Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply. (a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates. (b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination or resignation under Section 6(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company. (c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the following: (i) A lump sum cash payment equal to 1.0 times the Executive’s annual Base Salary (at the rate in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period. (ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period; (iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period; (iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and (v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs.
Appears in 4 contracts
Samples: Employment Agreement (Barrier Therapeutics Inc), Employment Agreement (Barrier Therapeutics Inc), Employment Agreement (Barrier Therapeutics Inc)
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the (a) The Company may remove Executive at any time without Cause (as defined in Section 11 below2.8) or if from the position in which Executive resigns for Good Reason is employed hereunder (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), which case the provisions of this Section 6 Employment Term shall apply.
(abe deemed to have ended) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; provided provided, however, that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and the Trust and Executive shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 2.1 for Good ReasonReason (as defined in Section 2.8). The Executive shall give the Company not less than 30 thirty (30) days’ prior written notice of such resignation. On This provision shall not apply if Executive’s employment is terminated by the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member Company on account of the Board, related to the Company and its parents, subsidiaries and affiliatesExecutive’s death or Disability.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination Upon any removal or resignation under described in Section 6(a2.1(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due or earned in accordance with the terms of any applicable benefit plans and programs of the CompanyCompany and the Trust.
(c) Notwithstanding the provisions of Section 6(b2.1(b), upon termination or resignation, as applicable, under Section 6(a) above, if in the event that Executive executes and does not revoke a written releaserelease upon such removal or resignation, substantially in a the form acceptable to attached hereto as Exhibit A (the Company, in its sole discretion“Release”), of any and all claims against the Company and the Trust and all related parties with respect to all matters arising out of the Executive’s employment by the CompanyCompany and the Trust, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company and the Trust under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives2.1(b), the following:
(i) A Executive shall receive a lump sum cash payment equal to 1.0 the sum of (x) three (3) times the Executive’s annual Base Salary (at the rate in effect immediately before the Executive’s date Date of terminationTermination (as defined in Section 2.8), and (y) plus 1.00 three (3) times the Executive’s target annual cash bonus for the year Incentive Pay (as defined in which the Section 2.8). Such payment shall be made within fifteen (15) days after Executive’s date Date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (Termination or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by For a fraction, the numerator period of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause thirty-six (ii36) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period months following the Executive’s termination or until Date of Termination, Executive shall continue to receive the date on which the Executive is eligible for medical, prescription drug, dental, disability, and life insurance coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as at the same premium rate as may be changed by the Company charged from time to time for employees of the Company generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The To the extent applicable, the COBRA health care continuation coverage period under section 4980B of the Code, Code shall run concurrently with the foregoing 12thirty-six (36) month benefit period;.
(iii) Executive shall receive as of his Date of Termination a restricted Share award grant equal to the total number of restricted Shares that Executive would have received pursuant to Sections 1.8(b)(i) and (ii) of the Agreement as if he continued in employment for the period between his Date of Termination and the remaining period of the Employment Term. The total number of Shares Executive shall receive shall be equal to the minimum number of restricted Shares described in such Sections for such period. Such Shares shall be fully vested on the date of grant and shall be subject to such other terms and conditions set forth in the Trust’s standard Share award agreement for such awards under the Equity Plan or such other plan. Notwithstanding the foregoing, in the event that the Trust is a privately-held entity as of the date of the Executive’s Date of Termination or if there is a limitation on the Executive’s ability to liquidate the Shares as of the date of the Executive’s Date of Termination (other than a limitation imposed by applicable securities laws), in lieu of the restricted Share award described in this subsection (iii), the Executive may require, in his sole discretion, that the Company pay to Executive a lump sum cash amount equal to the fair market value, determined as the Executive’s Date of Termination, of the Shares that Executive would have otherwise been granted pursuant to this subsection (iii). Such payment shall be made within fifteen (15) days after Executive’s Date of Termination or the end of the revocation period for the Release, if later.
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding Notwithstanding any provision to the contrary in any other agreement governing such applicable plan, program or agreement, all outstanding stock options, for a period restricted Shares and other equity rights held by Executive as of six (6) months after Executive’s Date of Termination shall become fully vested and/or exercisable, as applicable, as of the Executive’s date Date of termination; provided, however, Termination. All outstanding stock options and other equity rights that in no event will have an exercise period shall remain exercisable until the option be exercisable beyond its end of their applicable original term or later than the latest date that will avoid adverse tax consequences to the Executive; andterm.
(v) Any Lump sum payment equal to twenty percent (20%) of the Executive’s Base Salary in order to cover the cost of outplacement assistance services for Executive.
(vi) Executive shall receive any other amounts earned, accrued and or owing but not yet paid under Section 2 1 above and any benefits accrued and due under or earned in accordance with the terms of any applicable benefit plans and programs of the Company, whether or not Company and the terms of such plan or program otherwise require an employee Trust. All amounts paid to Executive pursuant to this subsection (c) shall be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursless applicable tax withholding.
Appears in 3 contracts
Samples: Employment Agreement, Employment Agreement (Capital Lodging), Employment Agreement (Capital Lodging)
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the (a) The Company may remove Executive at any time without Cause (as defined in Section 11 below4) or if from the position in which Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause is employed hereunder upon not less than 30 thirty days’ ' prior written notice to the Executive; provided provided, however, that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employmentCompany. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 2.1 for Good ReasonReason (as defined in Section 4); provided, however, that the Company shall be given the opportunity to cure any condition susceptible to cure. The Executive shall give the Company not less than 30 thirty days’ ' prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with Subject to the provisions of Section 6(c2.1(c) belowhereof, upon termination any removal or resignation under described in Section 6(a2.1(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s 's then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due earned in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b2.1(b), upon termination or resignation, as applicable, under Section 6(a) above, if in the event that Executive executes and does not revoke a written mutual release (which the Company shall be obligated to execute and if it refuses to execute for purposes of this section 2.1(c) will be deemed to have been executed by the Company as long as Executive executes the release) upon such removal, resignation or Non-Renewal, substantially in a the form acceptable to attached hereto as Exhibit A (the Company, in its sole discretion"Release"), of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s 's employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as any claims against Executive for actions within the Executive continues to comply with scope of his employment by the provisions of any confidentialityCompany, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives2.1(b), the following:
(i) A Executive shall receive a lump sum cash payment severance payment, without discount, in an amount equal to 1.0 times the Executive’s annual Base Salary (at sum of the rate total amount payable to Executive under this Agreement until expiration of the term then in effect immediately before (i.e. three (3) years), assuming that Executive's total compensation for each year would be equal to the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occursAverage Compensation. The payment described in this clause (i) Payment shall be payable made within 30 fifteen days after the Executive’s effective date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay periodtermination.
(ii) A pro rata bonus payment for For a period of thirty-six (36) months following the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator date of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, Executive shall continue to receive the group term life and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level health insurance in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependentsdependents (without giving effect to any reduction in such benefits subsequent to a Change in Control), as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s 's after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Internal Revenue Code of 1986, as amended (the "Code"), shall run concurrently with the foregoing 12thirty-six month benefit period;.
(iviii) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and also receive any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs1 above.
Appears in 3 contracts
Samples: Employment Agreement (Atlas America Inc), Employment Agreement (Atlas America Inc), Employment Agreement (Atlas America Inc)
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the (a) The Company may remove Executive at any time without Cause (as defined in Section 11 below2.7) or if from the position in which Executive resigns for Good Reason is employed hereunder (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), which case the provisions of this Section 6 Employment Term shall apply.
(abe deemed to have ended) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; provided provided, however, that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 2.1 for Good ReasonReason (as defined in Section 2.7). The Executive shall give the Company not less than 30 thirty (30) days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination Upon any removal or resignation under described in Section 6(a2.1(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due or earned in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b2.1(b), upon termination or resignation, as applicable, under Section 6(a) above, if in the event that Executive executes and does not revoke a written releaserelease upon such removal or resignation, substantially in a the form acceptable to attached hereto as Exhibit A (the Company, in its sole discretion“Release”), of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives2.1(b), the following:
(i) A lump sum cash payment equal to 1.0 Two (2) times the Executive’s annual Base Salary (Salary, at the rate in effect immediately before Executive’s termination of employment, payable in equal installments, consistent with the Company’s past payroll practices, over the twenty-four (24) month period after the Executive’s date Date of termination) plus 1.00 times Termination, commencing with the first payroll period that occurs after the period during which Executive’s target annual cash bonus for right to revoke his acceptance of the year terms of the Release has expired. Notwithstanding the foregoing, the Company may determine, in which its sole discretion and at any time, to provide that the Executive’s date of termination occurs. The payment described in amounts payable under this clause subsection (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if paid to Executive in a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986lump sum, as amended opposed to installments over the twenty-four (the “Code”), on the first business day following such delay 24) month period.
(ii) A pro rata bonus payment Pro rated Incentive Pay (as defined in Section 2.7) for the year in which Executive’s Date of Termination occurs. The pro rated Incentive Pay shall be based on the Executive’s termination occurs equal to the Executive’s target annual cash bonus Incentive Pay for the fiscal year in which the Executive’s termination Date of Termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the fiscal year of the Executive’s termination, his termination and the denominator of which is 365. The payment described Such pro rated Incentive Pay shall be paid to Executive in equal installments, consistent with the Company’s past payroll practices, over the twenty-four (24) month period after the Executive’s Date of Termination, commencing with the first payroll period that occurs after the period during which Executive’s right to revoke his acceptance of the terms of the Release has expired. Notwithstanding the foregoing, the Company may determine, in its sole discretion and at any time, to provide that the amounts payable under this clause subsection (ii) shall be payable within 30 days after paid to Executive in a lump sum, as opposed to installments over the Executive’s date of termination twenty-four (or at the end of the revocation period for the Release, if later), or if a six-24) month delay is required to comply with section 409A of the Code, on the first business day following such delay period;.
(iii) Medical coverage for the 12For a period of twenty-month period four (24) months following the Executive’s termination or until Date of Termination, Executive shall continue to receive the date on which the Executive is eligible for medical coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Internal Revenue Code of 1986, as amended, (the “Code, ”) shall run concurrently with the foregoing 12twenty-four (24) month benefit period;.
(iv) All of Notwithstanding any provision to the Executive’s contrary in any applicable plan, program or agreement, all outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date Date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination Termination shall become fully vested and/or exercisable, as the case may beapplicable, as of Executive’s Date of Termination. All outstanding stock options and other equity rights that have an exercise period shall remain exercisable for the shorter of: (A) five (5) years from the Executive’s date Date of termination, and any stock options, including any stock options that previously became exercisable and have not expired Termination or been exercised, shall remain exercisable, notwithstanding any provision to (B) the contrary in any other agreement governing such options, for a period end of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its their applicable original term or later than the latest date that will avoid adverse tax consequences to the Executive; andterm.
(v) Any Executive shall receive any other amounts earned, accrued and or owing but not yet paid under Section 2 1 above and any benefits accrued and due under or earned in accordance with the terms of any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs.
Appears in 3 contracts
Samples: Employment Agreement (First Potomac Realty Trust), Employment Agreement (First Potomac Realty Trust), Employment Agreement (First Potomac Realty Trust)
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the (a) The Company may remove Executive at any time without Cause (as defined in Section 11 below2.7) or if from the position in which Executive resigns for Good Reason is employed hereunder (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), which case the provisions of this Section 6 Employment Term shall apply.
(abe deemed to have ended) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; provided provided, however, that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 2.1 for Good ReasonReason (as defined in Section 2.7). The Executive shall give the Company not less than 30 thirty (30) days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination Upon any removal or resignation under described in Section 6(a2.1(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due or earned in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b2.1(b), upon termination or resignation, as applicable, under Section 6(a) above, if in the event that Executive executes and does not revoke a written releaserelease upon such removal or resignation, substantially in a the form acceptable to attached hereto as Exhibit A (the Company, in its sole discretion“Release”), of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives2.1(b), the following:
(i) A lump sum cash payment equal to 1.0 One (1) times the Executive’s annual Base Salary (Salary, at the rate in effect immediately before Executive’s termination of employment, payable in equal installments, consistent with the Company’s past payroll practices, over the twelve (12) month period after the Executive’s date Date of termination) plus 1.00 times Termination, commencing with the first payroll period that occurs after the period during which Executive’s target annual cash bonus for right to revoke his acceptance of the year terms of the Release has expired. Notwithstanding the foregoing, the Company may determine, in which its sole discretion and at any time, to provide that the Executive’s date of termination occurs. The payment described in amounts payable under this clause subsection (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if paid to Executive in a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986lump sum, as amended opposed to installments over the twelve (the “Code”), on the first business day following such delay 12) month period.
(ii) A pro rata bonus payment Pro rated Incentive Pay (as defined in Section 2.7) for the year in which Executive’s Date of Termination occurs. The pro rated Incentive Pay shall be based on the Executive’s termination occurs equal to the Executive’s target annual cash bonus Incentive Pay for the fiscal year in which the Executive’s termination Date of Termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the fiscal year of the Executive’s termination, his termination and the denominator of which is 365. The payment described Such pro rated Incentive Pay shall be paid to Executive in equal installments, consistent with the Company’s past payroll practices, over the twelve (12) month period after the Executive’s Date of Termination, commencing with the first payroll period that occurs after the period during which Executive’s right to revoke his acceptance of the terms of the Release has expired. Notwithstanding the foregoing, the Company may determine, in its sole discretion and at any time, to provide that the amounts payable under this clause subsection (ii) shall be payable within 30 days after paid to Executive in a lump sum, as opposed to installments over the Executive’s date of termination twelve (or at the end of the revocation period for the Release, if later), or if a six-12) month delay is required to comply with section 409A of the Code, on the first business day following such delay period;.
(iii) Medical coverage for the For a period of twelve (12-month period ) months following the Executive’s termination or until Date of Termination, Executive shall continue to receive the date on which the Executive is eligible for medical coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Internal Revenue Code of 1986, as amended, (the “Code, ”) shall run concurrently with the foregoing twelve (12-) month benefit period;.
(iv) All of Notwithstanding any provision to the Executive’s contrary in any applicable plan, program or agreement, all outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date Date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination Termination shall become fully vested and/or exercisable, as the case may beapplicable, as of Executive’s Date of Termination. All outstanding stock options and other equity rights that have an exercise period shall remain exercisable for the shorter of: (A) three (3) years from the Executive’s date Date of termination, and any stock options, including any stock options that previously became exercisable and have not expired Termination or been exercised, shall remain exercisable, notwithstanding any provision to (B) the contrary in any other agreement governing such options, for a period end of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its their applicable original term or later than the latest date that will avoid adverse tax consequences to the Executive; andterm.
(v) Any Executive shall receive any other amounts earned, accrued and or owing but not yet paid under Section 2 1 above and any benefits accrued and due under or earned in accordance with the terms of any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs.
Appears in 3 contracts
Samples: Employment Agreement (First Potomac Realty Trust), Employment Agreement (First Potomac Realty Trust), Employment Agreement (First Potomac Realty Trust)
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company Employer may terminate the ExecutiveEmployee’s employment with the Company at any time without Cause upon not less than 30 days’ prior written notice to the Executive; provided thatCause, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employmentas defined herein. In addition, the Executive The Employee may initiate a termination of employment by resigning under this Section 6 for Good Reason. The Executive shall give Upon termination by the Company not less than 30 days’ prior written notice of such resignation. On Employer without Cause or resignation by the date of termination or resignation, as applicable, specified in such noticeEmployee for Good Reason, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination or resignation under Section 6(a) above, the Executive Employee shall be entitled to receive only any accrued but unpaid Base Salary, prorated Annual Bonus based on the amount due prior year’s Annual Bonus, and business or other expenses incurred up to the Executive under the Company’s then current severance pay plan for employeesdate of termination and reimbursable pursuant to Section 5(a), if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of under any applicable benefit plans and programs of the Company.
Employer, including any vested Restricted Shares (c“Accrued Obligations”), with such Accrued Obligations paid regardless of whether the Employee executes or revokes a written Agreement and Release (as defined below). In addition, in the event that the Employee is terminated without Cause by the Employer or resigns for Good Reason, the Employer shall deliver to the Employee within five (5) Notwithstanding days of such termination or resignation an Agreement and Release and in consideration for the Employee’s compliance with the undertakings set forth in Section 14(a) and in the other provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above14, if the Executive Employee executes and delivers to the Company the Agreement and Release within fifty (50) days of the Employee’s termination of employment, and does not revoke a written release, in a form acceptable such Agreement and Release such that it becomes effective by its terms prior to the Company, in its sole discretion, sixtieth (60th) day following the Employee’s termination of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subjectemployment, the Executive Employee shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the following:
(ia) A lump sum a cash payment equal to 1.0 one-half (0.5) times the ExecutiveEmployee’s annual Base Salary (at the rate as in effect immediately before on the Executive’s date of terminationtermination date, plus one-half (0.5) plus 1.00 times the ExecutiveEmployee’s target annual cash bonus for Annual Bonus, with the year sum of those two amounts payable in which a lump sum within sixty (60) days following the Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the ExecutiveEmployee’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay perioddate;
(iiib) Medical coverage reimbursement in cash equal to 100% of the COBRA premiums incurred by the Employee for the 12-Employee and his eligible dependents under the Employer’s health plans during the six (6) month period following the ExecutiveEmployee’s termination or until of employment. Such reimbursement shall be provided on the payroll date immediately following the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouseEmployee remits the applicable premium payment and provides proof of payment to the Company, and shall commence within sixty (60) days after the Employee’s employer, whichever is sooner, at termination date; provided that the level in effect at first payment shall include any reimbursements that would have otherwise been payable during the period beginning on the Employee’s termination date and ending on the date of his termination (or generally comparable coveragethe first reimbursement payment. To the extent required by law, reimbursement payments pursuant to this section 6(b) for himself and, where applicable, his spouse and dependents, shall be treated as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay taxable compensation to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month periodEmployee;
(ivc) All accelerated vesting of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive any Restricted Shares granted pursuant to Section 2(c) that remain unvested as of the Executive’s date of terminationthe Employee’s termination of employment, if any, which would have vested subject to the terms and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as conditions of the Executive’s date of terminationEquity Plan, including the minimum vesting provisions set forth therein, and any stock optionsthe applicable grant agreement, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executiveall vesting provisions therein; and
(vd) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior Employer shall have no additional obligations to the year in which the Executive’s termination occursEmployee.
Appears in 2 contracts
Samples: Employment Agreement (Altisource Asset Management Corp), Employment Agreement (Altisource Asset Management Corp)
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if by the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 7 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 resign for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, Reason (as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliatesdefined below).
(b) Unless the Executive complies with the provisions of Section 6(c7(c) below, upon termination or resignation under Section 6(a7(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No no other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the CompanyCompany (the “Accrued Obligations”).
(c) Notwithstanding the provisions of Section 6(b7(b), upon termination or resignation, as applicable, under Section 6(a7(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, release of any and all claims against the Company and all related parties or its affiliates, with respect to all matters arising out of the Executive’s employment by with the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of in such form as provided by the Company under which the Executive has accrued and is due a benefit) in its sole discretion (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentialitySection 14 below and Exhibit A and Exhibit B, non-competition or non-solicitation agreement with in addition to the Company to which the Executive is subjectAccrued Obligations, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, receive the following:
(i) A lump sum cash payment equal to 1.0 times Continuation of the Executive’s annual Base Salary for twenty-four (24) months (the “Severance Term”), at the rate in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause (i) , which amount shall be payable within 30 days after paid in regular payroll installments over the applicable period following the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.date; and
(ii) A pro rata bonus payment prorated Annual Bonus for the year in which the Executive’s termination occurs equal to of employment occurs, which shall be determined by multiplying the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied Target Incentive Bonus by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of in which the Executive’s termination, termination date occurs and the denominator of which is 365. The payment described in this clause (ii) prorated Annual Bonus, if any, shall be payable within 30 days after the Executive’s date of termination (or paid at the end same time as bonuses are paid to other employees of the revocation period for the ReleaseCompany, if later), or if a six-month delay is required to comply with section 409A but not later than March 15 of the Code, on fiscal year following the first business day following such delay period;fiscal year for which it was earned.
(iii) Medical If the Executive timely and properly elects health continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), then continued health (including hospitalization, medical, dental, vision etc.) insurance coverage substantially similar in all material respects as the coverage provided to the Company’s then other active senior executives for the 12-eighteen (18) month period following the Executive’s termination or until the date on which of employment; provided that the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to shall pay to the Executive cash in lieu of such coverage in an amount equal to the amount active employees pay for such coverage as of the date of the Executive’s after-tax cost termination (the “Monthly COBRA Costs”) and the period of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period provided under section 4980B of the Internal Revenue Code, as amended and the regulations and guidance promulgated thereunder (the “Code”) shall run concurrently with the foregoing 12-month period;
; provided further that, notwithstanding the foregoing, the amount of any benefits provided by this subsection (ivc)(iii) All shall be reduced or eliminated to the extent the Executive becomes entitled to duplicative benefits by virtue of the Executive’s outstanding stock optionssubsequent or other employment; and provided further that, restricted stock and other equity rights held by notwithstanding the Executive as of the Executive’s date of terminationforegoing, if any, which the Company’s making payments under this Section 7(c)(iii) would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and violate any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision nondiscrimination rules applicable to the contrary Company’s group health plan under which such coverage is made available, or result in any other agreement governing the imposition of penalties under the Code or the Affordable Care Act, or be impermissible under applicable law, the Parties agree to reform this Section 7(c)(iii) in a manner as is necessary to comply with such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will requirements and avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurspenalties.
Appears in 2 contracts
Samples: Employment Agreement (Covetrus, Inc.), Employment Agreement (HS Spinco, Inc.)
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below11) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below11), the provisions of this Section 6 7 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 7 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c7(c) below, upon termination or resignation under Section 6(a7(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan or arrangement for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to receive any amounts earned, accrued and owing, owing but not yet paid under Section 2 above and any benefits accrued and due in accordance with the terms of under any applicable benefit plans and programs of the Company, in each case, subject to and in accordance with the terms thereof.
(c) Notwithstanding the provisions of Section 6(b7(b), upon termination or resignation, as applicable, under Section 6(a7(a) aboveabove (including a termination due to Non-Renewal), if if, within sixty (60) days following the termination of the Executive’s employment, the Executive timely executes and does not revoke a written release, in a form acceptable delivers to the Company, in its sole discretion, Company (without revocation) a fully effective written release of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of Agreement), in substantially the Company under which the Executive has accrued and is due a benefit) form set forth in Exhibit A hereto (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b7(b) and any other payments due under any severance plan or program for employees or executives, the followingfollowing payments and benefits:
(1) From the date of termination through the balance of the Scheduled Term (if any) (the “Severance Period”), the Executive shall continue to receive (i) A lump sum cash payment equal to 1.0 times the Executive’s annual his Base Salary (at the rate in effect immediately before the Executive’s date of terminationtermination or resignation, as applicable) in installments in accordance with the Company’s normal payroll practices, plus 1.00 times the Executive’s target annual cash (ii) any applicable bonus for each fiscal year during the Severance Period (but prorated for any partial fiscal year during the Severance Period), payable at the same time other employees of the Company are paid pursuant to the terms of the Company’s annual bonus plan, but not later than March 15 of the year in which the Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at following the end of the revocation period for fiscal year to which the Releasebonus relates.
(2) To the extent the Executive timely elects to receive continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, if lateras amended (“COBRA”), the Company shall pay or if reimburse the Executive, on a six-month delay is required monthly basis, an amount equal to comply with section 409A the full monthly premium for such coverage, from the date of termination until the date eighteen (18) months following the date of termination. The COBRA health care continuation coverage period under Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;.
(iv3) All Beginning on the 60th day following the effective date of the Executive’s termination or resignation, and on the first payroll date of each month thereafter during the remainder of the Scheduled Term (if any), a monthly payment equal to the premium cost for the long and short-term disability coverage that was in effect for the Executive under plans of the Company immediately before his termination or resignation. To the extent requested by the Executive within 30 days following the date of termination, the Company shall take all action necessary, if any, to facilitate the Executive’s exercise of all conversion and/or portability privileges, if any, under such long and short-term disability coverage.
(4) Beginning on the 60th day following the effective date of the Executive’s termination or resignation, and on the first payroll date of each month thereafter during the remainder of the Scheduled Term (if any), a monthly payment equal to the full cost of any Company life insurance coverages in effect for the Executive immediately before his termination or resignation to maintain life insurance coverage. To the extent requested by the Executive within 30 days following the date of termination, the Company shall take all action necessary, if any, to facilitate the Executive’s exercise of all conversion privileges, if any, under such life insurance program or policy.
(5) Notwithstanding any provision to the contrary in any applicable plan, program or agreement, all outstanding stock options, restricted stock and other equity rights awards held by the Executive as of the Executive’s date of terminationhis termination or resignation, if anyas applicable, which would have shall become fully vested and become exercisable within the one (1) year period following as of such date. In addition, any outstanding stock options held by the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a the shorter of (i) the 60-month period following the date of six (6) months after the Executive’s date termination or resignation, as applicable, and (ii) the then remaining term of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; andsuch stock option.
(v6) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether payable in accordance with the terms and conditions thereof and any unpaid Deferred Bonuses payable pursuant to and in accordance with Section 2(b)(ii).
(7) An annual bonus for the fiscal year of termination or not resignation, based on actual performance through the full fiscal year but pro-rated based on the number of days the Executive was employed during such fiscal year of termination, payable at the same time other employees of the Company are paid pursuant to the terms of such plan the Company’s annual bonus plan, but not later than March 15 of the year following the end of the fiscal year to which the bonus relates (the “Pro Rata Bonus”).
(d) To the extent that the payment of any amount or program provision of any benefit under Section 7 is conditioned upon the Release and is otherwise require an employee scheduled to be employed with occur prior to the Company on sixtieth (60th) day following the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursof employment hereunder, but for the condition on executing the Release as set forth herein, shall not be made until the first regularly scheduled payroll date following such sixtieth (60th) day, after which any remaining payments shall thereafter be provided to Executive according to the applicable schedule set forth herein.
Appears in 2 contracts
Samples: Employment Agreement (Gadsden Properties, Inc.), Employment Agreement (Gadsden Properties, Inc.)
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if by the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 7 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 resign for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, Reason (as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliatesdefined below).
(b) Unless the Executive complies with the provisions of Section 6(c7(c) below, upon termination or resignation under Section 6(a7(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No no other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the CompanyCompany (the “Accrued Obligations”).
(c) Notwithstanding the provisions of Section 6(b7(b), upon termination or resignation, as applicable, under Section 6(a7(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, release of any and all claims against the Company and all related parties or its affiliates, with respect to all matters arising out of the Executive’s employment by with the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of in such form as provided by the Company under which the Executive has accrued and is due a benefit) in its sole discretion (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentialitySection 14 below, non-competition or non-solicitation agreement with in addition to the Company to which the Executive is subjectAccrued Obligations, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, receive the following:
(i) A lump sum cash payment equal to 1.0 times Continuation of the Executive’s annual Base Salary for eighteen (18) months (the “Severance Term”), at the rate in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause (i) , which amount shall be payable within 30 days after paid in regular payroll installments over the applicable period following the Executive’s termination date; and
(ii) If the Executive timely and properly elects health continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), then continued health (including hospitalization, medical, dental, vision etc.) insurance coverage substantially similar in all material respects as the coverage provided to the Company’s then other active senior executives for the Severance Term; provided that the Executive shall pay an amount equal to the amount active employees pay for such coverage as of the date of the Executive’s termination (or at the end “Monthly COBRA Costs”) and the period of the revocation period for the Release, if later), or if a six-month delay is required to comply with COBRA health care continuation coverage provided under section 409A 4980B of the Internal Revenue Code of 1986Code, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;
; provided further that, notwithstanding the foregoing, the amount of any benefits provided by this subsection (ivc)(ii) All shall be reduced or eliminated to the extent the Executive becomes entitled to duplicative benefits by virtue of the Executive’s outstanding stock optionssubsequent or other employment; and provided further that, restricted stock and other equity rights held by notwithstanding the Executive as of the Executive’s date of terminationforegoing, if any, which the Company’s making payments under this Section 7(c)(ii) would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and violate any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision nondiscrimination rules applicable to the contrary Company’s group health plan under which such coverage is made available, or result in any other agreement governing the imposition of penalties under the Code or the Affordable Care Act, the Parties agree to reform this Section 7(c)(ii) in a manner as is necessary to comply with such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will requirements and avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurspenalties.
Appears in 2 contracts
Samples: Employment Agreement (Tabula Rasa HealthCare, Inc.), Employment Agreement (Tabula Rasa HealthCare, Inc.)
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if by the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 7 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 resign for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, Reason (as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliatesdefined below).
(b) Unless the Executive complies with the provisions of Section 6(c7(c) below, upon termination or resignation under Section 6(a7(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No no other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the CompanyCompany (the “Accrued Obligations”).
(c) Notwithstanding the provisions of Section 6(b7(b), upon termination or resignation, as applicable, under Section 6(a7(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, release of any and all claims against the Company and all related parties or its affiliates, with respect to all matters arising out of the Executive’s employment by with the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of in such form as provided by the Company under which the Executive has accrued and is due a benefit) in its sole discretion (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentialitySection 14 below and Exhibit A and Exhibit B, non-competition or non-solicitation agreement with in addition to the Company to which the Executive is subjectAccrued Obligations, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, receive the following:
(i) A lump sum cash payment equal to 1.0 times Continuation of the Executive’s annual Base Salary for eighteen (18) months (the “Severance Term”), at the rate in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause (i) , which amount shall be payable within 30 days after paid in regular payroll installments over the applicable period following the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.date;
(ii) A pro rata bonus payment prorated Annual Bonus for the year in which the Executive’s termination occurs equal to of employment occurs, which shall be determined by multiplying the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied Target Incentive Bonus by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of in which the Executive’s termination, termination date occurs and the denominator of which is 365. The payment described in this clause (ii) prorated Annual Bonus, if any, shall be payable within 30 days after the Executive’s date of termination (or paid at the end same time as bonuses are paid to other employees of the revocation period for the ReleaseCompany, if later), or if a six-month delay is required to comply with section 409A but not later than March 1 of the Code, on fiscal year following the first business day following such delay periodfiscal year for which it was earned;
(iii) Medical coverage for the 12The performance-month period following based vesting of the Executive’s New Hire Grant will be subject to acceleration such that the number of options deemed vested as of the termination or until date of Executive’s employment will be equal to the date on which number of options that would have vested had the performance-based options been subject the same ratable time-based vesting schedule as the full value award portion of the New Hire Grant; and
(iv) If the Executive is eligible for timely and properly elects health continuation coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employerthe Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), whichever is soonerthen continued health (including hospitalization, at the level medical, dental, vision etc.) insurance coverage substantially similar in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, all material respects as the same may be changed by coverage provided to the Company from time to time Company’s then other active senior executives for employees generally, as if the Severance Term; provided that the Executive had continued in employment during such period; or, as an alternative, the Company may elect to shall pay to the Executive cash in lieu of such coverage in an amount equal to the amount active employees pay for such coverage as of the date of the Executive’s after-tax cost termination (the “Monthly COBRA Costs”) and the period of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period provided under section 4980B of the Internal Revenue Code, as amended and the regulations and guidance promulgated thereunder (the “Code”) shall run concurrently with the foregoing 12-month period;
; provided further that, notwithstanding the foregoing, the amount of any benefits provided by this subsection (ivc)(iii) All shall be reduced or eliminated to the extent the Executive becomes entitled to duplicative benefits by virtue of the Executive’s outstanding stock optionssubsequent or other employment; and provided further that, restricted stock and other equity rights held by notwithstanding the Executive as of the Executive’s date of terminationforegoing, if any, which the Company’s making payments under this Section 7(c)(iii) would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and violate any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision nondiscrimination rules applicable to the contrary Company’s group health plan under which such coverage is made available, or result in any other agreement governing the imposition of penalties under the Code or the Affordable Care Act, or be impermissible under applicable law, the Parties agree to reform this Section 7(c)(iii) in a manner as is necessary to comply with such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will requirements and avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurspenalties.
Appears in 2 contracts
Samples: Employment Agreement (Covetrus, Inc.), Employment Agreement (HS Spinco, Inc.)
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the (a) The Company may remove Xxxxx at any time without Cause (as defined in Section 11 below4) or if from the Executive resigns for Good Reason (as defined position in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause which Xxxxx is employed hereunder upon not less than 30 thirty days’ prior written notice to the ExecutiveXxxxx; provided provided, however, that, in following the event that delivery of such notice is givento Xxxxx, the Executive Xxxxx shall be under no obligation to render any additional services to the Company, and the Company and shall be allowed may require Xxxxx to seek other employmentcease performing services for the Company. In addition, the Executive Xxxxx may initiate a termination of employment by resigning under this Section 6 2.1 for Good ReasonReason (as defined in Section 4(c)); provided, however, that the Company shall be given the opportunity to cure in accordance with Section 4(c). The Executive Xxxxx shall give the Company not less than 30 thirty days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with Subject to the provisions of Section 6(c2.1(c) belowhereof, upon termination any removal or resignation under described in Section 6(a2.1(a) above, the Executive Xxxxx shall be entitled to receive only the amount due to of accrued and unpaid compensation through the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution date of a release by the Executivetermination. No other payments or benefits shall be due under this Agreement to the ExecutiveXxxxx, but the Executive Xxxxx shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due earned in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b2.1(b), in the event that Xxxxx executes a written release upon termination such removal or resignation, substantially in the form attached hereto as applicable, under Section 6(a) above, if Exhibit A (the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion“Release”), of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s Xxxxx’x employment by the Company, or the termination thereof (other than claims for any entitlements under subject to the terms of this Agreement or under any plans or programs of exceptions set forth in the Release), which Release must be executed by Xxxxx, returned to the Company under and the period within which Xxxxx may revoke the Executive has accrued and is due a benefitRelease expired no later than sixty (60) (days following the “Release”)date of termination, and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive Xxxxx shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives2.1(b), the following:
(i) A Xxxxx shall receive a lump sum cash payment severance payment, without discount, in an amount equal to 1.0 times the Executive’s annual Base Salary product of (A) three and (B) the Average Compensation. Subject to Section 18, payment shall be made (x) within fifteen (15) days after the Release has been returned to the Company and the period within which Xxxxx may revoke it expired or, (y) if, and only if, it is agreed by both Xxxxx and the Company at the rate in effect immediately before time of termination that such payment constitutes “nonqualified deferred compensation” for purposes of Section 409A of the Executive’s Code, on the 75th day following the date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata Xxxxx shall receive a prorated annual bonus payment for in respect of the fiscal year in during which the Executive’s date of termination occurs occurs, the amount of which shall be equal to the Executive’s target amount of the annual cash bonus bonus, if any, that would have been paid to Xxxxx had he remained employed for the entire fiscal year (determined in which the Executive’s termination occurs, as determined by the Compensation Committeea manner consistent with past practice), multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the such fiscal year of the Executive’s termination, prior to such termination and the denominator of which is 365. The payment described , payable in this clause the time and manner which would have applied had such termination not occurred (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if latera “Pro-Rata Bonus”), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12For a period of thirty-month period six (36) months following the Executive’s termination or until date of termination, Xxxxx shall continue to receive the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level group term life and health insurance in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependentsdependents (without giving effect to any reduction in such benefits subsequent to a Change in Control), as the same may be changed by the Company from time to time for employees generally, as if the Executive Xxxxx had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is providedprovided or result in penalty taxes to Xxxxx pursuant to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)), the Company may elect to pay Xxxxx cash in lieu of such coverage in an amount equal to (A) as to health insurance, the product of thirty-six (36) multiplied by the Company’s monthly COBRA rate in effect immediately prior to the date of termination in respect of the type of coverage applicable to Xxxxx at that time and (B) as to life insurance, the premiums which would be paid by the Company during the three (3)-year period following the date of termination had Xxxxx’x employment continued during such period. The COBRA health care continuation coverage period under section 4980B of the Code, Code shall run concurrently with the foregoing 12thirty-six (36) month benefit period;.
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination Xxxxx shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and also receive any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs1 above.
Appears in 2 contracts
Samples: Employment Agreement (Atlas Energy, L.P.), Employment Agreement (Atlas Energy, L.P.)
Termination Without Cause; Resignation for Good Reason. If The Company shall pay the Executive and provide to the Executive (and his dependents, where applicable), the amounts and benefits set forth in this Section 5(c) if, during the term of this Agreement, either (x) prior to a Change of Control, the Executive’s 's employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns voluntarily terminates his employment for Good Reason Reason, or (as defined in Section 11 below), either before or y) within 24 months after a Change of Control (as defined in Section 11 below)Control, the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s 's employment with is terminated by the Company at any time without Cause upon not less than 30 days’ prior written notice to the Executive; provided that, in the event that such notice is given, or the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of voluntarily terminates his employment by resigning under this Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination or resignation under Section 6(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the followingreason:
(i) A The Company shall pay the Executive in one lump sum cash payment within ten business days after termination of his employment an amount equal to 1.0 times (i) the sum of his base salary as provided in Section 4(a) plus the Executive’s annual Base Salary 's Bonus Amount (at as defined below), multiplied by (ii) three (3). The Executive's "Bonus Amount" shall be equal to the rate in effect immediately before greater of (x) the Executive’s date of termination's average annual incentive bonus earned during the performance period representing the three calendar years immediately preceding the year in which he terminates employment, or (y) plus 1.00 times the Executive’s 's target annual cash incentive bonus for the year in which he terminates employment.
(ii) The Company shall maintain in full force and effect for the continued benefit of the Executive’s , for a three-year period after the date of his termination occursof employment ("Date of Termination"), all employee benefit plans and programs or arrangements in which the Executive was entitled to participate immediately prior to the Date of Termination, provided that his continued participation is possible under the general terms and provisions of such plans and programs. The payment described in this clause (i) shall be payable within 30 days after In the event that the Executive’s date of termination ('s participation in any such plan or at program is barred, the Company shall arrange to provide the Executive with benefits substantially similar to those which he is entitled to receive under such plans and programs. At the end of the revocation period for of coverage, the ReleaseExecutive shall have the option to have assigned to him at no cost and with no apportionment of prepaid premiums, if later)any assignable insurance policy owned by the Company and relating specifically to him.
(iii) The Executive shall be entitled to the use of the Automobile until the earliest to occur of (x) the date the Executive is employed elsewhere, or if a six-month delay is required (y) three years from the Date of Termination; provided, however, that during such time period, the Executive shall be solely responsible for all expenses incurred in the use of the Automobile, including maintaining insurance of the same types and at the same levels as previously maintained by the Company immediately prior to comply with section 409A such termination.
(iv) All outstanding but unvested stock options, restricted stock, SARs, deferred compensation, and SERP payments shall, upon the Date of Termination, be accelerated, fully vested, and exercisable for three years after the Date of Termination; provided, however, that the foregoing shall not be construed to cause an "Incentive Stock Option" to fail to meet the statutory requirements of Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”)amended. If any option, on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occursrestricted stock, as determined by the Compensation CommitteeSAR, multiplied or other benefit is governed by a fractionplan which limits the acceleration of vesting or extension of exercises rights, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required take all reasonable action to comply with section 409A of the Codethis subsection (iv), on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by with respect to any such benefit the Company from time is unable to time for employees generally, as if the Executive had continued provide in employment during such period; or, as an alternativeaccordance with this subsection, the Company may elect to shall pay to the Executive cash in lieu within thirty (30) days after the Date of such coverage in an Termination a lump sum amount equal to the Executive’s after-tax cost value of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held benefits as determined by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences third party appraiser acceptable to the Executive; and.
(v) Any other amounts earnedThe Company shall provide outplacement services to the Executive, accrued the scope and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs duration of which shall be at the discretion of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs.
Appears in 2 contracts
Samples: Employment Agreement (Golden State Holdings Inc), Employment Agreement (Golden State Bancorp Inc)
Termination Without Cause; Resignation for Good Reason. If The Company shall pay the Executive and provide to the Executive (and his dependents, where applicable), the amounts and benefits set forth in this Section 5(c) if, during the term of this Agreement, either (x) prior to a Change of Control, the Executive’s 's employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns voluntarily terminates his employment for Good Reason Reason, or (as defined in Section 11 below), either before or y) within 24 months after a Change of Control (as defined in Section 11 below)Control, the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s 's employment with is terminated by the Company at any time without Cause upon not less than 30 days’ prior written notice to the Executive; provided that, in the event that such notice is given, or the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of voluntarily terminates his employment by resigning under this Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination or resignation under Section 6(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the followingreason:
(i) A The Company shall pay the Executive in one lump sum cash payment within ten business days after termination of his employment an amount equal to 1.0 times (i) the sum of his base salary as provided in Section 4(a) plus the Executive’s annual Base Salary 's Bonus Amount (at as defined below), multiplied by (ii) three (3). The Executive's "Bonus Amount" shall be equal to the rate in effect immediately before greater of (x) the Executive’s date of termination's average annual incentive bonus earned during the performance period representing the three calendar years immediately preceding the year in which he terminates employment, or (y) plus 1.00 times the Executive’s 's target annual cash incentive bonus for the year in which he terminates employment.
(ii) The Company shall maintain in full force and effect for the continued benefit of the Executive’s , for a three-year period after the date of his termination occursof employment ("Date of Termination"), all employee benefit plans and programs or arrangements in which the Executive was entitled to participate immediately prior to the Date of Termination, provided that his continued participation is possible under the general terms and provisions of such plans and programs. The payment described in this clause (i) shall be payable within 30 days after In the event that the Executive’s date of termination ('s participation in any such plan or at program is barred, the Company shall arrange to provide the Executive with benefits substantially similar to those which he is entitled to receive under such plans and programs. At the end of the revocation period for of coverage, the ReleaseExecutive shall have the option to have assigned to him at no cost and with no apportionment of prepaid premiums, if later)any assignable insurance policy owned by the Company and relating specifically to him.
(iii) The Executive shall be entitled to the use of the Automobile until the earliest to occur of (x) the date the Executive is employed elsewhere, or if a six-month delay is required (y) three years from the Date of Termination; provided, however, that during such time period, the Executive shall be solely responsible for all expenses incurred in the use of the Automobile, including maintaining insurance of the same types and at the same levels as previously maintained by the Company immediately prior to comply with section 409A such termination.
(iv) All outstanding but unvested stock options, restricted stock, SARs, deferred compensation, and SERP payments shall, upon the Date of Termination, be accelerated, fully vested, and exercisable for three years after the Date of Termination; provided, however, that the foregoing shall not be construed to cause an "Incentive Stock Option" to fail to meet the statutory requirements of Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”)amended. If any option, on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occursrestricted stock, as determined by the Compensation CommitteeSAR, multiplied or other benefit is governed by a fractionplan which limits the acceleration of vesting or extension of exercises rights, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required take all reasonable action to comply with section 409A of the Codethis subsection (iv), on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by with respect to any such benefit the Company from time is unable to time for employees generally, as if the Executive had continued provide in employment during such period; or, as an alternativeaccordance with this subsection, the Company may elect to shall pay to the Executive cash in lieu within thirty (30) days after the Date of such coverage in an Termination a lump sum amount equal to the Executive’s after-tax cost value of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held benefits as determined by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences third party appraiser acceptable to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs.
Appears in 2 contracts
Samples: Employment Agreement (Golden State Bancorp Inc), Employment Agreement (Golden State Holdings Inc)
Termination Without Cause; Resignation for Good Reason. If the (a) SunGard may terminate Executive’s employment is terminated by the Company under this Section 2.1 at any time without Cause (as defined in Section 11 below2.7(d)) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 ninety (90) days’ prior written notice to the Executive; provided provided, however, that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employmentemployment during such notice period. In addition, the Executive may initiate a termination of terminate Executive’s employment by resigning under this Section 6 2.1 by voluntarily resigning for Good ReasonReason (as defined in Section 2.7(i)). The Executive shall give the Company SunGard not less than 30 days’ thirty (30) days prior written notice of such resignation, which notice must be given within ninety (90) days after the cure period for correcting the event or condition constituting Good Reason has expired without SunGard curing the event or condition resulting in Good Reason. On Further, Executive’s employment shall be considered to have been terminated under this Section 2.1 if, after SunGard has provided notice of intent not to renew as provided in Section 1.1, Executive’s employment terminates on the date last day of termination the Employment Period. This Section 2.1 shall not apply if Executive’s employment is terminated by Executive without Good Reason or resignationon account of retirement (see Section 2.2), as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, or as a director result of Executive’s Disability (as defined in Section 2.7(h)) or member death (see Section 2.3), or by SunGard for Cause (see Section 2.4). Any termination by SunGard of the Board, related to the Company and its parents, subsidiaries and affiliatesExecutive’s employment that is not a termination under Section 2.3 or Section 2.4 shall be considered a termination by SunGard without Cause under this Section 2.1.
(b) Unless the Executive complies with the provisions Upon any termination of Executive’s employment under this Section 6(c) below2.1, upon termination or resignation no further payments and benefits shall be due under Section 6(a1 of this Agreement after the end of the Employment Period and, if Executive executes and does not revoke the Release (as defined in Section 2.7(j)), then after Executive’s Date of Termination (as defined in Section 2.7(g)) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution all of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the following:
(i) A SunGard shall pay to Executive a lump sum cash payment equal to 1.0 times the Applicable Multiplier (as defined in Section 2.7(b)) multiplied by the sum of (1) Executive’s annual Base Salary (at the rate in effect on Executive’s Date of Termination or such higher rate in effect immediately before the any reduction thereof that constituted Good Reason, plus (2) Executive’s date of terminationTarget Incentive Bonus (as defined in Section 2.7(k)), payable within ten (10) plus 1.00 times the days after Executive’s target annual cash bonus Date of Termination.
(ii) Executive shall receive all Accrued Compensation (as defined in Section 2.7(a)).
(iii) During the Continuation Period (as defined in Section 2.7(f)), SunGard shall provide to Executive continued coverage under the retirement, life insurance, long-term disability, medical, dental and other group health benefits and plans in effect for the year in which the senior level executives of SunGard (or substantially comparable coverage) for Executive and, where applicable, Executive’s date spouse, dependents and beneficiaries, at the same contribution or premium rate as may be charged from time to time for active employees of termination occursSunGard generally, as if Executive had continued in employment during such period. The payment described As an alternative, SunGard may elect to pay Executive cash in this clause (i) shall be payable within 30 days after the lieu of such contributions or coverage in an amount equal to Executive’s date after-tax cost of termination (or at the end of the revocation period for the Releaseobtaining comparable coverage, if later), or if a six-month delay is required so long as such payments are permitted without adverse tax effect to comply with Executive under section 409A of the Internal Revenue Code of 1986, as amended amended, (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with or any replacement or successor provision of United States tax law, shall, if permitted by law and applicable plan terms, commence immediately after the foregoing 12-month period;Continuation Period.
(iv) All SunGard shall provide a release substantially in the form attached hereto as Exhibit D. If SunGard does not provide the release required pursuant to this Section 2.1(b)(v), the Release shall be null, void and without effect, and Executive shall still receive all of the payments and benefits described in subsections (i) through (iv) above.
(c) Upon any termination of Executive’s outstanding stock optionsemployment under this Section 2.1, restricted stock unless Section 2.1(b)(v) applies, if Executive does not execute the Release or if Executive revokes the Release, then (i) Executive shall not be entitled to the compensation and other equity rights held by the Executive as benefits provided for in subsection (b) of the this Section 2.1, (ii) after Executive’s date Date of terminationTermination, if any, which would have vested no further payments and become exercisable within the one (1) year period following the Executive’s date benefits shall be due under Section 1 of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of terminationthis Agreement, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, (iii) Executive shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursreceive all Accrued Compensation.
Appears in 2 contracts
Samples: Executive Employment Agreement (Sungard Data Systems Inc), Executive Employment Agreement (Sungard Data Systems Inc)
Termination Without Cause; Resignation for Good Reason. If (i) If, prior to the expiration of the Term, the Executive’s employment with the Company is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s from his employment with the Company at any time without Cause upon not less than 30 days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 hereunder for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified then in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related addition to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination or resignation under amounts set forth in Section 6(a) above), the Executive shall be entitled to receive only the amount due to following payments (collectively, the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of “Severance Payments”): (A) a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs pro rata portion of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the following:
(i) A lump sum cash payment equal to 1.0 times the Executive’s annual Base Salary (at the rate in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus Bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause or resignation occurs calculated by multiplying (ix) shall be payable within 30 days after the Executive’s date Bonus for the year of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), based and on the first business day following such delay period.
assumption that all performance targets have been or will be achieved) by (iiy) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in during the year of the Executive’s termination, termination and the denominator of which is 365. The ; and (B) a payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost Applicable Multiple (as defined below) times the sum of continuing such coverage(x) the Reference Salary, where such coverage may not be continued (y) the Reference Bonus and (z) the Reference Benefits Value (each as defined below). “Applicable Multiple” means (A) two, in the event the termination without Cause or where such continuation would adversely affect the tax status resignation for Good Reason occurs prior to a Change in Control of the plan pursuant to which Company (as defined in Section 7(b)), and (B) three, in the coverage is provided). The COBRA health care continuation coverage period under section 4980B event the termination without Cause or resignation for Good Reason occurs on or after a Change in Control of the Code, shall run concurrently with the foregoing 12-month period;
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of terminationCompany; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences that, if within six months prior to the date on which a Change in Control occurs, the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed ’s employment with the Company on is terminated by the date Company without Cause or by the Executive for Good Reason and it is reasonably demonstrated that such termination of paymentemployment without Cause or Good Reason event was in contemplation of the Change in Control, including without limitationthen the Applicable Multiple shall be three, but the Severance Payments then payable shall be reduced by any cash bonus earned or accrued but not yet Severance Payments previously paid for the year prior to the year in which the Executive’s termination occurs.Executive under this 4
Appears in 2 contracts
Samples: Employment Agreement (Sba Communications Corp), Employment Agreement (Sba Communications Corp)
Termination Without Cause; Resignation for Good Reason. If the (a) Employer may terminate Executive’s employment is terminated by the Company under this Section 2.1 at any time without Cause (as defined in Section 11 below2.7(d)) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 ninety (90) days’ prior written notice to the Executive; provided provided, however, that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employmentemployment during such notice period. In addition, the Executive may initiate a termination of terminate Executive’s employment by resigning under this Section 6 2.1 by voluntarily resigning for Good ReasonReason (as defined in Section 2.7(i)). The Executive shall give the Company Employer not less than 30 days’ thirty (30) days prior written notice of such resignation, which notice must be given within ninety (90) days after the cure period for correcting the event or condition constituting Good Reason has expired without Employer curing the event or condition resulting in Good Reason. On Further, Executive’s employment shall be considered to have been terminated under this Section 2.1 if, after Employer has provided notice of intent not to renew as provided in Section 1.1, Executive’s employment terminates on the date last day of termination the Employment Period. This Section 2.1 shall not apply if Executive’s employment is terminated by Executive without Good Reason or resignationon account of retirement (see Section 2.2), as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, or as a director result of Executive’s Disability (as defined in Section 2.7(h)) or member death (see Section 2.3), or by Employer for Cause (see Section 2.4). Any termination by Employer of the Board, related to the Company and its parents, subsidiaries and affiliatesExecutive’s employment that is not a termination under Section 2.3 or Section 2.4 shall be considered a termination by Employer without Cause under this Section 2.1.
(b) Unless the Executive complies with the provisions Upon any termination of Executive’s employment under this Section 6(c) below2.1, upon termination or resignation no further payments and benefits shall be due under Section 6(a1 of this Agreement after the end of the Employment Period and, if Executive executes and does not revoke the Release (as defined in Section 2.7(j)), then after Executive’s Date of Termination (as defined in Section 2.7(g)) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution all of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the following:
(i) A Employer shall pay to Executive a lump sum cash payment equal to 1.0 times the Applicable Multiplier (as defined in Section 2.7(b)) multiplied by the sum of (1) Executive’s annual Base Salary (at the rate in effect on Executive’s Date of Termination or such higher rate in effect immediately before the any reduction thereof that constituted Good Reason, plus (2) Executive’s date of terminationTarget Incentive Bonus (as defined in Section 2.7(k)), payable within ten (10) plus 1.00 times the days after Executive’s target annual cash bonus Date of Termination.
(ii) Executive shall receive all Accrued Compensation (as defined in Section 2.7(a)).
(iii) During the Continuation Period (as defined in Section 2.7(f)), Employer shall provide to Executive continued coverage under the retirement, life insurance, long-term disability, medical, dental and other group health benefits and plans in effect for the year in which the senior level executives of Employer (or substantially comparable coverage) for Executive and, where applicable, Executive’s date spouse, dependents and beneficiaries, at the same contribution or premium rate as may be charged from time to time for active employees of termination occursEmployer generally, as if Executive had continued in employment during such period. The payment described As an alternative, Employer may elect to pay Executive cash in this clause (i) shall be payable within 30 days after the lieu of such contributions or coverage in an amount equal to Executive’s date after-tax cost of termination (or at the end of the revocation period for the Releaseobtaining comparable coverage, if later), or if a six-month delay is required so long as such payments are permitted without adverse tax effect to comply with Executive under section 409A of the Internal Revenue Code of 1986, as amended amended, (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with or any replacement or successor provision of United States tax law, shall, if permitted by law and applicable plan terms, commence immediately after the foregoing 12-month period;Continuation Period.
(iv) All SunGard shall provide a release substantially in the form attached hereto as Exhibit D. If SunGard does not provide the release required pursuant to this Section 2.1(b)(v), the Release shall be null, void and without effect, and Executive shall still receive all of the payments and benefits described in subsections (i) through (iv) above.
(c) Upon any termination of Executive’s outstanding stock optionsemployment under this Section 2.1, restricted stock unless Section 2.1(b)(v) applies, if Executive does not execute the Release or if Executive revokes the Release, then (i) Executive shall not be entitled to the compensation and other equity rights held by the Executive as benefits provided for in subsection (b) of the this Section 2.1, (ii) after Executive’s date Date of terminationTermination, if any, which would have vested no further payments and become exercisable within the one (1) year period following the Executive’s date benefits shall be due under Section 1 of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of terminationthis Agreement, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, (iii) Executive shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursreceive all Accrued Compensation.
Appears in 2 contracts
Samples: Executive Employment Agreement (Sungard Data Systems Inc), Executive Employment Agreement (Sungard Data Systems Inc)
Termination Without Cause; Resignation for Good Reason. If the (a) SunGard may terminate Executive’s employment is terminated by the Company under this Section 2.1 at any time without Cause (as defined in Section 11 below2.7(d)) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 ninety (90) days’ prior written notice to the Executive; provided provided, however, that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employmentemployment during such notice period. In addition, the Executive may initiate a termination of terminate Executive’s employment by resigning under this Section 6 2.1 by voluntarily resigning for Good ReasonReason (as defined in Section 2.7(i)). The Executive shall give the Company SunGard not less than 30 days’ thirty (30) days prior written notice of such resignation, which notice must be given within ninety (90) days after the cure period for correcting the event or condition constituting Good Reason has expired without SunGard curing the event or condition resulting in Good Reason. On Further, Executive’s employment shall be considered to have been terminated under this Section 2.1 if, after SunGard has provided notice of intent not to renew as provided in Section 1.1, Executive’s employment terminates on the date last day of termination the Employment Period. This Section 2.1 shall not apply if Executive’s employment is terminated by Executive without Good Reason or resignationon account of retirement (see Section 2.2), as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, or as a director result of Executive’s Disability (as defined in Section 2.7(h)) or member death (see Section 2.3), or by SunGard for Cause (see Section 2.4). Any termination by SunGard of the Board, related to the Company and its parents, subsidiaries and affiliatesExecutive’s employment that is not a termination under Section 2.3 or Section 2.4 shall be considered a termination by SunGard without Cause under this Section 2.1.
(b) Unless the Executive complies with the provisions Upon any termination of Executive’s employment under this Section 6(c) below2.1, upon termination or resignation no further payments and benefits shall be due under Section 6(a1 of this Agreement after the end of the Employment Period and, if Executive executes and does not revoke the Release (as defined in Section 2.7(j)), then after Executive’s Date of Termination (as defined in Section 2.7(g)) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution all of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the following:
(i) A SunGard shall pay to Executive a lump sum cash payment equal to 1.0 times the Applicable Multiplier (as defined in Section 2.7(b)) multiplied by the sum of (1) Executive’s annual Base Salary (at the rate in effect on Executive’s Date of Termination or such higher rate in effect immediately before the any reduction thereof that constituted Good Reason, plus (2) Executive’s date of terminationTarget Incentive Bonus (as defined in Section 2.7(k)), payable within ten (10) plus 1.00 times the days after Executive’s target annual cash bonus Date of Termination.
(ii) Executive shall receive all Accrued Compensation (as defined in Section 2.7(a)).
(iii) During the Continuation Period (as defined in Section 2.7(f)), SunGard shall provide to Executive continued coverage under the retirement, life insurance, long-term disability, medical, dental and other group health benefits and plans in effect for the year in which the senior level executives of SunGard (or substantially comparable coverage) for Executive and, where applicable, Executive’s date spouse, dependents and beneficiaries, at the same contribution or premium rate as may be charged from time to time for active employees of termination occursSunGard generally, as if Executive had continued in employment during such period. The payment described As an alternative, SunGard may elect to pay Executive cash in this clause (i) shall be payable within 30 days after the lieu of such contributions or coverage in an amount equal to Executive’s date after-tax cost of termination (or at the end of the revocation period for the Releaseobtaining comparable coverage, if later), or if a six-month delay is required so long as such payments are permitted without adverse tax effect to comply with Executive under section 409A of the Internal Revenue Code of 1986, as amended amended, (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with or any replacement or successor provision of United States tax law, shall, if permitted by law and applicable plan terms, commence immediately after the foregoing 12-month period;Continuation Period.
(iv) All SunGard shall provide a release substantially in the form attached hereto as Exhibit D. If SunGard does not provide the release required pursuant to this Section 2.1(b)(v), the Release shall be null, void and without effect, and Executive shall still receive all of the Executive’s outstanding stock options, restricted stock payments and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one benefits described in subsections (1i) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six through (6iv) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; andabove.
(v) Any other amounts earnedExecutive’s right to receive and retain any of the payments or benefits under Sections 2.1(b)(i) and (iii) is expressly contingent upon Executive’s full compliance with Section 5 hereof.
(c) Upon any termination of Executive’s employment under this Section 2.1, accrued unless Section 2.1(b)(v) applies, if Executive does not execute the Release or if Executive revokes the Release, then (i) Executive shall not be entitled to the compensation and owing but not yet paid benefits provided for in subsection (b) of this Section 2.1, (ii) after Executive’s Date of Termination, no further payments and benefits shall be due under Section 2 above 1 of this Agreement, and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs(iii) Executive shall receive all Accrued Compensation.
Appears in 2 contracts
Samples: Executive Employment Agreement, Executive Employment Agreement (Sungard Data Systems Inc)
Termination Without Cause; Resignation for Good Reason. If during the Term the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below)Reason, the provisions of Executive shall receive the benefits described in this Section 6 shall apply10.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 15 days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 10 for Good Reason. The Company and the Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of take all steps necessary (including with regard to any post-termination or resignation, as applicable, specified in such notice, services the Executive agrees provides) to resign all positions, including as an officer and, if applicable, as ensure that any termination of employment described in this Agreement constitutes a director or member “separation from service” within the meaning of section 409A of the Board, related to the Company and its parents, subsidiaries and affiliatesCode.
(b) Unless the Executive complies with the provisions of Section 6(c10(c) below, upon termination or resignation resignation, as applicable, under Section 6(a10(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, owing but not yet paid under Sections 2-5 (but not Section 2 4(b)) of this Agreement and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company. In such event, no other payments or benefits shall be due under this Agreement to the Executive.
(c) Notwithstanding the provisions of Section 6(b10(b), upon termination or resignation, as applicable, under Section 6(a10(a) above, if the Executive executes and does not revoke a written releaserelease prior to the 45th day following the Executive’s date of termination, in a form acceptable to the Company, but substantially in its sole discretion, the form attached hereto as Exhibit A (subject to any necessary adjustment reasonably determined by the Company to be necessary to comply with applicable law at the time of the Executive’s termination or resignation) of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or Agreement, under any plans or programs of the Company under which the Executive has accrued and is due a benefitbenefit or any rights to indemnification from the Company under any agreement with or arrangement of the Company) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, receive the following:
(i1) A lump sum cash payment An amount equal to 1.0 2.0 times the Executive’s annual Base Salary (at the rate in effect immediately before the Executive’s termination or resignation, as applicable), which shall be paid as follows: (i) the maximum amount that can be paid under the “separation pay” exception of section 409A of the Code ($490,000 for 2011, subject to adjustment as provided under applicable Treasury regulations) shall be payable in accordance with the Company’s normal payroll practices in 12 equal monthly installments over the 12-month period following the Executive’s termination date (the “Severance Period”), with the first payment being made on the 60th day following the Executive’s termination date (such date, the “Payment Date”), such first payment to include the installments for the first 60 days after the termination date, and (ii) the remainder of terminationthe amount shall be paid in a lump sum payment between March 1 and March 15 of the calendar year following the Executive’s termination date.
(2) plus 1.00 An amount equal to 2.0 times the Executive’s target annual cash bonus for Target Incentive Award under the year in which the Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment STI/MTI Plan for the year in which the Executive’s termination date occurs equal to (or, if the Executive’s target annual cash bonus Target Incentive Award for such year has not yet been established, based on the Target Incentive Award for the immediately preceding fiscal year of the Company), which shall be paid in a lump sum payment between March 1 and March 15 of the calendar year following the Executive’s termination date.
(3) A prorated Target Incentive Award under the STI/MTI Plan for the year in which the Executive’s termination date occurs. The prorated Target Incentive Award will be an amount in cash equal to the Executive’s Target Incentive Award under the STI/MTI Plan for the year in which the Executive’s termination date occurs (or, as determined by if the Compensation CommitteeExecutive’s Target Incentive Award for such year has not yet been established, based on the Target Incentive Award for the immediately preceding fiscal year of the Company) multiplied by a fraction, the numerator of which is the number of days during which that the Executive was employed by the Company in during the year of the Executive’s termination, termination and the denominator of which is 365. The payment described shall be made in a lump sum on the Payment Date (to the extent not subject to any prior deferral election, and if the Executive has previously made a deferral election, such amount will be paid in accordance with the terms of the arrangement under which such deferral election was made). The payment under this clause (iiSection 10(c)(3) shall be payable within 30 days after not affect the Executive’s date of termination (right to any STI Bonus or at MTI Bonus amounts that may be payable under the end STI/MTI Plan in accordance with the terms of the revocation period STI/MTI Plan (it being understood that this sentence shall not be construed to entitle the Executive to a duplication of payments for a particular year under this paragraph and under the STI/MTI Plan). In the event that the Company implements an STI/MTI Plan design intended to qualify for the Release, if later), or if a sixperformance-month delay is required based exception to comply with section 409A Section 162(m) of the Code, the parties agree to cooperate in good faith to amend the terms of this paragraph to provide that any prorated Target Incentive Award payable hereunder will be based on the first business day following such delay period;actual performance results.
(iii4) Medical coverage and reimbursement for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, medical premium costs as described and at the level times set forth in effect at the date of his termination (or generally comparable coverageSection 4(b) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;above.
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v5) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company.
(d) For purposes of this Agreement, whether “Good Reason” shall be limited to the following (unless the Executive and the Company shall execute a written agreement specifically stating that the occurrence of such event shall not constitute “Good Reason” under this Agreement):
(1) The scope of the Executive’s duties and responsibilities as the Chief Executive Officer of the Company are, in the aggregate, materially reduced.
(2) Any material change in the geographic location at which the Executive must perform services under this Agreement, which, for purposes of this Agreement, means a requirement that the Executive’s principal work location be relocated to a geographic area other than (i) the San Francisco, CA metropolitan area or not (ii) the area on the East Coast including and between Fairfield County, CT and the Washington D.C. metropolitan area, other than on travel reasonably required to carry out the Executive’s obligations under this Agreement.
(3) A material breach by the Company of any of the terms of such plan or program otherwise require an employee to be employed with the Company on the date of paymentthis Agreement, including without limitationlimitation any failure of the Company to fulfill its obligations under Section 25. Notwithstanding the foregoing, any cash bonus earned or accrued but not yet paid no event described in this subsection (d) shall constitute Good Reason unless (i) the Executive gives the Company written notice of his intention to terminate employment for Good Reason and the year prior grounds for such termination within 90 days after the event giving rise to the year in which Good Reason termination occurs, and (ii) such grounds for termination are not corrected by the Company within 30 days after its receipt of such written notice. If the Company does not correct the grounds for termination during the 30-day period following the Executive’s notice of termination, the Executive’s termination occursof employment for Good Reason must become effective within 30 days after the end of the cure period. Notwithstanding the foregoing, in no event will the Executive have Good Reason for termination if an event described in (1) occurs in connection with the Executive’s inability to perform his duties on account of illness or short-term or long-term disability.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If Except as provided in Section 4(a) below, if the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after surviving company following a Change of Control (as defined in Section 11 4(c) below)) without Cause or by the Executive for Good Reason, either before or after a Change of Control, the provisions of this Section 6 3(c) shall apply.
apply (asubject to the modifications of Section 4(a) below, if applicable). The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; provided that. The Company may, in the event that such notice is givenits sole and absolute discretion, pay the Executive shall be under no obligation to render his Base Salary in lieu of any additional services to the Company unexpired period of notice and shall be allowed to seek other employmentterminate his employment immediately. In addition, the Executive may initiate a termination of employment by resigning under this Except as provided in Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c4(a) below, upon termination of the Executive’s employment by the Company under this Section 3(c) or resignation under Section 6(a) above, by the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employeesGood Reason, if any, but only to the extent not conditioned on the execution either before or after a Change of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) aboveControl, if the Executive executes and does not revoke a written release, in a substantially the form acceptable to the Company, in its sole discretionattached hereto as Exhibit A, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subjectProprietary Information and Invention Assignment Agreement (as defined in Section 6(a) below) and restrictive covenants and representations in Section 6 below, the Executive shall be entitled to receivereceive the payments and benefits set forth in subsections 3(c)(i), (ii) and (iii), in lieu of the payment described in Section 6(b) and any other payments and benefits due under any severance plan or program for employees or executivesexecutives (subject to the modifications of Section 4(a) below, the following:if applicable).
(i) A lump sum cash payment equal The Company will pay to 1.0 times the Executive severance as follows: the rate of the Executive’s annual Base Salary (as in effect at the rate in effect immediately before time of termination will be added together with the Executive’s date dollar value of termination) plus 1.00 times the Executive’s target annual cash bonus Annual Bonus for the year in which termination occurs and the sum of the foregoing amounts will be divided by twelve (12) (the “Monthly Severance Amount”). The Monthly Severance Amount will be paid each month over the twelve (12) month period following the Termination Date, less applicable tax withholding, beginning within the sixty (60)-day period following the date of the Executive’s termination of employment and continuing on each payroll date thereafter until fully paid, in accordance with the Company’s regular payroll practices. The first severance payment will include any missed payments during such sixty (60)-day period.
(ii) The Company will pay to the Executive a pro rata Annual Bonus for the year in which the termination of employment occurs, which shall be determined based on Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment actual Annual Bonus earned for the year in which the Executive’s termination of employment occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs(if any), as determined by the Compensation Committeebased on actual performance, multiplied by a fraction, the numerator of which is the number of days during in which the Executive was employed by the Company in during the year in which the termination of the Executive’s terminationemployment occurs, and the denominator of which is three hundred sixty-five (365). The payment pro rata Annual Bonus described in this clause (iisubsection 3(c)(ii) shall will be payable within 30 days paid at the same time and under the same terms and conditions as bonuses are paid to other executives of the Company, on or after January 1 but not later than March 15 of the calendar year following the calendar year in which the Executive’s date of termination (or at the end of the revocation period for the Releaseemployment terminates, if later), or if a six-month delay is required subject to comply with section 409A of the Code, on the first business day following such delay period;Section 5(b) below.
(iii) Medical coverage for For the twelve (12-) month period following the Executive’s termination or until the date on which of employment, provided that the Executive is eligible timely elects COBRA, the Company will reimburse the Executive for the monthly COBRA cost of continued medical and dental coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at for the level in effect at the date of his termination (or generally comparable coverage) for himself Executive and, where applicable, his spouse and dependents, at the level in effect as of the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu date of such coverage in an amount equal to the Executive’s after-tax cost termination of continuing such coverageemployment, where such coverage may not be continued (or where such continuation would adversely affect less the tax status employee portion of the plan pursuant to which applicable premiums that the coverage is provided). The Executive would have paid had he remained employed during the such twelve (12) month period (the COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing twelve (12-) month period;
period that the Executive is provided with reimbursement for medical and dental coverage under this subsection 3(c)(iii)). These reimbursements will commence within the sixty (iv) All 60)-day period following the date of the Executive’s outstanding stock optionstermination of employment and will be paid on the first payroll date of each month, restricted stock and other equity rights held by provided that the Executive as demonstrates proof of payment of the Executiveapplicable premiums prior to the applicable reimbursement payment date. Notwithstanding the foregoing, the Company’s date reimbursement of termination, if any, which would have vested and become exercisable within the one monthly COBRA premiums in accordance with this subsection 3(c)(iii) shall cease immediately upon the earlier of: (1A) year the end of the twelve (12) month period following the Executive’s termination of employment, or (B) the date that the Executive is eligible for comparable coverage with a subsequent employer. Notwithstanding the foregoing, the Company reserves the right to restructure the foregoing COBRA premium reimbursement arrangement in any manner necessary or appropriate to avoid fines, penalties or negative tax consequences to the Company or the Executive (including, without limitation, to avoid any penalty imposed for violation of the nondiscrimination requirements under the Patient Protection and Affordable Care Act or the guidance issued thereunder), as determined by the Company in its sole and absolute discretion.
(iv) Notwithstanding any provision to the contrary in the 2008 Equity Plan (or a successor plan) or any applicable agreement (including this Agreement), all outstanding equity grants held by the Executive immediately prior to the Executive’s termination date which vest based upon the Executive’s continued service over time that would have become vested during the twelve (12) month period following the Executive’s termination date had the Executive remained employed during such twelve (12) month period shall accelerate, become fully vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision termination date. All outstanding equity grants held by the Executive immediately prior to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s termination date which vest based upon attainment of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences performance criteria shall remain subject to the Executive; andterms and conditions of the agreement evidencing such performance based award.
(v) Any other The Executive shall also be entitled to any amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, Company without regard to whether the Executive executes or not revokes the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursRelease.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the (a) The Company may remove Executive at any time without Cause (as defined in Section 11 below4) or if from the position in which Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause is employed hereunder upon not less than 30 sixty (60) days’ prior written notice to the Executive; provided provided, however, that, that in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 2.1 for Good ReasonReason (as defined in Section 4). The Executive shall give the Company not less than 30 sixty (60) days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination Upon any removal or resignation under described in Section 6(a2.1(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due earned in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b2.1(b), upon termination or resignation, as applicable, under Section 6(a) above, if in the event that Executive executes and does not revoke a written releasemutual release upon such removal, resignation or Non-Renewal, in a form reasonably acceptable to the Company, in its sole discretionCompany (the “Release”), of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as any claims against Executive for actions within the Executive continues to comply with scope of her employment by the provisions of any confidentialityCompany, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives2.1(b), the following:
(i) A Executive shall receive (x) a lump sum cash severance payment in an amount equal to 1.0 times the one month of Executive’s annual Base Salary (for each month she has been employed by the Company up to a maximum of five years, at the rate in effect immediately before the Executive’s date termination of terminationemployment, and (y) plus 1.00 times the Executive’s target annual cash bonus a pro rated bonus, if any, for the year in which the Executive’s date termination of termination employment occurs. The payment One-half of the amount described in this clause (i) the preceding sentence shall serve as consideration for Executive’s entering into the restrictive covenants described in Section 5 below. The pro rated bonus shall be payable within 30 days after based on the amount of Executive’s date of termination (or at the end of the revocation period annual bonus, if any, for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the fiscal year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the fiscal year of the Executive’s termination, her termination and the denominator of which is three hundred sixty-five (365). The payment described in this clause (ii) Payment shall be payable made within 30 thirty (30) days after the Executive’s effective date of the termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;.
(iiiii) Medical coverage for the 12-month For a period of eighteen (18) months following the Executive’s termination or until date of termination, Executive shall continue to receive the date on which the Executive is eligible for medical coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his her termination (or generally comparable coverage) for himself herself and, where applicable, his her spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the CodeInternal Revenue Code of 1986, as amended, shall run concurrently with the foregoing 12-eighteen (18) month benefit period;.
(iviii) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and also receive any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs1 above.
Appears in 1 contract
Samples: Employment Agreement (Bancorp, Inc.)
Termination Without Cause; Resignation for Good Reason. If Except as provided in Section 4(a) below, if the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after surviving company following a Change of Control (as defined in Section 11 4(c) below)) without Cause or by the Executive for Good Reason, either before or after a Change of Control, the provisions of this Section 6 3(c) shall apply.
apply (asubject to the modifications of Section 4(a) below, if applicable). The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; provided that. The Company may, in the event that such notice is givenits sole and absolute discretion, pay the Executive shall be under no obligation to render his Base Salary in lieu of any additional services to the Company unexpired period of notice and shall be allowed to seek other employmentterminate his employment immediately. In addition, the Executive may initiate a termination of employment by resigning under this Except as provided in Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c4(a) below, upon termination or resignation under Section 6(a) above, of the Executive shall be entitled to receive only ’s employment by the amount due to Company under this Section 3(c) or by the Executive under the Company’s then current severance pay plan for employeesGood Reason, if any, but only to the extent not conditioned on the execution either before or after a Change of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) aboveControl, if the Executive executes and does not revoke a written release, in a substantially the form acceptable to the Company, in its sole discretionattached hereto as Exhibit B, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subjectProprietary Information and Invention Assignment Agreement (as defined in Section 6(a) below) and restrictive covenants and representations in Section 6 below, the Executive shall be entitled to receivereceive the payments set forth in subsections 3(c)(i), (ii) and (iii), in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executivesexecutives (subject to the modifications of Section 4(a) below, if applicable). Notwithstanding any provision of this Agreement to the following:contrary, in no event shall the timing of the Executive’s execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year.
(i) A lump sum cash payment equal The Company will pay to 1.0 times the Executive severance as follows: the rate of the Executive’s annual Base Salary (as in effect at the rate in effect immediately before time of termination will be added together with the Executive’s date dollar value of termination) plus 1.00 times the Executive’s target annual cash bonus Annual Bonus for the year in which termination occurs and the sum of the foregoing amounts will be divided by twelve (12) (the “Monthly Severance Amount”). The Monthly Severance Amount will be paid each month over the fifteen (15) month period following the Termination Date, less applicable tax withholding, paid in approximately equal installments beginning within the sixty (60)-day period following the date of the Executive’s termination of employment and continuing on each payroll date thereafter until fully paid, in accordance with the Company’s regular payroll practices. The first severance payment will include any missed payments during such sixty (60)-day period.
(ii) The Company will pay to the Executive a pro rata Annual Bonus for the year in which the termination of employment occurs, which shall be determined based on Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment actual Annual Bonus earned for the year in which the Executive’s termination of employment occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs(if any), as determined by the Compensation Committeebased on actual performance, multiplied by a fraction, the numerator of which is the number of days during in which the Executive was employed by the Company in during the year in which the termination of the Executive’s terminationemployment occurs, and the denominator of which is three hundred sixty-five (365). The payment pro rata Annual Bonus described in this clause (iisubsection 3(c)(ii) shall will be payable within 30 days paid at the same time and under the same terms and conditions as bonuses are paid to other executives of the Company, on or after January 1 but not later than March 15 of the calendar year following the calendar year in which the Executive’s date of termination (or at the end of the revocation period for the Releaseemployment terminates, if later), or if a six-month delay is required subject to comply with section 409A of the Code, on the first business day following such delay period;Section 5(b) below.
(iii) Medical coverage for For the 12-fifteen (15) month period following the Executive’s termination or until the date on which of employment, provided that the Executive is eligible timely elects COBRA, the Company will reimburse the Executive for the monthly COBRA cost of continued medical and dental coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at for the level in effect at the date of his termination (or generally comparable coverage) for himself Executive and, where applicable, his spouse and dependents, at the level in effect as of the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu date of such coverage in an amount equal to the Executive’s after-tax cost termination of continuing such coverageemployment, where such coverage may not be continued (or where such continuation would adversely affect less the tax status employee portion of the plan pursuant to which applicable premiums that the coverage is provided). The Executive would have paid had he remained employed during the such fifteen (15) month period (the COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-fifteen (15) month period;
period that the Executive is provided with medical and dental coverage under subsection 3(c)(i)). These reimbursements will commence within the sixty (iv) All 60)-day period following the date of the Executive’s outstanding stock optionstermination of employment and will be paid on the first payroll date of each month, restricted stock and other equity rights held by provided that the Executive as demonstrates proof of payment of the Executiveapplicable premiums prior to the applicable reimbursement payment date. Notwithstanding the foregoing, the Company’s date reimbursement of termination, if any, which would have vested and become exercisable within the one monthly COBRA premiums in accordance with this subsection 3(c)(iii) shall cease immediately upon the earlier of: (1A) year the end of fifteen (15) month period following the Executive’s termination of employment, or (B) the date that the Executive is eligible for comparable coverage with a subsequent employer. Notwithstanding the foregoing, the Company reserves the right to restructure the foregoing COBRA premium reimbursement arrangement in any manner necessary or appropriate to avoid fines, penalties or negative tax consequences to the Company or the Executive (including, without limitation, to avoid any penalty imposed for violation of the nondiscrimination requirements under the Patient Protection and Affordable Care Act or the guidance issued thereunder), as determined by the Company in its sole and absolute discretion.
(iv) Notwithstanding any provision to the contrary in the 2008 Equity Plan (or a successor plan) or any applicable agreement (including this Agreement), all outstanding equity grants held by the Executive immediately prior to the Executive’s termination date which vest based upon the Executive’s continued service over time that would have become vested during the fifteen (15) month period following the Executive’s termination date had the Executive remained employed during such fifteen (15) month period shall accelerate, become fully vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision termination date. All outstanding equity grants held by the Executive immediately prior to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s termination date which vest based upon attainment of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences performance criteria shall remain subject to the Executive; andterms and conditions of the agreement evidencing such performance based award.
(v) Any other The Executive shall also be entitled to any amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, Company without regard to whether the Executive does not execute or not revokes the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursRelease.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below11) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below11), the provisions of this Section 6 7 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 7 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c7(c) below, upon termination or resignation under Section 6(a7(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan or arrangement for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to receive any amounts earned, accrued and owing, owing but not yet paid under Section 2 above and any benefits accrued and due in accordance with the terms of under any applicable benefit plans and programs of the Company, in each case, subject to and in accordance with the terms thereof.
(c) Notwithstanding the provisions of Section 6(b7(b), upon termination or resignation, as applicable, under Section 6(a7(a) aboveabove (including a termination due to Non-Renewal), if if, within sixty (60) days following the termination of the Executive’s employment, the Executive timely executes and does not revoke a written release, in a form acceptable delivers to the Company, in its sole discretion, Company (without revocation) a fully effective written release of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, Company or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of Agreement), in substantially the Company under which the Executive has accrued and is due a benefit) form set forth in Exhibit A hereto (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b7(b) and any other payments due under any severance plan or program for employees or executives, the followingfollowing payments and benefits:
(i1) A lump sum cash payment equal From the date of termination through the balance of the Scheduled Term (if any) (collectively, the “Severance Period”), the Executive shall continue to 1.0 times the Executive’s annual receive his Base Salary (at the rate in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occursor resignation, as applicable), and Cash Bonuses. The payment described Base Salary continuation shall be paid in installments during the Severance Period in accordance with the Company’s normal payroll practices. The 1st Tier Cash Bonus contemplated in this clause sub-section (i1) shall be payable equal to 1% of the sales of the Company (calculated as 1% of recognized US GAAP sales reported in the Company’s consolidated quarterly financial reports presented to the Board) during the Severance Period; provided, however, that if the Executive is not a “covered employee” (within 30 the meaning of Code section 162(m)(3) in the year for which any such 1st Tier Cash Bonus is payable, the amount of such 1st Tier Cash Bonus during the Severance Period shall be determined and paid without respect to any limitations intended to make it tax-deductible under Code section 162(m) and the next sentence herein shall not apply; provided, further, that if the proviso clause in the preceding sentence does not apply, the 2nd Tier Cash Bonus during the Severance Period shall be equal to 1% of the sales of the Company (calculated as 1% of recognized US GAAP sales reported in the Company’s consolidated quarterly financial reports presented to the Board) in excess of such target threshold amount as the Compensation Committee shall determine. Payment of Cash Bonuses during the Severance Period will be made to the order of the Executive no later than 45 days after the Executive’s date presentation of termination the quarterly financial reports to the Board for the fiscal quarter to which such Cash Bonuses relate (or at but not later than March 15 of the year following the end of the revocation period for fiscal year to which such Cash Bonuses relate).
(2) To the Releaseextent the Executive timely elects to receive continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, if lateras amended ("COBRA"), the Company shall pay or if reimburse the Executive, on a six-month delay is required monthly basis, an amount equal to comply with section 409A the full monthly premium for such coverage, from the date of termination until the date eighteen (18) months following the date of termination. The COBRA health care continuation coverage period under Section 4980B of the Internal Revenue Code of 1986, as amended (the “"Code”), on the first business day following such delay period.
(ii") A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;.
(iv3) All Beginning on the 60th day following the effective date of the Executive’s termination or resignation, and on the first payroll date of each month thereafter during the remainder of the Scheduled Term (if any), a monthly payment equal to the premium cost for the long and short-term disability coverage that was in effect for the Executive under plans of the Company immediately before his termination or resignation. To the extent requested by the Executive within 30 days following the date of termination, the Company shall take all action necessary, if any, to facilitate the Executive’s exercise of all conversion and/or portability privileges, if any, under such long and short-term disability coverage.
(4) Beginning on the 60th day following the effective date of the Executive’s termination or resignation, and on the first payroll date of each month thereafter during the remainder of the Scheduled Term (if any), a monthly payment equal to the full cost of any Company life insurance coverages in effect for the Executive immediately before his termination or resignation to maintain life insurance coverage. To the extent requested by the Executive within 30 days following the date of termination, the Company shall take all action necessary, if any, to facilitate the Executive’s exercise of all conversion privileges, if any, under such life insurance program or policy.
(5) Notwithstanding any provision to the contrary in any applicable plan, program or agreement, all outstanding stock options, restricted stock and other equity rights awards held by the Executive as of the Executive’s date of terminationhis termination or resignation, if anyas applicable, which would have shall become fully vested and become exercisable within the one (1) year period following as of such date. In addition, any outstanding stock options held by the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a the shorter of (i) the 60-month period following the date of six (6) months after the Executive’s date termination or resignation, as applicable, and (ii) the then remaining term of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; andsuch stock option.
(v6) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not payable in accordance with the terms and conditions thereof.
(7) Any Cash Bonus payable for the fiscal year of termination or resignation, based on actual performance for the full fiscal year, but pro-rated based on the number of days the Executive was employed during such plan fiscal year of termination, payable at the same time as otherwise payable in accordance with Section 2, but not later than March 15 of the year following the end of the fiscal year of termination or program resignation (the “Pro Rata Bonus”).
(d) To the extent that the payment of any amount or provision of any benefit under Section 7 is conditioned upon the Release and is otherwise require an employee scheduled to be employed with occur prior to the Company on sixtieth (60th) day following the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursof employment hereunder, but for the condition on executing the Release as set forth herein, shall not be made until the first regularly scheduled payroll date following such sixtieth (60th) day, after which any remaining payments shall thereafter be provided to Executive according to the applicable schedule set forth herein.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If Except as provided in Section 4(a) below, if the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after surviving company following a Change of Control (as defined in Section 11 4(c) below)) without Cause or by the Executive for Good Reason, either before or after a Change of Control, the provisions of this Section 6 3(c) shall apply.
apply (asubject to the modifications of Section 4(a) below, if applicable). The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; provided that. The Company may, in the event that such notice is givenits sole and absolute discretion, pay the Executive shall be under no obligation to render his Base Salary in lieu of any additional services to the Company unexpired period of notice and shall be allowed to seek other employmentterminate his employment immediately. In addition, the Executive may initiate a termination of employment by resigning under this Except as provided in Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c4(a) below, upon termination or resignation under Section 6(a) above, of the Executive shall be entitled to receive only ’s employment by the amount due to Company under this Section 3(c) or by the Executive under the Company’s then current severance pay plan for employeesGood Reason, if any, but only to the extent not conditioned on the execution either before or after a Change of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) aboveControl, if the Executive executes and does not revoke a written release, in a substantially the form acceptable to the Company, in its sole discretionattached hereto as Exhibit A, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subjectProprietary Information and Invention Assignment Agreement (as defined in Section 6(a) below) and restrictive covenants and representations in Section 6 below, the Executive shall be entitled to receivereceive the payments and benefits set forth in subsections 3(c)(i), (ii) and (iii), in lieu of the payment described in Section 6(b) and any other payments and benefits due under any severance plan or program for employees or executivesexecutives (subject to the modifications of Section 4(a) below, if applicable). Notwithstanding any provision of this Agreement to the following:contrary, in no event shall the timing of the Executive’s execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year.
(i) A lump sum cash payment equal The Company will pay to 1.0 times the Executive severance as follows: the rate of the Executive’s annual Base Salary (as in effect at the rate in effect immediately before time of termination will be added together with the Executive’s date dollar value of termination) plus 1.00 times the Executive’s target annual cash bonus Annual Bonus for the year in which termination occurs and the sum of the foregoing amounts will be divided by twelve (12) (the “Monthly Severance Amount”). The Monthly Severance Amount will be paid each month over the twelve (12) month period following the Termination Date, less applicable tax withholding, paid in approximately equal installments beginning within the sixty (60)-day period following the date of the Executive’s termination of employment and continuing on each payroll date thereafter until fully paid, in accordance with the Company’s regular payroll practices. The first severance payment will include any missed payments during such sixty (60)-day period.
(ii) The Company will pay to the Executive a pro rata Annual Bonus for the year in which the termination of employment occurs, which shall be determined based on Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment actual Annual Bonus earned for the year in which the Executive’s termination of employment occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs(if any), as determined by the Compensation Committeebased on actual performance, multiplied by a fraction, the numerator of which is the number of days during in which the Executive was employed by the Company in during the year in which the termination of the Executive’s terminationemployment occurs, and the denominator of which is three hundred sixty-five (365). The payment pro rata Annual Bonus described in this clause (iisubsection 3(c)(ii) shall will be payable within 30 days paid at the same time and under the same terms and conditions as bonuses are paid to other executives of the Company, on or after January 1 but not later than March 15 of the calendar year following the calendar year in which the Executive’s date of termination (or at the end of the revocation period for the Releaseemployment terminates, if later), or if a six-month delay is required subject to comply with section 409A of the Code, on the first business day following such delay period;Section 5(b) below.
(iii) Medical coverage for For the twelve (12-) month period following the Executive’s termination or until the date on which of employment, provided that the Executive is eligible timely elects COBRA, the Company will reimburse the Executive for the monthly COBRA cost of continued medical and dental coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at for the level in effect at the date of his termination (or generally comparable coverage) for himself Executive and, where applicable, his spouse and dependents, at the level in effect as of the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu date of such coverage in an amount equal to the Executive’s after-tax cost termination of continuing such coverageemployment, where such coverage may not be continued (or where such continuation would adversely affect less the tax status employee portion of the plan pursuant to which applicable premiums that the coverage is provided). The Executive would have paid had he remained employed during the such twelve (12) month period (the COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing twelve (12-) month period;
period that the Executive is provided with medical and dental coverage under subsection 3(c)(i)). These reimbursements will commence within the sixty (iv) All 60)-day period following the date of the Executive’s outstanding stock optionstermination of employment and will be paid on the first payroll date of each month, restricted stock and other equity rights held by provided that the Executive as demonstrates proof of payment of the Executiveapplicable premiums prior to the applicable reimbursement payment date. Notwithstanding the foregoing, the Company’s date reimbursement of termination, if any, which would have vested and become exercisable within the one monthly COBRA premiums in accordance with this subsection 3(c)(iii) shall cease immediately upon the earlier of: (1A) year the end of the twelve (12) month period following the Executive’s termination of employment, or (B) the date that the Executive is eligible for comparable coverage with a subsequent employer. Notwithstanding the foregoing, the Company reserves the right to restructure the foregoing COBRA premium reimbursement arrangement in any manner necessary or appropriate to avoid fines, penalties or negative tax consequences to the Company or the Executive (including, without limitation, to avoid any penalty imposed for violation of the nondiscrimination requirements under the Patient Protection and Affordable Care Act or the guidance issued thereunder), as determined by the Company in its sole and absolute discretion.
(iv) Notwithstanding any provision to the contrary in the 2008 Equity Plan (or a successor plan) or any applicable agreement (including this Agreement), all outstanding equity grants held by the Executive immediately prior to the Executive’s termination date which vest based upon the Executive’s continued service over time that would have become vested during the twelve (12) month period following the Executive’s termination date had the Executive remained employed during such twelve (12) month period shall accelerate, become fully vested and/or exercisable, as the case may be, as of the Executive’s termination date. All outstanding equity grants held by the Executive immediately prior to the Executive’s termination date which vest based upon attainment of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, performance criteria shall remain exercisable, notwithstanding any provision subject to the contrary in terms and conditions of the agreement evidencing such performance based award. In addition, any other agreement governing such options, for a period outstanding vested options held by the Executive as of his termination date shall remain exercisable by the Executive through the earlier of the six (6) months after month anniversary of the Executive’s termination date or the date of termination; provided, however, that in no event will expiration of the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; andterm.
(v) Any other The Executive shall also be entitled to any amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, Company without regard to whether the Executive does not execute or not revokes the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursRelease.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If during the Term the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below)Reason, the provisions of Executive shall receive the benefits described in this Section 6 shall apply10.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 15 days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 10 for Good Reason. The Company and the Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of take all steps necessary (including with regard to any post-termination or resignation, as applicable, specified in such notice, services the Executive agrees provides) to resign all positions, including as an officer and, if applicable, as ensure that any termination of employment described in this Agreement constitutes a director or member “separation from service” within the meaning of section 409A of the Board, related to the Company and its parents, subsidiaries and affiliatesCode.
(b) Unless the Executive complies with the provisions of Section 6(c10(c) below, upon termination or resignation resignation, as applicable, under Section 6(a10(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, owing but not yet paid to Executive under Section 2 this Agreement and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company. In such event, no other payments or benefits shall be due under this Agreement to the Executive.
(c) Notwithstanding the provisions of Section 6(b10(b), upon termination or resignation, as applicable, under Section 6(a10(a) above, if the Executive executes and does not revoke a written releaserelease prior to the 45th day following the Executive’s date of termination, in a form acceptable to the Company, but substantially in its sole discretion, the form attached hereto as Exhibit A (subject to any necessary adjustment reasonably determined by the Company to be necessary to comply with applicable law at the time of the Executive’s termination or resignation) of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or Agreement, under any plans or programs of the Company under which the Executive has accrued and is due a benefitbenefit or any rights to indemnification from the Company under any agreement with or arrangement of the Company) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, receive the following:
(i1) A lump sum cash payment An amount equal to 1.0 2.0 times the Executive’s annual Base Salary (at the rate in effect immediately before the Executive’s termination or resignation, as applicable), which shall be paid as follows: (i) the maximum amount that can be paid under the “separation pay” exception of section 409A of the Code ($520,000 for 2014, subject to adjustment as provided under applicable Treasury regulations) shall be payable in accordance with the Company’s normal payroll practices in 12 equal monthly installments over the 12-month period following the Executive’s termination date (the “Severance Period”), with the first payment being made on the 60th day following the Executive’s termination date (such date, the “Payment Date”), such first payment to include the installments for the first 60 days after the termination date, and (ii) the remainder of terminationthe amount shall be paid in a lump sum payment between March 1 and March 15 of the calendar year following the Executive’s termination date.
(2) plus 1.00 An amount equal to 2.0 times the Executive’s target annual cash bonus for Target Incentive Award under the year in which the Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment STI/MTI Plan for the year in which the Executive’s termination date occurs equal to (or, if the Executive’s target annual cash bonus Target Incentive Award for such year has not yet been established, based on the Target Incentive Award for the immediately preceding fiscal year of the Company), which shall be paid in a lump sum payment between March 1 and March 15 of the calendar year following the Executive’s termination date. Notwithstanding the foregoing, solely for purposes of the severance and Target Incentive Award calculations under this subsection (2), subsection (3) below, and Sections 12 and 13 below, the Target Incentive Award shall not be less than the Target Incentive Award in effect for the 2014 calendar year (the “2014 Target Incentive Award”).
(3) A prorated Target Incentive Award under the STI/MTI Plan for the year in which the Executive’s termination date occurs. The prorated Target Incentive Award will be an amount in cash equal to the Executive’s Target Incentive Award under the STI/MTI Plan for the year in which the Executive’s termination date occurs (or, as determined by if the Compensation CommitteeExecutive’s Target Incentive Award for such year has not yet been established, based on the Target Incentive Award for the immediately preceding fiscal year of the Company) (and which shall not be less than the 2014 Target Incentive Award) multiplied by a fraction, the numerator of which is the number of days during which that the Executive was employed by the Company in during the year of the Executive’s termination, termination and the denominator of which is 365. The payment described shall be made in a lump sum on the Payment Date (to the extent not subject to any prior deferral election, and if the Executive has previously made a deferral election, such amount will be paid in accordance with the terms of the arrangement under which such deferral election was made). The payment under this clause (iiSection 10(c)(3) shall be payable within 30 days after not affect the Executive’s date of termination (right to any STI Bonus or at MTI Bonus amounts that may be payable under the end STI/MTI Plan in accordance with the terms of the revocation period STI/MTI Plan (it being understood that this sentence shall not be construed to entitle the Executive to a duplication of payments for a particular year under this paragraph and under the STI/MTI Plan). In the event that the Company implements an STI/MTI Plan design intended to qualify for the Release, if later), or if a sixperformance-month delay is required based exception to comply with section 409A Section 162(m) of the Code, the parties agree to cooperate in good faith to amend the terms of this paragraph to provide that any prorated Target Incentive Award payable hereunder will be based on the first business day following such delay period;actual performance results.
(iii4) Medical coverage and reimbursement for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, medical premium costs as described and at the level times set forth in effect at the date of his termination (or generally comparable coverageSection 4(b) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;above.
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v5) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company.
(d) For purposes of this Agreement, whether “Good Reason” shall be limited to the following (unless the Executive and the Company shall execute a written agreement specifically stating that the occurrence of such event shall not constitute “Good Reason” under this Agreement):
(1) The scope of the Executive’s duties and responsibilities as the Chief Executive Officer of the Company are, in the aggregate, materially reduced.
(2) Any material change in the geographic location at which the Executive must perform services under this Agreement, which, for purposes of this Agreement, means a requirement that the Executive’s principal work location be relocated to a geographic area other than (i) the San Francisco, CA metropolitan area or not (ii) the area on the East Coast including and between Fairfield County, CT and the Washington D.C. metropolitan area, other than on travel reasonably required to carry out the Executive’s obligations under this Agreement.
(3) A material breach by the Company of any of the terms of such plan or program otherwise require an employee to be employed with the Company on the date of paymentthis Agreement, including without limitationlimitation any failure of the Company to fulfill its obligations under Section 26. Notwithstanding the foregoing, any cash bonus earned or accrued but not yet paid no event described in this subsection (d) shall constitute Good Reason unless (i) the Executive gives the Company written notice of his intention to terminate employment for Good Reason and the year prior grounds for such termination within 90 days after the event giving rise to the year in which Good Reason termination occurs, and (ii) such grounds for termination are not corrected by the Company within 30 days after its receipt of such written notice. If the Company does not correct the grounds for termination during the 30-day period following the Executive’s notice of termination, the Executive’s termination occursof employment for Good Reason must become effective within 30 days after the end of the cure period. Notwithstanding the foregoing, in no event will the Executive have Good Reason for termination if an event described in (1) occurs in connection with the Executive’s inability to perform his duties on account of illness or short-term or long-term disability.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If Except as provided in Section 4(a) below, if the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after DB1/ 120506350.4 surviving company following a Change of Control (as defined in Section 11 4(c) below)) without Cause or by the Executive for Good Reason, either before or after a Change of Control, the provisions of this Section 6 3(d) shall apply.
apply (asubject to the modifications of Section 4(a) below, if applicable). The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; provided that. The Company may, in the event that such notice is givenits sole and absolute discretion, pay the Executive shall be under no obligation to render his Base Salary in lieu of any additional services to the Company unexpired period of notice and shall be allowed to seek other employmentterminate his employment immediately. In addition, the Executive may initiate a termination of employment by resigning under this Except as provided in Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c4(a) below, upon termination of the Executive’s employment by the Company under this Section 3(d) or resignation under Section 6(a) above, by the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employeesGood Reason, if any, but only to the extent not conditioned on the execution either before or after a Change of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) aboveControl, if the Executive executes and does not revoke a written release, in a substantially the form acceptable to the Company, in its sole discretionattached hereto as Exhibit A, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subjectProprietary Information and Invention Assignment Agreement (as defined in Section 6(a) below) and covenants and representations in Section 6 below, the Executive shall be entitled to receivereceive the payments and benefits set forth in subsections 3(d)(i), (ii), (iii) and (iv), in lieu of the payment described in Section 6(b) and any other payments and benefits due under any severance plan or program for employees or executivesexecutives (subject to the modifications of Section 4(a) below, the following:if applicable).
(i) A lump sum cash payment equal The Company will pay to 1.0 times the Executive severance as follows: the rate of the Executive’s annual Base Salary (as in effect at the rate in effect immediately before time of termination will be added together with the Executive’s date dollar value of termination) plus 1.00 times the Executive’s target annual cash bonus Annual Bonus for the year in which termination occurs and the sum of the foregoing amounts will be divided by twelve (12) (the “Monthly Severance Amount”). The Monthly Severance Amount will be paid each month over the twelve (12) month period following the termination date, beginning within the sixty (60)-day period following the date of the Executive’s termination of employment and continuing on each payroll date thereafter until fully paid, in accordance with the Company’s regular payroll practices. The first severance payment will include any missed payments during such sixty (60)-day period.
(ii) The Company will pay to the Executive a pro rata Annual Bonus for the year in which the termination of employment occurs, which shall be determined based on Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment actual Annual Bonus earned for the year in which the Executive’s termination of employment occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs(if any), as determined by the Compensation Committeebased on actual performance, multiplied by a fraction, the numerator of which is the number of days during in which the Executive was employed by the Company in during the year in which the termination of the Executive’s terminationemployment occurs, and the denominator of which is three hundred sixty-five (365). The payment pro rata Annual Bonus described in this clause (iisubsection 3(d)(ii) shall will be payable within 30 days paid at the same time and under the same terms and conditions as bonuses are paid to other executives of the Company, on or after January 1 but not later than March 15 of the calendar year following the calendar year in which the Executive’s date of termination (or at the end of the revocation period for the Releaseemployment terminates, if later), or if a six-month delay is required subject to comply with section 409A of the Code, on the first business day following such delay period;Section 5(b) below.
(iii) Medical coverage for For the twelve (12-) month period following the Executive’s termination or until the date on which of employment, provided that the Executive is eligible timely elects COBRA, the Company will reimburse the Executive for the monthly COBRA cost of continued medical and dental coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at for the level in effect at the date of his termination (or generally comparable coverage) for himself Executive and, where applicable, his spouse and dependents, at the level in effect as of the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu date of such coverage in an amount equal to the Executive’s after-tax cost termination of continuing such coverageemployment, where such coverage may not be continued (or where such continuation would adversely affect less the tax status employee portion of the plan pursuant to which applicable premiums that the coverage is provided). The Executive would have paid had he remained employed during the such twelve (12) month period (the COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing twelve (12-) month period;
period that the Executive is provided with reimbursement for medical and dental coverage under this subsection 3(d)(iii)). These reimbursements will commence within the sixty (iv) All 60)-day period following the date of the Executive’s outstanding stock optionstermination of employment and will DB1/ 120506350.4 be paid on the first payroll date of each month, restricted stock and other equity rights held by provided that the Executive as demonstrates proof of payment of the Executiveapplicable premiums prior to the applicable reimbursement payment date. Notwithstanding the foregoing, the Company’s date reimbursement of termination, if any, which would have vested and become exercisable within the one monthly COBRA premiums in accordance with this subsection 3(d)(iii) shall cease immediately upon the earlier of: (1A) year the end of the twelve (12) month period following the Executive’s termination of employment, or (B) the date that the Executive is eligible for comparable coverage with a subsequent employer. Notwithstanding the foregoing, the Company reserves the right to restructure the foregoing COBRA premium reimbursement arrangement in any manner necessary or appropriate to avoid fines, penalties or negative tax consequences to the Company or the Executive (including, without limitation, to avoid any penalty imposed for violation of the nondiscrimination requirements under the Patient Protection and Affordable Care Act or the guidance issued thereunder), as determined by the Company in its sole and absolute discretion.
(iv) Notwithstanding any provision to the contrary in the Equity Plan (or a successor plan) or any applicable agreement (including this Agreement), all outstanding equity grants held by the Executive immediately prior to the Executive’s termination date which vest based upon the Executive’s continued service over time that would have become vested during the twelve (12) month period following the Executive’s termination date had the Executive remained employed during such twelve (12) month period shall accelerate, become fully vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision termination date. All outstanding equity grants held by the Executive immediately prior to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s termination date which vest based upon attainment of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences performance criteria shall remain subject to the Executive; andterms and conditions of the agreement evidencing such performance-based award.
(v) Any other The Executive shall also be entitled to any amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, Company without regard to whether the Executive executes or not revokes the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursRelease.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the (a) The Company may remove Executive at any time without Cause (as defined in Section 11 below4) or if from the position in which Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause is employed hereunder upon not less than 30 sixty (60) days’ ' prior written notice to the Executive; provided provided, however, that, that in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 2.1 for Good ReasonReason (as defined in Section 4). The Executive shall give the Company not less than 30 60 days’ ' prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination Upon any removal or resignation under described in Section 6(a2.1(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s 's then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due earned in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b2.1(b), upon termination or resignation, as applicable, under Section 6(a) above, if in the event that Executive executes and does not revoke a written releasemutual release upon such removal, resignation or Non-Renewal, in a form acceptable to the Company, in its sole discretionCompany (the "Release"), of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s 's employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as any claims against Executive for actions within the Executive continues to comply with scope of her employment by the provisions of any confidentialityCompany, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives2.1(b), the following:
(i) A Executive shall receive a lump sum cash payment equal to 1.0 times the Executive’s annual 's Base Salary (payable over the remaining portion of the Employment Term, at the rate in effect immediately before the Executive’s date 's termination of terminationemployment and (y) plus 1.00 times the Executive’s target annual cash bonus a pro rated bonus, if any, for the year in which the Executive’s date 's termination of termination employment occurs. The payment described in this clause (i) pro rated bonus shall be payable within 30 days after based on the amount of Executive’s date of termination (or at the end of the revocation period 's annual bonus, if any, for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the fiscal year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s 's termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the fiscal year of the Executive’s termination, her termination and the denominator of which is three hundred sixty-five (365). The payment described in this clause (ii) Payment shall be payable made within 30 thirty (30) days after the Executive’s effective date of the termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;.
(iiiii) Medical coverage for the 12For a period of 18-month period months following the Executive’s termination or until date of termination, Executive shall continue to receive the date on which the Executive is eligible for medical coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his her termination (or generally comparable coverage) for himself herself and, where applicable, his her spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s 's after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the CodeInternal Revenue Code of 1986, as amended, shall run concurrently with the foregoing 1218-month benefit period;.
(iviii) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and also receive any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs1 above.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the The Company may terminate Executive’s 's employment is terminated by the Company without Cause (as defined in Section 11 below) or if at any time during the Term upon thirty (30) days' written notice provided to Executive resigns in accordance with Section 12 below. Executive may terminate her employment for Good Reason (as defined in accordance with Section 11 9(i) below). At the Company's sole discretion, either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at require that Executive cease performing services hereunder during any time notice period following notice of a termination without Cause upon not less than 30 days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 or for Good Reason. The Executive Notwithstanding anything contained herein, in no event shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member expiration of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination Term or resignation under Section 6(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only 's election not to renew the extent not conditioned on the execution Term constitute a termination of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s 's employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the without Cause. If Executive has accrued and is due a benefit"separation from service" (within the meaning of Section 409A(a)(2)(A)(i) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the following:
(i) A lump sum cash payment equal to 1.0 times the Executive’s annual Base Salary (at the rate in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “"Code”"), on and Treasury Regulation. Section 1.409A-1(h)) ("Separation from Service") by reason of a termination by the first business day following Company without Cause or by Executive for Good Reason, the Company shall promptly or, in the case of obligations described in clause (iv) below, as such delay period.
obligations become due, pay or provide to Executive. (i) Executive's earned but unpaid Base Compensation accrued through the date of such Separation from Service (the "Termination Date"), (ii) A pro rata bonus payment for accrued but unpaid vacation time through the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occursTermination Date, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the reimbursement of any business expenses incurred by Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay prior to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverageTermination. Date that are reimbursable under Section 7 above, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;
(iv) All of the Executive’s outstanding stock options, restricted stock any vested benefits and other equity rights held by the amounts due to Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs plan, program or policy of the Company, whether or not and (v) any payment in lieu of notice of termination under this Section 9(a) (together, the terms "Accrued Obligations"). In addition, subject to Section 9(f) below and Executive's execution and non-revocation of such plan or program otherwise require an employee a binding release in accordance with Section 9(g) below, upon Executive's Separation from Service due to be employed with a termination of Executive's employment by the Company on without Cause, the date of payment, including without limitation, any cash bonus earned Company shall pay or accrued but not yet paid for provide to Executive (the year prior to the year in which the Executive’s termination occurs."Severance"):
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if by the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 7 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 resign for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, Reason (as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliatesdefined below).
(b) Unless the Executive complies with the provisions of Section 6(c7(c) below, upon termination or resignation under Section 6(a7(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No no other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the CompanyCompany (the “Accrued Obligations”).
(c) Notwithstanding the provisions of Section 6(b7(b), upon termination or resignation, as applicable, under Section 6(a7(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, release of any and all claims against the Company and all related parties or its affiliates, with respect to all matters arising out of the Executive’s employment by with the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of in such form as provided by the Company under which the Executive has accrued and is due a benefit) in its sole discretion (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentialitySection 14 below and the Invention and Non-Disclosure Agreement attached hereto as Exhibit A and the Non-Competition and Non-Solicitation Agreement attached hereto as Exhibit B (Exhibit A and Exhibit B together referred to as the “Restrictive Covenant Agreements”), non-competition or non-solicitation agreement with in addition to the Company to which the Executive is subjectAccrued Obligations, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, receive the following:
(i) A lump sum cash payment equal to 1.0 times Continuation of the Executive’s annual Base Salary for twelve (12) months (the “Severance Term”), at the rate in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause (i) , which amount shall be payable within 30 days after paid in regular payroll installments over the applicable period following the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.date; and
(ii) A pro rata bonus payment prorated Annual Bonus for the year in which the Executive’s termination occurs equal to of employment occurs, which shall be determined by multiplying the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied Target Incentive Bonus by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of in which the Executive’s termination, termination date occurs and the denominator of which is 365. The payment described in this clause (ii) prorated Annual Bonus, if any, shall be payable within 30 days after the Executive’s date of termination (or paid at the end same time as bonuses are paid to other employees of the revocation period for the ReleaseCompany, if later), or if a six-month delay is required to comply with section 409A but not later than March 15 of the Code, on fiscal year following the first business day following such delay period;fiscal year for which it was earned.
(iii) Medical If the Executive timely and properly elects health continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), then continued health (including hospitalization, medical, dental, vision etc.) insurance coverage substantially similar in all material respects as the coverage provided to the Company’s then other active senior executives for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, Severance Term at the level in effect at Company’s full expense; provided that the date period of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period provided under section 4980B of the Internal Revenue Code, as amended and the regulations and guidance promulgated thereunder (the “Code”) shall run concurrently with the foregoing 12-month period;
; provided further that, notwithstanding the foregoing, the amount of any benefits provided by this subsection (ivc)(iii) All shall be reduced or eliminated to the extent the Executive becomes entitled to duplicative benefits by virtue of the Executive’s outstanding stock optionssubsequent or other employment; and provided further that, restricted stock and other equity rights held by notwithstanding the Executive as of the Executive’s date of terminationforegoing, if any, which the Company’s making payments under this Section 7(c)(iii) would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and violate any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision nondiscrimination rules applicable to the contrary Company’s group health plan under which such coverage is made available, or result in any other agreement governing the imposition of penalties under the Code or the Affordable Care Act, or be impermissible under applicable law, the Parties agree to reform this Section 7(c)(iii) in a manner as is necessary to comply with such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will requirements and avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurspenalties.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If Except as provided in Section 4(a) below, if the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after surviving company following a Change of Control (as defined in Section 11 4(c) below)) without Cause or by the Executive for Good Reason, either before or after a Change of Control, the provisions of this Section 6 3(c) shall apply.
apply (asubject to the modifications of Section 4(a) below, if applicable). The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; provided that. The Company may, in the event that such notice is givenits sole and absolute discretion, pay the Executive shall be under no obligation to render his Base Salary in lieu of any additional services to the Company unexpired period of notice and shall be allowed to seek other employmentterminate his employment immediately. In addition, the Executive may initiate a termination of employment by resigning under this Except as provided in Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c4(a) below, upon termination or resignation under Section 6(a) above, of the Executive shall be entitled to receive only ’s employment by the amount due to Company under this Section 3(c) or by the Executive under the Company’s then current severance pay plan for employeesGood Reason, if any, but only to the extent not conditioned on the execution either before or after a Change of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) aboveControl, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subjectProprietary Information and Invention Assignment Agreement (as defined in Section 6(a) below) and restrictive covenants and representations in Section 6 below, the Executive shall be entitled to receivereceive the payments set forth in subsections 3(c)(i), (ii) and (iii), in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executivesexecutives (subject to the modifications of Section 4(a) below, if applicable). Notwithstanding any provision of this Agreement to the following:contrary, in no event shall the timing of the Executive’s execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year.
(i) A lump sum cash payment The Company will pay to the Executive severance equal to 1.0 times twelve (12) months of the Executive’s annual Base Salary (at the rate in effect immediately before prior to the Executive’s termination of employment, less applicable tax withholding, paid in equal monthly installments beginning within the sixty (60)-day period following the date of termination) plus 1.00 times the Executive’s target annual cash bonus termination of employment and continuing on each payroll date thereafter until fully paid, in accordance with the Company’s regular payroll practices. The first severance payment will include any missed payments during such sixty (60)-day period.
(ii) The Company will pay to the Executive a pro rata Annual Bonus for the year in which the termination of employment occurs, which shall be determined based on Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment actual Annual Bonus earned for the year in which the Executive’s termination of employment occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs(if any), as determined by the Compensation Committeebased on actual performance, multiplied by a fraction, the numerator of which is the number of days during in which the Executive was employed by the Company in during the year in which the termination of the Executive’s terminationemployment occurs, and the denominator of which is three hundred sixty-five (365). The payment pro rata Annual Bonus described in this clause (iisubsection 3(c)(ii) shall will be payable within 30 days paid at the same time and under the same terms and conditions as bonuses are paid to other executives of the Company, on or after January 1 but not later than March 15 of the calendar year following the calendar year in which the Executive’s date of termination (or at the end of the revocation period for the Releaseemployment terminates, if later), or if a six-month delay is required subject to comply with section 409A of the Code, on the first business day following such delay period;Section 5(b) below.
(iii) Medical coverage for For the twelve (12-) month period following the Executive’s termination or until the date on which of employment, provided that the Executive is eligible timely elects COBRA, the Company will reimburse the Executive for the monthly COBRA cost of continued medical and dental coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at for the level in effect at the date of his termination (or generally comparable coverage) for himself Executive and, where applicable, his spouse and dependents, at the level in effect as of the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu date of such coverage in an amount equal to the Executive’s after-tax cost termination of continuing such coverageemployment, where such coverage may not be continued (or where such continuation would adversely affect less the tax status employee portion of the plan pursuant to which applicable premiums that the coverage is provided). The Executive would have paid had he remained employed during the such twelve (12) month period (the COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing twelve (12-) month period;
period that the Executive is provided with medical and dental coverage under subsection 3(c)(i)). These reimbursements will commence within the sixty (iv) All 60)-day period following the date of the Executive’s outstanding stock optionstermination of employment and will be paid on the first payroll date of each month, restricted stock and other equity rights held by provided that the Executive as demonstrates proof of payment of the Executiveapplicable premiums prior to the applicable reimbursement payment date. Notwithstanding the foregoing, the Company’s date reimbursement of termination, if any, which would have vested and become exercisable within the one monthly COBRA premiums in accordance with this subsection 3(c)(iii) shall cease immediately upon the earlier of: (1A) year the end of twelve (12) month period following the Executive’s termination of employment, or (B) the date that the Executive is eligible for comparable coverage with a subsequent employer. Notwithstanding the foregoing, the Company reserves the right to restructure the foregoing COBRA premium reimbursement arrangement in any manner necessary or appropriate to avoid fines, penalties or negative tax consequences to the Company or the Executive (including, without limitation, to avoid any penalty imposed for violation of the nondiscrimination requirements under the Patient Protection and Affordable Care Act or the guidance issued thereunder), as determined by the Company in its sole and absolute discretion.
(iv) Notwithstanding any provision to the contrary in the 2008 Equity Plan (or a successor plan) or any applicable agreement (including this Agreement), all outstanding equity grants held by the Executive immediately prior to the Executive’s termination date which vest based upon the Executive’s continued service over time that would have become vested during the twelve (12) month period following the Executive’s termination date had the Executive remained employed during such twelve (12) month period shall accelerate, become fully vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision termination date. All outstanding equity grants held by the Executive immediately prior to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s termination date which vest based upon attainment of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences performance criteria shall remain subject to the Executive; andterms and conditions of the agreement evidencing such performance based award.
(v) Any other The Executive shall also be entitled to any amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, Company without regard to whether the Executive does not execute or not revokes the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursRelease.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If (i) In the event this Agreement, and the Executive’s employment hereunder, is terminated by the Company without Cause (as defined in Section 11 below) or if by the Executive resigns for Good Reason Reason, then promptly after the Effective Termination Date the Company shall pay to the Executive the Accrued Compensation and a one-time lump sum payment in an amount equal to fifty percent (50%) of the Executive’s Annual Base Salary in effect as defined in Section 11 below), either before or after a Change of Control the effective date of termination (as defined in Section 11 below)such one-time lump sum payment, the provisions of “Severance Payment”). Notwithstanding the foregoing and anything in this Section 6 shall apply.
(a) The Company may terminate Agreement to the contrary, in the event the Executive’s employment with hereunder is terminated by the Company at any time without Cause upon not less than 30 days’ prior written notice Cause, then, as a precondition to the Company’s obligation to pay the Severance Payment to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services execute a general release in favor of the Company in form and substance which is acceptable to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination or resignation under Section 6(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) discretion (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the following:
(i) A lump sum cash payment equal to 1.0 times the Executive’s annual Base Salary (at the rate in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause (i) Release shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay periodbecome effective.
(ii) A pro rata bonus payment for In addition, only in the year in which case this Agreement, and the Executive’s termination occurs equal to employment hereunder, is terminated by the Company without Cause, or is terminated by the Executive for Good Reason, the Company, at its sole expense, shall maintain in full force and effect for the continued benefit of the Executive and the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, dependents for a period of six (6) months after following the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable Effective Termination Date all welfare benefit plans and or programs of maintained by the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of paymentincluding, including without limitation, any cash bonus earned all medical, hospitalization, dental, disability, accidental death and dismemberment and travel accident insurance plans and programs, in which the Executive or accrued but not yet paid for the year his spouse or dependents were participating immediately prior to the year effective date of termination at the level in which effect and upon substantially the Executive’s same terms and conditions (including, without limitation, contributions required by the Executive for such benefits) as existed immediately prior to the effective date of termination occurs(except to the extent that the Executive and/or his spouse or dependents may be ineligible for one or more such benefits under applicable plan terms).
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If Except as provided in Section 4(a) below, if the Executive’s employment is terminated by the Company without Cause (or the surviving company following a Change of Control (as defined in Section 11 subsection 4(c) below)) without Cause or if by the Executive resigns for Good Reason (as defined in Section 11 below)Reason, either before or after a Change of Control (as defined in Section 11 below)Control, the provisions of this subsection 3(c) shall apply (subject to the modifications of Section 6 shall apply.
(a4(a) below, if applicable). The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; provided that, in . Upon termination of the event that such notice is given, Executive’s employment by the Company under this subsection 3(c) or by the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice , either before or after a Change of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination or resignation under Section 6(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) aboveControl, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subjectConfidentiality and Invention Assignment Agreement (as defined in subsection 6(a) below) and restrictive covenants and representations in Section 6 below, the Executive shall be entitled to receivereceive the payments and benefits set forth in subsections 3(c)(i), (ii) and (iii), in lieu of the payment described in Section 6(b) and any other payments and benefits due under any severance plan or program for employees or executivesexecutives (subject to the modifications of Section 4(a) below, if applicable). Notwithstanding any provision of this Agreement to the following:contrary, in no event shall the timing of the Executive’s execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year.
(i) A lump sum cash payment The Company will pay to the Executive severance equal to 1.0 times six (6) months of the Executive’s annual Base Salary (at the rate in effect immediately before prior to the Executive’s termination of employment, less applicable tax withholding, paid in equal monthly installments beginning within the sixty (60)-day period following the date of termination) plus 1.00 times the Executive’s target annual cash bonus for termination of employment and continuing on each payroll date thereafter until fully paid, in accordance with the year in which the ExecutiveCompany’s date of termination occursregular payroll practices. The first severance payment described in this clause will include any missed payments during such sixty (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay 60)-day period.
(ii) A pro rata bonus payment for For the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause six (ii6) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which of employment, provided that the Executive is eligible timely elects COBRA, the Company will reimburse the Executive for the monthly COBRA cost of continued medical and dental coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at for the level in effect at the date of his termination (or generally comparable coverage) for himself Executive and, where applicable, his spouse and dependents, at the level in effect as of the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu date of such coverage in an amount equal to the Executive’s after-tax cost termination of continuing such coverageemployment, where such coverage may not be continued (or where such continuation would adversely affect less the tax status employee portion of the plan pursuant to which applicable premiums that the coverage is provided). The Executive would have paid had he remained employed during the such six (6) month period (the COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-six (6) month period;
period that the Executive is provided with medical and dental coverage under subsection 3(c)(i)). These reimbursements will commence within the sixty (iv) All 60)-day period following the date of the Executive’s outstanding stock optionstermination of employment and will be paid on the first payroll date of each month, restricted stock and other equity rights held by provided that the Executive as demonstrates proof of payment of the Executiveapplicable premiums prior to the applicable reimbursement payment date. Notwithstanding the foregoing, the Company’s date reimbursement of termination, if any, which would have vested and become exercisable within the one monthly COBRA premiums in accordance with this subsection 3(c)(ii) shall cease immediately upon the earlier of: (1A) year the end of the six (6) month period following the Executive’s termination of employment, or (B) the date that the Executive is eligible for comparable coverage with a subsequent employer. Notwithstanding the foregoing, the Company reserves the right to restructure the foregoing COBRA premium reimbursement arrangement in any manner necessary or appropriate to avoid fines, penalties or negative tax consequences to the Company or the Executive (including, without limitation, to avoid any penalty imposed for violation of the nondiscrimination requirements under the Patient Protection and Affordable Care Act or the guidance issued thereunder), as determined by the Company in its sole and absolute discretion.
(iii) Notwithstanding any provision to the contrary in the 2008 Equity Plan (or a successor plan) or any applicable agreement (including this Agreement), all outstanding equity grants held by the Executive immediately prior to the Executive’s termination date which vest based upon the Executive’s continued service over time that would have become vested during the six (6) month period following the Executive’s termination date had the Executive remained employed during such six (6) month period shall accelerate, become fully vested and/or exercisable, as the case may be, as of the Executive’s termination date. All outstanding equity grants held by the Executive immediately prior to the Executive’s termination date which vest based upon attainment of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, performance criteria shall remain exercisable, notwithstanding any provision subject to the contrary in terms and conditions of the agreement evidencing such performance based award. In addition, any other agreement governing such options, for a period outstanding vested options held by the Executive as of his termination date shall remain exercisable by the Executive through the earlier of the six (6) months after month anniversary of the Executive’s termination date or the date of termination; provided, however, that in no event will expiration of the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; andterm.
(viv) Any other The Executive shall also be entitled to any amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, Company without regard to whether the Executive does not execute or not revokes the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursRelease.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below11) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below11), the provisions of this Section 6 7 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 7 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c7(c) below, upon termination or resignation under Section 6(a7(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan or arrangement for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to receive any amounts earned, accrued and owing, owing but not yet paid under Section 2 above and any benefits accrued and due in accordance with the terms of under any applicable benefit plans and programs of the Company, in each case, subject to and in accordance with the terms thereof.
(c) Notwithstanding the provisions of Section 6(b7(b), upon termination or resignation, as applicable, under Section 6(a7(a) aboveabove (including a termination due to Non-Renewal), if if, within sixty (60) days following the termination of the Executive’s employment, the Executive timely executes and does not revoke a written release, in a form acceptable delivers to the Company, in its sole discretion, Company (without revocation) a fully effective written release of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of Agreement), in substantially the Company under which the Executive has accrued and is due a benefit) form set forth in Exhibit A hereto (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b7(b) and any other payments due under any severance plan or program for employees or executives, the followingfollowing payments and benefits:
(1) From the date of termination through the balance of the Scheduled Term (if any) (the “Severance Period”), the Executive shall continue to receive (i) A lump sum cash payment equal to 1.0 times the Executive’s annual his Base Salary (at the rate in effect immediately before the Executive’s date of terminationtermination or resignation, as applicable) in installments in accordance with the Company’s normal payroll practices, plus 1.00 times the Executive’s target annual cash (ii) a bonus for each fiscal year during the Severance Period, at a rate that is not less than the highest annual bonus paid during any of the preceding years covered by this Agreement or the Prior Agreement (but prorated for any partial fiscal year during the Severance Period), payable at the same time other employees of the Company are paid pursuant to the terms of the Company’s annual bonus plan, but not later than March 15 of the year in which the Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at following the end of the revocation period for fiscal year to which the Releasebonus relates.
(2) To the extent the Executive timely elects to receive continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, if lateras amended ("COBRA"), the Company shall pay or if reimburse the Executive, on a six-month delay is required monthly basis, an amount equal to comply with section 409A the full monthly premium for such coverage, from the date of termination until the date eighteen (18) months following the date of termination. The COBRA health care continuation coverage period under Section 4980B of the Internal Revenue Code of 1986, as amended (the “"Code”), on the first business day following such delay period.
(ii") A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;.
(iv3) All Beginning on the 60th day following the effective date of the Executive’s termination or resignation, and on the first payroll date of each month thereafter during the remainder of the Scheduled Term (if any), a monthly payment equal to the premium cost for the long and short-term disability coverage that was in effect for the Executive under plans of the Company immediately before his termination or resignation. To the extent requested by the Executive within 30 days following the date of termination, the Company shall take all action necessary, if any, to facilitate the Executive’s exercise of all conversion and/or portability privileges, if any, under such long and short-term disability coverage.
(4) Beginning on the 60th day following the effective date of the Executive’s termination or resignation, and on the first payroll date of each month thereafter during the remainder of the Scheduled Term (if any), a monthly payment equal to the full cost of any Company life insurance coverages in effect for the Executive immediately before his termination or resignation to maintain life insurance coverage. To the extent requested by the Executive within 30 days following the date of termination, the Company shall take all action necessary, if any, to facilitate the Executive’s exercise of all conversion privileges, if any, under such life insurance program or policy.
(5) Notwithstanding any provision to the contrary in any applicable plan, program or agreement, all outstanding stock options, restricted stock and other equity rights awards held by the Executive as of the Executive’s date of terminationhis termination or resignation, if anyas applicable, which would have shall become fully vested and become exercisable within the one (1) year period following as of such date. In addition, any outstanding stock options held by the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a the shorter of (i) the 60-month period following the date of six (6) months after the Executive’s date termination or resignation, as applicable, and (ii) the then remaining term of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; andsuch stock option.
(v6) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether payable in accordance with the terms and conditions thereof.
(7) An annual bonus for the fiscal year of termination or not resignation, based on actual performance through the full fiscal year but pro-rated based on the number of days the Executive was employed during such fiscal year of termination, payable at the same time other employees of the Company are paid pursuant to the terms of such plan the Company’s annual bonus plan, but not later than March 15 of the year following the end of the fiscal year to which the bonus relates (the “Pro Rata Bonus”).
(d) To the extent that the payment of any amount or program provision of any benefit under Section 7 is conditioned upon the Release and is otherwise require an employee scheduled to be employed with occur prior to the Company on sixtieth (60th) day following the date of paymentExecutive's termination of employment hereunder, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior condition on executing the Release as set forth herein, shall not be made until the first regularly scheduled payroll date following such sixtieth (60th) day, after which any remaining payments shall thereafter be provided to Executive according to the year in which the Executive’s termination occursapplicable schedule set forth herein.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the (a) The Company may remove Executive at any time without Cause (as defined in Section 11 below4) or if from the position in which Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause is employed hereunder upon not less than 30 sixty (60) days’ ' prior written notice to the Executive; provided provided, however, that, that in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 2.1 for Good ReasonReason (as defined in Section 4). The Executive shall give the Company not less than 30 sixty (60) days’ ' prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination Upon any removal or resignation under described in Section 6(a2.1(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s 's then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due earned in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b2.1(b), upon termination or resignation, as applicable, under Section 6(a) above, if in the event that Executive executes and does not revoke a written releasemutual release upon such removal, resignation or Non-Renewal, in a form acceptable to the Company, in its sole discretionCompany (the "Release"), of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s 's employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as any claims against Executive for actions within the Executive continues to comply with scope of her employment by the provisions of any confidentialityCompany, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives2.1(b), the following:
(i) A Executive shall receive (x) a lump sum cash severance payment in an amount equal to 1.0 times one month of the Executive’s annual 's Base Salary (for each month she has been employed by the Company up to a maximum of five years, at the rate in effect immediately before Executive's termination of employment; provided, however, that upon the Executive’s date 's attainment of termination) plus 1.00 times age sixty-three (63), the amount of the severance payment shall be reduced by an amount equal to one month of the Executive’s target annual cash bonus 's Base Salary for each month she is employed by the Company after she attains age sixty-four through age sixty-six (66), and (y) a pro rated bonus, if any, for the year in which Executive's termination of employment occurs. One-half of the amount described in the preceding sentence shall serve as consideration for the Executive’s date of termination occurs's entering into the restrictive covenants described in Section 5 below. The payment described in this clause (i) pro rated bonus shall be payable within 30 days after based on the amount of Executive’s date of termination (or at the end of the revocation period 's annual bonus, if any, for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the fiscal year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s 's termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the fiscal year of the Executive’s termination, her termination and the denominator of which is three hundred sixty-five (365). The payment described in this clause (ii) Payment shall be payable made within 30 thirty (30) days after the Executive’s effective date of the termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;.
(iiiii) Medical coverage for the 12-month For a period of eighteen (18) months following the Executive’s termination or until date of termination, Executive shall continue to receive the date on which the Executive is eligible for medical coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his her termination (or generally comparable coverage) for himself herself and, where applicable, his her spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s 's after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the CodeInternal Revenue Code of 1986, as amended, shall run concurrently with the foregoing 12-eighteen (18) month benefit period;.
(iviii) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and also receive any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs1 above.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If (i) If, prior to the Executive’s employment is terminated by expiration of the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below)Term, either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time Group is terminated by the Company Group without Cause upon not less than 30 days’ prior written notice to the Executive; provided that, in the event that such notice is given, or if the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of resigns from his employment by resigning under this Section 6 hereunder for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified then in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related addition to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination or resignation under amounts set forth in Section 6(a) above), the Executive shall be entitled to receive only the amount due to following payments (collectively, the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of “Severance Payments”): (A) a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs pro rata portion of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the following:
(i) A lump sum cash payment equal to 1.0 times the Executive’s annual Base Salary (at the rate in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus Bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause or resignation occurs calculated by multiplying (ix) shall be payable within 30 days after the Executive’s date Bonus for the year of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), based and on the first business day following such delay period.
assumption that all performance targets have been or will be achieved) by (iiy) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in during the year of the Executive’s termination, termination and the denominator of which is 365. The ; and (B) a payment described in this clause equal to three (3) times the sum of (x) the Reference Salary, (y) the Reference Bonus and (z) the Reference Benefits Value (each as defined below).
(ii) Subject to Section 6(e) hereof, the Severance Payments shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if in a six-month delay is required to comply with section 409A of the Code, lump sum on the first business day following such delay period;
(iii) Medical coverage for of the 12-third calendar month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-calendar month period;
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursor resignation becomes effective in accordance with this Section 6(c).
(iii) Payment of the Severance Payments, whether pursuant to this Section 6(c) or pursuant to Section 7, shall be contingent upon the Executive executing a full release and waiver of claims against the Company Group (which release and waiver of claims, once executed and irrevocable, shall not apply to the Company’s obligation to make the Severance Payments hereunder), in a form approved by the Company Board, which becomes irrevocable not later than the last day of the second calendar month following the calendar month in which the Executive’s termination or resignation becomes effective in accordance with this Section 6(c).
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if by the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 7 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 resign for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, Reason (as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliatesdefined below).
(b) Unless the Executive complies with the provisions of Section 6(c7(c) below, upon termination or resignation under Section 6(a7(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No no other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the CompanyCompany (the “Accrued Obligations”).
(c) Notwithstanding the provisions of Section 6(b7(b), upon termination or resignation, as applicable, under Section 6(a7(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, release of any and all claims against the Company and all related parties or its affiliates, with respect to all matters arising out of the Executive’s employment by with the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of in such form as provided by the Company under which the Executive has accrued and is due a benefit) in its sole discretion (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentialitySection 14 below and the Invention and Non-Disclosure Agreement attached hereto as Exhibit A and the Non-Competition and Non-Solicitation Agreement attached hereto as Exhibit B (Exhibit A and Exhibit B together referred to as the “Restrictive Covenant Agreements”), non-competition or non-solicitation agreement with in addition to the Company to which the Executive is subjectAccrued Obligations, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, receive the following:
(i) A lump sum cash payment equal to 1.0 times Continuation of the Executive’s annual Base Salary for twelve (12) months (the “Severance Term”), at the rate in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause (i) , which amount shall be payable within 30 days after paid in regular payroll installments over the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month applicable period following the Executive’s termination or until date;
(ii) The Executive’s Target Incentive Bonus in effect immediately prior to the date on Executive’s termination date, paid at the same time as bonuses are paid to other employees of the Company, but not later than March 15 of the fiscal year following the fiscal year for which it was earned; and
(iii) If the Executive is eligible for timely and properly elects health continuation coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employerthe Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), whichever is soonerthen continued health (including hospitalization, at the level medical, dental, vision etc.) insurance coverage substantially similar in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, all material respects as the same may be changed by coverage provided to the Company from time to time Company’s then other active senior executives for employees generally, as if a period of eighteen (18) months ; provided that the Executive had continued in employment during such period; or, as an alternative, the Company may elect to shall pay to the Executive cash in lieu of such coverage in an amount equal to the amount active employees pay for such coverage as of the date of the Executive’s after-tax cost termination (the “Monthly COBRA Costs”) and the period of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period provided under section 4980B of the Internal Revenue Code, as amended and the regulations and guidance promulgated thereunder (the “Code”) shall run concurrently with the foregoing 12-month period;
; provided further that, notwithstanding the foregoing, the amount of any benefits provided by this subsection (ivc)(iii) All shall be reduced or eliminated to the extent the Executive becomes entitled to duplicative benefits by virtue of the Executive’s outstanding stock optionssubsequent or other employment; and provided further that, restricted stock and other equity rights held by notwithstanding the Executive as of the Executive’s date of terminationforegoing, if any, which the Company’s making payments under this Section 7(c)(iii) would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and violate any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision nondiscrimination rules applicable to the contrary Company’s group health plan under which such coverage is made available, or result in any other agreement governing the imposition of penalties under the Code or the Affordable Care Act, or be impermissible under applicable law, the Parties agree to reform this Section 7(c)(iii) in a manner as is necessary to comply with such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will requirements and avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurspenalties.
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Termination Without Cause; Resignation for Good Reason. If The Company shall pay the Executive and provide to the Executive (and his dependents, where applicable), the amounts and benefits set forth in this Section 5(c) if, during the term of this Agreement, either (x) prior to a Change of Control, the Executive’s 's employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns voluntarily terminates his employment for Good Reason Reason, or (as defined in Section 11 below), either before or y) within 24 months after a Change of Control (as defined in Section 11 below)Control, the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s 's employment with is terminated by the Company at any time without Cause upon not less than 30 days’ prior written notice to the Executive; provided that, in the event that such notice is given, or the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of voluntarily terminates his employment by resigning under this Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination or resignation under Section 6(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the followingreason:
(i) A The Company shall pay the Executive in one lump sum cash payment within ten business days after termination of his employment an amount equal to 1.0 times (i) the sum of his base salary as provided in Section 4(a) plus the Executive’s annual Base Salary 's Bonus Amount (at as defined below), Multiplied By (ii) three (3). The Executive's "Bonus Amount" shall be equal to the rate in effect immediately before greater of (x) the Executive’s date of termination's average annual incentive bonus earned during the performance period representing the three calendar years immediately preceding the year in which he terminates employment, or (y) plus 1.00 times the Executive’s 's target annual cash incentive bonus for the year in which he terminates employment.
(ii) The Company shall maintain in full force and effect for the continued benefit of the Executive’s , for a three-year period after the date of his termination occursof employment ("Date of Termination"), all employee benefit plans and programs or arrangements in which the Executive was entitled to participate immediately prior to the Date of Termination, provided that his continued participation is possible under the general terms and provisions of such plans and programs. The payment described in this clause (i) shall be payable within 30 days after In the event that the Executive’s date of termination ('s participation in any such plan or at program is barred, the Company shall arrange to provide the Executive with benefits substantially similar to those which he is entitled to receive under such plans and programs. At the end of the revocation period for of coverage, the ReleaseExecutive shall have the option to have assigned to him at no cost and with no apportionment of prepaid premiums, if later)any assignable insurance policy owned by the Company and relating specifically to him.
(iii) The Executive shall be entitled to the use of the Automobile until the earliest to occur of (x) the date the Executive is employed elsewhere, or if a six-month delay is required (y) three years from the Date of Termination; provided, however, that during such time period, the Executive shall be solely responsible for all expenses incurred in the use of the Automobile, including maintaining insurance of the same types and at the same levels as previously maintained by the Company immediately prior to comply with section 409A such termination.
(iv) All outstanding but unvested stock options, restricted stock, SARs, deferred compensation, and SERP payments shall, upon the Date of Termination, be accelerated, fully vested, and exercisable for three years after the Date of Termination; Provided, however, that the foregoing shall not be construed to cause an "Incentive Stock Option" to fail to meet the statutory requirements of Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”)amended. If any option, on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occursrestricted stock, as determined by the Compensation CommitteeSAR, multiplied or other benefit is governed by a fractionplan which limits the acceleration of vesting or extension of exercises rights, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required take all reasonable action to comply with section 409A of the Codethis subsection (iv), on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by with respect to any such benefit the Company from time is unable to time for employees generally, as if the Executive had continued provide in employment during such period; or, as an alternativeaccordance with this subsection, the Company may elect to shall pay to the Executive cash in lieu within thirty (30) days after the Date of such coverage in an Termination a lump sum amount equal to the value of such benefits as determined by a third party appraiser acceptable to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;.
(ivv) All of the Executive’s outstanding stock optionsThe Company shall also pay all relocation and indemnity payments as set forth in this Agreement, restricted stock and other equity rights held all legal fees and expenses incurred by the Executive as a result of the Executive’s date of terminationsuch termination (including all such fees and expenses, if any, which would have vested and become exercisable within the one incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement).
(1vi) year period following The Company shall provide outplacement services to the Executive’s date , the scope and duration of termination which shall become vested and/or exercisable, as be at the case may be, as discretion of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. (i) If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 should resign for Good Reason. The Executive shall give , prior to the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member expiration of the BoardTerm, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination or resignation under Section 6(a) above, the Executive he shall be entitled to receive only receive: (A) the amount due to Salary provided for in Section 3(a) as accrued through the Executive under the Company’s then current severance pay plan for employeesdate of such resignation or termination and, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement subject to the Executive, but the Executive shall be entitled to any amounts earned, accrued ’s execution and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms delivery of any applicable benefit plans and programs a general release of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties its affiliates and the expiration of any release revocation period, which release shall be consistent with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of and approved in form by the Company under which the Executive has accrued and is due a benefit) Committee (the “Release”), and so long as the Executive continues to comply with the provisions in each case within sixty (60) days following termination of any confidentialityemployment, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the following:
(i) A lump sum cash a payment equal to 1.0 times the Executive’s annual Base Salary for a period of twelve (at 12) months (based on a $595,500 Salary rate), payable in a lump sum to the rate in effect immediately before the Executive’s date of terminationextent permissible under Section 1.409A-1(b)(9)(iii) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section regulations under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and payable in accordance with the Company’s usual payment practices with respect to any other portion of the payment; provided that the first payment shall be made on the first business sixtieth (60th) day following termination of employment and shall include payment of any amounts that would otherwise be due prior thereto, which twelve (12) months of Salary shall be placed in escrow (which escrow shall be by its terms controlled solely by the Committee) promptly following the Effective Date, with such delay periodescrowed Salary to be used by the Company solely for the purpose of making the Salary payment described in this Section 7(b)(i) (but subject to the claims of any Company creditors in the event of the Company’s insolvency); such escrowed Salary will be released to the Executive in a timely manner in accordance with the provisions of this Section 7(b) and Section 23 promptly following the instruction of the Committee; (B) any bonus earned but not yet paid in respect of any calendar year preceding the year in which such termination or resignation occurs; and (C) any unreimbursed expenses. Amounts set forth above that are not subject to the Release shall be paid within thirty (30) days following termination of employment. In addition, subject to the Executive’s execution and delivery of the Release as described in clause (A), the Executive shall (i) fully vest in and have the right to exercise all of his outstanding stock options, including shares as to which such stock options would not otherwise be vested or exercisable (provided, however, that with respect to any portion of such stock options which were unvested prior to the date of termination, such right to exercise will be effective as of the date on which the Release is no longer revocable), and (ii) fully vest in all of his outstanding restricted stock awards. Subject to the Executive’s execution and delivery of the Release and the expiration of any revocation period with respect to the Release within sixty (60) days following termination of employment, the Executive (and those eligible dependents who were participants in the applicable plans as of the termination date) shall also be entitled to continued participation in the medical, dental and insurance plans and arrangements described in Section 5, on the same terms and conditions as are in effect immediately prior to such termination or resignation, until the earlier to occur of (i) the first anniversary of the termination of Executive’s employment with the Company, and (ii) such time as the Executive is entitled to comparable benefits provided by a subsequent employer (the “Continuation Period”). Anything herein to the contrary notwithstanding, the Company shall have no obligation to continue to maintain any plan or program solely as a result of the provisions of this Agreement. If, during the Continuation Period, the Executive is precluded from participating in a plan or program by its terms or applicable law or if the Company for any reason ceases to maintain such plan or program, the Company shall provide the Executive with compensation or benefits the aggregate value of which, in the reasonable judgment of the Company, is no less than the aggregate value of the compensation or benefits that the Executive would have received under such plan or program had he been eligible to participate therein or had such plan or program continued to be maintained by the Company.
(ii) A pro rata bonus payment for Except as may be provided under the year terms of any applicable grants to the Executive, under any plan or arrangement in which the Executive’s Executive participates or except as may be otherwise required by applicable law, including, without limitation, the provisions of Section 4980B(f) of the Code or as set forth under Section 17 and Section 19, the Executive shall have no right under this Agreement or any other agreement to receive any other compensation, or to participate in any other plan, arrangement or benefit, with respect to future periods after such termination occurs equal or resignation of employment. In the event of a termination or resignation pursuant to this Section 7(b), the Executive shall have no duty of mitigation with respect to amounts payable to him pursuant to this Section 7(b) or other benefits to which he is entitled pursuant hereto, except as provided in the immediately preceding paragraph. Notwithstanding anything to the Executive’s target annual cash bonus for the year contrary in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fractionthis Agreement, the numerator right of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described to receive payments provided for in this clause (iiSection 7(b) shall be payable within 30 days after subject to Section 8 of this Agreement. In addition, the ExecutiveCompany’s date obligation to pay the Executive the amounts provided and to make the arrangements provided hereunder shall not be subject to set-off, counterclaim or recoupment of termination (amounts owed by the Executive to the Company or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;its affiliates.
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the The date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed of employment by the Company pursuant to this Section 7(b) shall be the date specified in the written notice of termination from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash or, if no date is specified therein, ten business days after receipt by the Executive of the written notice of termination from the Company. The date of a resignation by the Executive pursuant to this Section 7(b) shall be the date specified in lieu the written notice of such coverage in an amount equal resignation from the Executive to the Executive’s after-tax cost Company, which, in the case of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant a proposed resignation to which the coverage is provided). The COBRA health care continuation coverage 30-day cure period under section 4980B of the Code, provided for in subsection 7(a)(iii) above applies shall run concurrently with the foregoing 12-month period;
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months be no less than 31 days after the Executive’s date delivery of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences such notice to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or and in case of a proposed resignation to which the 30-day cure period does not the terms of such plan or program otherwise require an employee to be employed with apply and where no date is specified therein, ten business days after receipt by the Company on of the date written notice of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which resignation from the Executive’s termination occurs.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If Except as provided in Section 4(a) below, if the Executive’s employment is terminated by the Company without Cause (or the surviving company following a Change of Control (as defined in Section 11 subsection 4(c) below)) without Cause or if by the Executive resigns for Good Reason (as defined in Section 11 below)Reason, either before or after a Change of Control (as defined in Section 11 below)Control, the provisions of this subsection 3(c) shall apply (subject to the modifications of Section 6 shall apply.
(a4(a) below, if applicable). The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; . Except as provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c4(a) below, upon termination or resignation under Section 6(a) above, of the Executive shall be entitled to receive only ’s employment by the amount due to Company under this subsection 3(c) or by the Executive under the Company’s then current severance pay plan for employeesGood Reason, if any, but only to the extent not conditioned on the execution either before or after a Change of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) aboveControl, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subjectConfidentiality and Invention Assignment Agreement (as defined in subsection 6(a) below) and restrictive covenants and representations in Section 6 below, the Executive shall be entitled to receivereceive the payments set forth in subsections 3(c)(i), (ii) and (iii), in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executivesexecutives (subject to the modifications of Section 4(a) below, if applicable). Notwithstanding any provision of this Agreement to the following:contrary, in no event shall the timing of the Executive’s execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year.
(i) A lump sum cash payment The Company will pay to the Executive severance equal to 1.0 times six (6) months of the Executive’s annual Base Salary (at the rate in effect immediately before prior to the Executive’s termination of employment, less applicable tax withholding, paid in equal monthly installments beginning within the sixty (60)-day period following the date of termination) plus 1.00 times the Executive’s target annual cash bonus for termination of employment and continuing on each payroll date thereafter until fully paid, in accordance with the year in which the ExecutiveCompany’s date of termination occursregular payroll practices. The first severance payment described in this clause will include any missed payments during such sixty (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay 60)-day period.
(ii) A pro rata bonus payment for For the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause six (ii6) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which of employment, provided that the Executive is eligible timely elects COBRA, the Company will reimburse the Executive for the monthly COBRA cost of continued medical and dental coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employerfor the Executive and, whichever is soonerwhere applicable, her spouse and dependents, at the level in effect at as of the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost termination of continuing such coverageemployment, where such coverage may not be continued (or where such continuation would adversely affect less the tax status employee portion of the plan pursuant to which applicable premiums that the coverage is provided). The Executive would have paid had she remained employed during the such six (6) month period (the COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-six (6) month period;
period that the Executive is provided with medical and dental coverage under subsection 3(c)(i)). These reimbursements will commence within the sixty (iv) All 60)-day period following the date of the Executive’s outstanding stock optionstermination of employment and will be paid on the first payroll date of each month, restricted stock and other equity rights held by provided that the Executive as demonstrates proof of payment of the Executiveapplicable premiums prior to the applicable reimbursement payment date. Notwithstanding the foregoing, the Company’s date reimbursement of termination, if any, which would have vested and become exercisable within the one monthly COBRA premiums in accordance with this subsection 3(c)(ii) shall cease immediately upon the earlier of: (1A) year the end of the six (6) month period following the Executive’s termination of employment, or (B) the date that the Executive is eligible for comparable coverage with a subsequent employer. Notwithstanding the foregoing, the Company reserves the right to restructure the foregoing COBRA premium reimbursement arrangement in any manner necessary or appropriate to avoid fines, penalties or negative tax consequences to the Company or the Executive (including, without limitation, to avoid any penalty imposed for violation of the nondiscrimination requirements under the Patient Protection and Affordable Care Act or the guidance issued thereunder), as determined by the Company in its sole and absolute discretion.
(iii) Notwithstanding any provision to the contrary in the 2008 Equity Plan (or a successor plan) or any applicable agreement (including this Agreement), all outstanding equity grants held by the Executive immediately prior to the Executive’s termination date which vest based upon the Executive’s continued service over time that would have become vested during the six (6) month period following the Executive’s termination date had the Executive remained employed during such six (6) month period shall accelerate, become fully vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision termination date. All outstanding equity grants held by the Executive immediately prior to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s termination date which vest based upon attainment of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences performance criteria shall remain subject to the Executive; andterms and conditions of the agreement evidencing such performance based award.
(viv) Any other The Executive shall also be entitled to any amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, Company without regard to whether the Executive does not execute or not revokes the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursRelease.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the (a) The Company may remove Executive at any time without Cause (as defined in Section 11 below4) or if from the position in which Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause is employed hereunder upon not less than 30 sixty (60) days’ prior written notice to the Executive; provided provided, however, that, that in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 2.1 for Good ReasonReason (as defined in Section 4). The Executive shall give the Company not less than 30 sixty (60) days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination Upon any removal or resignation under described in Section 6(a2.1(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due earned in accordance with the terms and conditions of any applicable benefit plans and programs of the CompanyCompany in which Executive participated prior to his termination of employment.
(c) Notwithstanding the provisions of Section 6(b2.1(b), upon termination or resignation, as applicable, under Section 6(a) above, if in the event that Executive executes and does not revoke a written releasemutual release upon such removal or resignation, in a form acceptable to the Company, in its sole discretionCompany (the “Release ”), of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as any claims against Executive for actions within the Executive continues to comply with scope of his employment by the provisions of any confidentialityCompany, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives2.1(b), the following:
(i) A Executive shall receive a lump sum cash payment equal to 1.0 one and a half times the sum of (x) Executive’s annual Base Salary (at the rate Salary, as in effect immediately before prior to his termination of employment and (y) the Executive’s date of termination) plus 1.00 times the Executive’s target average annual cash bonus Executive received for the three year period immediately prior to his termination of employment. One-half of the amount described in which the preceding sentence shall be consideration for Executive’s date of termination occurs. The payment entering into the restrictive covenants described in this clause (i) Section 5 below. Except as otherwise required to comply with the requirements of Section 18 below, payment shall be payable made within 30 sixty (60) days after the following Executive’s date last day of termination (or at employment with the Company, but not sooner than after the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A Executive shall receive a lump sum cash payment equal to a pro rata bonus payment for the year in which the Executive’s termination occurs equal to the portion of Executive’s target annual cash bonus for the fiscal year of his termination (or, in which the absence of a target bonus opportunity for the fiscal year, 100% of Executive’s termination occurs, as Base Salary) (the “Cash Bonus ”). The pro rated Cash Bonus shall be determined by multiplying the Compensation Committee, multiplied Cash Bonus by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the fiscal year prior to his termination of the Executive’s termination, employment and the denominator of which is three hundred sixty-five (365). The Except as otherwise required to comply with the requirements of Section 18 below, payment described in this clause (ii) shall be payable made within 30 sixty (60) days after the following Executive’s date last day of termination (or at employment with the Company, but not sooner than after the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;.
(iii) Medical coverage for the 12-month For a period of eighteen (18) months following the Executive’s termination or until date of termination, Executive shall continue to receive the date on which the Executive is eligible for medical coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as at the same premium rate as may be changed by the Company charged from time to time for employees generally, as if the Executive had continued in employment with the Company during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”), shall run concurrently with the foregoing 12-eighteen (18) month benefit period;.
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and also receive any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 1 above and any benefits accrued and due under any applicable benefit plans and programs of the CompanyCompany (other than severance plans or programs) in which Executive participated prior to his termination of employment, whether or not subject to the terms and conditions of any such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursplans and programs.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the (a) The Company may remove Executive at any time without Cause (as defined in Section 11 below2.8) or if from the position in which Executive resigns for Good Reason is employed hereunder (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), which case the provisions of this Section 6 Employment Term shall apply.
(abe deemed to have ended) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; provided provided, however, that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and the Trust and Executive shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 2.1 for Good ReasonReason (as defined in Section 2.8). The Executive shall give the Company not less than 30 thirty (30) days’ prior written notice of such resignation. On This provision shall not apply if Executive’s employment is terminated by the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member Company on account of the Board, related to the Company and its parents, subsidiaries and affiliatesExecutive’s death or Disability.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination Upon any removal or resignation under described in Section 6(a2.1(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due or earned in accordance with the terms of any applicable benefit plans and programs of the CompanyCompany and the Trust.
(c) Notwithstanding the provisions of Section 6(b2.1(b), upon termination or resignation, as applicable, under Section 6(a) above, if in the event that Executive executes and does not revoke a written releaserelease upon such removal or resignation, substantially in a the form acceptable to attached hereto as Exhibit A (the Company, in its sole discretion“Release”), of any and all claims against the Company and the Trust and all related parties with respect to all matters arising out of the Executive’s employment by the CompanyCompany and the Trust, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company and the Trust under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives2.1(b), the following:
(i) A Executive shall receive a lump sum cash payment equal to 1.0 the sum of (x) two (2) times the Executive’s annual Base Salary (at the rate in effect immediately before the Executive’s date Date of terminationTermination (as defined in Section 2.8), and (y) plus 1.00 two (2) times the Executive’s target annual cash bonus for the year Incentive Pay (as defined in which the Section 2.8). Such payment shall be made within fifteen (15) days after Executive’s date Date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (Termination or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by For a fraction, the numerator period of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause twenty-four (ii24) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period months following the Executive’s termination or until Date of Termination, Executive shall continue to receive the date on which the Executive is eligible for medical, prescription drug, dental, disability, and life insurance coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as at the same premium rate as may be changed by the Company charged from time to time for employees of the Company generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The To the extent applicable, the COBRA health care continuation coverage period under section 4980B of the Code, Code shall run concurrently with the foregoing 12twenty-four (24) month benefit period;.
(iii) Executive shall receive as of his Date of Termination a restricted Share award grant equal to the total number of restricted Shares that Executive would have received pursuant to Sections 1.8(b)(i) and (ii) of the Agreement as if he continued in employment for the period between his Date of Termination and the remaining period of the Employment Term. The total number of Shares Executive shall receive shall be equal to the minimum number of restricted Shares described in such Sections for such period. Such Shares shall be fully vested on the date of grant and shall be subject to such other terms and conditions set forth in the Trust’s standard Share award agreement for such awards under the Equity Plan or such other plan. Notwithstanding the foregoing, in the event that the Trust is a privately-held entity as of the date of the Executive’s Date of Termination or if there is a limitation on the Executive’s ability to liquidate the Shares as of the date of the Executive’s Date of Termination (other than a limitation imposed by applicable securities laws), in lieu of the restricted Share award described in this subsection (iii), the Executive may require, in his sole discretion, that the Company pay to Executive a lump sum cash amount equal to the fair market value, determined as the Executive’s Date of Termination, of the Shares that Executive would have otherwise been granted pursuant to this subsection (iii). Such payment shall be made within fifteen (15) days after Executive’s Date of Termination or the end of the revocation period for the Release, if later.
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding Notwithstanding any provision to the contrary in any other agreement governing such applicable plan, program or agreement, all outstanding stock options, for a period restricted Shares and other equity rights held by Executive as of six (6) months after Executive’s Date of Termination shall become fully vested and/or exercisable, as applicable, as of the Executive’s date Date of termination; provided, however, Termination. All outstanding stock options and other equity rights that in no event will have an exercise period shall remain exercisable until the option be exercisable beyond its end of their applicable original term or later than the latest date that will avoid adverse tax consequences to the Executive; andterm.
(v) Any Lump sum payment equal to twenty percent (20%) of the Executive’s Base Salary in order to cover the cost of outplacement assistance services for Executive.
(vi) Executive shall receive any other amounts earned, accrued and or owing but not yet paid under Section 2 1 above and any benefits accrued and due under or earned in accordance with the terms of any applicable benefit plans and programs of the Company, whether or not Company and the terms of such plan or program otherwise require an employee Trust. All amounts paid to Executive pursuant to this subsection (c) shall be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursless applicable tax withholding.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause (as defined in Section 4) upon not less than 30 days’ prior written notice to the Executive; provided provided, however, that, in following the event that delivery of such notice is givento the Executive, the Executive shall be under no obligation to render any additional services to the Company, and the Company and shall be allowed may require the Executive to seek other employmentcease performing services for the Company. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 2.1 for Good Reason (as defined in Section 4); provided, however, that, where applicable, the Company shall be given the opportunity to cure in accordance with Section 4(f). Except as indicated in the definition of Good Reason. The , the Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with Subject to the provisions of Section 6(c2.1(c) belowand Section 2.1(d), upon termination any removal or resignation under described in Section 6(a) above2.1(a), the Executive shall be entitled to receive only the amount due to Accrued Obligations through the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution date of a release by the Executivetermination. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due earned in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b2.1(b), upon termination or resignationand subject to the provisions of Section 2.1(d), as applicable, under Section 6(a) above, if in the event that the Executive executes and does not revoke a written releaserelease upon such removal or resignation described in Section 2.1(a), substantially in a the form acceptable to attached hereto as Exhibit A (the Company, in its sole discretion“Release”), of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under subject to the terms of this Agreement or under any plans or programs of exceptions set forth in the Release), which Release must be executed by the Executive, returned to the Company under and the period within which the Executive has accrued and is due a benefit) (may revoke the “Release”), and so long as Release expired no later than 60 days following the Executive continues to comply with the provisions date of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subjecttermination, the Executive shall be entitled to receive, in lieu of addition to the payment payments and benefits described in Section 6(b) and any other payments due under any severance plan or program for employees or executives2.1(b), the following:
(i) A lump sum cash payment severance payment, without discount, in an amount equal to 1.0 times the Executive’s annual Base Salary product of (at A) three and (B) the rate Annual Compensation (as defined in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occursSection 4). The Subject to Section 18, payment described in this clause (i) shall be payable made (x) within 30 15 days after the Executive’s date Release has been returned to the Company and the period within which the Executive may revoke it has expired or, (y) if, and only if, it is agreed by both the Executive and the Company at the time of termination (or at the end that such payment constitutes “nonqualified deferred compensation” for purposes of the revocation period for the Release, if later), or if a six-month delay is required to comply with section Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business 75th day following such delay periodthe date of termination.
(ii) A pro rata prorated annual bonus payment for in respect of the fiscal year in which the Executive’s date of termination occurs equal to occurs, the Executive’s target annual amount of which shall be no less than the amount of the cash bonus for incentive compensation awarded in respect of the fiscal year immediately preceding the fiscal year in which the Executive’s date of termination occurs, as determined by the Compensation Committeeif any, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the such current fiscal year of the Executive’s termination, prior to such termination and the denominator of which is 365. The payment described , payable in this clause (ii) shall be payable cash in a lump sum within 30 15 days after the Executive’s date of termination Release has been returned to the Company and the period within which the Executive may revoke it has expired (or at the end of the revocation period for the Release, if latera “Pro Rata Bonus”), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;.
(iii) Medical coverage for the 12-month For a period of 36 months following the Executive’s termination or until date of termination, continuation of the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level group term life and health insurance in effect at the date of his the Executive’s termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependentsdependents (without giving effect to any reduction in such benefits subsequent to a Change in Control (as defined in Section 4(e))), as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is providedprovided or result in penalty taxes to the Executive pursuant to Section 409A of the Code), the Company may elect to pay the Executive cash in lieu of such coverage in an amount equal to (A) as to health insurance, the product of 36 multiplied by the Company’s monthly COBRA rate in effect immediately prior to the date of termination in respect of the type of coverage applicable to the Executive at that time and (B) as to life insurance, the premiums that would be paid by the Company during the three-year period following the date of termination had the Executive’s employment continued during such period, which amount shall be paid in 36 monthly installments following the date of termination. The COBRA health care continuation coverage period under section Section 4980B of the Code, Code shall run concurrently with the foregoing 1236-month benefit period;.
(iv) All Full vesting (and if applicable, exercisability) of all outstanding equity compensation awards held by the Executive’s outstanding stock options, restricted stock and other equity rights including, without limitation, all awards held by the Executive under the Management Incentive Plan, a description of which is attached hereto as Exhibit B (the “Management Incentive Plan”).
(d) Notwithstanding the provisions of Section 2.1(b) and Section 2.1(c), in the event that such removal or resignation described in Section 2.1(a) is directly on account of a transaction constituting a Change in Control pursuant to clauses (i), (ii) or clause (iii) of the definition of Change in Control (provided that in the case of a Change in Control described in clause (i) or (ii) of such definition, each shareholder of the Company (including Executive but not including the acquirer) shall have had the opportunity to dispose of all or a pro rata portion of such shareholder’s outstanding Company equity (not including the opportunity to dispose of shares pursuant to open-market sales) on the same terms as all other shareholders in such transaction, and where the consideration for such Company equity is either cash or common stock listed on the New York Stock Exchange or the NASDAQ Stock Exchange (or a combination thereof)), then the total severance payable to Executive under Section 2.1(c)(i) shall not exceed an amount equal to (A) $5,000,000, reduced by (B) by the fair market value as of the Executive’s date of terminationsuch Change in Control of any awards then held by the Executive under the Management Incentive Plan, if anybut in no event shall the total severance payable to the Executive under Section 2.1(c)(i) be reduced below $2,000,000. Notwithstanding any provision of this Agreement to the contrary, which would have vested and become exercisable within the one (1) year period following except as expressly provided in this Section 2.1(d), in no event shall the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid severance payable under Section 2 above and any benefits accrued and due 2.1(c) be reduced or otherwise offset by the value of, or payments with respect to, awards held by the Executive under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursManagement Incentive Plan.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s 's employment is terminated by the Company without Cause (as defined in Section 11 below11) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below11), the provisions of this Section 6 7 shall apply.
(a) The Company may terminate the Executive’s 's employment with the Company at any time without Cause upon not less than 30 days’ ' prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 7 for Good Reason. The Executive shall give the Company not less than 30 days’ ' prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c7(c) below, upon termination or resignation under Section 6(a7(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s 's then current severance pay plan or arrangement for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to receive any amounts earned, accrued and owing, owing but not yet paid under Section 2 above and any benefits accrued and due in accordance with the terms of under any applicable benefit plans and programs of the Company, in each case, subject to and in accordance with the terms thereof.
(c) Notwithstanding the provisions of Section 6(b7(b), upon termination or resignation, as applicable, under Section 6(a7(a) aboveabove (including a termination due to Non-Renewal), if if, within sixty (60) days following the termination of the Executive's employment, the Executive timely executes and does not revoke a written release, in a form acceptable delivers to the Company, in its sole discretion, Company (without revocation) a fully effective written release of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s 's employment by the Company, Company or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of Agreement), in substantially the Company under which the Executive has accrued and is due a benefit) form set forth in Exhibit A hereto (the “"Release”"), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b7(b) and any other payments due under any severance plan or program for employees or executives, the followingfollowing payments and benefits:
(i1) A lump sum cash payment equal From the date of termination through the balance of the Scheduled Term (if any) (collectively, the "Severance Period"), the Executive shall continue to 1.0 times the Executive’s annual receive his Base Salary (at the rate in effect immediately before the Executive’s 's termination or resignation, as applicable), and Cash Bonuses. The Base Salary continuation shall be paid in installments during the Severance Period in accordance with the Company's normal payroll practices. The Cash Bonuses contemplated in this sub-section (1) shall be in an amount equal to the greater of (x) $300,000 and (y) 1% of the sales of the Company (calculated as 1% of recognized US GAAP sales reported in the Company's consolidated quarterly financial reports presented to the Board) for such quarter, and shall be payable to Executive on a quarterly basis at the same time as otherwise payable in accordance with Section 2 had Executive's employment not terminated.
(2) To the extent the Executive timely elects to receive continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), the Company shall pay or reimburse the Executive, on a monthly basis, an amount equal to the full monthly premium for such coverage, from the date of termination until the date eighteen (18) months following the date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation COBRA health care continuation coverage period for the Release, if later), or if a six-month delay is required to comply with section 409A under Section 4980B of the Internal Revenue Code of 1986, as amended (the “"Code”), on the first business day following such delay period.
(ii") A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;.
(iv3) All Beginning on the 60th day following the effective date of the Executive’s 's termination or resignation, and on the first payroll date of each month thereafter during the remainder of the Scheduled Term (if any), a monthly payment equal to the premium cost for the long and short-term disability coverage that was in effect for the Executive under plans of the Company immediately before his termination or resignation. To the extent requested by the Executive within 30 days following the date of termination, the Company shall take all action necessary, if any, to facilitate the Executive's exercise of all conversion and/or portability privileges, if any, under such long and short-term disability coverage.
(4) Beginning on the 60th day following the effective date of the Executive's termination or resignation, and on the first payroll date of each month thereafter during the remainder of the Scheduled Term (if any), a monthly payment equal to the full cost of any Company life insurance coverages in effect for the Executive immediately before his termination or resignation to maintain life insurance coverage. To the extent requested by the Executive within 30 days following the date of termination, the Company shall take all action necessary, if any, to facilitate the Executive's exercise of all conversion privileges, if any, under such life insurance program or policy.
(5) Notwithstanding any provision to the contrary in any applicable plan, program or agreement, all outstanding stock options, restricted stock and other equity rights awards held by the Executive as of the Executive’s date of terminationhis termination or resignation, if anyas applicable, which would have shall become fully vested and become exercisable within the one (1) year period following as of such date. In addition, any outstanding stock options held by the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a the shorter of (i) the 60-month period following the date of six the Executive's termination or resignation, as applicable, and (ii) the then remaining term of such stock option.
(6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not payable in accordance with the terms and conditions thereof, and any unpaid Deferred Bonuses payable pursuant to and in accordance with Section 2(b)(ii).
(7) Any Cash Bonus payable for the fiscal quarter of termination or resignation, based on actual performance for the full fiscal quarter, but pro-rated based on the number of days the Executive was employed during such plan fiscal quarter of termination, payable at the same time as otherwise payable in accordance with Section 2 (the "Pro Rata Bonus").
(d) To the extent that the payment of any amount or program provision of any benefit under Section 7 is conditioned upon the Release and is otherwise require an employee scheduled to be employed with occur prior to the Company on sixtieth (60th) day following the date of paymentExecutive's termination of employment hereunder, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior condition on executing the Release as set forth herein, shall not be made until the first regularly scheduled payroll date following such sixtieth (60th) day, after which any remaining payments shall thereafter be provided to Executive according to the year in which the Executive’s termination occursapplicable schedule set forth herein.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If during the Term the Executive’s employment is terminated by (i) the Company without for any reason other than on account of for Cause (as defined in Section 11 below12(a)), Disability (as defined in Section 12(b)) or if death, or (ii) the Executive resigns for on account of Good Reason (as defined in Section 11 below12(c)), in either before or after a Change of Control (as defined in Section 11 below)case, the provisions of this Section 6 7 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause Cause, effective upon not less than 30 days’ prior delivery of written notice to Executive of the Company’s election to terminate this Agreement under this Section 7. The Executive may terminate his employment with the Company on account of Good Reason, effective upon delivery of written notice to the Executive; provided that, Company at any time within the period following the date on which the Company’s cure period has expired as set forth in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation12(c). On the date of termination or resignation, as applicable, specified in such notice, in either case, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliatesofficer.
(b) Unless the Executive complies with the provisions of Section 6(c7(c) below, upon termination or resignation under Section 6(a7(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No no other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company (but not under any severance plan of the Company).
(c) Notwithstanding the provisions of Section 6(b7(b), upon termination or resignation, as applicable, under Section 6(a7(a) above, if the Executive executes and does not revoke a written release, Release (as defined in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefitSection 12(d)) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, receive the following:
(1) An amount equal to three (3) times the amount that results from (x) the sum of (i) A lump sum cash payment equal to 1.0 times the Executive’s annual Base Salary (at the rate in effect immediately before the Executive’s date of terminationTermination Date (as defined below)) plus 1.00 times the Executive’s target annual cash bonus and Target Bonus for the fiscal year in which the Termination Date occurs, (ii) Executive’s date annual Base Salary for each of termination the two (2) calendar years immediately prior to the calendar year in which the Termination Date occurs and (iii) the annual bonus that was actually earned and paid to Executive for the two (2) fiscal years that immediately precede the fiscal year in which the Termination Date occurs, divided by (y) three (3), (the “Cash Severance Payment”). The payment described in this clause (i) Cash Severance Payment shall be payable paid to Executive in three equal installments following Executive’s last day of employment with the Company (the “Termination Date”). Except if a delay is required pursuant to clauses (4) or (5) below, the first installment of 1/3 of the Cash Severance Payment shall be paid to Executive within 30 sixty (60) days after the Executive’s Termination Date, the second installment of 1/3 of the Cash Severance Payment shall be paid to Executive within sixty (60) days following the first anniversary of the Termination Date and the third installment of 1/3 of the Cash Severance Payment shall be paid to Executive within sixty (60) days following the second anniversary of the Termination Date. Within sixty (60) days following the Termination Date the Company shall contribute to a rabbi trust (which amounts contributed thereto shall be subject to the claims of the Company’s creditors and shall be established for the benefit of the Executive following the Termination Date) an amount that is equal to 2/3 of the Cash Severance Payment. If Executive dies following his Termination Date, but prior to his receipt of the entire Cash Severance Payment, any remaining balance owed to Executive pursuant to this Section 7(c)(1) shall be paid to the personal representative of Executive's estate within sixty (60) days after the date of termination the Executive's death.
(or at 2) For the end eighteen (18) month period following the Executive’s Termination Date, if the Executive timely elects continuation coverage under COBRA, the Company will reimburse the Executive (or, if the Executive dies following the Termination Date, the Executive’s spouse, if any) for the monthly COBRA cost of continued medical and dental coverage paid by the Executive for himself, his spouse and his eligible dependents under the medical and dental plans of the revocation period for the Release, if later), or if a six-month delay is required Company pursuant to comply with section 409A 4980B of the Internal Revenue Code of 1986, as amended (the “Code”), on less the first business day following amount that the Executive would be required to contribute for medical and dental coverage if the Executive were an active employee of the Company; provided that such delay period.
(ii) A pro rata bonus payment for reimbursements shall not continue beyond the year period in which the Executive’s termination occurs equal to Executive (or, if the Executive dies following the Termination Date, the Executive’s target annual cash bonus for spouse, if any) is eligible to elect, and Executive (or, if the year in which Executive dies following the Termination Date, the Executive’s termination occursspouse, as determined by if any) continues to elect, COBRA continuation coverage under the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year medical and dental plans of the Executive’s termination, and the denominator of which is 365Company. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or Except if a six-month delay is required pursuant to comply with section 409A of the Codeclauses (6) or (7) below, on the first business day following such delay period;
these reimbursements will commence within sixty (iii60) Medical coverage for the 12-month period days following the Executive’s termination or until Termination Date and will be paid on the first payroll date on which of each successive month thereafter, provided that the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer(or, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; ordies following the Termination Date, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of terminationspouse, if any, ) demonstrates proof of payment of the applicable premiums prior to the applicable reimbursement payment date. Any reimbursements not paid during the sixty (60) day period shall be paid in a lump sum on the date that the installment payments commence in accordance with the immediately preceding sentence.
(3) All outstanding stock options held by Executive which would have are not vested and become exercisable within the one (1) year period following the Executive’s date as of termination his Termination Date, shall become fully vested and/or exercisableand exercisable on his Termination Date. In addition, as the case may be, as of the Executive’s date of termination, and any stock options, including any all outstanding stock options that previously became exercisable and have not expired or been exercised, held by Executive on his Termination Date shall remain exercisable, notwithstanding any provision to exercisable for the contrary in any other agreement governing such options, for shorter of (i) a period of six two (62) months after years from his Termination Date or (ii) the Executive’s date remaining term of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; andoption.
(v4) Any The Company will pay any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the CompanyCompany (but not under any severance plan).
(5) Notwithstanding the foregoing, whether if the Executive is a “specified employee” of a publicly held corporation at his Termination Date, the postponement provisions of section 409A of the Code, as described in Section 13(a) below, shall apply, if applicable.
(6) No payments will be made under this Section 7 unless the Executive executes and does not revoke a Release. Notwithstanding any provision of this Agreement to the contrary, in no event shall the timing of the Executive’s execution of the Release, directly or not indirectly, result in the terms of such plan or program otherwise require an employee to be employed with Executive designating the Company on the date calendar year of payment, including without limitationand if a payment that is subject to execution of the Release could be made in more than one taxable year, any cash bonus earned or accrued but not yet paid for payment shall be made in the later taxable year prior to the year in which extent such payment constitutes deferred compensation subject to the Executive’s termination occursrequirements of section 409A of the Code.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the (a) Employer may terminate Executive’s employment is terminated by the Company under this Section 2.1 at any time without Cause (as defined in Section 11 below2.7(d)) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 ninety (90) days’ prior written notice to the Executive; provided provided, however, that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employmentemployment during such notice period. In addition, the Executive may initiate a termination of terminate Executive’s employment by resigning under this Section 6 2.1 by voluntarily resigning for Good ReasonReason (as defined in Section 2.7(i)). The Executive shall give the Company Employer not less than 30 days’ thirty (30) days prior written notice of such resignation, which notice must be given within ninety (90) days after the cure period for correcting the event or condition constituting Good Reason has expired without Employer curing the event or condition resulting in Good Reason. On Further, Executive’s employment shall be considered to have been terminated under this Section 2.1 if, after Employer has provided notice of intent not to renew as provided in Section 1.1, Executive’s employment terminates on the date last day of termination the Employment Period. This Section 2.1 shall not apply if Executive’s employment is terminated by Executive without Good Reason or resignationon account of retirement (see Section 2.2), as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, or as a director result of Executive’s Disability (as defined in Section 2.7(h)) or member death (see Section 2.3), or by Employer for Cause (see Section 2.4). Any termination by Employer of the Board, related to the Company and its parents, subsidiaries and affiliatesExecutive’s employment that is not a termination under Section 2.3 or Section 2.4 shall be considered a termination by Employer without Cause under this Section 2.1.
(b) Unless the Executive complies with the provisions Upon any termination of Executive’s employment under this Section 6(c) below2.1, upon termination or resignation no further payments and benefits shall be due under Section 6(a1 of this Agreement after the end of the Employment Period and, if Executive executes and does not revoke the Release (as defined in Section 2.7(j)), then after Executive’s Date of Termination (as defined in Section 2.7(g)) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution all of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the following:
(i) A Employer shall pay to Executive a lump sum cash payment equal to 1.0 times the Applicable Multiplier (as defined in Section 2.7(b)) multiplied by the sum of (1) Executive’s annual Base Salary (at the rate in effect on Executive’s Date of Termination or such higher rate in effect immediately before the any reduction thereof that constituted Good Reason, plus (2) Executive’s date of terminationTarget Incentive Bonus (as defined in Section 2.7(k)), payable within ten (10) plus 1.00 times the days after Executive’s target annual cash bonus Date of Termination.
(ii) Executive shall receive all Accrued Compensation (as defined in Section 2.7(a)).
(iii) During the Continuation Period (as defined in Section 2.7(f)), Employer shall provide to Executive continued coverage under the retirement, life insurance, long-term disability, medical, dental and other group health benefits and plans in effect for the year in which the senior level executives of Employer (or substantially comparable coverage) for Executive and, where applicable, Executive’s date spouse, dependents and beneficiaries, at the same contribution or premium rate as may be charged from time to time for active employees of termination occursEmployer generally, as if Executive had continued in employment during such period. The payment described As an alternative, Employer may elect to pay Executive cash in this clause (i) shall be payable within 30 days after the lieu of such contributions or coverage in an amount equal to Executive’s date after-tax cost of termination (or at the end of the revocation period for the Releaseobtaining comparable coverage, if later), or if a six-month delay is required so long as such payments are permitted without adverse tax effect to comply with Executive under section 409A of the Internal Revenue Code of 1986, as amended amended, (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with or any replacement or successor provision of United States tax law, shall, if permitted by law and applicable plan terms, commence immediately after the foregoing 12-month period;Continuation Period.
(iv) All SunGard shall provide a release substantially in the form attached hereto as Exhibit D. If SunGard does not provide the release required pursuant to this Section 2.1(b)(v), the Release shall be null, void and without effect, and Executive shall still receive all of the Executive’s outstanding stock options, restricted stock payments and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one benefits described in subsections (1i) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six through (6iv) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; andabove.
(v) Any other amounts earnedExecutive’s right to receive and retain any of the payments or benefits under Sections 2.1(b)(i) and (iii) is expressly contingent upon Executive’s full compliance with Section 5 hereof.
(c) Upon any termination of Executive’s employment under this Section 2.1, accrued unless Section 2.1(b)(v) applies, if Executive does not execute the Release or if Executive revokes the Release, then (i) Executive shall not be entitled to the compensation and owing but not yet paid benefits provided for in subsection (b) of this Section 2.1, (ii) after Executive’s Date of Termination, no further payments and benefits shall be due under Section 2 above 1 of this Agreement, and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs(iii) Executive shall receive all Accrued Compensation.
Appears in 1 contract
Samples: Executive Employment Agreement (Sungard Data Systems Inc)
Termination Without Cause; Resignation for Good Reason. If The Company shall pay the Executive and provide to the Executive (and his dependents, where applicable), the amounts and benefits set forth in this Section 5(c) if, during the term of this Agreement, either (x) prior to a Change of Control, the Executive’s 's employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns voluntarily terminates his employment for Good Reason Reason, or (as defined in Section 11 below), either before or y) within 24 months after a Change of Control (as defined in Section 11 below)Control, the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s 's employment with is terminated by the Company at any time without Cause upon not less than 30 days’ prior written notice to the Executive; provided that, in the event that such notice is given, or the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of voluntarily terminates his employment by resigning under this Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination or resignation under Section 6(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the followingreason:
(i) A The Company shall pay the Executive in one lump sum cash payment within ten business days after termination of his employment an amount equal to 1.0 times (i) the sum of his base salary as provided in Section 4(a) plus the Executive’s annual Base Salary 's Bonus Amount (at as defined below), multiplied by (ii) three (3). The Executive's "Bonus Amount" shall be equal to the rate in effect immediately before greater of (x) the Executive’s date of termination's average annual incentive bonus earned during the performance period representing the three calendar years immediately preceding the year in which he terminates employment, or (y) plus 1.00 times the Executive’s 's target annual cash incentive bonus for the year in which he terminates employment.
(ii) The Company shall maintain in full force and effect for the continued benefit of the Executive’s , for a three-year period after the date of his termination occursof employment ("Date of Termination"), all employee benefit plans and programs or arrangements in which the Executive was entitled to participate immediately prior to the Date of Termination, provided that his continued participation is possible under the general terms and provisions of such plans and programs. The payment described in this clause (i) shall be payable within 30 days after In the event that the Executive’s date of termination ('s participation in any such plan or at program is barred, the Company shall arrange to provide the Executive with benefits substantially similar to those which he is entitled to receive under such plans and programs. At the end of the revocation period for of coverage, the ReleaseExecutive shall have the option to have assigned to him at no cost and with no apportionment of prepaid premiums, if later)any assignable insurance policy owned by the Company and relating specifically to him.
(iii) The Executive shall be entitled to the use of the Automobile until the earliest to occur of (x) the date the Executive is employed elsewhere, or if a six-month delay is required (y) three years from the Date of Termination; provided, however, that during such time period, the Executive shall be solely responsible for all expenses incurred in the use of the Automobile, including maintaining insurance of the same types and at the same levels as previously maintained by the Company immediately prior to comply with section 409A such termination.
(iv) All outstanding but unvested stock options, restricted stock, SARs, deferred compensation, and SERP payments shall, upon the Date of Termination, be accelerated, fully vested, and exercisable for three years after the Date of Termination; Provided, However, that the foregoing shall not be construed to cause an "Incentive Stock Option" to fail to meet the statutory requirements of Section 422 of the Internal Revenue Code of 1986, as amended (the “Code”)amended. If any option, on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occursrestricted stock, as determined by the Compensation CommitteeSAR, multiplied or other benefit is governed by a fractionplan which limits the acceleration of vesting or extension of exercises rights, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required take all reasonable action to comply with section 409A of the Codethis subsection (iv), on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by with respect to any such benefit the Company from time is unable to time for employees generally, as if the Executive had continued provide in employment during such period; or, as an alternativeaccordance with this subsection, the Company may elect to shall pay to the Executive cash in lieu within thirty (30) days after the Date of such coverage in an Termination a lump sum amount equal to the value of such benefits as determined by a third party appraiser acceptable to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;.
(ivv) All of the Executive’s outstanding stock optionsThe Company shall also pay all relocation and indemnity payments as set forth in this Agreement, restricted stock and other equity rights held all legal fees and expenses incurred by the Executive as a result of the Executive’s date of terminationsuch termination (including all such fees and expenses, if any, which would have vested and become exercisable within the one incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement).
(1vi) year period following The Company shall provide outplacement services to the Executive’s date , the scope and duration of termination which shall become vested and/or exercisable, as be at the case may be, as discretion of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. (in connection with a Change in Control). If the Executive’s employment Executive is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 days’ within the three months prior written notice to the Executive; or 12 months following a Change in Control, then provided that, in the event such termination constitutes a Separation from Service and provided that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of conditions set forth in Section 6(c) below4(e), upon termination or resignation under Section 6(a) above, the then Company shall provide Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any following severance plan or program for employees or executives, the followingbenefits:
(i) A lump sum cash payment equal The Cash Severance described in Section 4(b)(i), except that the Cash Severance shall be equivalent to 1.0 times the 12 months of Executive’s annual Base Salary (at the rate in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.base salary;
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment COBRA benefits described in this clause (ii) Section 4(b)(ii), except that the COBRA Payment Period shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;12 months; and
(iii) Medical coverage for Notwithstanding any contrary terms of any stock option grant, option agreement or other equity award agreement between the 12Company and Executive, all outstanding stock options and other equity awards covering the Company’s common stock held by Executive as of the date of termination that are subject to time-month period following based vesting requirements shall accelerate in full. In order to give effect to the foregoing provision, notwithstanding anything to the contrary set forth in Executive’s equity award agreements, following any termination of Executive’s employment that is without Cause or until for Good Reason, none of Executive’s equity awards shall terminate with respect to any vested or unvested portion subject to such award before the date on which later of (A) the Separation Agreement Deadline or (B) three months following Executive’s termination. For the avoidance of doubt, in no event shall Executive be entitled to benefits under both Section 4(b) and this Section 4(c). If Executive is eligible for coverage benefits under a plan maintained both Section 4(b) and this Section 4(c), Executive shall receive the benefits set forth in this Section 4(c) and such benefits will be reduced by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time any benefits previously provided to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs4(b).
Appears in 1 contract
Samples: Employment Agreement (Biocept Inc)
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination or resignation under Section 6(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the following:
(i) A lump sum cash payment equal to 1.0 1.00 times the Executive’s annual Base Salary (at the rate in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause (i) shall be payable paid within 30 days after the Executive’s date of termination (or at termination, subject to the end Executive’s execution and non-revocation of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.;
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable paid within 30 days after the Executive’s date of termination (or at termination, subject to the end Executive’s execution and non-revocation of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed charged by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”), shall run concurrently with the foregoing 12-month period;
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executiveterm; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursoccurs (provided that the amounts described in this subparagraph (c)(v) shall not be contingent upon the Executive’s execution and non-revocation of the Release).
(d) Notwithstanding any provision of this Section 6 to the contrary, if the Executive is a “specified employee” (within the meaning of such term under section 409A of the Code) of a publicly held corporation at his termination date, the postponement provisions of section 409A of the Code, as described in Section 15(o) below, shall apply.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination or resignation under Section 6(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the following:
(i) A lump sum cash payment equal to 1.0 1.00 times the Executive’s annual Base Salary (at the rate in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his her spouse’s employer, whichever is sooner, at the level in effect at the date of his her termination (or generally comparable coverage) for himself herself and, where applicable, his her spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If Except as provided in Section 4(a) below, if the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after surviving company following a Change of Control (as defined in Section 11 4(c) below)) without Cause or by the Executive for Good Reason, either before or after a Change of Control, the provisions of this Section 6 3(c) shall apply.
apply (asubject to the modifications of Section 4(a) below, if applicable). The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; provided that. The Company may, in the event that such notice is givenits sole and absolute discretion, pay the Executive shall be under no obligation to render his Base Salary in lieu of any additional services to the Company unexpired period of notice and shall be allowed to seek other employmentterminate his employment immediately. In addition, the Executive may initiate a termination of employment by resigning under this Except as provided in Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c4(a) below, upon termination or resignation under Section 6(a) above, of the Executive shall be entitled to receive only ‘s employment by the amount due to Company under this Section 3(c) or by the Executive under the Company’s then current severance pay plan for employeesGood Reason, if any, but only to the extent not conditioned on the execution either before or after a Change of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) aboveControl, if the Executive executes and does not revoke a written release, in a substantially the form acceptable to the Company, in its sole discretionattached hereto as Exhibit A, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subjectProprietary Information and Invention Assignment Agreement (as defined in Section 6(a) below) and restrictive covenants and representations in Section 6 below, the Executive shall be entitled to receivereceive the payments and benefits set forth in subsections 3(c)(i), (ii) and (iii), in lieu of the payment described in Section 6(b) and any other payments and benefits due under any severance plan or program for employees or executivesexecutives (subject to the modifications of Section 4(a) below, if applicable). Notwithstanding any provision of this Agreement to the following:contrary, in no event shall the timing of the Executive’s execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year.
(i) A lump sum cash payment equal The Company will pay to 1.0 times the Executive severance as follows: the rate of the Executive’s annual Base Salary (as in effect at the rate in effect immediately before time of termination will be added together with the Executive’s date dollar value of termination) plus 1.00 times the Executive’s target annual cash bonus Annual Bonus for the year in which termination occurs and the sum of the foregoing amounts will be divided by twelve (12) (the “Monthly Severance Amount”). The Monthly Severance Amount will be paid each month over the twelve (12) month period following the Termination Date, less applicable tax withholding, paid in approximately equal installments beginning within the sixty (60)-day period following the date of the Executive’s termination of employment and continuing on each payroll date thereafter until fully paid, in accordance with the Company’s regular payroll practices. The first severance payment will include any missed payments during such sixty (60)-day period.
(ii) The Company will pay to the Executive a pro rata Annual Bonus for the year in which the termination of employment occurs, which shall be determined based on Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment actual Annual Bonus earned for the year in which the Executive’s termination of employment occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs(if any), as determined by the Compensation Committeebased on actual performance, multiplied by a fraction, the numerator of which is the number of days during in which the Executive was employed by the Company in during the year in which the termination of the Executive’s terminationemployment occurs, and the denominator of which is three hundred sixty-five (365). The payment pro rata Annual Bonus described in this clause (iisubsection 3(c)(ii) shall will be payable within 30 days paid at the same time and under the same terms and conditions as bonuses are paid to other executives of the Company, on or after January 1 but not later than March 15 of the calendar year following the calendar year in which the Executive’s date of termination (or at the end of the revocation period for the Releaseemployment terminates, if later), or if a six-month delay is required subject to comply with section 409A of the Code, on the first business day following such delay period;Section 5(b) below.
(iii) Medical coverage for For the twelve (12-) month period following the Executive’s termination or until the date on which of employment, provided that the Executive is eligible timely elects COBRA, the Company will reimburse the Executive for the monthly COBRA cost of continued medical and dental coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at for the level in effect at the date of his termination (or generally comparable coverage) for himself Executive and, where applicable, his spouse and dependents, at the level in effect as of the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu date of such coverage in an amount equal to the Executive’s after-tax cost termination of continuing such coverageemployment, where such coverage may not be continued (or where such continuation would adversely affect less the tax status employee portion of the plan pursuant to which applicable premiums that the coverage is provided). The Executive would have paid had he remained employed during the such twelve (12) month period (the COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing twelve (12-) month period;
period that the Executive is provided with medical and dental coverage under subsection 3(c)(i)). These reimbursements will commence within the sixty (iv) All 60)-day period following the date of the Executive’s outstanding stock optionstermination of employment and will be paid on the first payroll date of each month, restricted stock and other equity rights held by provided that the Executive as demonstrates proof of payment of the Executiveapplicable premiums prior to the applicable reimbursement payment date. Notwithstanding the foregoing, the Company’s date reimbursement of termination, if any, which would have vested and become exercisable within the one monthly COBRA premiums in accordance with this subsection 3(c)(iii) shall cease immediately upon the earlier of: (1A) year the end of the twelve (12) month period following the Executive’s termination of employment, or (B) the date that the Executive is eligible for comparable coverage with a subsequent employer. Notwithstanding the foregoing, the Company reserves the right to restructure the foregoing COBRA premium reimbursement arrangement in any manner necessary or appropriate to avoid fines, penalties or negative tax consequences to the Company or the Executive (including, without limitation, to avoid any penalty imposed for violation of the nondiscrimination requirements under the Patient Protection and Affordable Care Act or the guidance issued thereunder), as determined by the Company in its sole and absolute discretion.
(iv) Notwithstanding any provision to the contrary in the 2008 Equity Plan (or a successor plan) or any applicable agreement (including this Agreement), all outstanding equity grants held by the Executive immediately prior to the Executive’s termination date which vest based upon the Executive’s continued service over time that would have become vested during the twelve (12) month period following the Executive’s termination date had the Executive remained employed during such twelve (12) month period shall accelerate, become fully vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision termination date. All outstanding equity grants held by the Executive immediately prior to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s termination date which vest based upon attainment of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences performance criteria shall remain subject to the Executive; andterms and conditions of the agreement evidencing such performance based award.
(v) Any other The Executive shall also be entitled to any amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, Company without regard to whether the Executive does not execute or not revokes the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursRelease.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(ai) The Company may terminate the Executive’s employment with the Company remove Executive at any time without Cause from the position in which Executive is employed hereunder upon not less than 30 thirty (30) days’ prior written notice of termination to the Executive; provided provided, however, that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. Should the Company provide Executive with such notice, Executive may elect to resign under this Section 4(a) for Good Reason during the thirty (30) day period. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 4(a) for Good Reason. The Executive shall give the Company not less than 30 thirty (30) days’ prior written notice of such resignation. On resignation provided, however, that in the date of termination or resignationevent that such notice is given, as applicableand upon written request from the Company, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination or resignation under Section 6(a) above, the Executive shall be entitled cease to receive only the amount due render any additional services to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(cii) Notwithstanding the provisions of Upon any removal or resignation described in Section 6(b), upon termination or resignation, as applicable, under Section 6(a4(a)(i) above, if the Executive executes and does not revoke a written release, in a form acceptable but subject to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefitSection 4(e) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subjectbelow, the Executive shall be entitled to receive, in lieu upon execution of the payment described in Section 6(bRelease, for a period of six (6) and any other payments due under any severance plan or program for employees or executives, the following:
(i) A lump sum months a monthly cash payment equal to 1.0 times the monthly portion of the Executive’s annual Annual Base Salary (at the rate in effect immediately before the Executive’s date separation from service (“Termination Annual Base Salary”). This six (6) month benefit shall accrue during the first six (6) months of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. employment as follows: The payment described in this clause (i) Executive shall be payable within 30 days after deemed to have accrued three (3) months of benefit as of the Executive’s date of termination (or hereof; at the end of the revocation period for the Releasefourth (4th) month of employment Executive shall accrue an additional month of benefit (i.e., if latertotal of four months of benefit), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or ; at the end of the revocation period for fifth (5th) month of benefit the ReleaseExecutive shall accrue an additional month of benefit (i.e., if latertotal of five months of benefit), or if a six-month delay is required to comply with section 409A ; and at the end of the Codesixth (6th) month of employment the Executive shall accrue an additional month of benefit, on for a total and maximum of not more than six (6) months of benefit in the first business day following such delay period;aggregate (the “Accrued Period”).
(iii) Medical coverage for the 12-month period following the Executive’s termination Upon any removal or until the date on which resignation described in Section 4(a)(i) above, the Executive is eligible for shall also receive:
(1) The Executive shall continue to receive the medical coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level and other health and welfare benefits in effect at the date Date of his termination Termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if for the Executive had continued in employment during such period; or, as Accrued Period from the Date of Termination. As an alternativealternative to the foregoing, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section Section 4980B of the Code, as amended, shall run concurrently with the foregoing 12-month benefit period;.
(2) The Executive’s stock options will continue to vest for the Accrued Period from the Date of Termination.
(iv) All Notwithstanding anything set forth herein to the contrary, in the event that Executive violates the provisions of Section 5(a) of this Agreement after his separation from service, the payments and benefits provided under this Section 4(a) shall cease and all obligations of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1Company under this Section 4(a) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursterminate.
Appears in 1 contract
Samples: Employment Agreement (Patient Safety Technologies, Inc)
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the (a) The Company may remove Executive at any time without Cause (as defined in Section 11 below4) or if from the position in which Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause is employed hereunder upon not less than 30 sixty (60) days’ prior written notice to the Executive; provided provided, however, that, that in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 2.1 for Good ReasonReason (as defined in Section 4). The Executive shall give the Company not less than 30 60 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination Upon any removal or resignation under described in Section 6(a2.1(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due earned in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b2.1(b), upon termination or resignation, as applicable, under Section 6(a) above, if in the event that Executive executes and does not revoke a written releasemutual release upon such removal, resignation or Non-Renewal, in a form acceptable to the Company, in its sole discretionCompany (the “Release”), of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as any claims against Executive for actions within the Executive continues to comply with scope of her employment by the provisions of any confidentialityCompany, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives2.1(b), the following:
(i) A Executive shall receive a lump sum cash payment equal to 1.0 three times the sum of (x) Executive’s annual Base Salary and (at the rate in effect immediately before the Executive’s date of terminationy) plus 1.00 times the Executive’s target annual cash bonus (or, in the absence of a target bonus opportunity for the year in which the fiscal year, 100% of Executive’s date Base Salary) for the fiscal year of termination occursExecutive’s removal or resignation (the “Cash Bonus”). The payment described in this clause (i) Payment shall be payable made within 30 thirty (30) days after the Executive’s effective date of the termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for For a period of 18 months following the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator date of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and Executive shall continue to receive the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his her termination (or generally comparable coverage) for himself herself and, where applicable, his her spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”), shall run concurrently with the foregoing 1218-month benefit period;.
(iviii) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and also receive any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs 1 above, including a pro rata portion of Executive’s Cash Bonus. The pro rated Cash Bonus shall be determined by multiplying the CompanyCash Bonus by a fraction, whether or not the terms numerator of such plan or program otherwise require an employee to be which is the number of days during which Executive was employed with by the Company on in the date fiscal year of payment, including without limitation, any cash bonus earned or accrued but not yet paid for her Disability and the year prior to the year in denominator of which the Executive’s termination occurs.is three hundred sixty-five (365)
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the (a) The Company may remove Executive at any time without Cause (as defined in Section 11 below4) or if from the position in which Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause is employed hereunder upon not less than 30 sixty (60) days’ prior written notice to the Executive; provided provided, however, that, that in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 2.1 for Good ReasonReason (as defined in Section 4). The Executive shall give the Company not less than 30 sixty (60) days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination Upon any removal or resignation under described in Section 6(a2.1(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due earned in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b2.1(b), upon termination or resignation, as applicable, under Section 6(a) above, if in the event that Executive executes and does not revoke a written releasemutual release upon such removal or resignation, in a form acceptable to the Company, in its sole discretionCompany (the “Release”), of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as any claims against Executive for actions within the Executive continues to comply with scope of his employment by the provisions of any confidentialityCompany, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives2.1(b), the following:
(i) A Executive shall receive a lump sum cash payment equal to 1.0 one and a half times the sum of (x) Executive’s annual Base Salary (at the rate Salary, as in effect immediately before prior to his termination of employment and (y) the Executive’s date of termination) plus 1.00 times the Executive’s target average annual cash bonus Executive received for the three year period immediately prior to his termination of employment. One-half of the amount described in which the preceding sentence shall be consideration for Executive’s date of termination occurs. The payment entering into the restrictive covenants described in this clause (i) Section 5 below. Payment shall be payable made within 30 thirty (30) days after the Executive’s effective date of the termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for For a period of eighteen (18) months following the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator date of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and Executive shall continue to receive the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as at the same premium rate as may be changed by the Company charged from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section Section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”), shall run concurrently with the foregoing 12-eighteen (18) month benefit period;.
(iviii) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and also receive any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs 1 above, including a pro rata portion of Executive’s target annual cash bonus for the Companyfiscal year of his termination (or, whether or not in the terms absence of such plan or program otherwise require an employee to a target bonus opportunity for the fiscal year, 100% of Executive’s Base Salary) (the “Cash Bonus”). The pro rated Cash Bonus shall be determined by multiplying the Cash Bonus by a fraction, the numerator of which is the number of days during which Executive was employed with by the Company on in the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the fiscal year prior to his termination of employment and the year in denominator of which the Executive’s termination occurs.is three hundred sixty-five (365)
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination or resignation under Section 6(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the following:
(i) A lump sum cash payment equal to 1.0 1.50 times the Executive’s annual Base Salary (at the rate in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause (i) shall be payable paid within 30 days after the Executive’s date of termination (or at termination, subject to the end Executive’s execution and non-revocation of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.;
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable paid within 30 days after the Executive’s date of termination (or at termination, subject to the end Executive’s execution and non-revocation of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed charged by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Internal Revenue Code of 1986, as amended (the “Code”), shall run concurrently with the foregoing 12-month period;
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executiveterm; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursoccurs (provided that the amounts described in this subparagraph (c)(v) shall not be contingent upon the Executive’s execution and non-revocation of the Release).
(d) Notwithstanding any provision of this Section 6 to the contrary, if the Executive is a “specified employee” (within the meaning of such term under section 409A of the Code) of a publicly held corporation at his termination date, the postponement provisions of section 409A of the Code, as described in Section 15(o) below, shall apply.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the (a) The Company may remove Executive at any time without Cause (as defined in Section 11 below4) or if from the position in which Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause is employed hereunder upon not less than 30 sixty (60) days’ ' prior written notice to the Executive; provided provided, however, that, that in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 2.1 for Good ReasonReason (as defined in Section 4). The Executive shall give the Company not less than 30 sixty (60) days’ ' prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination Upon any removal or resignation under described in Section 6(a2.1(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s 's then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due earned in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b2.1(b), upon termination or resignation, as applicable, under Section 6(a) above, if in the event that Executive executes and does not revoke a written releasemutual release upon such removal, resignation or Non-Renewal, in a form acceptable to the Company, in its sole discretionCompany (the "Release"), of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s 's employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as any claims against Executive for actions within the Executive continues to comply with scope of his employment by the provisions of any confidentialityCompany, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives2.1(b), the following:
(i) A Executive shall receive a lump sum cash payment equal to 1.0 times (x) one-half of the Executive’s annual 's Base Salary (payable over the remaining portion of the Employment Term, at the rate in effect immediately before the Executive’s date 's termination of terminationemployment and (y) plus 1.00 times the Executive’s target annual cash bonus a pro rated bonus, if any, for the year in which Executive's termination of employment occurs. One-half of the amount described in the preceding sentence shall be consideration for the Executive’s date of termination occurs's entering into the restrictive covenants described in Section 5 below. The payment described in this clause (i) pro rated bonus shall be payable within 30 days after based on the amount of Executive’s date of termination (or at the end of the revocation period 's annual bonus, if any, for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the fiscal year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s 's termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the fiscal year of the Executive’s termination, his termination and the denominator of which is three hundred sixty-five (365). The payment described in this clause (ii) Payment shall be payable made within 30 thirty (30) days after the Executive’s effective date of the termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;.
(iiiii) Medical coverage for the 12-month For a period of eighteen (18) months following the Executive’s termination or until date of termination, Executive shall continue to receive the date on which the Executive is eligible for medical coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself herself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s 's after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section Section 4980B of the CodeInternal Revenue Code of 1986, as amended, shall run concurrently with the foregoing 12-eighteen (18) month benefit period;.
(iviii) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and also receive any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs1 above.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 days’ prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c) below, upon termination or resignation under Section 6(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the following:
(i) A lump sum cash payment equal to 1.0 1.50 times the Executive’s annual Base Salary (at the rate in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occurs.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) ), other than due to Disability, or if by the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 9 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 days’ with prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 resign for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, Reason (as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliatesdefined below).
(b) Unless the Executive complies with the provisions of Section 6(c) Release Requirement (as defined below), upon termination or resignation under Section 6(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No no other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and 2, any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the CompanyCompany (the “Accrued Obligations”).
(c) Notwithstanding the provisions of Section 6(b9(b), upon termination or resignation, as applicable, under Section 6(a9(a) above, if the Executive executes and does not revoke a written release, in a form acceptable subject to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”)Release Requirement, and so long as the Executive continues to comply with the provisions of any confidentialitySection 16 below, non-competition or non-solicitation agreement with in addition to the Company to which the Executive is subjectAccrued Obligations, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the following:
(i) A lump sum cash payment equal to 1.0 times Continuation of the Executive’s annual Base Salary for six (6) months (the “Severance Term”) at the rate in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occurs. The occurs (but no less than the amount scheduled to be in effect when a payment described in this clause (i) is made pursuant to Section 2), which amount shall be payable within 30 days after paid in regular payroll installments over the applicable period following the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.date; and
(ii) A pro rata bonus payment prorated Annual Bonus for the year in which the Executive’s termination occurs equal to of employment occurs, which shall be determined by multiplying the Executive’s target annual cash bonus for the year in which the Executive’s termination occursAnnual Bonus, as determined by the Compensation Committeebased on actual performance of Company goals, multiplied without negative discretion, and provided that any personal goals shall be considered to be fulfilled, by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of in which the Executive’s termination, termination date occurs and the denominator of which is 365. The payment described in this clause (ii) prorated Annual Bonus, if any, shall be payable within 30 days after the Executive’s date of termination (or paid at the end same time as bonuses are paid to other employees of the revocation period for the ReleaseCompany, if later), or if a six-month delay is required to comply with section 409A but not later than March 15 of the Code, on fiscal year following the first business day following such delay period;fiscal year for which it was earned; and
(iii) Medical coverage for if applicable, any Annual Bonus amount earned in the 12-month period following the year prior to Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;
(iv) All of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and in accordance with the Company’s annual bonus plan terms; provided that any benefits accrued and due under any applicable benefit plans and programs such bonus shall be paid at the same time as bonuses are paid to other employees of the Companycompany, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid later than March 15th of the fiscal year following the fiscal year for the year prior to the year in which the Executive’s termination occurs.it was earned; and
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time without Cause (as defined in Section 4) upon not less than 30 days’ prior written notice to the Executive; provided provided, however, that, in following the event that delivery of such notice is givento the Executive, the Executive shall be under no obligation to render any additional services to the Company, and the Company and shall be allowed may require the Executive to seek other employmentcease performing services for the Company. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 2.1 for Good Reason (as defined in Section 4); provided, however, that, where applicable, the Company shall be given the opportunity to cure in accordance with Section 4(f). Except as indicated in the definition of Good Reason. The , the Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with Subject to the provisions of Section 6(c2.1(c) belowand Section 2.1(d), upon termination any removal or resignation under described in Section 6(a) above2.1(a), the Executive shall be entitled to receive only the amount due to Accrued Obligations through the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution date of a release by the Executivetermination. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due earned in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b2.1(b) and subject to the provisions of Section 2.1(d), upon termination or resignation, as applicable, under Section 6(a) above, if in the event that the Executive executes and does not revoke a written releaserelease upon such removal or resignation described in Section 2.1(a), substantially in a the form acceptable to attached hereto as Exhibit A (the Company, in its sole discretion“Release”), of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under subject to the terms of this Agreement or under any plans or programs of exceptions set forth in the Release), which Release must be executed by the Executive, returned to the Company under and the period within which the Executive has accrued and is due a benefit) (may revoke the “Release”), and so long as Release expired no later than 60 days following the Executive continues to comply with the provisions date of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subjecttermination, the Executive shall be entitled to receive, in lieu of addition to the payment payments and benefits described in Section 6(b) and any other payments due under any severance plan or program for employees or executives2.1(b), the following:
(i) A lump sum cash payment severance payment, without discount, in an amount equal to 1.0 times the Executive’s annual Base Salary product of (at A) three and (B) the rate Annual Compensation (as defined in effect immediately before the Executive’s date of termination) plus 1.00 times the Executive’s target annual cash bonus for the year in which the Executive’s date of termination occursSection 4). The Subject to Section 18, payment described in this clause (i) shall be payable made (x) within 30 15 days after the Executive’s date Release has been returned to the Company and the period within which the Executive may revoke it has expired or, (y) if, and only if, it is agreed by both the Executive and the Company at the time of termination (or at the end that such payment constitutes “nonqualified deferred compensation” for purposes of the revocation period for the Release, if later), or if a six-month delay is required to comply with section Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business 75th day following such delay periodthe date of termination.
(ii) A pro rata prorated annual bonus payment for in respect of the fiscal year in which the Executive’s date of termination occurs equal to occurs, the Executive’s target annual amount of which shall be no less than the amount of the cash bonus for incentive compensation awarded in respect of the fiscal year immediately preceding the fiscal year in which the Executive’s date of termination occurs, as determined by the Compensation Committeeif any, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the such current fiscal year of the Executive’s termination, prior to such termination and the denominator of which is 365. The payment described , payable in this clause (ii) shall be payable cash in a lump sum within 30 15 days after the Executive’s date of termination Release has been returned to the Company and the period within which the Executive may revoke it has expired (or at the end of the revocation period for the Release, if latera “Pro Rata Bonus”), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;.
(iii) Medical coverage for the 12-month For a period of 36 months following the Executive’s termination or until date of termination, continuation of the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level group term life and health insurance in effect at the date of his the Executive’s termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependentsdependents (without giving effect to any reduction in such benefits subsequent to a Change in Control (as defined in Section 4(e))), as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is providedprovided or result in penalty taxes to the Executive pursuant to Section 409A of the Code), the Company may elect to pay the Executive cash in lieu of such coverage in an amount equal to (A) as to health insurance, the product of 36 multiplied by the Company’s monthly COBRA rate in effect immediately prior to the date of termination in respect of the type of coverage applicable to the Executive at that time and (B) as to life insurance, the premiums that would be paid by the Company during the three-year period following the date of termination had the Executive’s employment continued during such period, which amount shall be paid in 36 monthly installments following the date of termination. The COBRA health care continuation coverage period under section Section 4980B of the Code, Code shall run concurrently with the foregoing 1236-month benefit period;.
(iv) All Full vesting (and if applicable, exercisability) of all outstanding equity compensation awards held by the Executive’s outstanding stock options, restricted stock and other equity rights including, without limitation, all awards held by the Executive under the Management Incentive Plan, a description of which is attached hereto as Exhibit B (the “Management Incentive Plan”).
(d) Notwithstanding the provisions of Section 2.1(b) and Section 2.1(c), in the event that such removal or resignation described in Section 2.1(a) is directly on account of a transaction constituting a Change in Control pursuant to clauses (i), (ii) or clause (iii) of the definition of Change in Control (provided that in the case of a Change in Control described in clause (i) or (ii) of such definition, each shareholder of the Company (including Executive but not including the acquirer) shall have had the opportunity to dispose of all or a pro rata portion of such shareholder’s outstanding Company equity (not including the opportunity to dispose of shares pursuant to open-market sales) on the same terms as all other shareholders in such transaction, and where the consideration for such Company equity is either cash or common stock listed on the New York Stock Exchange or the NASDAQ Stock Exchange (or a combination thereof)), then the total severance payable to Executive under Section 2.1(c)(i) shall not exceed an amount equal to (A) $5,000,000, reduced by (B) by the fair market value as of the Executive’s date of terminationsuch Change in Control of any awards then held by the Executive under the Management Incentive Plan, if anybut in no event shall the total severance payable to the Executive under Section 2.1(c)(i) be reduced below $2,000,000. Notwithstanding any provision of this Agreement to the contrary, which would have vested and become exercisable within the one (1) year period following except as expressly provided in this Section 2.1(d), in no event shall the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid severance payable under Section 2 above and any benefits accrued and due 2.1(c) be reduced or otherwise offset by the value of, or payments with respect to, awards held by the Executive under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursManagement Incentive Plan.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s 's employment is terminated by the Company without Cause (as defined in Section 11 below11) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below11), the provisions of this Section 6 7 shall apply.
(a) The Company may terminate the Executive’s 's employment with the Company at any time without Cause upon not less than 30 days’ ' prior written notice to the Executive; provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 7 for Good Reason. The Executive shall give the Company not less than 30 days’ ' prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c7(c) below, upon termination or resignation under Section 6(a7(a) above, the Executive shall be entitled to receive only the amount due to the Executive under the Company’s 's then current severance pay plan or arrangement for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to receive any amounts earned, accrued and owing, owing but not yet paid under Section 2 above and any benefits accrued and due in accordance with the terms of under any applicable benefit plans and programs of the Company, in each case, subject to and in accordance with the terms thereof.
(c) Notwithstanding the provisions of Section 6(b7(b), upon termination or resignation, as applicable, under Section 6(a7(a) aboveabove (including a termination due to Non-Renewal), if if, within sixty (60) days following the termination of the Executive's employment, the Executive timely executes and does not revoke a written release, in a form acceptable delivers to the Company, in its sole discretion, Company (without revocation) a fully effective written release of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s 's employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of Agreement), in substantially the Company under which the Executive has accrued and is due a benefit) form set forth in Exhibit A hereto (the “"Release”"), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b7(b) and any other payments due under any severance plan or program for employees or executives, the followingfollowing payments and benefits:
(1) From the date of termination through the balance of the Scheduled Term (if any) (the "Severance Period"), the Executive shall continue to receive (i) A lump sum cash payment equal to 1.0 times the Executive’s annual his Base Salary (at the rate in effect immediately before the Executive’s date of termination's termination or resignation, as applicable) in installments in accordance with the Company's normal payroll practices, plus 1.00 times the Executive’s target annual cash (ii) a bonus for each fiscal year during the Severance Period, at a rate that is not less than the highest annual bonus paid during any of the preceding years covered by this Agreement or the Prior Agreement (but prorated for any partial fiscal year during the Severance Period), payable at the same time other employees of the Company are paid pursuant to the terms of the Company's annual bonus plan, but not later than March 15 of the year in which the Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at following the end of the revocation period for fiscal year to which the Releasebonus relates.
(2) To the extent the Executive timely elects to receive continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, if lateras amended ("COBRA"), the Company shall pay or if reimburse the Executive, on a six-month delay is required monthly basis, an amount equal to comply with section 409A the full monthly premium for such coverage, from the date of termination until the date eighteen (18) months following the date of termination. The COBRA health care continuation coverage period under Section 4980B of the Internal Revenue Code of 1986, as amended (the “"Code”), on the first business day following such delay period.
(ii") A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause (ii) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which the Executive is eligible for coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level in effect at the date of his termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-month period;.
(iv3) All Beginning on the 60th day following the effective date of the Executive’s 's termination or resignation, and on the first payroll date of each month thereafter during the remainder of the Scheduled Term (if any), a monthly payment equal to the premium cost for the long and short-term disability coverage that was in effect for the Executive under plans of the Company immediately before his termination or resignation. To the extent requested by the Executive within 30 days following the date of termination, the Company shall take all action necessary, if any, to facilitate the Executive's exercise of all conversion and/or portability privileges, if any, under such long and short-term disability coverage.
(4) Beginning on the 60th day following the effective date of the Executive's termination or resignation, and on the first payroll date of each month thereafter during the remainder of the Scheduled Term (if any), a monthly payment equal to the full cost of any Company life insurance coverages in effect for the Executive immediately before his termination or resignation to maintain life insurance coverage. To the extent requested by the Executive within 30 days following the date of termination, the Company shall take all action necessary, if any, to facilitate the Executive's exercise of all conversion privileges, if any, under such life insurance program or policy.
(5) Notwithstanding any provision to the contrary in any applicable plan, program or agreement, all outstanding stock options, restricted stock and other equity rights awards held by the Executive as of the Executive’s date of terminationhis termination or resignation, if anyas applicable, which would have shall become fully vested and become exercisable within the one (1) year period following as of such date. In addition, any outstanding stock options held by the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a the shorter of (i) the 60-month period following the date of six the Executive's termination or resignation, as applicable, and (ii) the then remaining term of such stock option.
(6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether payable in accordance with the terms and conditions thereof and any unpaid Deferred Bonuses payable pursuant to and in accordance with Section 2(b)(ii).
(7) An annual bonus for the fiscal year of termination or not resignation, based on actual performance through the full fiscal year but pro-rated based on the number of days the Executive was employed during such fiscal year of termination, payable at the same time other employees of the Company are paid pursuant to the terms of such plan the Company's annual bonus plan, but not later than March 15 of the year following the end of the fiscal year to which the bonus relates (the "Pro Rata Bonus").
(d) To the extent that the payment of any amount or program provision of any benefit under Section 7 is conditioned upon the Release and is otherwise require an employee scheduled to be employed with occur prior to the Company on sixtieth (60th) day following the date of paymentExecutive's termination of employment hereunder, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior condition on executing the Release as set forth herein, shall not be made until the first regularly scheduled payroll date following such sixtieth (60th) day, after which any remaining payments shall thereafter be provided to Executive according to the year in which the Executive’s termination occursapplicable schedule set forth herein.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after a Change of Control (as defined in Section 11 below), the provisions of this Section 6 shall apply.
(ai) The Company may terminate the Executive’s employment with the Company remove Executive at any time without Cause from the position in which Executive is employed hereunder upon not less than 30 thirty (30) days’ prior written notice of termination to the Executive; provided provided, however, that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 4(a) for Good Reason. The Executive shall give the Company not less than 30 thirty (30) days’ prior written notice of termination of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(bii) Unless the Executive complies with the provisions of Section 6(c) below, upon termination Upon any removal or resignation under described in Section 6(a4(a)(i) above, the Executive shall be entitled to receive only receive, upon execution of the amount due Release, for a period of twelve (12) months a monthly cash payment equal to the Executive under the Company’s then current severance pay plan for employees, if any, but only to the extent not conditioned on the execution of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) above, if the Executive executes and does not revoke a written release, in a form acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out monthly portion of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subject, the Executive shall be entitled to receive, in lieu of the payment described in Section 6(b) and any other payments due under any severance plan or program for employees or executives, the following:
(i) A lump sum cash payment equal to 1.0 times the Executive’s annual Annual Base Salary (at the rate in effect immediately before the Executive’s date of terminationseparation from service (“Termination Annul Base Salary”).
(iii) plus 1.00 times Upon any removal or resignation described in Section 4(a)(i) above, the Executive’s target annual cash Executive shall also receive:
(1) A pro rated bonus for the year in which the Executive’s date termination of termination employment occurs. The payment described in this clause (i) pro rated bonus shall be payable within 30 days after based on the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment for the year in which the Executive’s termination occurs equal to the Executive’s highest target percentage annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, his termination and the denominator of which is three hundred sixty five (365). The payment described in this clause (ii) Payment of the pro rated bonus shall be payable within 30 days after made to the Executive’s date of termination (or Executive at the end of time the revocation period Company would have paid a bonus, if any, to the Executive for services performed for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following year in which the Executive’s termination or until of employment occurs, but by no later than March 15 of the date on which year following the year of termination.
(2) The Executive is eligible for shall continue to receive the medical coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at the level and other health and welfare benefits in effect at the date Date of his termination Termination (or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the same may be changed by the Company from time to time for employees generally, as if for twelve (12) months from the Executive had continued in employment during such period; or, as Date of Termination. As an alternativealternative to the foregoing, the Company may elect to pay to the Executive cash in lieu of such coverage in an amount equal to the Executive’s after-tax cost of continuing such coverage, where such coverage may not be continued (or where such continuation would adversely affect the tax status of the plan pursuant to which the coverage is provided). The COBRA health care continuation coverage period under section Section 4980B of the Code, as amended, shall run concurrently with the foregoing benefit period.
(3) The Executive’s stock options will continue to vest for the twelve (12-month period;) months following the date of removal of resignation described in Section 4(a)(i) above.
(iv) All Notwithstanding anything set forth herein to the contrary, in the event that Executive violates the provisions of Section 5(a) of this Agreement after his separation from service, the payments and benefits provided under this Section 4(a) shall cease and all obligations of the Executive’s outstanding stock options, restricted stock and other equity rights held by the Executive as of the Executive’s date of termination, if any, which would have vested and become exercisable within the one (1Company under this Section 4(a) year period following the Executive’s date of termination shall become vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s date of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences to the Executive; and
(v) Any other amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, whether or not the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursterminate.
Appears in 1 contract
Samples: Employment Agreement (Patient Safety Technologies, Inc)
Termination Without Cause; Resignation for Good Reason. If Except as provided in Section 4(a) below, if the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after surviving company following a Change of Control (as defined in Section 11 4(c) below)) without Cause or by the Executive for Good Reason, either before or after a Change of Control, the provisions of this Section 6 3(c) shall apply.
apply (asubject to the modifications of Section 4(a) below, if applicable). The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; . Except as provided that, in the event that such notice is given, the Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, the Executive may initiate a termination of employment by resigning under this Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c4(a) below, upon termination or resignation under Section 6(a) above, of the Executive shall be entitled to receive only ’s employment by the amount due to Company under this Section 3(c) or by the Executive under the Company’s then current severance pay plan for employeesGood Reason, if any, but only to the extent not conditioned on the execution either before or after a Change of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) aboveControl, if the Executive executes and does not revoke a written release, in a form reasonably acceptable to the Company, in its sole discretion, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subjectProprietary Information and Invention Assignment Agreement (as defined in Section 6(a) below) and restrictive covenants and representations in Section 6 below, the Executive shall be entitled to receivereceive the payments and benefits set forth in Sections 3(c)(i), (ii) and (iii), in lieu of the payment described in Section 6(b) and any other payments and benefits due under any severance plan or program for employees or executivesexecutives (subject to the modifications of Section 4(a) below, if applicable). Notwithstanding any provision of this Agreement to the following:contrary, in no event shall the timing of the Executive’s execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year.
(i) A lump sum cash payment The Company will pay to the Executive severance equal to 1.0 times six (6) months of the Executive’s annual Base Salary (at the rate in effect immediately before prior to the Executive’s termination of employment, less applicable tax withholding, paid in equal monthly installments beginning within the sixty (60)-day period following the date of termination) plus 1.00 times the Executive’s target annual cash bonus for termination of employment and continuing on each payroll date thereafter until fully paid, in accordance with the year in which the ExecutiveCompany’s date of termination occursregular payroll practices. The first severance payment described in this clause will include any missed payments during such sixty (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay 60)-day period.
(ii) A pro rata bonus payment for For the year in which the Executive’s termination occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs, as determined by the Compensation Committee, multiplied by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year of the Executive’s termination, and the denominator of which is 365. The payment described in this clause six (ii6) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Code, on the first business day following such delay period;
(iii) Medical coverage for the 12-month period following the Executive’s termination or until the date on which of employment, provided that the Executive is eligible timely elects COBRA, the Company will reimburse the Executive for the monthly COBRA cost of continued medical and dental coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at for the level in effect at the date of his termination (or generally comparable coverage) for himself Executive and, where applicable, his spouse and dependents, at the level in effect as of the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu date of such coverage in an amount equal to the Executive’s after-tax cost termination of continuing such coverageemployment, where such coverage may not be continued (or where such continuation would adversely affect less the tax status employee portion of the plan pursuant to which applicable premiums that the coverage is provided). The Executive would have paid had he remained employed during such six (6) month period (the COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing 12-six (6) month period;
period that the Executive is provided with medical and dental coverage under Section 3(c)(i)). These reimbursements will commence within the sixty (iv) All 60)-day period following the date of the Executive’s outstanding stock optionstermination of employment and will be paid on the first payroll date of each month, restricted stock and other equity rights held by provided that the Executive as demonstrates proof of payment of the Executiveapplicable premiums prior to the applicable reimbursement payment date. Notwithstanding the foregoing, the Company’s date reimbursement of termination, if any, which would have vested and become exercisable within the one monthly COBRA premiums in accordance with this Section 3(c)(ii) shall cease immediately upon the earlier of: (1A) year the end of the six (6) month period following the Executive’s termination of employment, or (B) the date that the Executive is eligible for comparable coverage with a subsequent employer. Notwithstanding the foregoing, the Company reserves the right to restructure the foregoing COBRA premium reimbursement arrangement in any manner necessary or appropriate to avoid fines, penalties or negative tax consequences to the Company or the Executive (including, without limitation, to avoid any penalty imposed for violation of the nondiscrimination requirements under the Patient Protection and Affordable Care Act or the guidance issued thereunder), as reasonably determined by the Company.
(iii) Notwithstanding any provision to the contrary in the 2008 Equity Plan (or a successor plan) or any applicable agreement (including this Agreement), all outstanding equity grants held by the Executive immediately prior to the Executive’s termination date which vest based upon the Executive’s continued service over time that would have become vested during the six (6) month period following the Executive’s termination date had the Executive remained employed during such six (6) month period shall accelerate, become fully vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision termination date. All outstanding equity grants held by the Executive immediately prior to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s termination date which vest based upon attainment of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences performance criteria shall remain subject to the Executive; andterms and conditions of the agreement evidencing such performance based award.
(viv) Any other The Executive shall also be entitled to any amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, Company without regard to whether the Executive does not execute or not revokes the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursRelease.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. If Except as provided in Section 4(a) below, if the Executive’s employment is terminated by the Company without Cause (as defined in Section 11 below) or if the Executive resigns for Good Reason (as defined in Section 11 below), either before or after surviving company following a Change of Control (as defined in Section 11 4(c) below)) without Cause or by the Executive for Good Reason, either before or after a Change of Control, the provisions of this Section 6 3(c) shall apply.
apply (asubject to the modifications of Section 4(a) below, if applicable). The Company may terminate the Executive’s employment with the Company at any time without Cause upon not less than 30 thirty (30) days’ prior written notice to the Executive; provided that. The Company may, in the event that such notice is givenits sole and absolute discretion, pay the Executive shall be under no obligation to render his Base Salary in lieu of any additional services to the Company unexpired period of notice and shall be allowed to seek other employmentterminate his employment immediately. In addition, the Executive may initiate a termination of employment by resigning under this Except as provided in Section 6 for Good Reason. The Executive shall give the Company not less than 30 days’ prior written notice of such resignation. On the date of termination or resignation, as applicable, specified in such notice, the Executive agrees to resign all positions, including as an officer and, if applicable, as a director or member of the Board, related to the Company and its parents, subsidiaries and affiliates.
(b) Unless the Executive complies with the provisions of Section 6(c4(a) below, upon termination or resignation under Section 6(a) above, of the Executive shall be entitled to receive only ’s employment by the amount due to Company under this Section 3(c) or by the Executive under the Company’s then current severance pay plan for employeesGood Reason, if any, but only to the extent not conditioned on the execution either before or after a Change of a release by the Executive. No other payments or benefits shall be due under this Agreement to the Executive, but the Executive shall be entitled to any amounts earned, accrued and owing, but not yet paid under Section 2 and any benefits accrued and due in accordance with the terms of any applicable benefit plans and programs of the Company.
(c) Notwithstanding the provisions of Section 6(b), upon termination or resignation, as applicable, under Section 6(a) aboveControl, if the Executive executes and does not revoke a written release, in a substantially the form acceptable to the Company, in its sole discretionattached hereto as Exhibit A, of any and all claims against the Company and all related parties with respect to all matters arising out of the Executive’s employment by the Company, or the termination thereof (other than claims for any entitlements under the terms of this Agreement or under any plans or programs of the Company under which the Executive has accrued and is due a benefit) (the “Release”), and so long as the Executive continues to comply with the provisions of any confidentiality, non-competition or non-solicitation agreement with the Company to which the Executive is subjectProprietary Information and Invention Assignment Agreement (as defined in Section 6(a) below) and restrictive covenants and representations in Section 6 below, the Executive shall be entitled to receivereceive the payments and benefits set forth in subsections 3(c)(i), (ii) and (iii), in lieu of the payment described in Section 6(b) and any other payments and benefits due under any severance plan or program for employees or executivesexecutives (subject to the modifications of Section 4(a) below, if applicable). Notwithstanding any provision of this Agreement to the following:contrary, in no event shall the timing of the Executive’s execution of the Release, directly or indirectly, result in the Executive designating the calendar year of payment, and if a payment that is subject to execution of the Release could be made in more than one taxable year, payment shall be made in the later taxable year.
(i) A lump sum cash payment equal The Company will pay to 1.0 times the Executive severance as follows: the rate of the Executive’s annual Base Salary (as in effect at the rate in effect immediately before time of termination will be added together with the Executive’s date dollar value of termination) plus 1.00 times the Executive’s target annual cash bonus Annual Bonus for the year in which termination occurs and the sum of the foregoing amounts will be divided by twelve (12) (the “Monthly Severance Amount”). The Monthly Severance Amount will be paid each month over the twelve (12) month period following the Termination Date, less applicable tax withholding, paid in approximately equal installments beginning within the sixty (60)-day period following the date of the Executive’s termination of employment and continuing on each payroll date thereafter until fully paid, in accordance with the Company’s regular payroll practices. The first severance payment will include any missed payments during such sixty (60)-day period.
(ii) The Company will pay to the Executive a pro rata Annual Bonus for the year in which the termination of employment occurs, which shall be determined based on Executive’s date of termination occurs. The payment described in this clause (i) shall be payable within 30 days after the Executive’s date of termination (or at the end of the revocation period for the Release, if later), or if a six-month delay is required to comply with section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), on the first business day following such delay period.
(ii) A pro rata bonus payment actual Annual Bonus earned for the year in which the Executive’s termination of employment occurs equal to the Executive’s target annual cash bonus for the year in which the Executive’s termination occurs(if any), as determined by the Compensation Committeebased on actual performance, multiplied by a fraction, the numerator of which is the number of days during in which the Executive was employed by the Company in during the year in which the termination of the Executive’s terminationemployment occurs, and the denominator of which is three hundred sixty-five (365). The payment pro rata Annual Bonus described in this clause (iisubsection 3(c)(ii) shall will be payable within 30 days paid at the same time and under the same terms and conditions as bonuses are paid to other executives of the Company, on or after January 1 but not later than March 15 of the calendar year following the calendar year in which the Executive’s date of termination (or at the end of the revocation period for the Releaseemployment terminates, if later), or if a six-month delay is required subject to comply with section 409A of the Code, on the first business day following such delay period;Section 5(b) below.
(iii) Medical coverage for For the twelve (12-) month period following the Executive’s termination or until the date on which of employment, provided that the Executive is eligible timely elects COBRA, the Company will reimburse the Executive for the monthly COBRA cost of continued medical and dental coverage under a plan maintained by a new employer or under a plan maintained by his spouse’s employer, whichever is sooner, at for the level in effect at the date of his termination (or generally comparable coverage) for himself Executive and, where applicable, his spouse and dependents, at the level in effect as of the same may be changed by the Company from time to time for employees generally, as if the Executive had continued in employment during such period; or, as an alternative, the Company may elect to pay to the Executive cash in lieu date of such coverage in an amount equal to the Executive’s after-tax cost termination of continuing such coverageemployment, where such coverage may not be continued (or where such continuation would adversely affect less the tax status employee portion of the plan pursuant to which applicable premiums that the coverage is provided). The Executive would have paid had he remained employed during the such twelve (12) month period (the COBRA health care continuation coverage period under section 4980B of the Code, shall run concurrently with the foregoing twelve (12-) month period;
period that the Executive is provided with medical and dental coverage under subsection 3(c)(i)). These reimbursements will commence within the sixty (iv) All 60)-day period following the date of the Executive’s outstanding stock optionstermination of employment and will be paid on the first payroll date of each month, restricted stock and other equity rights held by provided that the Executive as demonstrates proof of payment of the Executiveapplicable premiums prior to the applicable reimbursement payment date. Notwithstanding the foregoing, the Company’s date reimbursement of termination, if any, which would have vested and become exercisable within the one monthly COBRA premiums in accordance with this subsection 3(c)(iii) shall cease immediately upon the earlier of: (1A) year the end of the twelve (12) month period following the Executive’s termination of employment, or (B) the date that the Executive is eligible for comparable coverage with a subsequent employer. Notwithstanding the foregoing, the Company reserves the right to restructure the foregoing COBRA premium reimbursement arrangement in any manner necessary or appropriate to avoid fines, penalties or negative tax consequences to the Company or the Executive (including, without limitation, to avoid any penalty imposed for violation of the nondiscrimination requirements under the Patient Protection and Affordable Care Act or the guidance issued thereunder), as determined by the Company in its sole and absolute discretion.
(iv) Notwithstanding any provision to the contrary in the 2008 Equity Plan (or a successor plan) or any applicable agreement (including this Agreement), all outstanding equity grants held by the Executive immediately prior to the Executive’s termination date which vest based upon the Executive’s continued service over time that would have become vested during the twelve (12) month period following the Executive’s termination date had the Executive remained employed during such twelve (12) month period shall accelerate, become fully vested and/or exercisable, as the case may be, as of the Executive’s date of termination, and any stock options, including any stock options that previously became exercisable and have not expired or been exercised, shall remain exercisable, notwithstanding any provision termination date. All outstanding equity grants held by the Executive immediately prior to the contrary in any other agreement governing such options, for a period of six (6) months after the Executive’s termination date which vest based upon attainment of termination; provided, however, that in no event will the option be exercisable beyond its original term or later than the latest date that will avoid adverse tax consequences performance criteria shall remain subject to the Executive; andterms and conditions of the agreement evidencing such performance based award.
(v) Any other The Executive shall also be entitled to any amounts earned, accrued and owing but not yet paid under Section 2 above and any benefits accrued and due under any applicable benefit plans and programs of the Company, Company without regard to whether the Executive does not execute or not revokes the terms of such plan or program otherwise require an employee to be employed with the Company on the date of payment, including without limitation, any cash bonus earned or accrued but not yet paid for the year prior to the year in which the Executive’s termination occursRelease.
Appears in 1 contract
