Release, (ii) complies with the terms and conditions of the Release, including, without limitation, any return of property, non-disparagement, and confidentiality provisions contained therein, and (iii) complies with the terms and conditions of Sections 5, 6, 7, and 8 below, Executive shall be entitled to receive the following payments (collectively, the “"Change of Control Severance”"):
(i) Executive shall receive cash severance in an amount equal to the sum of (A) four (4) months of Executive’s 's then-current Base Salary per each completed year of serviceservice with the Company, with a minimum of twelve (12) months’ ' Base Salary and a maximum of twenty-four (24) months’ ' Base Salary plus (B) an amount equal to Executive’s 's Target Bonus. The severance amount shall be paid in a single lump-sum payment, less all required withholdings and deductions, subject to Section 3.2(d) below.
(ii) Provided that Executive timely and properly elects continuation coverage under COBRA, the Company shall, for a period of twelve (12) months following the date of Executive’s termination 's tem1ination of employment with the Company (the “"COBRA Period”''), pay the COBRA Payment (as defined in Section 3.1(c)(ii) above)directly to the administrator. Any payment under this Section 3.2(c)(ii) shall be subject to applicable tax withholdingswithholdings to the extent applicable. Notwithstanding the foregoing, payments specified under this Section 3.2(c)(ii) shall cease if the Company’s 's statutory obligation to provide such COBRA healthcare continuation coverage terminates for any reason before the expiration of the COBRA Period, including but not limited to Executive’s 's failure to timely elect continuation coverage under COBRA.
(iii) Any outstanding unvested portion of the Option will vest immediately.
(d) Except as otherwise required by Section 3.9, the benefits described in subsections (i) and (ii) above shall be paid or begin, as the case may be, within sixty (60) days after Executive’s 's termination date, provided Executive has timely executed and not revoked the Release within such sixty (60) day period; and provided that notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of Executive’s 's execution of the Release, directly or indirectly, EAST\172290509.4 result in Executive’s 's designating the calendar year of payment, and if a payment that is “"nonqualified deferred compensation” " as defined under Section 409A is subject to execution of the Release and could be made in more than one taxable year, payment shall be made in the later taxable year.
(e) Executive agrees and acknowledges that the Change of Control Severance provided to Executive pursuant to Section 3.2(c) is in lieu of, and not in addition to, any benefits to which Executive may otherwise be entitled under any Company severance plan, policy, or program, other than the Guaranteed Payments.
(f) Executive agrees and acknowledges that if Executive fails to comply with Section 5, 6, 7 or 8 below, all payments under Section 3.2(c) shall immediately cease and Executive shall be required to repay immediately any Change of Control Severance previously paid by the Company thereunder.
Appears in 1 contract
Termination Without Cause or Resignation for Good Reason After a Change of Control. (a) If a Change of Control occurs and, during the one-year period commencing six months prior to and one year following on the date of the Change of Control, the Company terminates Executive’s employment without Cause or Executive resigns for Good Reason (as defined in, and in accordance with the notice provisions set forth in Section 3.8) prior to the expiration of the then-current Employment Period, this Section 3.2 shall apply in lieu of Section 3.1.
(b) Upon termination under this Section 3.2, Executive shall receive the Guaranteed Payments. With the exception of unreimbursed business expenses, which shall be paid in accordance with Company policy and Section 19 of this Agreement, or as otherwise provided in the applicable benefit plan, Executive will be paid the Guaranteed Payments on the Company’s first (1st) payroll date after Executive’s date of termination, or earlier if required by applicable law.
(c) If Executive’s employment terminates as described in Section 3.2(a) above prior to the expiration of the then-current Employment Period and if, upon such termination, Executive (i) executes within twenty-one (21) days (or forty-five (45) days to the extent required by applicable law) thereafter and does not revoke a Release, (ii) complies with the terms and conditions of the Release, including, without limitation, any return of property, non-disparagement, and confidentiality provisions contained therein, and (iii) complies with the terms and conditions of Sections 5, 6, 7, and 8 below8below, Executive shall be entitled to receive the following payments (collectively, the “Change of Control Severance”):
(i) Executive shall receive cash severance in an amount equal to the sum of (A) twenty-four (424) months of Executive’s then-current Base Salary per each completed year of serviceSalary, with a minimum of twelve (12) months’ Base Salary and a maximum of twenty-four (24) months’ Base Salary plus (B) an amount equal to Executive’s Target BonusBonus for the fiscal year in which Executive’s employment is terminated. The severance amount shall be paid in a single lump-sum payment, less all required withholdings and deductions, subject to Section 3.2(d) below.
(ii) Provided that Executive timely and properly elects continuation coverage under COBRA, the Company shall, for a period of twelve (12) months following the date of Executive’s termination of employment (the “COBRA Period”), pay the COBRA Payment (as defined in Section 3.1(c)(ii) above). Any payment under this Section 3.2(c)(ii) shall be subject to applicable tax withholdings. Notwithstanding the foregoing, payments specified under this Section 3.2(c)(ii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for any reason before the expiration of the COBRA Period, including but not limited to Executive’s failure to timely elect continuation coverage under COBRA.
(iii) Any outstanding unvested portion of the Option Time-Based Options will vest immediately.
(d) Except as otherwise required by Section 3.9, the benefits described in subsections (i) and (ii) above shall be paid or begin, as the case may be, within sixty (60) days after Executive’s termination date, provided Executive has timely executed and not revoked the Release within such sixty (60) day period; and provided that notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of Executive’s execution of the Release, directly or indirectly, result in Executive’s designating the calendar year of payment, and if a payment that is “nonqualified deferred compensation” as defined under Section 409A is subject to execution of the Release and could be made in more than one taxable year, payment shall be made in the later taxable year.
(e) Executive agrees and acknowledges that the Change of Control Severance provided to Executive pursuant to Section 3.2(c) is in lieu of, and not in addition to, any benefits to which Executive may otherwise be entitled under any Company severance plan, policy, or program, other than the Guaranteed Payments.
(f) Executive agrees and acknowledges that if Executive fails to comply with Section 5, 6, 7 or 8 below, all payments under Section 3.2(c) shall immediately cease and Executive shall be required to repay immediately any Change of Control Severance previously paid by the Company thereunder.
Appears in 1 contract
Termination Without Cause or Resignation for Good Reason After a Change of Control. (a) If a Change of Control occurs and, during the one-year period commencing six months prior to and one year following on the date of the Change of Control, the Company terminates Executive’s employment without Cause (upon not less than 30 days’ prior written notice to Executive) or Executive resigns for Good Reason (as defined in, and in accordance with the notice provisions set forth in Section 3.8) prior to expiration of the then-current Employment Period2.9), this Section 3.2 2.2 shall apply in lieu of Section 3.1Section
2.1. The Company shall have discretion to terminate Executive’s employment during the notice period and pay continued Base Salary in lieu of notice.
(b) Upon termination under this Section 3.2, Executive shall receive the Guaranteed Payments. With the exception of unreimbursed business expenses, which shall be paid in accordance with Company policy and Section 19 of this Agreement, or as otherwise provided in the applicable benefit plan, Executive will be paid the Guaranteed Payments on the Company’s first (1st) payroll date after Executive’s date of termination, or earlier if required by applicable law.
(c) If Executive’s employment terminates as described in Section 3.2(asubsection (a) above and if, upon such termination, Executive (i) executes within twenty-one (21) days (or forty-five (45) days to the extent required by applicable law) thereafter and does not revoke a Release, (ii) complies with the terms and conditions of the Release, including, without limitation, any return of property, non-disparagement, and confidentiality provisions contained therein, and (iii) complies with the terms and conditions of Sections 5, 6, 7, and 8 below, Executive shall be entitled to receive the following payments (collectivelyseverance compensation, as long as Executive complies with the “Change terms of Control Severance”):Sections 4, 5, 6 and 7 below:
(i) Executive shall receive cash a lump sum severance payment in an amount equal to 3.00 times the sum of (A) four (4) months Executive’s annual Base Salary at the rate in effect at the time of Executive’s then-current Base Salary per each completed year of service, with a minimum of twelve (12) months’ Base Salary termination and a maximum of twenty-four (24) months’ Base Salary plus (B) an amount equal to Executive’s Target Bonus. The severance amount shall be paid target bonus for the calendar year in a single lump-sum payment, less all required withholdings and deductions, subject to Section 3.2(d) belowwhich the date of termination occurs.
(ii) Provided that Executive timely and properly elects continuation coverage under COBRA, the The Company shall, for a period of twelve (12) 18 months following the date of Executive’s termination of employment (the “COBRA Period”)employment, pay Executive each month an amount equal to the monthly COBRA Payment (medical insurance cost under the Company’s medical plan for Executive, and, where applicable, her spouse and eligible dependents, less an amount equal to the required monthly employee payment for such coverage calculated as defined in Section 3.1(c)(ii) above). Any payment under this Section 3.2(c)(ii) shall if Executive had continued to be subject an employee of the Company throughout such period; provided that Executive, and, where applicable, her spouse and eligible dependents, are eligible for and timely elect to applicable tax withholdings. Notwithstanding receive COBRA healthcare continuation coverage and provided further that the foregoing, payments specified under this Section 3.2(c)(ii2.2(b)(ii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for any reason before the expiration of the COBRA Period, including but not limited to Executive’s failure to timely elect continuation coverage under COBRA18-month period.
(iii) Any outstanding unvested portion Executive shall receive any benefits earned, accrued and due in accordance with the terms of any applicable benefit plans and programs of the Option will vest immediatelyCompany. In addition, Executive shall be entitled to the annual bonus earned based on actual performance, if any, payable for the fiscal year in which the termination occurs (prorated to reflect Executive’s actual period of service during such fiscal year) paid in accordance with Section 1.5 without regard to the last sentence of Section 1.5.
(div) Except as otherwise required by Section 3.92.10, the benefits lump sum payment described in subsections subsection (i) shall be made, and the monthly payments described in subsection (ii) above shall be paid or begin, as the case may be, within sixty (60) 60 days after Executive’s termination date, provided Executive has timely executed subject to Executive’s execution and not revoked non-revocation of the Release within such sixty (60) day periodRelease; and provided that notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of Executive’s execution of the Release, directly or indirectly, result in Executive’s Executive designating the calendar year of payment, and if a payment that is “nonqualified deferred compensation” as defined under Section 409A is subject to execution of the Release and could be made in more than one taxable year, payment shall be made in the later taxable year. The Company shall provide the Release to Executive on or before the termination date, and Executive shall execute the Release during the time period permitted by applicable law.
(ev) Notwithstanding any provision to the contrary in the Company’s 2006 Stock Incentive Plan or any applicable plan, program or agreement, all stock options, restricted stock and other equity rights held by the Executive will become fully vested and/or exercisable, as the case may be, on the Executive’s termination date, and all stock options held by the Executive shall remain exercisable, notwithstanding anything in any other agreement governing such options, for a period of 24 months following the end of the remaining balance of the Term of the Agreement; provided, however, that in no event will the option be exercisable (i) beyond its original term; or (ii) beyond the extension period permitted under section 409A of the Code.
(c) Notwithstanding any vesting provision to the contrary in any applicable plan, program or agreement providing for supplemental retirement benefits or deferred compensation, upon the occurrence of a Change of Control, Executive’s accrued benefit under such plans, programs or agreements shall become fully vested on the date on which the Change in Control occurs, and Executive’s accrued benefit shall be immediately payable on the Executive’s date of termination, unless the Executive has made a valid election under such plan, program or agreement to defer payment of such accrued benefits or the Executive’s accrued benefit constitutes “deferred compensation” within the meaning of section 409A of the Code and the terms of the applicable plan, program or agreement provide otherwise with respect to the timing of payment of the accrued benefit.
(d) Executive agrees and acknowledges that the Change of Control Severance provided to Executive pursuant to Section 3.2(c) is in lieu of, and not in addition to, any benefits to which Executive may otherwise be entitled under any Company severance plan, policy, or program, other than the Guaranteed Payments.
(f) Executive agrees and acknowledges that if Executive fails to comply with materially breaches Section 4, 5, 6, 6 or 7 or 8 below, all payments and benefits under this Section 3.2(c) 2.2 shall immediately cease and Executive shall be required to repay immediately any Change of Control Severance previously paid by the Company thereundercease.
Appears in 1 contract
Termination Without Cause or Resignation for Good Reason After a Change of Control. (a) If a Change of Control (as defined below) occurs and, during the one-year period commencing six months prior to and one year following on the date of the Change of Control, the Company terminates Executive’s 's employment without Cause or Executive resigns for Good Reason (as defined in, and in accordance with the notice provisions set forth in Section 3.8) prior to expiration of the then-current Employment Period2.9), this Section 3.2 2.2 shall apply in lieu of Section 3.12.
1. The Company shall have the discretion to terminate Executive's employment during the notice period and pay continued Base Salary in lieu of notice.
(b) Upon termination under this Section 3.22.2, Executive shall receive the Guaranteed Payments. With the exception of unreimbursed business expenses, which shall be paid in accordance with Company policy and Section 19 of this Agreement, or as otherwise provided in the applicable benefit planpolicy, Executive will be paid the Guaranteed Payments on the Company’s 's first (1st) payroll date after Executive’s 's date of terminationtermination from employment, or earlier if required by applicable law.
(c) If Executive’s 's employment terminates as described in Section 3.2(a2.2(a) above and if, upon such termination, Executive (i) executes within twenty-one (21) days (or forty-five (45) days to the extent required by applicable law) thereafter and does not revoke a ReleaseRelease (as defined in Section 2.1(c) above), (ii) complies with the terms and conditions of the Release, including, without limitation, any return of property, non-disparagement, and confidentiality provisions contained therein, and (iii) complies with the terms and conditions of Sections 4, 5, 6, 7, and 8 7 below, Executive shall be entitled to receive the following payments (collectively, the “"Change of Control Severance”"):
(i) Executive shall receive cash severance in an amount equal to the sum of (A) four (4) months of Executive’s then-'s then current annual Base Salary per each completed year of service, with a minimum of twelve (12) months’ ' Base Salary and a maximum of twenty-four (24) months’ ' Base Salary Salary, plus (B) Executive's target Annual Bonus for the fiscal year in which Executive's employment is terminated in an amount equal to forty percent (40%) of Executive’s Target Bonus's then current annual Base Salary prorated based on the number of days Executive is employed during such fiscal year. The severance amount shall be paid in a single lump-sum payment, less all required withholdings and deductionsconsistent with the Company's regularly scheduled payroll, subject to Section 3.2(d2.2(c)(iii) below. Any outstanding unvested equity, RSUs (time-based only) and Options will also vest immediately.
(ii) Provided that Executive timely and properly elects continuation coverage under COBRA, the The Company shall, for a period of twelve (12) months following the date of Executive’s 's termination of employment (the “"COBRA Period”period''), pay Executive each month an amount equal to the monthly COBRA Payment (medical insurance cost under the Company's medical plan for Executive, and, where applicable, his spouse and eligible dependents, less an amount equal to the required monthly employee payment for such coverage calculated as defined in Section 3.1(c)(ii) above). Any payment under this Section 3.2(c)(ii) shall if Executive had continued to be subject to applicable tax withholdingsan employee of the Company throughout such period. Notwithstanding the foregoing, payments specified under this Section 3.2(c)(ii2.2(c)(ii) shall cease if the Company’s 's statutory obligation to provide such COBRA healthcare continuation coverage terminates for any reason before the expiration of the COBRA Periodperiod, including but not limited to Executive’s 's failure to timely elect continuation coverage under COBRA.
(iii) Any outstanding unvested portion of the Option will vest immediately.
(d) Except as otherwise required by Section 3.92.1 0, the benefits described in subsections (i) and (ii) above shall be paid or begin, as the case may be, begin within sixty (60) days after Executive’s 's termination date, provided Executive has timely executed and not revoked the Release within such sixty (60) day period; and provided that notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of Executive’s 's execution of the Release, directly or indirectly, result in Executive’s Executive designating the calendar year of payment, and if a payment that is “nonqualified "deferred compensation” " as defined under Section 409A of the Code is subject to execution of the Release and could be made in more than one taxable year, payment shall be made in the later taxable year. The Company shall provide the Release to Executive on or before the termination date, and Executive shall execute the Release during the time period permitted by applicable law.
(ed) Executive agrees and acknowledges that the Change of Control Severance provided to Executive pursuant to Section 3.2(c2.2( c) is in lieu of, and not in addition to, any benefits to which Executive may otherwise be entitled under any Company severance plan, policy, or program, other than the Guaranteed Payments.
(fe) Executive agrees and acknowledges that if Executive fails to comply with Section 4, 5, 6, 6 or 7 or 8 below, all payments under Section 3.2(c2.2(c) shall immediately cease and Executive shall be required to repay immediately any Change of Control Severance previously paid by the Company thereunder.
Appears in 1 contract
Termination Without Cause or Resignation for Good Reason After a Change of Control. (a) If a Change of Control occurs and, during the period commencing six months prior to and one year following the date of the Change of Control, the Company terminates Executive’s 's employment without Cause or Executive resigns for Good Reason (as defined in, and in accordance with the notice provisions set forth in Section 3.8) prior to expiration of the ofthe then-current Employment Period, this Section 3.2 shall apply in lieu of Section 3.1.
(b) Upon termination under this Section 3.2, Executive shall receive the Guaranteed Payments. With the exception of unreimbursed business expenses, which shall be paid in accordance with Company policy and Section 19 of this Agreement, or as otherwise provided in the applicable benefit plan, Executive will be paid the Guaranteed Payments on the Company’s 's first (1st) payroll date after Executive’s 's date of termination, or earlier if required by applicable law.
(c) If Executive’s 's employment terminates as described in Section 3.2(a) above and if, upon such termination, Executive (i) executes within twenty-one (21) days (or forty-five (45) days to the extent required by applicable law) thereafter and does not revoke a Release, (ii) complies with the terms and conditions of the Release, including, without limitation, any return of property, non-disparagement, and confidentiality provisions contained therein, and (iii) complies with the terms and conditions of Sections 5, 6, 7, and 8 below, Executive shall be entitled to receive the following payments (collectively, the “"Change of Control Severance”"):
(i) Executive shall receive cash severance in an amount equal to the sum of (Aof(A) four (4) months of Executive’s ofExecutive's then-current Base Salary per each completed year of service, with a minimum of twelve (12) months’ ' Base Salary and a maximum of twenty-four (24) months’ ' Base Salary plus (B) an amount equal to Executive’s 's Target Bonus. The severance amount shall be paid in a single lump-sum payment, less all required withholdings and deductions, subject to Section 3.2(d) below.
(ii) Provided that Executive timely and properly elects continuation coverage under COBRA, the Company shall, for a period of twelve (12) months following the date of Executive’s 's termination of employment (the “"COBRA Period”"), pay the COBRA Payment (as defined in Section 3.1(c)(ii) above). Any payment under this Section 3.2(c)(ii) shall be subject to applicable tax withholdings. Notwithstanding the foregoing, payments specified under this Section 3.2(c)(ii) shall cease if the Company’s 's statutory obligation to provide such COBRA healthcare continuation coverage terminates for any reason before the expiration of the COBRA Period, including but not limited to Executive’s 's failure to timely elect continuation coverage under COBRA.
(iii) Any outstanding unvested portion of the Option will vest immediately.
(d) Except as otherwise required by Section 3.9, the benefits described in subsections (i) and (ii) above shall be paid or begin, as the case may be, within sixty (60) days after Executive’s 's termination date, provided Executive has timely executed and not revoked the Release within such sixty (60) day period; and provided that notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of Executive’s 's execution of the Release, directly or indirectly, result in Executive’s 's designating the calendar year of payment, and if a payment that is “"nonqualified deferred compensation” " as defined under Section 409A is subject to execution of the Release and could be made in more than one taxable year, payment shall be made in the later taxable year.
(e) Executive agrees and acknowledges that the Change of Control Severance provided to Executive pursuant to Section 3.2(c) is in lieu of, and not in addition to, any benefits to which Executive may otherwise be entitled under any Company severance plan, policy, or program, other than the Guaranteed Payments.
(f) Executive agrees and acknowledges that if Executive fails to comply with Section 5, 6, 7 or 8 below, all payments under Section 3.2(c) shall immediately cease and Executive shall be required to repay immediately any Change of Control Severance previously paid by the Company thereunder.
Appears in 1 contract
Termination Without Cause or Resignation for Good Reason After a Change of Control. (a) If a Change of Control occurs and, during the one-year period commencing six months prior to and one year following on the date of the Change of Control, the Company terminates Executive’s employment without Cause or Executive resigns for Good Reason (as defined in, and in accordance with the notice provisions set forth in Section 3.83.9) prior to the expiration of the then-current Employment Period, this Section 3.2 3.3 shall apply in lieu of Section 3.13.2.
(b) Upon termination under this Section 3.23.3, Executive shall receive the Guaranteed Payments. With the exception of unreimbursed business expenses, which shall be paid in accordance with Company policy and Section 19 of this Agreement, or as otherwise provided in the applicable benefit plan, Executive will be paid the Guaranteed Payments on the Company’s first (1st) payroll date after Executive’s date of termination, or earlier if required by applicable law.
(c) If Executive’s employment terminates as described in Section 3.2(a3.3(a) above prior to the expiration of the then-current Employment Period and if, upon such termination, if Executive (i) executes within twenty-one (21) days (or forty-five (45) days to the extent required by applicable law) thereafter and does not revoke a Release, (ii) complies with the terms and conditions of the Release, including, without limitation, any return of property, non-disparagement, and confidentiality provisions contained therein, and (iii) complies with the terms and conditions of Sections 5, 6, 7, and 8 below, Executive shall be entitled to receive the following payments (collectively, the “Change of Control Severance”):
(i) Executive shall receive cash severance in an amount equal to the sum of (A) four (4) months of Executive’s then-then current Base Salary per each completed year of service, with a minimum of twelve (12) months’ Base Salary and a maximum of twenty-four (24) months’ Base Salary plus (B) an amount equal to Executive’s Target BonusBonus for the fiscal year in which Executive’s employment is terminated prorated based on the number of days Executive is employed during such fiscal year. The severance amount shall be paid in a single lump-sum payment, less all required withholdings and deductions, subject to Section 3.2(d3.3(d) below.
(ii) Provided that Executive timely and properly elects continuation coverage under COBRA, the The Company shall, for a period of twelve (12) months following the date of Executive’s termination of employment (the “COBRA Period”), pay Executive each month an amount equal to the monthly COBRA Payment (medical insurance cost under the Company’s medical plan for Executive, and, where applicable, his spouse and eligible dependents, less an amount equal to the required monthly employee payment for such coverage calculated as defined in Section 3.1(c)(ii) above). Any payment under this Section 3.2(c)(ii) shall if Executive had continued to be subject to applicable tax withholdingsan employee of the Company throughout such period. Notwithstanding the foregoing, payments specified under this Section 3.2(c)(ii3.3(c)(ii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for any reason before the expiration of the COBRA Period, including but not limited to Executive’s failure to timely elect continuation coverage under COBRA.
(iii) Any outstanding unvested portion of the Option will vest immediately.
(d) Except as otherwise required by Section 3.93.10, the benefits described in subsections (i) and (ii) above shall be paid or begin, as the case may be, within sixty (60) days after Executive’s termination date, provided Executive has timely executed and not revoked the Release within such sixty (60) day period; and provided that notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of Executive’s execution of the Release, directly or indirectly, result in Executive’s designating the calendar year of payment, and if a payment that is “nonqualified deferred compensation” as defined under Section 409A is subject to execution of the Release and could be made in more than one taxable year, payment shall be made in the later taxable year.
(e) Executive agrees and acknowledges that the Change of Control Severance provided to Executive pursuant to Section 3.2(c3.3(c) is in lieu of, and not in addition to, any benefits to which Executive may otherwise be entitled under any Company severance plan, policy, or program, other than the Guaranteed Payments.
(f) Executive agrees and acknowledges that if Executive fails to comply with Section 5, 6, 7 or 8 below, all payments under Section 3.2(c3.3(c) shall immediately cease and Executive shall be required to repay immediately any Change of Control Severance previously paid by the Company thereunder.
Appears in 1 contract
Termination Without Cause or Resignation for Good Reason After a Change of Control. (a) If a Change of Control occurs and, during the period commencing six months prior to and one year following the date of the Change of Control, the Company terminates Executive’s employment without Cause or Executive resigns for Good Reason (as defined in, and in accordance with the notice provisions set forth in Section 3.8) prior to expiration of the then-current Employment Period, this Section 3.2 shall apply in lieu of Section 3.1. In addition, a termination of Executive’s employment upon the expiration of the then - current Employment Period in Section 1.1, following a Company notice to Executive of a non-renewal of the Employment Period, shall be deemed a termination by the Company without Cause for all purposes under this Section 3.2.
(b) Upon termination under this Section 3.2, Executive shall receive the Guaranteed Payments. With the exception of unreimbursed business expenses, which shall be paid in accordance with Company policy and Section 19 2.7 of this Agreement, or as otherwise provided in the applicable benefit plan, Executive will be paid the Guaranteed Payments on the Company’s first (1st) payroll date after Executive’s date of termination, or earlier if required by applicable law.
(c) If Executive’s employment terminates as described in Section 3.2(a) above and if, upon such termination, Executive (i) executes within twenty-one (21) days (or forty-five (45) days to the extent required by applicable law) thereafter and does not revoke a Release, (ii) complies with the terms and conditions of the Release, including, without limitation, any return of property, non-disparagement, and confidentiality provisions contained therein, and (iii) complies with the terms and conditions of Sections 5, 6, 7, and 8 below, Executive shall be entitled to receive the following payments (collectively, the “Change of Control Severance”):
(i) Executive shall receive cash severance in an amount equal to the sum of (A) four (4) months of Executive’s then-current Base Salary per each completed year of serviceservice with the Company, with a minimum of twelve (12) months’ Base Salary and a maximum of twenty-four (24) months’ Base Salary plus (B) an amount equal to Executive’s Target Bonus. The severance amount shall be paid in a single lump-sum payment, less all required withholdings and deductions, subject to Section 3.2(d) below.
(ii) Provided that Executive timely and properly elects continuation coverage under COBRA, the Company shall, for a period of twelve (12) months following the date of Executive’s termination of employment with the Company (the “COBRA Period”), pay the COBRA Payment (as defined in Section 3.1(c)(ii) above)directly to the administrator. Any payment under this Section 3.2(c)(ii) shall be subject to applicable tax withholdingswithholdings to the extent applicable. Notwithstanding the foregoing, payments specified under this Section 3.2(c)(ii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for any reason before the expiration of the COBRA Period, including but not limited to Executive’s failure to timely elect continuation coverage under COBRA.
(iii) Any outstanding unvested portion of the Option will vest immediately.
(d) Except as otherwise required by Section 3.9, the benefits described in subsections (i) and (ii) above shall be paid or begin, as the case may be, within sixty (60) days after Executive’s termination date, provided Executive has timely executed and not revoked the Release within such sixty (60) day period; and provided that notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of Executive’s execution of the Release, directly or indirectly, result in Executive’s designating the calendar year of payment, and if a payment that is “nonqualified deferred compensation” as defined under Section 409A is subject to execution of the Release and could be made in more than one taxable year, payment shall be made in the later taxable year.
(e) Executive agrees and acknowledges that the Change of Control Severance provided to Executive pursuant to Section 3.2(c) is in lieu of, and not in addition to, any benefits to which Executive may otherwise be entitled under any Company severance plan, policy, or program, other than the Guaranteed Payments.
(f) Executive agrees and acknowledges that if Executive fails to comply with Section 5, 6, 7 or 8 below, all payments under Section 3.2(c) shall immediately cease and Executive shall be required to repay immediately any Change of Control Severance previously paid by the Company thereunder.
Appears in 1 contract
Termination Without Cause or Resignation for Good Reason After a Change of Control. (a) If a Change of Control occurs and, during the one-year period commencing six months prior to and one year following on the date of the Change of Control, the Company terminates Executive’s employment without Cause or Executive resigns for Good Reason (as defined in, and in accordance with the notice provisions set forth in Section 3.8) prior to the expiration of the then-current Employment Period, this Section 3.2 shall apply in lieu of Section 3.1.
(b) Upon termination under this Section 3.2, Executive shall receive the Guaranteed Payments. With the exception of unreimbursed business expenses, which shall be paid in accordance with Company policy and Section 19 of this Agreement, or as otherwise provided in the applicable benefit plan, Executive will be paid the Guaranteed Payments on the Company’s first (1st) payroll date after Executive’s date of termination, or earlier if required by applicable law.
(c) If Executive’s employment terminates as described in Section 3.2(a) above prior to the expiration of the then-current Employment Period and if, upon such termination, Executive (i) executes within twenty-one (21) days (or forty-five (45) days to the extent required by applicable law) thereafter and does not revoke a Release, (ii) complies with the terms and conditions of the Release, including, without limitation, any return of property, non-disparagement, and confidentiality provisions contained therein, and (iii) complies with the terms and conditions of Sections 5, 6, 7, and 8 below8below, Executive shall be entitled to receive the following payments (collectively, the “Change of Control Severance”):
(i) Executive shall receive cash severance in an amount equal to the sum of (A) four (4) months of Executive’s then-then current Base Salary per each completed year of service, with a minimum of twelve (12) months’ Base Salary and a maximum of twenty-four (24) months’ Base Salary plus (B) an amount equal to Executive’s Target BonusBonus for the fiscal year in which Executive’s employment is terminated. The severance amount shall be paid in a single lump-sum payment, less all required withholdings and deductions, subject to Section 3.2(d) below.
(ii) Provided that Executive timely and properly elects continuation coverage under COBRA, the Company shall, for a period of twelve (12) months following the date of Executive’s termination of employment (the “COBRA Period”), pay the COBRA Payment (as defined in Section 3.1(c)(ii) above). Any payment under this Section 3.2(c)(ii) shall be subject to applicable tax withholdings. Notwithstanding the foregoing, payments specified under this Section 3.2(c)(ii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for any reason before the expiration of the COBRA Period, including but not limited to Executive’s failure to timely elect continuation coverage under COBRA.
(iii) Any outstanding unvested portion of the Time-Based Option will vest immediately.
(d) Except as otherwise required by Section 3.9, the benefits described in subsections (i) and (ii) above shall be paid or begin, as the case may be, within sixty (60) days after Executive’s termination date, provided Executive has timely executed and not revoked the Release within such sixty (60) day period; and provided that notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of Executive’s execution of the Release, directly or indirectly, result in Executive’s designating the calendar year of payment, and if a payment that is “nonqualified deferred compensation” as defined under Section 409A is subject to execution of the Release and could be made in more than one taxable year, payment shall be made in the later taxable year.
(e) Executive agrees and acknowledges that the Change of Control Severance provided to Executive pursuant to Section 3.2(c) is in lieu of, and not in addition to, any benefits to which Executive may otherwise be entitled under any Company severance plan, policy, or program, other than the Guaranteed Payments.
(f) Executive agrees and acknowledges that if Executive fails to comply with Section 5, 6, 7 or 8 below, all payments under Section 3.2(c) shall immediately cease and Executive shall be required to repay immediately any Change of Control Severance previously paid by the Company thereunder.
Appears in 1 contract
Termination Without Cause or Resignation for Good Reason After a Change of Control. (a) If a Change of Control occurs and, during the one-year period commencing six months prior to and one year following on the date of the Change of Control, and the Company terminates Executive’s employment without Cause (upon not less than 30 days’ prior written notice to Executive) or Executive resigns for Good Reason (as defined in, and in accordance with the notice provisions set forth in Section 3.8) prior to expiration of the then-current Employment Period2.9), this Section 3.2 2.2 shall apply apply. The Company shall have discretion to terminate Executive’s employment during the notice period and pay continued Base Salary in lieu of Section 3.1notice.
(b) Upon termination under this Section 3.2, Executive shall receive the Guaranteed Payments. With the exception of unreimbursed business expenses, which shall be paid in accordance with Company policy and Section 19 of this Agreement, or as otherwise provided in the applicable benefit plan, Executive will be paid the Guaranteed Payments on the Company’s first (1st) payroll date after Executive’s date of termination, or earlier if required by applicable law.
(c) If Executive’s employment terminates as described in Section 3.2(asubsection (a) above and if, upon such termination, Executive (i) executes within twenty-one (21) days (or forty-five (45) days to the extent required by applicable law) thereafter and does not revoke a Release, (ii) complies with the terms and conditions of the Release, including, without limitation, any return of property, non-disparagement, and confidentiality provisions contained therein, and (iii) complies with the terms and conditions of Sections 5, 6, 7, and 8 below, Executive shall be entitled to receive the following payments (collectivelyseverance compensation, as long as Executive complies with the “Change terms of Control Severance”):Sections 4, 5, 6 and 7 below:
(i) Executive shall receive cash a lump sum severance payment in an amount equal to 3.00 times the sum of (A) four (4) months Executive’s annual Base Salary at the rate in effect at the time of Executive’s then-current Base Salary per each completed year of service, with a minimum of twelve (12) months’ Base Salary termination and a maximum of twenty-four (24) months’ Base Salary plus (B) an amount equal to Executive’s Target Bonus. The severance amount shall be paid target bonus for the calendar year in a single lump-sum payment, less all required withholdings and deductions, subject to Section 3.2(d) belowwhich the date of termination occurs.
(ii) Provided that Executive timely and properly elects continuation coverage under COBRA, the The Company shall, for a period of twelve (12) 36 months following the date of Executive’s termination of employment (the “COBRA Period”)employment, pay Executive each month an amount equal to the monthly COBRA Payment (as defined in Section 3.1(c)(ii) above). Any payment medical insurance cost under this Section 3.2(c)(ii) shall be subject to applicable tax withholdings. Notwithstanding the foregoing, payments specified under this Section 3.2(c)(ii) shall cease if the Company’s statutory obligation medical plan for Executive, and, where applicable, her spouse and dependents, less an amount equal to provide the required monthly employee payment for such COBRA healthcare continuation coverage terminates for any reason before the expiration calculated as if Executive had continued to be an employee of the COBRA Period, including but not limited to Executive’s failure to timely elect continuation coverage under COBRACompany throughout such period.
(iii) Any outstanding unvested portion Executive shall receive any benefits earned, accrued and due in accordance with the terms of any applicable benefit plans and programs of the Option will vest immediatelyCompany. In addition, Executive shall be entitled to the annual bonus earned based on actual performance, if any, payable for the fiscal year in which the termination occurs (prorated to reflect Executive’s actual period of service during such fiscal year) paid in accordance with Section 1.5 without regard to the last sentence of Section 1.5.
(div) Except as otherwise required by Section 3.92.10, the benefits lump sum payment described in subsections subsection (i) shall be made, and the monthly payments described in subsection (ii) above shall be paid or begin, as the case may be, within sixty (60) 60 days after Executive’s termination date, provided Executive has timely executed subject to Executive’s execution and not revoked non-revocation of the Release within such sixty (60) day periodRelease; and provided that notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of Executive’s execution of the Release, directly or indirectly, result in Executive’s Executive designating the calendar year of payment, and if a payment that is “nonqualified deferred compensation” as defined under Section 409A is subject to execution of the Release and could be made in more than one taxable year, payment shall be made in the later taxable year. The Company shall provide the Release to Executive on or before the termination date, and Executive shall execute the Release during the time period permitted by applicable law.
(ev) Notwithstanding any provision to the contrary in the Company’s 2006 Stock Incentive Plan or any applicable plan, program or agreement, all stock options, restricted stock and other equity rights held by the Executive will become fully vested and/or exercisable, as the case may be, on the Executive’s termination date, and all stock options held by the Executive shall remain exercisable, notwithstanding anything in any other agreement governing such options, for a period of 24 months following the end of the remaining balance of the Term of the Agreement; provided, however, that in no event will the option be exercisable (i) beyond its original term; or (ii) beyond the extension period permitted under section 409A of the Code.
(c) Notwithstanding any provision to the contrary in any applicable plan, program or agreement providing for supplemental retirement benefits or deferred compensation, upon the occurrence of a Change of Control, Executive’s accrued benefit under such plans, programs or agreements shall become fully vested on the date on which the Change in Control occurs, and shall be immediately payable on the Executive’s date of termination, unless the Executive has made a valid election under such plan, program or agreement to defer payment of such accrued benefits or the terms of the applicable plans, programs or agreements provide otherwise.
(d) Executive agrees and acknowledges that the Change of Control Severance provided to Executive pursuant to Section 3.2(c) is in lieu of, and not in addition to, any benefits to which Executive may otherwise be entitled under any Company severance plan, policy, or program, other than the Guaranteed Payments.
(f) Executive agrees and acknowledges that if Executive fails to comply with materially breaches Section 4, 5, 6, 6 or 7 or 8 below, all payments and benefits under this Section 3.2(c) 2.2 shall immediately cease and Executive shall be required to repay immediately any Change of Control Severance previously paid by the Company thereundercease.
Appears in 1 contract
Termination Without Cause or Resignation for Good Reason After a Change of Control. (a) If a Change of Control occurs and, during the one-year period commencing six months prior to and one year following on the date of the Change of Control, the Company terminates Executive’s employment without Cause (which shall be upon not less than 30 days’ prior written notice to Executive) or Executive resigns for Good Reason (as defined in, and in accordance with the notice provisions set forth in Section 3.8) prior to expiration of the then-current Employment Period2.9), this Section 3.2 2.2 shall apply in lieu of Section 3.1Section
2.1. The Company shall have discretion to terminate Executive’s employment during the notice period and pay continued Base Salary in lieu of notice through the end of the notice period.
(b) Upon termination under this Section 3.2, Executive shall receive the Guaranteed Payments. With the exception of unreimbursed business expenses, which shall be paid in accordance with Company policy and Section 19 of this Agreement, or as otherwise provided in the applicable benefit plan, Executive will be paid the Guaranteed Payments on the Company’s first (1st) payroll date after Executive’s date of termination, or earlier if required by applicable law.
(c) If Executive’s employment terminates as described in Section 3.2(asubsection (a) above and if, upon such termination, Executive (i) executes within twenty-one (21) days (or forty-five (45) days to the extent required by applicable law) thereafter and does not revoke a Release, (ii) complies with the terms and conditions of the Release, including, without limitation, any return of property, non-disparagement, and confidentiality provisions contained therein, and (iii) complies with the terms and conditions of Sections 5, 6, 7, and 8 below, Executive shall be entitled to receive the following payments (collectivelyseverance compensation, as long as Executive complies with the “Change terms of Control Severance”):Sections 4, 5, 6 and 7 below:
(i) Executive shall receive cash a lump sum severance payment in an amount equal to 3.00 times the sum of (A) four (4) months Executive’s annual Base Salary at the rate in effect at the time of Executive’s then-current Base Salary per each completed year of service, with a minimum of twelve (12) months’ Base Salary termination and a maximum of twenty-four (24) months’ Base Salary plus (B) an amount equal to Executive’s Target Bonus. The severance amount shall be paid target bonus for the calendar year in a single lump-sum payment, less all required withholdings and deductions, subject to Section 3.2(d) belowwhich the date of termination occurs.
(ii) Provided that Executive timely and properly elects continuation coverage under COBRA, the The Company shall, for a period of twelve (12) 18 months following the date of Executive’s termination of employment (the “COBRA Period”)employment, pay Executive each month an amount equal to the monthly COBRA Payment (medical insurance cost under the Company’s medical plan for Executive, and, where applicable, her spouse and eligible dependents, less an amount equal to the required monthly employee payment for such coverage calculated as defined in Section 3.1(c)(ii) above). Any payment under this Section 3.2(c)(ii) shall if Executive had continued to be subject an employee of the Company throughout such period; provided that Executive, and, where applicable, her spouse and eligible dependents, are eligible for and timely elect to applicable tax withholdings. Notwithstanding receive COBRA healthcare continuation coverage and provided further that the foregoing, payments specified under this Section 3.2(c)(ii2.2(b)(ii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for any reason before the expiration of the COBRA Period, including but not limited to Executive’s failure to timely elect continuation coverage under COBRA18-month period.
(iii) Any outstanding unvested portion Executive shall receive all compensation earned and any benefits earned, accrued and due through the end of the Option will vest immediatelynotice period in accordance with the terms of any applicable benefit plans and programs of the Company. In addition, Executive shall be entitled to the annual bonus earned based on actual performance, if any, payable for the fiscal year in which the termination occurs (prorated to reflect Executive’s actual period of service during such fiscal year) paid in accordance with Section 1.5 without regard to the last sentence of Section 1.5.
(div) Except as otherwise required by Section 3.92.10, the benefits lump sum payment described in subsections subsection (i) shall be made, and the monthly payments described in subsection (ii) above shall be paid or begin, as the case may be, within sixty (60) 60 days after Executive’s termination date, provided Executive has timely executed subject to Executive’s execution and not revoked non-revocation of the Release within such sixty (60) day periodRelease; and provided that notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of Executive’s execution of the Release, directly or indirectly, result in Executive’s Executive designating the calendar year of payment, and if a payment that is “nonqualified deferred compensation” as defined under Section 409A is subject to execution of the Release and could be made in more than one taxable year, payment shall be made in the later taxable year. The Company shall provide the Release to Executive on or before the termination date, and Executive shall execute the Release during the time period permitted by applicable law.
(ev) Notwithstanding any provision to the contrary in the Company’s 2006 Stock Incentive Plan (as amended from time to time) or any applicable plan, program or agreement, all stock options, restricted stock and other equity rights held by the Executive will become fully vested and/or exercisable, as the case may be, on the Executive’s termination date, and all stock options held by the Executive shall remain exercisable, notwithstanding anything in any other agreement governing such options, for a period of 24 months following the end of the remaining balance of the Term of the Agreement; provided, however, that in no event will the option be exercisable (i) beyond its original term; or (ii) beyond the extension period permitted under section 409A of the Code.
(c) Notwithstanding any vesting provision to the contrary in any applicable plan, program or agreement providing for supplemental retirement benefits or deferred compensation, upon the occurrence of a Change of Control, Executive’s accrued benefit under such plans, programs or agreements shall become fully vested on the date on which the Change in Control occurs, and Executive’s accrued benefit shall be immediately payable on the Executive’s date of termination, unless the Executive has made a valid election under such plan, program or agreement to defer payment of such accrued benefits or the Executive’s accrued benefit constitutes “deferred compensation” within the meaning of section 409A of the Code and the terms of the applicable plan, program or agreement provide otherwise with respect to the timing of payment of the accrued benefit.
(d) Executive agrees and acknowledges that the Change of Control Severance provided to Executive pursuant to Section 3.2(c) is in lieu of, and not in addition to, any benefits to which Executive may otherwise be entitled under any Company severance plan, policy, or program, other than the Guaranteed Payments.
(f) Executive agrees and acknowledges that if Executive fails to comply with materially breaches Section 4, 5, 6, 6 or 7 or 8 below, all payments and benefits under this Section 3.2(c) 2.2 shall immediately cease and Executive shall be required to repay immediately any Change of Control Severance previously paid by the Company thereundercease.
Appears in 1 contract
Termination Without Cause or Resignation for Good Reason After a Change of Control. (a) If a Change of Control occurs and, during the period commencing six months prior to and one year following the date of the Change of Control, the Company terminates Executive’s 's employment without Cause at any time upon or after a Change of Control or Executive resigns for Good Reason (as defined in, and in accordance with the notice provisions set forth in Section 3.82.9) prior to expiration upon or at any time during the one-year period following the Change of the then-current Employment PeriodControl, this Section 3.2 2.2 shall apply in lieu of Section 3.1apply.
(b) Upon termination under this Section 3.2, Executive shall receive the Guaranteed Payments. With the exception of unreimbursed business expenses, which shall be paid in accordance with Company policy and Section 19 of this Agreement, or as otherwise provided in the applicable benefit plan, Executive will be paid the Guaranteed Payments on the Company’s first (1st) payroll date after Executive’s date of termination, or earlier if required by applicable law.
(c) If Executive’s 's employment terminates as described in Section 3.2(asubsection (a) above and if, upon such termination, Executive (i) executes within twenty-one (21) days (or forty-five (45) days to the extent required by applicable law) thereafter and does not revoke a Release, (ii) complies with the terms and conditions of the Release, including, without limitation, any return of property, non-disparagement, and confidentiality provisions contained therein, and (iii) complies with the terms and conditions of Sections 5, 6, 7, and 8 below, Executive shall be entitled to receive the following payments (collectivelyseverance compensation, as long as Executive complies with the “Change terms of Control Severance”):Sections 4, 5, 6 and 7 below:
(i) Executive shall receive cash a lump sum severance payment in an amount equal to 3.00 times the sum of Executive's annual Base Salary at the rate in effect at the time of Executive's termination and Executive's target bonus for the calendar year in which the date of termination occurs;
(Aii) four For a period of thirty-six (436) months following the Executive's date of termination, Executive shall continue to receive the medical and dental coverage in effect on Executive’s then's date of termination (or generally comparable coverage) for Executive and, where applicable, Executive's spouse and dependents, as the same may be changed from time to time for employees generally, as if Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay Executive cash in lieu of such coverage in an amount equal to Executive's after-current Base Salary per each completed tax cost of continuing comparable coverage, where such coverage may not be continued by the Company (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health continuation coverage period under section 4980B of the Code shall run concurrently during the thirty-six (36) month period.
(iii) Executive shall receive any benefits accrued in accordance with the terms of any applicable benefit plans and programs of the Company. In addition, Executive shall be entitled to the annual bonus, if any, payable for the fiscal year in which the termination occurs (prorated to reflect Executive's actual period of serviceservice during such fiscal year) without regard to the last sentence of Section 1.5.
(iv) Except as otherwise required by Section 2.10, with the lump sum payment described in subsection (i) shall be made, and the monthly payments described in subsection (ii) above shall begin, within 30 days after Executive's termination date (or at the end of the revocation period for the Release, if later). The Company shall provide the Release to Executive on or before the termination date, and Executive shall execute the Release during the time period permitted by applicable law.
(c) Notwithstanding any provision to the contrary in the Company's 2006 Stock Incentive Plan or any applicable plan, program or agreement, upon the occurrence of a minimum Change of twelve (12) months’ Base Salary Control, all stock options, restricted stock and other equity rights held by the Executive will become fully vested and/or exercisable, as the case may be, on the date on which the Change in Control occurs, and all stock options held by the Executive shall remain exercisable, notwithstanding anything in any other agreement governing such options, for a maximum period of twenty-four (24) months’ Base Salary plus (B) an amount equal to Executive’s Target Bonus. The severance amount shall be paid in a single lump-sum payment, less all required withholdings and deductions, subject to Section 3.2(d) below.
(ii) Provided that Executive timely and properly elects continuation coverage under COBRA, the Company shall, for a period of twelve (12) months following the date of Executive’s termination of employment (the “COBRA Period”), pay the COBRA Payment (as defined in Section 3.1(c)(ii) above). Any payment under this Section 3.2(c)(ii) shall be subject to applicable tax withholdings. Notwithstanding the foregoing, payments specified under this Section 3.2(c)(ii) shall cease if the Company’s statutory obligation to provide such COBRA healthcare continuation coverage terminates for any reason before the expiration end of the COBRA Period, including but not limited to Executive’s failure to timely elect continuation coverage under COBRA.
(iii) Any outstanding unvested portion remaining balance of the Option Term of the Agreement; provided, however, that in no event will vest immediatelythe option be exercisable (a) beyond its original term; or (b) beyond the extension period permitted under Section 409A of the Code.
(d) Except as otherwise required by Section 3.9Notwithstanding any provision to the contrary in any applicable plan, program or agreement providing for supplemental retirement benefits or deferred compensation, upon the benefits described occurrence of a Change of Control, Executive's accrued benefit under such plans, programs or agreements shall become fully vested on the date on which the Change in subsections (i) Control occurs, and (ii) above shall be paid or beginimmediately payable on the Executive's date of termination, as unless the case may be, within sixty (60) days after Executive’s termination date, provided Executive has timely executed and not revoked the Release within made a valid election under such sixty (60) day period; and provided that notwithstanding any provision plan, program or agreement to defer payment of this Agreement to the contrary, in no event shall the timing of Executive’s execution of the Release, directly or indirectly, result in Executive’s designating the calendar year of payment, and if a payment that is “nonqualified deferred compensation” as defined under Section 409A is subject to execution of the Release and could be made in more than one taxable year, payment shall be made in the later taxable yearsuch accrued benefits.
(e) Executive agrees and acknowledges that the Change of Control Severance provided to Executive pursuant to Section 3.2(c) is in lieu of, and not in addition to, any benefits to which Executive may otherwise be entitled under any Company severance plan, policy, or program, other than the Guaranteed Payments.
(f) Executive agrees and acknowledges that if Executive fails to comply with materially breaches Section 4, 5, 6, 6 or 7 or 8 below, all payments and benefits under this Section 3.2(c) 2.2 shall immediately cease and Executive shall be required to repay immediately any Change of Control Severance previously paid by the Company thereundercease.
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