Termination Without Cause; Resignation for Good Reason. The Employee’s employment hereunder may also be terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreement.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee’s employment hereunder may also be terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, Company or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described a substantial adverse alteration in the Company’s periodic filings made with the Securities and Exchange Commission), nature or (C) Chief Operating Officer of the Company; (iv) the relocation status of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areasresponsibilities; (viv) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (viv) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (viivi) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and guaranteed bonus(es) through the Date of Termination, (32) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), and (43) (I) all of the Existing Equity Grants shall accelerate and fully vest, (II) a pro rata share (based on the portion of the relevant twelve (12)-month period on which the Date of Termination occurs) of the New Equity Grant shall vest, (III) fifty percent (50%) of the remainder of the New Equity Grant shall vest, and (IV) all other awards theretofore granted to the Employee under the Company's ’s incentive plans shall continue to immediately vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination day immediately prior to the Date of employmentTermination, and (54) the Company shall pay to the Employee a severance payment the Remaining Original Severance plus an amount equal to the greater Employee’s base salary (at a $300,000 annual rate) for a period of eighteen (i18) weeks from the amount he would be entitled to under Company policy in effect at the time Date of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period Termination (the “Severance Payment New Severance”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreement.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee’s employment hereunder may also be terminated by Subject to Executive signing and not revoking a separation agreement and release of known and unknown claims in the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction form provided by the Company (including nondisparagement and no cooperation provisions) (the “Release”) and provided that such Release becomes effective and irrevocable no later than sixty (60) days following the termination date or such earlier date required by the release (the “Release Deadline”), if the Executive’s employment is terminated without Cause by the consent of the Employee, which consent may be revoked at any time) Corporation (except in the Employee’s Base Salary, case of death or substantial reduction in the other benefits provided to the Employee; (iiiDisability) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates Executive resigns his employment for Good Reason, the Executive shall be entitled to the following:
(1i) continued payment of Executive’s Base Salary for a period equal to six (6) months following the Company shall provide the Employee with at least sixty termination date;
(60ii) days’ notice (which time period may be shortened by mutual agreement payment of the parties) of its intent to terminate this Agreement without Cause; two (2) Quarterly Bonus payments to be made quarterly following the Company shall termination date;
(iii) The Corporation will also continue the benefits under section 4(d), except disability benefits coverage, for a period equal to twelve (12) months, if such benefits are available subject to the terms of the plans, or pay to the Employee all Executive an amount equal to the Corporation’s contribution for these benefits. Disability benefits will cease immediately on the date of termination;
(a) any earned but unpaid Base Salary through the termination date, (b) accrued or vested compensationbut unpaid vacation pay, including salary(c) any earned but unpaid Quarterly Bonus for the quarter(s) prior to the termination date, commissionpayable at the same time other employees of the Corporation are paid such bonuses, and bonus(es(d) reimbursement of expenses incurred through the Date of Terminationtermination date in accordance with Section 4(f) hereof; the whole, (3) owing as at the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (termination date, payable in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to law applicable in the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding state in which Executive works as of the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period date (the “Severance Payment Basic Payments”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement ; and
(the “Release Agreement”v) within 30 days six (6) months’ accelerated vesting of the Date of Termination. Subject Stock Option, subject at all times to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the ESOP. The Executive agrees that the foregoing payments reflected in Section 7(b) represents the Executive’s complete entitlement to severance or other benefits in the event of the termination of Executive’s employment. Executive further acknowledges that if the Release does not become effective by the Release Deadline, Executive will forfeit any rights to severance or benefits under this Section 7(b) or elsewhere in this Agreement. For the purposes of this Agreement, “Cause” means
(vi) theft, fraud or embezzlement by the Executive from the Corporation;
(vii) conviction of the Executive of a criminal act or other offence relating to the Executive’s employment; or
(viii) any breach of this Agreement by the Executive not cured within thirty (30) days after written notice by the Corporation to the Executive thereof.
Appears in 1 contract
Samples: Executive Employment Agreement (Meta Materials Inc.)
Termination Without Cause; Resignation for Good Reason. (i) The Employee’s employment hereunder Company may also be terminated by the Company remove Executive at any time for any reason without Cause or from the position in which Executive is employed hereunder upon written notice of termination to Executive; provided, however, that, in the event that such notice is given, Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, Executive may initiate termination of employment by the Employee resigning under this Section 4(a) for “Good Reason”. For purposes of this Agreement, the Employee Executive shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by give the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; of termination of such resignation.
(ii) a reduction by Upon any removal or resignation described in Section 4(a)(i) above, the Company (without the consent Executive shall be entitled to receive, upon execution of the EmployeeRelease, which consent may be revoked at any timefor a period of twelve (12) months a monthly cash payment equal to the monthly portion of the Executive’s Annual Base Salary in effect immediately before the EmployeeExecutive’s separation from service (“Termination Annual Base Salary, or substantial reduction in ”). This twelve (12) month benefit shall accrue during the other benefits provided to the Employee; first twelve (iii12 months of Executive’s employment. The Executive shall accrue one (1) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place month benefit for each month of employment up to a location more than thirty-five twelve (3512) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereundermonths. Notwithstanding the foregoing, a termination shall not be treated however, if as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to Executive’s removal or resignation described in Section 4(a)(i) above the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee Executive is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt a “specified employee” under Section 409A of the notice, Code the Employee’s resignation for Good Reason Executive shall be deemed effective. If receive the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, severance payments specified in this section (4)(a)(ii) as follows:
(1) for the Company first six months following his removal or resignation described in Section 4(a)(i) above, Executive shall provide the Employee with at least sixty receive one sixth (601/6) days’ notice (which time period may be shortened by mutual agreement of the partieslesser of (i) six monthly payments of its intent Executive’s Termination Annual Base Salary or (ii) the amount equal to terminate this Agreement without Cause; two (2) times the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code, for the year in which Executive terminates employment;
(2) upon the six (6) month anniversary of Executive’s removal or resignation described in Section 4(a)(i) above, Executive shall receive a lump sum payment equal to six (6) monthly payments of Executive’s Termination Annual Base Salary reduced by the amount Executive was paid under subsection 4(a)(ii)(1) above;
(iii) Upon any removal or resignation described in Section 4(a)(i) above, the Executive shall also receive:
(1) A pro rated bonus for the year in which the Executive’s termination of employment occurs. The pro rated bonus shall be based on the Executive’s highest target percentage annual bonus for the year in which the Executive’s termination occurs, 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 his termination and the denominator of which is three hundred sixty five (365). Payment of the pro rated bonus shall pay be made to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through Executive at the Date of Termination, (3) time the Company would have paid a bonus, if any, to the Executive for services performed for the year in which the Executive’s termination of employment occurs, but by no later than March 15 of the year following the year of termination.
(2) The Executive shall reimburse continue to receive the Employee for unpaid medical coverage and approved business expenses through such other health and welfare benefits in effect at the Date of Termination (in accordance with or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the Company’s normal business expense reimbursement procedures)same may be changed from time to time for employees generally, for twelve (412) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of months from the Date of Termination. Subject This twelve (12) month benefit shall accrue during the first twelve (12 months of Executive’s employment. The Executive shall accrue one (1) month benefit for each month of employment up to Section 20 hereoftwelve (12) months. As an alternative to the foregoing, the Severance Payment will Company may elect to pay 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 paid over continued (or where such continuation would adversely affect the period of time covered thereby following the effective date tax status of the Release Agreement on plan pursuant to which the Company’s regularly scheduled payroll payment datescoverage is provided). The COBRA health care continuation coverage period under Section 4980B of the Code, and in accordance as amended, shall run concurrently with the terms foregoing benefit period.
(iv) 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 Release AgreementCompany under this Section 4(a) shall terminate.
Appears in 1 contract
Samples: Employment Agreement (Patient Safety Technologies, Inc)
Termination Without Cause; Resignation for Good Reason. The Employee(i) If, prior to the expiration of the Term, the Executive’s employment hereunder may also be with the Company is terminated by the Company at any time for any reason without Cause or by if the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate Executive resigns from his employment hereunder upon for Good Reason, then, in addition to the Termination Amount and the payment of any unpaid earned Bonus for the year immediately preceding the year in which such termination or resignation occurs, the Executive shall be entitled to receive:
(1) an amount equal to the sum of the following amounts (collectively, the “Severance Amount”):
(A) an amount equal to the pro rata portion of the Bonus for the year in which the termination or resignation occurs, calculated by multiplying (x) the Minimum Target Bonus for the year of termination by (y) a fraction, the numerator of which is the number of days the Executive was employed during the year of such termination or resignation and the denominator of which is 365; plus
(B) if at the time of such termination or resignation the Executive is not “retirement eligible” within the meaning of the Company’s Equity Plan Retirement Policy (or if the Executive is “retirement eligible” and such termination or resignation occurs after a Change on Control or within six months of a Change of Control as described below), an amount equal to the Applicable Multiple (as defined below) multiplied by the sum of: (i) the Company’s failure to perform its material duties hereunderBase Salary in effect for the year of termination or resignation and (ii) the Minimum Target Bonus; and
(2) continuation of applicable medical, which failure has not been cured dental and life insurance benefits (based on the coverage in effect for the Executive and his dependents at the time of such termination or resignation, but excluding any supplemental medical expense reimbursement insurance provided by the Company within fifteen (15) days of its receipt of written notice thereof Group), from the Employee; (ii) a reduction by date of termination or resignation until the Company (without the consent earlier to occur of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer the Applicable Multiple of years from the Company, (B) Chief Financial Officer date of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders date the Executive becomes eligible for comparable benefits provided by a third party (in either case, the “Continuation Period”); provided, however, that the continuation of such benefits shall be subject to the respective terms of the applicable plan, as in effect from time to time, and the timely payment by the Executive of his applicable share of the applicable premiums in effect from time to time during the Continuation Period. To the extent that reimbursable medical and dental care expenses constitute deferred compensation for purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), the Company shall approve a complete liquidation or dissolution reimburse the medical and dental care expenses as soon as practicable consistent with the Company’s practice, but in no event later than the last day of the Company. The Employee's right to terminate calendar year next following the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereundercalendar year in which such expenses are incurred. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and such termination or resignation (iia) his Base Salary plus the greater Executive is “retirement eligible” within the meaning of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement Equity Plan Retirement Policy and (the “Release Agreement”b) a Change of Control has not occurred (and a Change of Control does not occur within 30 days six month following such termination or resignation and it is not reasonably demonstrated that such termination of employment or Good Reason event was in contemplation of the Date of Termination. Subject Change in Control during such six month period), then the Executive shall not receive the amount specified under Section 6(c)(1)(B) above but shall instead be eligible to Section 20 hereof, receive the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on entitlements provided under the Company’s regularly scheduled payroll payment datesEquity Plan Retirement Policy, subject to and in accordance with the terms and conditions of the Release Agreementsuch policy.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The EmployeeIf the Executive’s employment hereunder may also be is terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amendeddefined below), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Companydue to Disability, or (B) by the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment Executive for Good Reason (as defined below), the provisions of this Section 8 shall not be affected by apply.
(a) The Company may terminate the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his Executive’s employment with Good Reason, the Employee shall first provide Shift at any time without Cause with prior written notice to the Company, which notice specifically identifies Executive and the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation Executive may resign for Good Reason (as defined below).
(b) Unless the Executive complies with the Release Requirement (as defined below), no other payments or benefits shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate due under this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensationExecutive, including salary, commission, and bonus(es) through but the Date of Termination, (3) the Company Executive shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of terminationany amounts earned, accrued and (ii) his Base Salary plus the greater of his target bonus owing, but not yet paid under Section 7(b) hereof 2, any benefits accrued and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and due in accordance with the terms of any applicable benefit plans and programs of the Company (the “Accrued Obligations”).
(c) Notwithstanding the provisions of Section 8(b), upon termination under Section 8(a) above, subject to the Release AgreementRequirement, and so long as the Executive continues to comply with the provisions of Section 16 below, in addition to the Accrued Obligations, the Executive shall be entitled to receive the following:
(i) Continuation of the Executive’s Base Salary for four (4) months (the “Severance Term”), at the rate in effect for the year in which the Executive’s date of termination occurs (but no less than the amount scheduled to be in effect when a payment is made pursuant to Section 2), which amount shall be paid in regular payroll installments over the applicable period following the Executive’s termination date;
(ii) A prorated Annual Bonus for the year in which the Executive’s termination of employment occurs, which shall be determined by multiplying the Executive’s Annual Bonus, determined based on actual performance of Company goals, 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 in which the termination date occurs and the denominator of which is 365. The prorated Annual Bonus, if any, shall be 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;
(iii) Any unpaid Carve-Out Payments, paid at the time set forth in Section 3(b); and
(d) 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 twelve (12) months; 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 (the “Monthly COBRA Costs”) and the period of COBRA health care continuation coverage 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 period; provided further that, notwithstanding the foregoing, the amount of any benefits provided by this Section 8(d) shall be reduced or eliminated to the extent the Executive becomes entitled to duplicative benefits by virtue of the Executive’s subsequent or other employment. The Executive acknowledges that the payments pursuant to this Section 8(d) are taxable and subject to applicable withholding and payroll taxes.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee’s employment hereunder may also be terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, Company or a substantial adverse alteration in the designation by the Company nature or status of the Employee to any position or capacity other than Employee’s responsibilities; (Aiv) Chief Financial Officer a substantial diminution of the Company, (B) Chief Financial Officer of one of Employee’s responsibilities as the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer CFO of the Company; (ivv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from any of its current Newark, New Jersey location locations or outside of the New York City metropolitan areas; (vvi) removal of the Employee from the office of Chief Financial Officer of the Company (without the consent of the Employee); (vii) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (viviii) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (viiix) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty ninety (6090) days’ days notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), and (4) all awards theretofore granted to the Employee under the Company's ’s incentive plans shall continue to immediately vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination day immediately prior to the Date of employmentTermination, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and $600,000.00 (Six Hundred Thousand Dollars) or (ii) his Base Salary plus (at the greater rate in effect on the Date of his target bonus under Section 7(bTermination) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period Term (the “Severance Payment Payment”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination). Subject to Section 20 19 hereof, the Severance Payment will be paid over the period in a lump sum within five business days of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment datesprovided, and however, that said effective date shall in accordance with the terms no event be more than forty five (45) days after termination of the Release AgreementEmployee’s employment.
Appears in 1 contract
Samples: Employment Agreement (Idt Corp)
Termination Without Cause; Resignation for Good Reason. The EmployeeIf the Executive’s employment hereunder may also be is terminated by the Company without Cause (as defined below) or by the Executive for Good Reason (as defined below), the provisions of this Section 7 shall apply.
(a) The Company may terminate the Executive’s employment with the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon not less than thirty (i30) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide days’ prior written notice to the Company, which notice specifically identifies Executive and the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment Executive may resign for Good Reason.
(b) Unless the Executive complies with the provisions of Section 7(c) below, (1upon termination under Section 7(a) the Company above, no other payments or benefits shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate due under this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensationExecutive, including salary, commission, and bonus(es) through but the Date of Termination, (3) the Company Executive shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of terminationany amounts earned, accrued and (ii) his Base Salary plus the greater of his target bonus owing, but not yet paid under Section 7(b) hereof 2 and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute any benefits accrued and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and due in accordance with the terms of any applicable benefit plans and programs of the Release AgreementCompany (the “Accrued Obligations”).
(c) Notwithstanding the provisions of Section 7(b), upon termination under Section 7(a) above, if the Executive executes and does not revoke a written release of any and all claims against the Company or its affiliates, with respect to all matters arising out of the Executive's employment with the Company, in such form as provided by the Company in its sole discretion (the “Release”), and so long as the Executive continues to comply with the provisions of Section 15 below and Exhibit A and Exhibit B, in addition to the Accrued Obligations, the Executive shall be entitled to receive the following:
(i) Continuation of the Executive's Base Salary for eighteen (18) months (the “Severance Term”), at the rate in effect for the year in which the Executive's date of termination occurs, which amount shall be paid in regular payroll installments over the applicable period following the Executive's termination date; and
(ii) A prorated Annual Bonus for the year in which the Executive's termination of employment occurs, which shall be determined by multiplying the Executive's Target Incentive Bonus (defined below) by a fraction, the numerator of which is the number of days during which the Executive was employed by the Company in the year in which the termination date occurs and the denominator of which is 365. The prorated Annual Bonus, if any, shall be 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.
(iii) A portion of the unvested PSUs which would have vested if the vesting period for the PSUs ended on the date of termination, based upon the actual level of performance through the termination date, shall vest as of the date immediately prior to the termination date (the “Accelerated PSUs”). Shares subject to the Accelerated PSUs shall be issued to the Executive no later than March 15th of the calendar year following the end of the applicable performance vesting period.
(iv) A portion of the unvested Time Based RSUs, and each other equity incentive award granted to Executive that is subject to time-based vesting but not performance based vesting, that would have become vested during the twelve (12) month period following the termination date, had the termination of employment not occurred, shall vest as of the date immediately prior to the termination date.
(v) 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 (the “Monthly COBRA Costs”) and the period of COBRA health care continuation coverage 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 period provided further that, notwithstanding the foregoing, the amount of any benefits provided by this subsection(c)(v) shall be reduced or eliminated to the extent the Executive becomes entitled to duplicative benefits by virtue of the Executive’s subsequent or other employment; and provided further that, notwithstanding the foregoing, if the Company's making payments under this Section 7(c)(v) would violate any nondiscrimination rules applicable to the Company's group health plan under which such coverage is made available, or result in 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)(v) in a manner as is necessary to comply with such requirements and avoid such penalties.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. (a) The Employee’s Board of Directors of the Corporation may, without Cause (as hereafter defined), terminate the Executive's employment hereunder may also be terminated by the Company under this Agreement at any time in any lawful manner by giving not less than thirty (30) days written notice to the Executive. The Executive may resign for Good Reason (as hereafter defined) at any reason time by giving not less than thirty (30) days written notice to the Corporation. If the Corporation terminates the Executive's employment without Cause or by the Employee Executive resigns for “Good Reason”, then in either event:
(i) The Executive shall be paid a lump sum within thirty (30) days of the date her employment terminates equal to the sum of (A) her salary through the date of termination, (B) any bonus earned by Executive, but not paid on the date her employment terminates, and (C) an amount equal to the last bonus paid to the Executive before her employment terminates, multiplied by a fraction, the numerator of which is the number of days that elapse between January 1 of the year in which her employment terminates and the date her employment terminates, and the denominator of which is three hundred sixty-five (365).
(ii) The Executive shall be paid for the remainder of the then current term of this Agreement, at such times as payment was theretofore made, the salary required under Section 4(a) that the Executive would have been entitled to receive during the remainder of the then current term of this Agreement had such termination not occurred;
(iii) Within thirty (30) days after her employment terminates, the Executive shall be paid an amount equal to three times the highest annual bonus paid to her during the three calendar years that precede the date that her employment terminates;
(iv) The Corporation shall maintain in full force and effect for the continued benefit of the Executive for the remainder of the then current term of this Agreement, all employee welfare benefit plans and programs or arrangements in which the Executive was entitled to participate immediately prior to such termination, provided that continued participation is possible under the general terms and provisions of such plans and programs. In the event that Executive's participation in any such plan or program is barred, the Corporation shall arrange to provide the Executive with benefits substantially similar to those which the Executive was entitled to receive under such plans and program; and
(v) The Corporation shall pay to the Executive the cost, in an amount not to exceed 20% of Executive's annual base salary in effect immediately prior to the termination of her employment of professional services rendered to Executive within six months following termination of her employment, as and when such costs are incurred.
(b) For purposes of this Agreement, the Employee shall have “"Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” " shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreement.mean:
Appears in 1 contract
Samples: Employment Agreement (Southern Financial Bancorp Inc /Va/)
Termination Without Cause; Resignation for Good Reason. The EmployeeEmployer may terminate the Executive’s employment hereunder may also be terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”Cause. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) The Executive may initiate a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place termination of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation resigning for Good Reason. If Upon termination by the Employee gives notice of his intent to terminate his employment with Employer without Cause or resignation by the Executive for Good Reason, the Employee Executive shall first provide written notice be entitled to receive any accrued but unpaid Base Salary and business or other expenses incurred up to the Companydate of termination and reimbursable pursuant to Section 5(a) and/or Section 5(b), which notice specifically identifies and any benefits accrued and due under any applicable benefit plans and programs of the Employer, including any vested Options or Restricted Stock (“Accrued Obligations”), with such Accrued Obligations paid regardless of whether the Executive executes or revokes a written Agreement and Release (as defined below). In addition, in the event or circumstances giving rise to that the Good Reason for which the Employee Executive is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment terminated without Cause by the Employer or the Employee terminates his employment resigns for Good Reason, the Employer shall deliver to the Executive within five (15) days of such termination or resignation an Agreement and Release and in consideration for the Executive’s compliance with the undertakings set forth in Section 14(a) and in the other provisions of Section 14, if the Executive executes and delivers to the Company shall provide the Employee with at least sixty Agreement and Release within fifty (6050) days’ notice (which time period may be shortened by mutual agreement days of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the CompanyExecutive’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay does not revoke such Agreement and Release such that it becomes effective by its terms prior to the Employee sixtieth (60th) day following the Executive’s termination of employment, the Executive shall be entitled to receive, in lieu of any payments under any severance plan or program for employees or executives, the following:
(a) a severance cash payment equal to one (1) times the greater of (i) the amount he would be entitled to under Company policy Executive’s annual Base Salary as in effect at on the time of termination, and (ii) his Base Salary plus date on which the greater of his target bonus under Section 7(b) hereof and Executive’s employment is effectively terminated with the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period Company (the “Severance Payment Termination Date”), plus one (1) times the Executive’s Target Bonus, with the sum of those two amounts payable immediately on the sixtieth (60th) day after the Executive’s Termination Date, provided Executive does not revoke such Agreement and Release prior to such date;
(b) reimbursement in cash equal to 100% of the COBRA premiums incurred by the Executive for the Executive and his eligible dependents under the Employer’s health plans during the twelve (12) month period following the Executive’s termination of employment. As a condition Such reimbursement shall be provided on the payroll date immediately following the date on which the Executive remits the applicable premium payment and provides proof of payment to receiving the Severance Payment, the Employee will be required to execute and deliver the Company, and shall commence within sixty (60) days after the Executive’s standard release agreement (Termination Date; provided that the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over first payment shall include any reimbursements that would have otherwise been payable during the period of time covered thereby following beginning on the effective Executive’s Termination Date and ending on the date of the Release Agreement on first reimbursement payment. If the CompanyCompany so determines in its sole discretion, or to the extent required by law, reimbursement payments shall be treated as taxable compensation to the Executive;
(c) accelerated vesting of any Options, Anti-Dilution Options and Restricted Shares granted pursuant to Section 2(c) that remain unvested as of the date of the Executive’s regularly scheduled payroll payment datestermination of employment, subject to the terms and conditions of the Equity Plan, including the minimum vesting provisions set forth therein, and in accordance with the terms of applicable grant agreement, including all vesting provisions therein; and
(d) the Release AgreementEmployer shall have no additional obligations to the Executive.
Appears in 1 contract
Samples: Employment Agreement (Altisource Asset Management Corp)
Termination Without Cause; Resignation for Good Reason. The Employee(i) If the Executive’s employment hereunder may also be is terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment Executive should resign for Good Reason, prior to the expiration of the Term, he shall be entitled to receive: (1A) the Salary provided for in Section 3(a) as accrued through the date of such resignation or termination; (B) any unreimbursed expenses; and, subject to the Executive’s execution and delivery of a general release of all claims against the Company and its affiliates, which release shall provide be consistent with the Employee with at least terms of this Agreement (the “Release”), within sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the days following termination of employment: (C) a lump sum payment on the 60th day following the Executive’s termination of employment of a pro rata portion of his annual and long term performance bonuses (other than the EBITDA Award set forth in Section 4(a) of this Agreement) for the year in which he is terminated as if 100% of the performance targets were met, and (5D) a lump sum payment on the Company shall pay to 60th day following the Employee a severance payment Executive’s termination of employment equal to the greater of (ix) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination annual base salary for the remainder of the TermExecutive’s employment contract or (y) two (2) times the sum of the Executive’s annual base salary and maximum annual performance bonus, but (E) immediate vesting of all equity awards granted to the Executive by the Company (other than the EBITDA Award set forth in Section 4(a) of this Agreement) and (F) the immediate lapse of all lock-up restrictions on all of the Executive’s stock in the Company . Subject to the Executive’s execution and delivery of 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 day which is 24 months following the termination date (such period, the "Continuation Period") and (ii) such time as the Executive is entitled to comparable benefits provided by a subsequent employer. Anything herein to the contrary notwithstanding, the Company shall have no event obligation to continue to maintain during the Continuation Period 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 a 12-month period 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) Except as may be provided under the terms of any applicable grants to the Executive, under any plan or arrangement in which the Executive participates or except as may be otherwise required by applicable law, including, without limitation, the provisions of Section 4980B(f) of the Internal Revenue Code of 1986, as amended (the “Severance Payment Code”). As a condition to receiving the Severance Payment) or as set forth under Section 17, the Employee will 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 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 contrary in this Agreement, the right of the Executive to receive payments provided for in this Section 7(b) shall be required subject to execute and deliver Section 8 of this Agreement. In addition, the Company’s standard release agreement 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 amounts owed by the Executive to the Company or its affiliates.
(iii) The date of termination of employment by the “Release Agreement”Company pursuant to this Section 7(b) within 30 shall be the date specified in the written notice of termination from the Company to the Executive or, if no date is specified therein, ten business days after receipt by the Executive of the Date written notice of Terminationtermination from the Company. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective The date of a resignation by the Release Agreement on Executive pursuant to this Section 7(b) shall be the Company’s regularly scheduled payroll payment datesdate specified in the written notice of resignation from the Executive to the Company or, and in accordance with if no date is specified therein, ten business days after receipt by the terms Company of the Release Agreementwritten notice of resignation from the Executive.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee(i) Except as set forth in Section 4(d), if prior to the expiration of the Term, the Executive’s employment hereunder may also be is terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates Executive resigns from his employment hereunder for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued Executive, within 15 business days of such termination or vested compensationresignation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance lump sum payment equal to the greater Accrued Amounts and a pro rata (based on the number of days employed in the year of termination or resignation) bonus for the fiscal year in which his termination or resignation occurs based on the average of the annual bonuses paid to the Executive for the two years immediately preceding the date of the Executive’s termination or resignation (the “Average Bonus”). The Executive shall also receive the following benefits:
(A) Three times the sum of (i) his Base Salary (at the amount he would be entitled to under Company policy rate in effect at on the time date of termination, the Executive’s termination or resignation) and (ii) the Average Bonus. The payments shall be made in a lump sum cash payment within 15 business days after such termination or resignation;
(B) Continued participation under the Company’s medical insurance plans and programs as in effect for senior executive officers from time to time, for a period of three years following his Base Salary plus termination or resignation of employment, or until such date as Executive becomes eligible to participate in the greater plans of a subsequent employer; and
(C) Notwithstanding any provision in the applicable equity award plan or agreement, all unvested equity awards and deferred compensation held by the Executive as of his target bonus under Section 7(b) hereof date of termination or resignation shall vest immediately and the actual bonus paid to him in date of such termination or resignation shall be considered the year end of the Term preceding termination for the remainder of the Term, but measurement period and a valuation date under any Outperformance Compensation Program and any awards thereunder shall be settled in no event less than a 12-month period fully vested shares (collectively the “Severance Payment Accelerated Vesting”). As a condition Stock options (and equivalent awards) shall remain exercisable until the applicable expiration dates provided in the applicable plan and award agreement, and all other equity awards will settle and be paid as soon as reasonably practicable following the Executive’s termination or resignation and in any event no later than 15 business days. The Executive shall have no further rights under this Agreement or otherwise to receiving the Severance Payment, the Employee will receive any other compensation or benefits after such termination or resignation of employment.
(ii) The Company shall not be required to execute make the payments and deliver provide the benefits provided for under Section 4(b) (excluding the Accrued Amounts and pro rata Average Bonus), unless the Executive executes and delivers to the Company’s standard , a waiver and release agreement in the form previously delivered to the Executive by the Company and such waiver and release becomes effective and irrevocable.
(iii) If, following a termination of employment without Cause, the “Release Agreement”) within 30 days Executive materially breaches the provisions of the Date of Termination. Subject to Section 20 Sections 6, 7, 8, 9, 11 and 12 hereof, the Severance Payment will Executive shall no longer be paid over eligible, as of the period of time covered thereby following the effective date of such breach, for the Release Agreement on the Company’s regularly scheduled payroll payment datespayments and benefits described in Section 4(b), and in accordance with the terms any and all obligations and agreements of the Release AgreementCompany with respect to such payments shall thereupon cease.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The If the Employee’s employment hereunder may also be with the Company is terminated by the Company at any time for any reason without Cause (as defined in Section 4.3), or by the Employee’s voluntary resignation for Good Reason (as defined in Section 4.2), other than in connection with a Change in Control (as defined in Section 7.2(a)), then the Employee for shall be paid all accrued and unpaid base salary and any accrued but unused vacation through the date of termination. In addition, subject to the Employee’s execution and non-revocation of a binding severance and mutual release agreement in a form satisfactory to the Company (hereinafter, a “Good ReasonSeverance Agreement”. For purposes ) and subject to the terms and conditions of Section 18 of this Agreement, the Employee shall have “Good Reason” be eligible to terminate his employment hereunder upon receive the following separation benefits:
(a) an amount equal to the product of (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen one twelfth (151/12) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee’s then-current annualized base salary (provided, which consent may be revoked at any time) in however, that if Employee’s employment is terminated by the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status voluntary resignation for Good Reason as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one result of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation material reduction of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newarkbase salary, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of then the Employee’s employment not then-current annualized base salary shall refer to his base salary as in accordance with the terms hereof; or effect immediately before such material reduction took effect) and (viiii) six (6), less any “Change in Control” of the Company. For purposes of this Agreementamounts required to be withheld under applicable law, a “Change in Control” shall mean and which amount shall be deemed to have occurred if payable in six (A6) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934substantially equal monthly installments, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedurespayroll practices in effect from time to time beginning on the Payment Commencement Date (as defined below), ; and (4b) all awards theretofore granted the amount of any bonus for the prior year that was approved but not yet paid to the Employee under at the Company's incentive plans shall continue to vest (and time of the restrictions thereon lapse) on their then existing schedule notwithstanding the Employee’s termination of employment, less any amounts required to be withheld under applicable law, which amount shall be paid in a manner and (5) timing consistent with the Company shall pay payments to other similarly situated employees and consistent with the Employee a severance payment equal to the greater requirements of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year 409A of the Term preceding termination for the remainder Internal Revenue Code of the Term1986, as amended, but in no event less later than a 12-month March 15 of the year following the year of performance; provided, in both cases, that the Severance Agreement has been executed and any applicable revocation period with respect thereto has expired within sixty (60) days following the Employee’s date of termination (such 60th day, the “Severance Payment Commencement Date”). As a condition to receiving ; provided, however, that if the Severance Payment60th day following the Employee’s date of termination occurs in the calendar year following the year of termination, then the Employee will Payment Commencement Date shall be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days no earlier than January 1 of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby year following the effective date year of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreement.termination; and
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. (i) The EmployeeCompany may terminate Principal Accounting Officer’s employment hereunder may also be terminated by with the Company at any time without Cause (as defined below). Further, Principal Accounting Officer may resign at any time for Good Reason (as defined below).
(ii) In the event Principal Accounting Officer’s employment with the Company is terminated by the Company without Cause, or Principal Accounting Officer resigns for Good Reason, then provided such termination constitutes a “separation from service” (as defined under Treasury Regulation Section 1.409A-1(h), without regard to any reason alternative definition thereunder, a “Separation from Service”), and provided that Principal Accounting Officer remains in compliance with the terms of this Agreement and the Company’s policies applicable to Principal Accounting Officer and satisfies the requirements set forth in Section 4, then Principal Accounting Officer shall receive the following severance benefits:
(a) Severance (the “Severance”) in an amount equal to twenty-six weeks of Base Salary as in effect immediately prior to the separation date. The Severance shall be subject to standard payroll deductions and withholdings, and will be payable in a lump-sum on the 60th day following Principal Accounting Officer’s Separation from Service.
(b) Six months accelerated vesting of all of Principal Accounting Officer’s equity interests in the Company.
(iii) If Principal Accounting Officer’s termination without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing occurs as a result of or immediately prior to the occurrence closing of the event giving rise to the claim of a Change-in-Control (and provided such termination or resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commissionconstitutes a Separation from Service), and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (provided that Principal Accounting Officer remains in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance compliance with the terms of this Agreement and the Release AgreementCompany’s policies applicable to Principal Accounting Officer and satisfies the requirements set forth in Section 4, then in lieu of the benefits set forth in Section 3.2(ii)(a) and (b), Principal Accounting Officer shall receive the following severance benefits:
(a) Severance in an amount equal to the sum of the following (shall be subject to standard payroll deductions and withholdings, and payable in a lump-sum on the 60th day following Principal Accounting Officer’s Separation from Service):
(1) Fifty-two weeks of Base Salary as in effect immediately prior to the separation date; and
(2) Target bonus equal to the product of (A) Principal Accounting Officer’s Base Salary as in effect immediately prior to the separation date, multiplied by (B) Principal Accounting Officer’s annual bonus percentage target as in effect immediately prior to the separation date.
(b) The vesting of all of Principal Accounting Officer’s equity interests in the Company shall be accelerated such that all equity interests shall be deemed vested and exercisable as of Principal Accounting Officer’s last day of employment.
Appears in 1 contract
Samples: Employment Agreement (Lipocine Inc.)
Termination Without Cause; Resignation for Good Reason. The Employee’s employment hereunder may also be terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) If, prior to the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent expiration of the EmployeeTerm, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as Executive incurs a senior executive officer of the Company, or the designation Separation from Service by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one reason of the Company’s principal divisions (as described in termination of the CompanyExecutive’s periodic filings made with the Securities and Exchange Commission)employment without Cause, or as a result of his resignation for Good Reason, then the Executive shall receive the Other Accrued Compensation and Benefits and, subject to Section 4(e):
(C) Chief Operating Officer of the Company; (ivA) the relocation of Company shall continue to pay the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of Executive the New York City metropolitan areas; (v) the assignment of duties inconsistent Base Salary and Automobile Payment in accordance with the Company’s rules, policies or procedures, including without limitation, ordinary payroll practices in effect from time to time for a period equal to the Company’s Code of Business Conduct greater of: (i) twelve (12) months; and Ethics; (viii) any purported termination the remainder of the EmployeeTerm, with payments commencing on the 60th day following the Executive’s employment not in accordance with Separation from Service (the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amendedSeverance Period”), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or ;
(B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee Executive with at least sixty cash payments equal to a pro-rated Target Bonus (60i) days’ notice for time worked up through the termination date and for which a bonus has not yet been paid; and (which time period may be shortened by mutual agreement ii) in respect of the parties) Severance Period, in each case at such intervals as the same would have been paid had the Executive remained in the active service of its intent the Company; provided, however, that in no event will payment commence prior to terminate this Agreement without Cause; the 60th day following the Executive’s Separation from Service;
(2C) the Company shall provide the Executive and his eligible dependents with continued participation in the Company’s group medical plans during the Severance Period or, in the event such participation is not permitted, the Company shall pay for the cost of continuing medical insurance coverage for the Executive and his eligible dependents under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”). The Executive shall continue to be obligated to pay his share of premiums, deductibles and co-payments which may be deducted from the Employee all accrued or vested compensationpayment made pursuant to this Section 4(c)(i)(C) in the same manner as if the Executive were actively employed. In the event that the Executive obtains subsequent employment and is eligible to participate in the group medical plans of his new employer, including salary, commissionthe Executive agrees to notify the Company promptly, and bonus(es) through any coverage provided under the Date of TerminationCompany’s group medical plans, or COBRA payments, as the case may be, shall terminate when coverage under the new employer’s medical plans become effective;
(3D) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest pay the life insurance premiums contemplated by Section 3(i);
(and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5E) the Company shall pay continue to provide the Executive with the Fringe Benefits;
(F) in the event the Aggregate Contribution has not yet been made to the Employee a severance payment equal Retirement Plan as of the date of the Separation from Service, the Company will continue to make monthly contributions to the greater of (i) Retirement Plan for the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year duration of the Term preceding termination for Severance Period, up to a maximum contribution of $1,000,000 over the remainder of the Term, but Severance Period; provided that in no event less than a 12-month period shall the total amount contributed to the Retirement Plan exceed the Aggregate Contribution; and
(the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee G) all outstanding equity will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and treated in accordance with the terms of the Release AgreementLTIP or the applicable award letters.
(ii) The Executive agrees that the provisions of Section 4(c) are fair and reasonable and that if his employment is terminated without Cause or he resigns for Good Reason he shall have no further right to receive any other compensation or benefits.
Appears in 1 contract
Samples: Employment Agreement (Imax Corp)
Termination Without Cause; Resignation for Good Reason. The Employee’s employment hereunder may also be terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) If, prior to the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent expiration of the EmployeeTerm, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as Executive incurs a senior executive officer of the Company, or the designation Separation from Service by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one reason of the Company’s principal divisions termination of the Executive’s employment without Cause, or as a result of his resignation for Good Reason (as described defined in the Company’s periodic filings made with the Securities and Exchange CommissionSection 5), or then the Executive shall receive the Other Accrued Compensation and Benefits and, subject to Section 4(f):
(C) Chief Operating Officer of the Company; (ivA) the relocation Company shall continue to pay the Executive the Base Salary and Automobile Payment (at the rate in effect on the date of the Employee’s principle place of employment to a location more than thirty-five (35termination) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent in accordance with the Company’s rules, policies or procedures, including without limitation, ordinary payroll practices in effect from time to time for the Company’s Code a period equal to the greater of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group eighteen (within the meaning of Rule 13d-3 of the rules 18) months and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders remainder of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rightsTerm, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding payments commencing on the foregoing, a termination shall not be treated as a resignation for Good Reason if 60th day following the Employee shall have consented in writing to Executive’s Separation from Service (the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety “Severance Period”);
(90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1B) the Company shall provide the Employee Executive with at least a cash amount equal to the Target Bonus, pro-rated based on the number of calendar days remaining in the year in which the Executive’s employment is terminated without Cause or the Executive resigns for Good Reason, and a cash amount equal to the Target Bonus for each full year remaining during the Term, with payment to be made on January 15th of the year following the year to which the Target Bonus relates; provided, however, that in no event will payment commence prior to the 60th day following the Executive’s Separation from Service;
(C) the Company shall provide the Executive and his eligible dependents with continued participation in the Company’s group medical plans applicable to other senior executives (as in effect from time to time) during the Severance Period or, in the event such participation is not permitted, a cash payment equal to the value of the benefit continuation, payable in three semi-annual installments beginning sixty (60) days’ notice (days following the Executive’s Separation from Service. The Executive shall continue to be obligated to pay his share of premiums, deductibles and co-payments which time period may be shortened by mutual agreement deducted from the payment made pursuant to this Section 4(c)(i)(C) in the same manner as if the Executive was actively employed. In the event that the Executive obtains subsequent employment and is eligible to participate in the group medical plans of his new employer, the parties) of its intent Executive agrees to terminate this Agreement without Cause; (2) notify the Company shall pay to the Employee all accrued or vested compensation, including salary, commissionpromptly, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with any coverage provided under the Company’s normal business expense reimbursement procedures), group medical plans shall terminate when coverage under the new employer’s medical plans become effective.
(4D) all awards theretofore Options and RSUs that have not yet been granted or have not yet vested shall be treated as follows:
1. If the termination without Cause or resignation for Good Reason occurs prior to the Employee under 2020 grant, the Company's incentive plans shall continue entire 2020 grant (Options and RSUs) is forfeited;
2. If the termination without Cause or resignation for Good Reason occurs prior to vest (the 2019 grant, the 2019 Option grant is forfeited and the restrictions thereon lapse) on their then existing schedule notwithstanding the 0000 XXX grant is granted with immediate vesting;
3. Except as set forth above, all Unvested Equity Awards following a termination of employment, without Cause or resignation for Good Reason survive and (5) the Company shall pay vest immediately; and
4. The Executive will have 12 months after a termination without Cause or resignation for Good Reason to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and exercise vested Options.
(ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance PaymentExcept as otherwise provided herein, the Employee will be required Executive shall have no further right to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days receive any other compensation or benefits after such termination of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreementemployment without Cause or resignation for Good Reason.
Appears in 1 contract
Samples: Employment Agreement (Imax Corp)
Termination Without Cause; Resignation for Good Reason. The Employee(i) If, prior to the expiration of the Term, the Executive’s employment hereunder may also be with the Company Group is terminated by the Company at any time Group without Cause or if the Executive resigns from his employment hereunder for any reason Good Reason, then in addition to the amounts set forth in Section 6(a), the Executive shall be entitled to the following payments (collectively, the “Severance Payments”): (A) a pro rata portion of the Bonus for the year in which the termination or resignation occurs calculated by multiplying (x) the Bonus for the year of termination (based and on the assumption that all performance targets have been or will be achieved) by (y) a fraction, the numerator of which is the number of days the Executive was employed during the year of termination and denominator of which is 365; and (B) a payment equal to the Applicable Multiple (as defined below) times the sum of (x) the Reference Salary, (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 resignation for Good Reason occurs prior to a Change in Control of the Company (as defined in Section 7(b)), and (B) three, in the event the termination without Cause or resignation for Good Reason occurs on or after a Change in Control of the Company; provided, however, that, if within six months prior to the date on which a Change in Control occurs, the Executive’s employment with the Company Group is terminated by the Company without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment Executive for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver and it is reasonably demonstrated that such termination of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or Good Reason event was in contemplation of the Employee terminates his employment for Good ReasonChange in Control, (1then the Applicable Multiple shall be three, but the Severance Payments then payable shall be reduced by any Severance Payments previously paid to the Executive under this Section 6(c) by the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement Group as a result of such termination or resignation of employment and any remaining portion of the parties) of its intent to terminate this Agreement without Cause; (2) the Company Severance Payments shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect payable at the time of terminationcontemplated by Section 6(c)(ii) or, and (ii) his Base Salary plus if such date has already occurred, on the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and Change in accordance with the terms of the Release AgreementControl.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The EmployeeIn the event that the Employer terminates the Executive’s employment hereunder may also be terminated by during the Company at any time for any reason Term without Cause “Cause” or by the Employee Executive resigns for “Good Reason”. For purposes , then the Executive shall be entitled to no compensation or other benefits of this Agreementany kind whatsoever, the Employee shall have “Good Reason” to terminate his employment hereunder upon other than: (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the EmployeeAccrued Obligations; (ii) a reduction by the Company Severance Amount (without defined below), which Severance Amount shall be payable, subject to Section 16, in equal installments over the consent Severance Period (defined below) in accordance with the Employer’s normal payroll practices, commencing on the first regular pay date of the Employee, which consent may be revoked at any time) in Employer that occurs after the Employee’s Base Salary, or substantial reduction in the other benefits provided to the EmployeeTermination Date; (iii) the assignment Executive's stock options and/or restricted shares granted to the Employee of duties inconsistent with Executive during the Employee’s status Term (to the extent not fully vested as a senior executive officer of the CompanyTermination Date), or shall become fully vested as of the designation Termination Date, and the Executive shall be permitted to exercise such options for up to twelve months following the Termination Date (unless otherwise agreed to by the Company of Executive and the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described Employer in the Company’s periodic filings made with case of any stock options or restricted shares granted after the Securities Effective Date); and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) if the relocation of Executive elects COBRA Coverage following the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitationTermination Date, the Company’s Code Employer shall waive the cost of Business Conduct such coverage (for the Executive and Ethics; his eligible dependents) during the Severance Period (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Companysuch earlier date that COBRA coverage expires). For purposes the avoidance of doubt, nothing in clause (iii) of this Agreement, a “Change Section 5(b) shall apply to the Earnout Shares or the Escrow Shares (each as defined in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of SPA). If the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment Executive resigns for Good Reason prior to the expiration of the Second Earnout Period (as defined in the SPA), then, notwithstanding anything in the SPA to the contrary, the Employer’s obligation to pay the Earnout Consideration on the Separation Date (as each such term is defined in the SPA) pursuant to Section 2.5(r) of the SPA shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason suspended if the Employee shall have consented Employer disputes in writing to good faith the occurrence existence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide by delivering a detailed written notice of the basis of such dispute to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, Executive within ninety five (905) days of when such event or circumstance giving rise to after the Good Reason becomes effective or transpiresTermination Date. The suspension shall, without further action, notice or deed, be lifted and the Earnout Consideration, together with accrued and unpaid interest thereon, shall be due and payable immediately upon the earliest to occur of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30x) business days of its receipt mutual written agreement of the noticeEmployer and the Executive, (y) a court of competent jurisdiction shall determine that the EmployeeExecutive’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment was for Good Reason, or (1z) a Default or an Event of Default (as each of those terms is defined in that certain Financing Agreement, of even date herewith, by and among the Company Employer, as borrower, the guarantors from time to time party thereto, the lenders party thereto and Victory Park Management, LLC, as agent, as in effect on the date hereof) shall provide have occurred (whether or not waived, cured or otherwise resolved). Interest shall accrue on the Employee with Earnout Consideration from and after the Termination Date, at least sixty (60) days’ notice (which time period may be shortened by mutual agreement the rate of 10% per annum, until the parties) date of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (indefeasible payment in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreementfull.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. (i) The EmployeeCompany may terminate Executive’s employment hereunder may also be terminated by with the Company at any time without Cause. Further, Executive may resign at any time for any reason without Cause or Good Reason (as defined below).
(ii) In the event Executive’s employment with the Company is terminated by the Employee Company without Cause, or Executive resigns for “Good Reason, then provided such termination constitutes a “separation from service” (as defined under Treasury Regulation Section 1.409A-1(h), without regard to any alternative definition thereunder, a “Separation from Service”. For purposes ), and provided that Executive satisfies the Release Requirement in Section 7 herein, and remains in compliance with the terms of this Agreement, the Employee Company shall have provide Executive with the following “Severance Benefits”:
(a) Either (a) a lump sum cash payment equal to Executive’s annual Base Salary at the time of employment termination (without giving effect to any reduction in Base Salary that would give Executive the right to resign for Good Reason” ), to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured be paid by the Company within fifteen (15) days of its receipt of written notice thereof from on the Employee; (ii) a reduction by first payroll period following the Company (without the consent Effective Date of the EmployeeRelease, which consent may be revoked at any timeless applicable deductions and withholdings, (the “Lump Sum Payment”); or (b) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of if the Company, or in the designation by the Company good faith discretion of the Employee Board, is unable to make the Lump Sum Payment at the time of employment termination due to a lack of sufficient operating funds, an amount equal to Executive’s annual Base Salary (without giving effect to any position or capacity other than reduction in Base Salary that would give Executive the right to resign for Good Reason) to be paid in substantially equal installments on a monthly basis during the nine (A9) Chief Financial Officer month period following the employment termination date (the “Monthly Installment Payments”); provided that, in each case, any payments scheduled to be made prior to the Effective Date of the Company, (B) Chief Financial Officer of one Release shall instead accrue and be paid in a single lump sum during the first payroll period following the Effective Date of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunderRelease. Notwithstanding the foregoing, the Company may elect to make the Monthly Installment Payments in lieu of the Lump Sum Payment only if an exemption is available from application of Section 409A of the Code with respect to such payments so that such payment schedule will not result in adverse tax consequences to Executive under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”).
(b) Either (a) a lump sum cash payment in an amount equal to the average of the Annual Bonus payment Executive received from the Company during the last three years of employment completed prior to the year of the employment termination, pro rated based on the number of days Executive worked during the fiscal year of the employment termination, divided by 365 (the “Severance Bonus Payment”), to be paid by the Company on the first payroll period following the Effective Date of the Release, less applicable deductions and withholdings (the “Lump Sum Bonus Payment”); or (b) if the Company, in the good faith discretion of the Board, is unable to make the Lump Sum Bonus Payment at the time of employment termination due to a lack of sufficient operating funds, an amount equal to Executive’s Severance Bonus Payment to be paid in substantially equal installments on a monthly basis during the nine (9) month period following the employment termination date (the “Monthly Installment Bonus Payments”); provided that, in each case, any payments scheduled to be made prior to the Effective Date of the Release shall instead accrue and be paid in a single lump sum during the first payroll period following the Effective Date of the Release. Notwithstanding the foregoing, the Company may elect to make the Monthly Installment Bonus Payments in lieu of the Lump Sum Bonus Payment only if an exemption is available from application of Section 409A of the Code with respect to such payments so that such payment schedule will not result in adverse tax consequences to Executive under Section 409A of the Code.
(c) If the Company has previously established a group health plan in which Executive participates prior to Executive’s termination and Executive timely elects COBRA coverage following any such termination, the Company will pay Executive for the full amount of such COBRA premiums for himself and his covered dependents (on a monthly basis) for a period of up to twelve (12) months following the date of termination; provided, that, if and to the extent that any benefit described in this Section 6.2(ii)(c) is not or cannot be treated as a resignation for Good Reason if the Employee shall have consented in writing paid or provided under any Company plan or program without penalties or adverse tax consequences to the occurrence Company or for any other reason, as determined by the Company in its sole discretion, then the Company shall pay Executive a fully taxable cash payment equal to the COBRA premium for that month, subject to applicable tax withholding premiums for a period of up to twelve (12) months following the date of termination; provided, further, that the COBRA payments or, if applicable, the taxable monthly payment discussed above, shall terminate on the earliest to occur of (A) the close of the event giving rise to 12-month period following the claim termination of resignation Executive’s employment; (B) the expiration of Executive’s (or Executive’s dependents’) eligibility for Good Reasoncontinuation coverage under COBRA; and (C) the date when Executive becomes eligible for group health insurance coverage in connection with new employment or self-employment. If Executive becomes eligible for coverage under another employer’s group health plan or otherwise ceases to be eligible for COBRA coverage during the Employee gives notice of his intent to terminate his employment with Good Reasonperiod provided in this Section 6.2(ii)(c), the Employee shall first Executive must immediately provide written notice to the Company of such event, and the Company-provided COBRA payments, which notice specifically identifies or if applicable, the monthly payments under this Section 6.2(ii)(c) shall immediately cease.
(iii) Furthermore, in the event or circumstances giving rise Executive’s employment with the Company is terminated by the Company pursuant to the Good Reason for which the Employee is terminating his employmentSection 6.2(ii), in either case, within ninety three (903) days months immediately preceding or twelve (12) months immediately following the consummation of when such event or circumstance giving rise to a Change in Control (as defined below), in lieu of (and not additional to) the Good Reason becomes effective or transpires. The notice severance benefits described in Section 6.2(ii), and provided that Executive satisfies the Release Requirement in Section 7 herein and remains in compliance with the terms of Good Reason must give this Agreement, the Company shall instead provide Executive with the opportunity following benefits (the “Change in Control Severance Benefits”). For the avoidance of doubt: (A) in no event will Executive be entitled to cure severance benefits under Section 6.2(ii) and this Section 6.2(iii), and (B) if the Company fails has commenced providing severance benefits to cure within thirty Executive under Section 6.2(ii) prior to the date that Executive becomes eligible to receive Change in Control Severance Benefits under this Section 6.2(iii), the benefits previously provided to Executive under Section 6.2(ii) of this Agreement shall reduce the severance benefits provided under this Section 6.2(iii):
(30a) business days Either (a) a lump sum cash payment equal to eighteen (18) months of its receipt Executive’s annual Base Salary at the time of employment termination (without giving effect to any reduction in Base Salary that would give Executive the right to resign for Good Reason), to be paid by the Company on the first payroll period following the Effective Date of the noticeRelease, less applicable deductions and withholdings (the “Lump Sum CIC Payment”); or (b) if the Company, in the good faith discretion of the Board, is unable to make the Lump Sum Payment at the time of employment termination due to a lack of sufficient operating funds, an amount equal to eighteen (18) months of Executive’s annual Base Salary (without giving effect to any reduction in Base Salary that would give Executive the right to resign for Good Reason) to be paid in substantially equal installments on a monthly basis during the nine (9) month period following the employment termination date, less applicable deductions and withholdings (the “Monthly CIC Installment Payments”); provided that, in each case, any payments scheduled to be made prior to the Effective Date of the Release shall instead accrue and be paid in a single lump sum during the first payroll period following the Effective Date of the Release. Notwithstanding the foregoing, the EmployeeCompany may elect to make the Monthly CIC Installment Payments in lieu of the Lump Sum CIC Payment only if an exemption is available from application of Section 409A of the Code with respect to such payments so that such payment schedule will not result in adverse tax consequences to Executive under Section 409A of the Code.
(b) Either (a) a lump sum cash payment in an amount equal to 150% of the average of the Annual Bonus payment Executive received from the Company during the last three years of employment completed prior to the year of the employment termination, pro rated based on the number of days Executive worked during the fiscal year of the employment termination, divided by 365 (the “CIC Bonus Payment”), to be paid by the Company on the first payroll period following the Effective Date of the Release, less applicable deductions and withholdings, (the “Lump Sum CIC Bonus Payment”); or (b) if the Company, in the good faith discretion of the Board, is unable to make the Lump Sum CIC Bonus Payment at the time of employment termination due to a lack of sufficient operating funds, an amount equal to Executive’s resignation for Good Reason CIC Bonus Payment to be paid in substantially equal installments on a monthly basis during the nine (9) month period following the employment termination date, less applicable deductions and withholdings (the “Monthly CIC Installment Bonus Payments”); provided that, in each case, any payments scheduled to be made prior to the Effective Date of the Release shall instead accrue and be deemed effectivepaid in a single lump sum during the first payroll period following the Effective Date of the Release. Notwithstanding the foregoing, the Company may elect to make the Monthly CIC Installment Bonus Payments in lieu of the Lump Sum CIC Bonus Payment only if an exemption is available from application of Section 409A of the Code with respect to such payments so that such payment schedule will not result in adverse tax consequences to Executive under Section 409A of the Code.
(c) If the Company terminates the Employeehas previously established a group health plan in which Executive participates prior to Executive’s employment without Cause or the Employee terminates his employment for Good Reasontermination and Executive timely elects COBRA coverage following any such termination, (1) the Company shall provide will pay Executive for the Employee with at least sixty full amount of such COBRA premiums for himself and his covered dependants (60on a monthly basis) days’ notice for a period of up to twelve (which time period may 12) months following the date of termination; provided, that, if and to the extent that any benefit described in this Section 6.2(ii)(c) is not or cannot be shortened paid or provided under any Company plan or program without penalties or adverse tax consequences to the Company or for any other reason, as determined by mutual agreement of the parties) of Company in its intent to terminate this Agreement without Cause; (2) sole discretion, then the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee Executive a severance fully taxable cash payment equal to the greater COBRA premium for that month, subject to applicable tax withholding premiums for a period of up to twelve (12) months following the date of termination; provided, further, that the COBRA payments or, if applicable, the monthly payment discussed above, shall terminate on the earliest to occur of (iA) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year close of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period following the termination of Executive’s employment; (B) the “Severance Payment ”expiration of Executive’s (or Executive’s dependents) eligibility for continuation coverage under COBRA; and (C) the date when Executive becomes eligible for group health insurance coverage in connection with new employment or self-employment. If Executive becomes eligible for coverage under another employer’s group health plan or otherwise ceases to be eligible for COBRA coverage during the period provided in this Section 6.2(iii)(c). As a condition , Executive must immediately provide written notice to receiving the Severance PaymentCompany of such event, and the Company-provided COBRA payments, or if applicable, the Employee will be required monthly payments under this Section 6.2(iii)(c) shall immediately cease.
(d) Notwithstanding anything to execute and deliver the contrary set forth in the Company’s standard release agreement (the “Release Agreement”) within 30 days Share Option Plan or form of the Date award agreement, effective as of Termination. Subject to Section 20 hereofExecutive’s employment termination date, the Severance Payment will be paid over vesting and exercisability of all then outstanding unvested stock options, restricted shares or other equity awards then held by Executive shall accelerate such that all shares become immediately vested and exercisable, if applicable, by Executive upon such termination and shall remain exercisable, if applicable, following Executive’s termination as set forth in the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreementapplicable equity award documents.
Appears in 1 contract
Samples: Executive Employment Agreement (Lorus Therapeutics Inc)
Termination Without Cause; Resignation for Good Reason. The Employee(i) If the Executive’s employment hereunder may also be with the Company is terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base SalaryCause, or substantial reduction as a result of his resignation for Good Reason (as defined in Section 5), then the other benefits provided Executive shall receive the Other Accrued Compensation and Benefits, any Bonus earned, but unpaid, for the year prior to the Employee; (iii) the assignment year of termination and, subject to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than Section 4(d):
(A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of Company shall continue to pay the Company’s principal divisions (as described Executive the Base Salary in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent accordance with the Company’s rules, policies or procedures, including without limitationordinary payroll practices in effect from time to time for a period equal to fourteen (14) months (such 14-month period, the Company“Severance Period”), with payments commencing on the 60th day following the Executive’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or employment;
(B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee Executive with at least a cash amount equal to a prorated Bonus, in an amount based on the Executive’s performance, in respect of the number of days, if any, worked by the Executive in the year of termination without Cause, or resignation for Good Reason, for which a bonus has not already been paid. The Company shall also provide the Executive with a Target Bonus for the Severance Period. Both amounts described in this Section 4(c)(i)(B) will be payable on the date on which the Company pays out bonuses to senior executives generally;
(C) the Company shall continue to provide the Executive with the compensation and benefits set forth in Sections 3(d), (e), (f), (g), (h), (i), and (j) for the duration of the Severance Period. In the event that continued participation by the Executive and his eligible dependents in the Company’s group medical plans during the Severance Period is not permitted, the Company will provide the Executive with a cash payment equal to the value of the benefit continuation, payable in three semi-annual installments beginning sixty (60) days’ notice (days following the Executive’s termination of employment. The Executive shall continue to be obligated to pay his share of premiums, deductibles and co-payments which time period may be shortened by mutual agreement deducted from the payment made pursuant to this Section 4(c)(i)(C) in the same manner as if the Executive was actively employed. In the event that the Executive obtains subsequent employment and is eligible to participate in the group medical plans of his new employer, the parties) of its intent Executive agrees to terminate this Agreement without Cause; (2) notify the Company shall pay to the Employee all accrued or vested compensation, including salary, commissionpromptly, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with any coverage provided under the Company’s normal business expense reimbursement procedures), group medical plans shall terminate when coverage under the new employer’s medical plans become effective; and
(4D) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee outstanding equity will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and treated in accordance with the terms of the Release LTIP or the applicable award letters; provided, however, that (a) granted Options, PSUs and RSUs shall continue to vest on schedule during the Severance Period (in the case of PSUs, subject to the achievement of the applicable performance conditions), and (b) all vested Options shall remain exercisable until the first to occur of (i) the passage of six (6) months beyond the end of the Severance Period, and (ii) the expiration of the remaining term of the vested Options.
(ii) The Executive agrees that the provisions of Section 4(c) are fair and reasonable and that if his employment is terminated without Cause, or if the Executive resigns for Good Reason, except for rights to indemnification under Section 3(k) or as otherwise provided in this Agreement, he shall have no further right to receive any other compensation or benefits.
Appears in 1 contract
Samples: Employment Agreement (Imax Corp)
Termination Without Cause; Resignation for Good Reason. The Employee’s employment hereunder may also be terminated by If, prior to the Company at any time for any reason without Cause or by expiration of the Employee for “Good Reason”. For purposes of this AgreementTerm, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured Executive incurs a Separation from Service by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one reason of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the EmployeeExecutive’s employment without Cause or the Employee terminates his employment Executive’s resignation for Good Reason:
(A) The Executive shall receive the Other Accrued Compensation and Benefits, payable in accordance with Company policies and practices and in no event later than thirty (130) days after the Company shall provide Executive’s Separation from Service, unless otherwise expressly set forth in the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) applicable plan, program or agreement. In addition, the Company shall pay the Executive, not later than the date on which the Company pays out bonuses to Company management but not later than March 15th of the year following the year in respect of which it was earned the amount of any Bonus earned for the calendar year preceding the year in which his employment is terminated, to the Employee all accrued or vested compensationextent not theretofore paid.
(B) Company will pay Executive a Bonus for the calendar year in which his employment is terminated, including salary, commissionsuch Bonus to be determined based on actual performance pursuant to the performance goal(s) described in paragraph 3(b) hereof, and bonus(es) then prorated based on the number of calendar days of such year elapsed through the Date date of TerminationExecutive’s termination of employment (the “Pro-Rata Bonus”)
(C) All then outstanding Unvested Equity Awards shall immediately vest in full and the Options shall remain exercisable as follows.
(i) The 2014 Options shall remain exercisable for the shorter of: (x) their original term and (y) five (5) years, at which time the 2014 Options shall be cancelled.
(ii) The 2015 Options shall remain exercisable for the shorter of: (x) their original term and (y) four (4) years, at which time the 2015 Options shall be cancelled.
(iii) The 2016 Options shall remain exercisable for the shorter of: (x) their original term and (y) three (3) years, at which time the Company 2016 Options shall reimburse be cancelled. Upon cancellation, the Employee for unpaid and approved business expenses through such Date of Termination (in accordance Executive shall have no further rights with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted respect to the Employee under the Company's incentive plans shall continue Options.
(D) Other than pursuant to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the those provisions that survive termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Paymentthis Agreement, the Employee will be required Executive shall have no further right to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days receive any other compensation or benefits following his termination of the Date of Termination. Subject employment pursuant to this Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreement4(c).
Appears in 1 contract
Samples: Employment Agreement (Imax Corp)
Termination Without Cause; Resignation for Good Reason. (i) The Employee’s employment hereunder Company may also be terminated by the Company remove Executive at any time for any reason without Cause or from the position in which Executive is employed hereunder upon not less than thirty (30) days’ prior written notice of termination to Executive; provided, however, that, in the event that such notice is given, Executive shall be under no obligation to render any additional services to the Company and shall be allowed to seek other employment. In addition, Executive may initiate termination of employment by the Employee resigning under this Section 4(a) for “Good Reason”. For purposes of this Agreement, the Employee Executive shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by give the Company within fifteen not less than thirty (1530) days of its receipt of days’ prior written notice thereof from the Employee; of termination of such resignation.
(ii) a reduction by Upon any removal or resignation described in Section 4(a)(i) above, the Company (without the consent Executive shall be entitled to receive, upon execution of the EmployeeRelease, which consent may be revoked at any timefor a period of twelve (12) months a monthly cash payment equal to the monthly portion of the Executive’s Annual Base Salary in effect immediately before the EmployeeExecutive’s separation from service (“Termination Annul Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission”), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated however, if as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to Executive’s removal or resignation described in Section 4(a)(i) above the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee Executive is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt a “specified employee” under Section 409A of the notice, Code the Employee’s resignation for Good Reason Executive shall be deemed effective. If receive the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, severance payments specified in this section (4)(a)(ii) as follows:
(1) for the Company first six months following his removal or resignation described in Section 4(a)(i) above, Executive shall provide the Employee with at least sixty receive one sixth (601/6) days’ notice (which time period may be shortened by mutual agreement of the partieslesser of (i) six monthly payments of its intent Executive’s Termination Annual Base Salary or (ii) the amount equal to terminate this Agreement without Cause; two (2) times the maximum amount that may be taken into account under a qualified plan pursuant to Section 401(a)(17) of the Code, for the year in which Executive terminates employment;
(2) upon the six (6) month anniversary of Executive’s removal or resignation described in Section 4(a)(i) above, Executive shall receive a lump sum payment equal to six (6) monthly payments of Executive’s Termination Annual Base Salary reduced by the amount Executive was paid under subsection 4(a)(ii)(1) above;
(iii) Upon any removal or resignation described in Section 4(a)(i) above, the Executive shall also receive:
(1) A pro rated bonus for the year in which the Executive’s termination of employment occurs. The pro rated bonus shall be based on the Executive’s highest target percentage annual bonus for the year in which the Executive’s termination occurs, 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 his termination and the denominator of which is three hundred sixty five (365). Payment of the pro rated bonus shall pay be made to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through Executive at the Date of Termination, (3) time the Company would have paid a bonus, if any, to the Executive for services performed for the year in which the Executive’s termination of employment occurs, but by no later than March 15 of the year following the year of termination.
(2) The Executive shall reimburse continue to receive the Employee for unpaid medical coverage and approved business expenses through such other health and welfare benefits in effect at the Date of Termination (in accordance with or generally comparable coverage) for himself and, where applicable, his spouse and dependents, as the Company’s normal business expense reimbursement procedures)same may be changed from time to time for employees generally, for twelve (412) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of months from the Date of Termination. Subject As an alternative to Section 20 hereofthe foregoing, the Severance Payment will Company may elect to pay 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 paid over continued (or where such continuation would adversely affect the period of time covered thereby following the effective date tax status of the Release Agreement on plan pursuant to which the Company’s regularly scheduled payroll payment datescoverage is provided). The COBRA health care continuation coverage period under Section 4980B of the Code, and in accordance as amended, shall run concurrently with the terms foregoing benefit period.
(iv) 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 Release AgreementCompany under this Section 4(a) shall terminate.
Appears in 1 contract
Samples: Employment Agreement (Patient Safety Technologies, Inc)
Termination Without Cause; Resignation for Good Reason. The EmployeeIf the Executive’s employment hereunder may also be is terminated by the Company at any time for any reason CTI without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base SalaryCause, or substantial reduction in if the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles Executive resigns from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the EmployeeExecutive’s employment for Good Reason and provided that such termination constitutes a “separation from service” as defined in Treasury Regulation Section 1.409A-1(h) (“Separation”) and Executive executes and does not revoke a general release of all claims in the form prescribed by the Company (such form to be substantially similar to the form presented to Executive in connection with the Agreement, together with any changes to such form as CTI may reasonably determine to be appropriate to comply with applicable law) and such release becomes effective within sixty (60) days of Executive’s Separation (the “Deadline”), the Executive shall be entitled to receive: (i) eighteen (18) months of Severance Pay; (ii) an amount equal to the greater of the average of the three (3) prior years’ bonuses or thirty percent (30%) of base salary in effect upon Executive’s Severance Date; (iii) pay for all vacation time accrued as of the Severance Date; and (iv) CTI shall continue to pay premiums to maintain any life insurance for Executive, existing and paid for by CTI as of the Severance Date, for eighteen (18) months following the Severance Date. The parties agree that the foregoing shall be paid as follows: (w) the Severance Pay provided in (i) above shall be paid in eighteen (18) equal installments pursuant to CTI’s regular payroll procedures commencing on the Company’s first normal payroll date that occurs on or after the Deadline, (x) the severance provided in (ii) above shall be paid on the first normal payroll date on or after the Deadline, (y) the accrued but unused vacation shall be paid on the Severance Date and (z) premium payments for life insurance shall be made on each regularly scheduled due date for such payments beginning with the first regularly scheduled due date that occurs on or after the Deadline Date (with any payments due prior to such time being made on such date). In addition, CTI shall reimburse the Executive for any premium payments for COBRA continuation coverage for the Executive and Executive’s covered dependents under CTI’s medical plan only for the period from the Severance Date until the earlier of: (1) a date eighteen (18) months after the Severance Date; or (2) a date on which the Executive is covered under the medical plan of another employer, which does not exclude pre-existing conditions. At Executive’s sole cost and expense, Executive may elect to exercise any disability insurance conversion originally available to Executive under the then existing group or individual disability insurance policies. In the event of a breach of the Inventions and Proprietary Information Agreement, in addition to any other remedy available to CTI, all of CTI’s obligations under this Section 1(b) shall terminate immediately; provided, however, that in the event of such a breach by Executive as to which CTI proposes to terminate its obligations under this Section 1(b), Executive shall be given notice and a reasonable opportunity (of in no event more than 30 days) to cure the alleged breach before any such termination (except that no such cure opportunity shall be required if the breach by Executive is not reasonably curable or has resulted in material harm to CTI). For purposes of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), each payment that is paid under the preceding paragraph (other than payments referenced in Section 1(b)(iii) above and COBRA reimbursements) is hereby designated as a separate payment. Notwithstanding anything stated herein, if the Company (for this purpose, “employer” as defined in Treasury Regulation Section 1.409A-1(h)(3)) is publicly traded on an established securities market or otherwise at the time of Executive’s Separation and, at the time of Executive’s Separation Executive is a “specified employee,” as defined in Treasury Regulation
Section 1. 409A-1(i), then any severance that Executive would otherwise be entitled to pursuant to 1(b) during the six (6) month period following his Separation (for purposes of clarity, this does not include amounts referenced in Section 1(b)(iii) above or COBRA reimbursements) shall not be affected by paid during such six (6) month period and shall instead be paid on the Employee's incapacity due first business day following the expiration of such six (6) month period or, if earlier, the date of Executive’s death, and any remaining payments shall continue to physical or mental illnessbe paid in accordance with this Section 1(b). The Employee's continued employment Executive shall not constitute consent tohave no right under this Agreement or otherwise to receive any bonus, stock options, or a waiver other compensation awarded or benefits provided, determined or paid subsequent to the Severance Date to other employees of rightsCTI, with respect pro rata or otherwise. However, if Executive is terminated by CTI without Cause or the Executive resigns from Executive’s employment for Good Reason, all unvested stock based compensation to any act or failure to act constituting Good Reason hereunderwhich the Executive may have rights on the Severance Date shall accelerate and immediately vest and all options shall remain exercisable as provided for in the parties’ corresponding Stock Option Agreement(s). Notwithstanding the foregoing, if and only if, CTI is a termination privately held company on the Executive’s Severance Date, CTI shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing recommend to the occurrence Board of Directors to extend the event giving rise exercise period from three (3) months to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; two (2) years after the Company shall pay to Severance Date for stock options other than any incentive stock options in which the Employee all accrued or vested compensationExecutive may have rights on the Severance Date; provided however, including salaryshould CTI stock become publicly traded during any extended stock option exercise period granted hereunder, commission, and bonus(es) through Executive may only exercise stock options in which Executive may have rights during the Date of Termination, three (3) month period following the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5date a corresponding S-8 registration statement is declared effective; or ii) the Company last day of the extended stock option exercise period. The decision to accept CTI’s recommendation to extend the exercise period shall pay to be within the Employee a severance payment equal to sole discretion of the greater Board of (i) Directors. If CTI Common Stock is publicly traded on the amount he would be entitled to under Company policy in effect at the time of terminationSeverance Date, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him any exercise period will remain as provided for in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”parties’ corresponding Stock Option Agreement(s). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreement.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee(i) If, prior to the expiration of the Term, the Executive’s employment hereunder may also be with the Company is terminated by the Company at any time without Cause or if the Executive resigns from his employment hereunder for any reason Good Reason, then in addition to the amounts set forth in Section 6(a), the Executive shall be entitled to the following payments (collectively, the “Severance Payments”): (A) a pro rata portion of the Bonus for the year in which the termination or resignation occurs calculated by multiplying (x) the Bonus for the year of termination (based and on the assumption that all performance targets have been or will be achieved) by (y) a fraction, the numerator of which is the number of days the Executive was employed during the year of termination and denominator of which is 365; and (B) a payment equal to the Applicable Multiple (as defined below) times the sum of (x) the Reference Salary, (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 resignation for Good Reason occurs prior to a Change in Control of the Company (as defined in Section 7(b)), and (B) three, in the event the termination without Cause or resignation for Good Reason occurs on or after a Change in Control of the Company; provided, however, that, if within six months prior to the date on which a Change in Control occurs, the Executive’s employment with the Company is terminated by the Company without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment Executive for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver and it is reasonably demonstrated that such termination of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or Good Reason event was in contemplation of the Employee terminates his employment for Good ReasonChange in Control, (1then the Applicable Multiple shall be three, but the Severance Payments then payable shall be reduced by any Severance Payments previously paid to the Executive under this Section 6(c) by the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement as a result of such termination or resignation of employment and any remaining portion of the parties) of its intent to terminate this Agreement without Cause; (2) the Company Severance Payments shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect payable at the time of terminationcontemplated by Section 6(c)(ii) or, and (ii) his Base Salary plus if such date has already occurred, on the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and Change in accordance with the terms of the Release AgreementControl.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The EmployeeCompany may terminate the Executive’s employment hereunder at any time without Cause upon thirty (30) days’ advance written notice; provided, however, the Company may also be terminated relieve the Executive from performing any duties and pay the Executive his Base Salary (if any) in lieu of notice for all or part of such thirty (30)-day period in the Company’s discretion. The Executive may initiate a termination of employment by resigning without Cause or for Good Reason. Upon termination by the Company at any time for any reason without Cause or resignation by the Employee Executive for “Good Reason”. For purposes , if the Executive executes and does not timely revoke a written Release (as defined below) in accordance with the terms of this Agreementsuch Release, the Employee Executive shall be entitled to receive, in lieu of any payments under any severance plan or program for employees or executives, the following:
(1) The Company will pay the Executive, in a single lump sum payment within sixty (60) days following the termination date, (A) any Annual Bonus (to the extent not already paid) that, had he remained employed, would otherwise have been paid to the Executive for any fiscal year of the Company that was completed on or before the date of termination (the “Prior Year Bonus”) and (B) a pro rata portion of the Annual Bonus for the partial fiscal year in which the date of termination occurs in an amount equal to the product of (x) the target Annual Bonus multiplied by (y) a fraction, the numerator of which shall be the number of days elapsed through the date of termination in the fiscal year in which the date of termination occurs and the denominator of which shall be 365 (the “Pro Rata Bonus”); and
(2) The Company will pay the Executive an amount (the “Severance Payment”) equal to the sum of (A), the Public Offering Bonus (to the extent not already paid, regardless of whether there has been a Public Offering or six months have passed after the Effective Date), (B) the Executive’s Base Salary in effect on the date of termination (without giving effect to any reduction in Base Salary that constitutes Good Reason” ) multiplied by a fraction, the numerator of which shall be the number of days remaining until the Term End Date (up to terminate his employment hereunder upon a maximum of 365 days) and the denominator of which shall be 365, and (iC) the Company’s failure target Annual Bonus for the year in which the Executive is terminated, multiplied by a fraction, the numerator of which shall be the number of days remaining until the Term End Date (up to perform its material duties hereundera maximum of 365 days) and the denominator of which shall be 365, which failure has not been cured by with 50% of the Company Severance Payment payable in a lump sum payment within sixty (60) days following the termination date and the remaining 50% of the Severance Payment to be paid within fifteen (15) days of its receipt of written notice thereof from following the Employee; (ii) a reduction by the Company (without the consent one-year anniversary of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreementdate.
Appears in 1 contract
Samples: Employment Agreement (NewLake Capital Partners, Inc.)
Termination Without Cause; Resignation for Good Reason. The Employee’s employment hereunder may also be terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) If, prior to the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent expiration of the EmployeeTerm, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as Executive incurs a senior executive officer of the Company, or the designation Separation from Service by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one reason of the Company’s principal divisions termination of the Executive’s employment without Cause, or as a result of his resignation for Good Reason (as described defined in Section 5), then the Executive shall receive the Other Accrued Compensation and Benefits and, subject to Section 4(e) and, in the Company’s periodic filings made with the Securities and Exchange Commission)case of termination without Cause, or subject also to Section 4(f):
(C) Chief Operating Officer of the Company; (ivA) the relocation Company shall continue to pay the Executive the Base Salary and Automobile Payment (at the rate in effect on the date of the Employee’s principle place of employment to a location more than thirty-five (35termination) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent in accordance with the Company’s rules, policies or procedures, including without limitation, ordinary payroll practices in effect from time to time for the Company’s Code a period equal to the greater of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group eighteen (within the meaning of Rule 13d-3 of the rules 18) months and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders remainder of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rightsTerm, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding payments commencing on the foregoing, a termination shall not be treated as a resignation for Good Reason if 60th day following the Employee shall have consented in writing to Executive’s Separation from Service (the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety “Severance Period”);
(90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1B) the Company shall provide the Employee Executive with at least a cash amount equal to the Target Bonus for the year in which the Executive’s employment is terminated without Cause or the Executive resigns for Good Reason and each full year remaining during the Term, with payment to be made on January 15th of the year following the year to which the Target Bonus relates; provided, however, that in no event will payment commence prior to the 60th day following the Executive’s Separation from Service;
(C) the Company shall provide the Executive and his eligible dependents with continued participation in the Company’s group medical plans applicable to other senior executives (as in effect from time to time) during the Severance Period or, in the event such participation is not permitted, a cash payment equal to the value of the benefit continuation, payable in three semi-annual installments beginning sixty (60) days’ notice (days following the Executive’s Separation from Service. The Executive shall continue to be obligated to pay his share of premiums, deductibles and co-payments which time period may be shortened by mutual agreement deducted from the payment made pursuant to this Section 4(c)(i)(C) in the same manner as if the Executive was actively employed. In the event that the Executive obtains subsequent employment and is eligible to participate in the group medical plans of his new employer, the parties) of its intent Executive agrees to terminate this Agreement without Cause; (2) notify the Company shall pay to the Employee all accrued or vested compensation, including salary, commissionpromptly, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with any coverage provided under the Company’s normal business expense reimbursement procedures), group medical plans shall terminate when coverage under the new employer’s medical plans become effective.
(4D) all awards theretofore Options and RSUs that have not yet been granted or have not yet vested shall be treated as follows:
1. If the termination without Cause or resignation for Good Reason occurs prior to the Employee under 2017 grant, the Company's incentive plans shall continue entire 2017 grant (Options and RSUs) is forfeited;
2. If the termination without Cause or resignation for Good Reason occurs prior to vest (the 2016 grant, the 2016 Option grant is forfeited and the restrictions thereon lapse) on their then existing schedule notwithstanding the 0000 XXX grant is granted with immediate vesting;
3. All granted but unvested Options and RSUs following a termination of employment, without Cause or resignation for Good Reason survive and (5) the Company shall pay vest immediately; and
4. The Executive will have 12 months after a termination without Cause or resignation for Good Reason to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and exercise vested Options.
(ii) his Base Salary plus the greater The Executive shall have no further right to receive any other compensation or benefits after such termination of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination employment without Cause or resignation for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release AgreementGood Reason.
Appears in 1 contract
Samples: Employment Agreement (Imax Corp)
Termination Without Cause; Resignation for Good Reason. (i) The EmployeeCompany may terminate Executive’s employment hereunder may also be terminated by with the Company at any time without Cause. Further, Executive may resign at any time for any reason without Cause or Good Reason (as defined below).
(ii) In the event Executive’s employment with the Company is terminated by the Employee Company without Cause, or Executive resigns for “Good Reason, then provided such termination constitutes a “separation from service” (as defined under Treasury Regulation Section 1.409A-l(h), without regard to any alternative definition thereunder, a “Separation from Service”. For purposes ), and provided that Executive satisfies the Release Requirement in Section 7 herein, and remains in compliance with the terms of this Agreement, the Employee Company shall have provide Executive with the following “Severance Benefits”:
(a) Either (a) a lump sum cash payment equal to Executive’s annual Base Salary at the time of employment termination (without giving effect to any reduction in Base Salary that would give Executive the right to resign for Good Reason” ), to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured be paid by the Company within fifteen (15) days of its receipt of written notice thereof from on the Employee; (ii) a reduction by first payroll period following the Company (without the consent Effective Date of the EmployeeRelease, which consent may be revoked at any timeless applicable deductions and withholdings, (the “Lump Sum Payment”); or (b) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of if the Company, or in the designation by the Company good faith discretion of the Employee Board, is unable to make the Lump Sum Payment at the time of employment termination due to a lack of sufficient operating funds, an amount equal to Executive’s annual Base Salary (without giving effect to any position or capacity other than reduction in Base Salary that would give Executive the right to resign for Good Reason) to be paid in substantially equal installments on a monthly basis during the nine (A9) Chief Financial Officer month period following the employment termination date (the “Monthly Installment Payments”); provided that, in each case, any payments scheduled to be made prior to the Effective Date of the Company, (B) Chief Financial Officer of one Release shall instead accrue and be paid in a single lump sum during the first payroll period following the Effective Date of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunderRelease. Notwithstanding the foregoing, the Company may elect to make the Monthly Installment Payments in lieu of the Lump Sum Payment only if an exemption is available from application of Section 409A of the Code with respect to such payments so that such payment schedule will not result in adverse tax consequences to Executive under Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations and other guidance thereunder and any state law of similar effect (collectively “Section 409A”).
(b) Either (a) a lump sum cash payment in an amount equal to the average of the Annual Bonus payment Executive received from the Company during the last three years of employment completed prior to the year of the employment termination, pro rated based on the number of days Executive worked during the fiscal year of the employment termination, divided by 365 (the “Severance Bonus Payment”), to be paid by the Company on the first payroll period following the Effective Date of the Release, less applicable deductions and withholdings (the “Lump Sum Bonus Payment”); or (b) if the Company, in the good faith discretion of the Board, is unable to make the Lump Sum Bonus Payment at the time of employment termination due to a lack of sufficient operating funds, an amount equal to Executive’s Severance Bonus Payment to be paid in substantially equal installments on a monthly basis during the nine (9) month period following the employment termination date (the “Monthly Installment Bonus Payments”); provided that, in each case, any payments scheduled to be made prior to the Effective Date of the Release shall instead accrue and be paid in a single lump sum during the first payroll period following the Effective Date of the Release. Notwithstanding the foregoing, the Company may elect to make the Monthly Installment Bonus Payments in lieu of the Lump Sum Bonus Payment only if an exemption is available from application of Section 409A of the Code with respect to such payments so that such payment schedule will not result in adverse tax consequences to Executive under Section 409A of the Code.
(c) If the Company has previously established a group health plan in which Executive participates prior to Executive’s termination and Executive timely elects COBRA coverage following any such termination, the Company will pay Executive for the full amount of such COBRA premiums for himself and his covered dependants (on a monthly basis) for a period of up to twelve (12) months following the date of termination; provided, that, if and to the extent that any benefit described in this Section 6.2(ii)(c) is not or cannot be treated as a resignation for Good Reason if the Employee shall have consented in writing paid or provided under any Company plan or program without penalties or adverse tax consequences to the occurrence Company or for any other reason, as determined by the Company in its sole discretion, then the Company shall pay Executive a fully taxable cash payment equal to the COBRA premium for that month, subject to applicable tax withholding premiums for a period of up to twelve (12) months following the date of termination; provided, further, that the COBRA payments or, if applicable, the taxable monthly payment discussed above, shall terminate on the earliest to occur of (A) the close of the event giving rise to 12-month period following the claim termination of resignation Executive’s employment; (B) the expiration of Executive’s (or Executive’s dependents’) eligibility for Good Reasoncontinuation coverage under COBRA; and (C) the date when Executive becomes eligible for group health insurance coverage in connection with new employment or self-employment. If Executive becomes eligible for coverage under another employer’s group health plan or otherwise ceases to be eligible for COBRA coverage during the Employee gives notice of his intent to terminate his employment with Good Reasonperiod provided in this Section 6.2(ii)(c), the Employee shall first Executive must immediately provide written notice to the Company of such event, and the Company-provided COBRA payments, which notice specifically identifies or if applicable, the monthly payments under this Section 6.2(ii)(c) shall immediately cease.
(iii) Furthermore, in the event or circumstances giving rise Executive’s employment with the Company is terminated by the Company pursuant to the Good Reason for which the Employee is terminating his employmentSection 6.2(ii), in either case, within ninety three (903) days months immediately preceding or twelve (12) months immediately following the consummation of when such event or circumstance giving rise to a Change in Control (as defined below), in lieu of (and not additional to) the Good Reason becomes effective or transpires. The notice severance benefits described in Section 6.2(ii), and provided that Executive satisfies the Release Requirement in Section 7 herein and remains in compliance with the terms of Good Reason must give this Agreement, the Company shall instead provide Executive with the opportunity following benefits (the “Change in Control Severance Benefits”). For the avoidance of doubt: (A) in no event will Executive be entitled to cure severance benefits under Section 6.2(ii) and this Section 6.2(iii), and (B) if the Company fails has commenced providing severance benefits to cure within thirty Executive under Section 6.2(ii) prior to the date that Executive becomes eligible to receive Change in Control Severance Benefits under this Section 6.2(iii), the benefits previously provided to Executive under Section 6.2(ii) of this Agreement shall reduce the severance benefits provided under this Section 6.2(iii):
(30a) business days Either (a) a lump sum cash payment equal to eighteen (18) months of its receipt Executive’s annual Base Salary at the time of employment termination (without giving effect to any reduction in Base Salary that would give Executive the right to resign for Good Reason), to be paid by the Company on the first payroll period following the Effective Date of the noticeRelease, less applicable deductions and withholdings (the “Lump Sum CIC Payment”); or (b) if the Company, in the good faith discretion of the Board, is unable to make the Lump Sum Payment at the time of employment termination due to a lack of sufficient operating funds, an amount equal to eighteen (18) months of Executive’s annual Base Salary (without giving effect to any reduction in Base Salary that would give Executive the right to resign for Good Reason) to be paid in substantially equal installments on a monthly basis during the nine (9) month period following the employment termination date, less applicable deductions and withholdings (the “Monthly CIC Installment Payments”); provided that, in each case, any payments scheduled to be made prior to the Effective Date of the Release shall instead accrue and be paid in a single lump sum during the first payroll period following the Effective Date of the Release. Notwithstanding the foregoing, the EmployeeCompany may elect to make the Monthly CIC Installment Payments in lieu of the Lump Sum CIC Payment only if an exemption is available from application of Section 409A of the Code with respect to such payments so that such payment schedule will not result in adverse tax consequences to Executive under Section 409A of the Code.
(b) Either (a) a lump sum cash payment in an amount equal to 150% of the average of the Annual Bonus payment Executive received from the Company during the last three years of employment completed prior to the year of the employment termination, pro-rated based on the number of days Executive worked during the fiscal year of the employment termination, divided by 365 (the “C/C Bonus Payment”), to be paid by the Company on the first payroll period following the Effective Date of the Release, less applicable deductions and withholdings, (the “Lump Sum CIC Bonus Payment”); or (b) if the Company, in the good faith discretion of the Board, is unable to make the Lump Sum CIC Bonus Payment at the time of employment termination due to a lack of sufficient operating funds, an amount equal to Executive’s resignation for Good Reason CIC Bonus Payment to be paid in substantially equal installments on a monthly basis during the nine (9) month period following the employment termination date, less applicable deductions and withholdings (the “Monthly CIC Installment Bonus Payments”); provided that, in each case, any payments scheduled to be made prior to the Effective Date of the Release shall instead accrue and be deemed effectivepaid in a single lump sum during the first payroll period following the Effective Date of the Release. Notwithstanding the foregoing, the Company may elect to make the Monthly CIC Installment Bonus Payments in lieu of the Lump Sum CIC Bonus Payment only if an exemption is available from application of Section 409A of the Code with respect to such payments so that such payment schedule will not result in adverse tax consequences to Executive under Section 409A of the Code.
(c) If the Company terminates the Employeehas previously established a group health plan in which Executive participates prior to Executive’s employment without Cause or the Employee terminates his employment for Good Reasontermination and Executive timely elects COBRA coverage following any such termination, (1) the Company shall provide will pay Executive for the Employee with at least sixty full amount of such COBRA premiums for himself and his covered dependants (60on a monthly basis) days’ notice for a period of up to twelve (which time period may 12) months following the date of termination; provided, that, if and to the extent that any benefit described in this Section 6.2(ii)(c) is not or cannot be shortened paid or provided under any Company plan or program without penalties or adverse tax consequences to the Company or for any other reason, as determined by mutual agreement of the parties) of Company in its intent to terminate this Agreement without Cause; (2) sole discretion, then the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee Executive a severance fully taxable cash payment equal to the greater COBRA premium for that month, subject to applicable tax withholding premiums for a period of up to twelve (12) months following the date of termination; provided, further, that the COBRA payments or, if applicable, the monthly payment discussed above, shall terminate on the earliest to occur of (iA) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year close of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period following the termination of Executive’s employment; (B) the “Severance Payment ”expiration of Executive’s (or Executive’s dependents’) eligibility for continuation coverage under COBRA; and (C) the date when Executive becomes eligible for group health insurance coverage in connection with new employment or self-employment. If Executive becomes eligible for coverage under another employer’s group health plan or otherwise ceases to be eligible for COBRA coverage during the period provided in this Section 6.2(iii)(c). As a condition , Executive must immediately provide written notice to receiving the Severance PaymentCompany of such event, and the Company- provided COBRA payments, or if applicable, the Employee will be required monthly payments under this Section 6.2(iii)(c) shall immediately cease.
(d) Notwithstanding anything to execute and deliver the contrary set forth in the Company’s standard release agreement (the “Release Agreement”) within 30 days Share Option Plan or form of the Date award agreement, effective as of Termination. Subject to Section 20 hereofExecutive’s employment termination date, the Severance Payment will be paid over vesting and exercisability of all then outstanding unvested stock options, restricted shares or other equity awards then held by Executive shall accelerate such that all shares become immediately vested and exercisable, if applicable, by Executive upon such termination and shall remain exercisable, if applicable, following Executive’s termination as set forth in the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreementapplicable equity award documents.
Appears in 1 contract
Samples: Executive Employment Agreement (Lorus Therapeutics Inc)
Termination Without Cause; Resignation for Good Reason. The Employee’s employment hereunder may also be terminated by Subject to Executive signing and not revoking a separation agreement and release of known and unknown claims in the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction form provided by the Company (including nondisparagement and no cooperation provisions) (the “Release”) and provided that such Release becomes effective and irrevocable no later than sixty (60) days following the termination date or such earlier date required by the release (the “Release Deadline”), if the Executive’s employment is terminated without Cause by the consent of the Employee, which consent may be revoked at any time) Corporation (except in the Employee’s Base Salary, case of death or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange CommissionDisability), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates Executive resigns his employment for Good Reason, the Executive shall be entitled to the following:
(1i) continued payment of Executive’s Base Salary for a period equal to six (6) months following the Company shall provide termination date
(ii) payment of two Quarterly Bonus payments to be made quarterly following the Employee with at least sixty termination date;
(60iii) days’ notice (which time period may be shortened by mutual agreement The Corporation will also continue the benefits under Section 4(d), except disability benefits coverage, for the Severance Period, if such benefits are available subject to the terms of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall plans, or pay to the Employee all Executive an amount equal to the Corporation’s contribution for these benefits. Disability benefits will cease immediately on the date of termination;
(iv) any earned unpaid bonus for the fiscal year prior to the termination, payable at the same time other employees of the Corporation are paid such bonus;
(v) a prorated amount of the Quarterly Bonus for the calendar quarter in which the termination occurs based on the date of termination, payable at the same time other employees of the Corporation are paid such bonus;
(vi) (a) any earned but unpaid Base Salary through the termination date, (b) accrued or vested compensation, including salary, commissionbut unpaid vacation pay, and bonus(es(c) reimbursement of expenses incurred through the Date of Terminationtermination date in accordance with Section 4(f) hereof; the whole, (3) owing as at the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (termination date, payable in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to laws of the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding state in which Executive works as of the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period date (the “Severance Payment Basic Payments”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement ; and
(the “Release Agreement”vii) within 30 days six (6) months’ accelerated vesting of the Date of Termination. Subject Stock Option, subject at all times to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the ESOP. The Executive agrees that the foregoing payments in Section 7(b) represents the Executive’s complete entitlement to severance or other benefits in the event of the termination of Executive’s employment. Executive further acknowledges that if the Release does not become effective by the Release Deadline, Executive will forfeit any rights to severance or benefits under this Section 7(b) or elsewhere in this Agreement For the purposes of this Agreement.,
Appears in 1 contract
Samples: Executive Employment Agreement (Meta Materials Inc.)
Termination Without Cause; Resignation for Good Reason. The Employee’s ARAMARK may terminate Xx. Xxxxxxxx'x employment hereunder may also be terminated by without Cause, in which case the Company Term will end on the date of any such termination; provided that if such termination occurs at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes least two years after ARAMARK's notice to him of this Agreement, the Employee shall have “Good Reason” its intent to terminate his employment hereunder without Cause, it shall be considered an "Involuntary Termination with Notice." Xx. Xxxxxxxx may terminate his employment hereunder for Good Reason, and the Term shall end upon such termination of employment. In the event Xx. Xxxxxxxx'x employment is terminated by ARAMARK without Cause or if Xx. Xxxxxxxx should resign for Good Reason, Xx. Xxxxxxxx shall receive the following amounts, and ARAMARK shall have no further obligation to Xx. Xxxxxxxx under this Agreement, except as specifically set forth in this Agreement:
(i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; The Accrued Amounts;
(ii) a reduction by In the Company case of an Involuntary Termination with Notice, the Pro-Rata Bonus;
(without the consent of the Employee, which consent may be revoked at any timeiii) Except in the Employee’s case of an Involuntary Termination with Notice, a lump sum payment equal to two times Xx. Xxxxxxxx'x Base Salary, or substantial reduction in payable within 10 business days after the other benefits provided to the Employee; (iii) the assignment to the Employee effective date of duties inconsistent with the Employee’s status as a senior executive officer termination of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; employment;
(iv) Except in the relocation case of an Involuntary Termination with Notice, a lump sum payment equal to the Employee’s principle place Pro-Rata Bonus plus two times Xx. Xxxxxxxx'x Average Bonus payable within 10 business days after the effective date of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside termination of the New York City metropolitan areas; employment;
(v) Except in the assignment case of duties inconsistent an Involuntary Termination with Notice (in which case the Company’s rulesconsulting period in Section 9 shall be applicable), policies or proceduresa lump sum payment equal to the Consulting Compensation, including without limitation, the Company’s Code payable within 10 business days after termination of Business Conduct and Ethics; employment;
(vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or Supplemental Retirement Benefits shall be payable pursuant to Exhibit A;
(vii) any “Change Except in Control” the case of an Involuntary Termination with Notice, Survivor Income Protection Plan, other health and welfare plan participation, and other perquisites shall continue for three years from the Companyeffective date of termination.
(viii) Xx. For purposes Xxxxxxxx may elect to continue at his sole expense the Executive Health Plan (to the extent Xx. Xxxxxxxx and members of his family are eligible for such benefit and, for this Agreementpurpose, a “Change in Control” shall mean and Xx. Xxxxxxxx shall be deemed to have occurred if (Abe employed by ARAMARK) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated for a period not to exceed three years. Equity Credit Arrangement participation shall be as a terminated employee under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without CauseArrangement; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreement.and
Appears in 1 contract
Samples: Employment Agreement (Aramark Corp)
Termination Without Cause; Resignation for Good Reason. (a) The EmployeeCompany reserves the right to terminate the Executive’s employment hereunder may also be terminated by the Company Employment without Cause at any time for any reason without Cause or by time.
(b) Executive reserves the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” right to terminate his employment hereunder upon Employment for Good Reason (as defined in Section 9.2 herein) by giving the Company thirty (30) days written notice which states the basis for such Good Reason. As such, the Company, in its sole discretion, shall have the right to renounce and waive the benefit of part and or of the totality of any such notice and the Executive will not be entitled to any indemnity or damages of any nature whatsoever.
(c) Upon (i) the Company’s failure to perform its material duties hereundertermination of the Employment without Cause, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; or (ii) Executive’s resignation from Employment for Good Reason as described in Section 7.1(b) above:
(i) The Company shall pay Executive, within 30 days following his termination of Employment, Executive’s accrued but unused vacation, unreimbursed business expenses and Base Salary through the date of termination (to the extent not theretofore paid) (the “Payments Owed”);
(ii) Subject to Executive executing and not revoking a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) release in the Employee’s Base Salary, or substantial reduction in the other benefits form provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of by the Company, or the designation by the Company will pay Executive: in approximately equal installments during the twelve (12) month period following the date of termination of Employment (the “Separation Period”), a cash separation payment in an amount equal to 1.0 multiplied by his or her monthly Base Salary as in effect on the date of termination (the “Separation Payment”). If applicable, Executive will be entitled to receive the benefits set forth on Exhibit A hereto during the Separation Period. The installments of the Employee Separation Payment will be paid to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (Executive in accordance with the Company’s normal business expense reimbursement procedures)customary payroll practices, (4) all awards theretofore granted to and will commence on the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding first payroll date following the termination of employment, and the Employment; and
(5iii) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee Executive’s options or other equity awards will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and treated in accordance with the terms of the Release applicable plans.
(d) If Executive violates any provision contained in Sections 10 or 11 of this Agreement, the Separation Payment shall cease, and all benefits will cease unless continuation of such benefit(s) is required by law.
(e) Except as otherwise provided in this Agreement, and except for any vested benefits under any tax qualified pension plans of the Company and vested deferred compensation under any applicable deferred compensation plans, and continuation of health insurance benefits on the terms and to the extent required by law, neither the Company nor Executive shall have any additional obligations under this Agreement.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee’s employment hereunder may also be terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, Company or a substantial adverse alteration in the designation by the Company nature or status of the Employee to any position or capacity other than Employee’s responsibilities; (Aiv) Chief Financial Officer a substantial diminution of the Company, (B) Employee’s responsibilities as the Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Executive Officer of the Company; (ivv) the relocation of the Employee’s principle principal place of employment to (1) a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas, or (2) more than 40 miles from Employee’s home in Scarsdale, New York, unless the Company then permits the Employee to work from a home office at least 40% of his working time ; (vvi) removal of the Employee from the office of Chief Executive Officer of the Company (without the consent of the Employee); (vii) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (viviii) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (viiix) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty ninety (6090) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), and (4) all awards theretofore granted to the Employee under the Company's ’s incentive plans shall continue to immediately vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination day immediately prior to the Date of employmentTermination, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and EIGHT HUNDRED FIFTY THOUSAND DOLLARS ($850,000.00) or (ii) his Base Salary plus (at the greater rate in effect on the Date of his target bonus under Section 7(bTermination) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period Term (the “Severance Payment Payment”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination). Subject to Section 20 19 hereof, the Severance Payment will be paid one-half (1/2) within five business days of the effective date of the Release Agreement, and one-half (1/2) in equal payments over the twelve (12) month period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreement.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee’s employment hereunder may also be terminated by (a) Notwithstanding the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes provisions of Section 1 of this Agreement, the Employee Board of Directors of the Corporation may, without Cause (as hereafter defined), terminate the Executive's employment under this Agreement at any time in any lawful manner by giving not less than thirty (30) days written notice to the Executive ("Notice of Termination"), which notice shall have “indicate the specific provision(s) in this Agreement relied upon for such termination. The Executive may resign for Good Reason (as hereafter defined) at any time by giving not less than 3NEXT PAGE thirty (30) days written notice to the Corporation ("Notice of Resignation"), which notice shall indicate the specific provision(s) in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for a resignation for Good Reason” . In the event the Corporation terminates the Executive's employment without Cause or the Executive resigns for Good Reason, and, in either such event, the Executive offers in writing to terminate his employment hereunder upon continue to provide the services contemplated by and on the terms of this Agreement and such offer is not accepted by the Corporation unconditionally in writing within five (5) days thereafter, then the Executive shall be entitled to liquidated damages, subject in the case the Executive's resignation for Good Reason to the provisions of Section 7(d) of this Agreement, as follows:
(i) the Company’s failure to perform its material duties hereunder, which failure has not been cured The Executive shall be paid a lump sum cash payment by the Company Corporation, within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside days after a Notice of Termination is given by the Corporation to the Executive pursuant to this Section 7(a) of the New York City metropolitan areas; Agreement, (v) unless such payment is subject to the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination limitations set forth in Section 409A of the Employee’s employment not Internal Revenue Code, in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and which case such payment shall be deemed to have occurred if (Amade 185 days after the date of termination) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment an amount equal to the greater of (iA) 1.5 times the total cash compensation (including bonus) paid or payable to the Executive during the twelve (12) full consecutive months immediately preceding the effective date of the Executive's termination of employment or (B) the amount he salary due to the Executive for the remaining term of this Agreement under Section 3(a) (without any present value adjustment) that the Executive would be have been entitled to under Company policy in effect at the time of termination, and receive had such termination not occurred; and
(ii) his Base Salary plus The Corporation shall maintain in full force and effect for the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year continued benefit of the Term preceding termination Executive for the remainder of the Term, but in no event less than a twelve (12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby months following the effective date of the Release Executive's termination or resignation (the "Liquidated Damage Period"), as the case may be, at no cost to the Executive, all employee benefit plans and programs or arrangements in which the Executive was entitled to participate immediately prior to such termination as described in Sections 4(a) and 4(b) of this Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms (other than stock-based compensation plans of the Release AgreementCorporation or CFC), provided that continued participation is possible under the general terms and provisions of such plans and programs. In the event that the Executive's participation in any such plan or program is barred, the Corporation shall arrange to provide the Executive with benefits substantially similar to those which the Executive was entitled to receive under such plans and program.
(b) (i) In the event that the Executive becomes entitled to liquidated damages pursuant to Section 7(a) above, (A) the Corporation's obligations under Section 7(a)(i) above with respect to cash damages shall be reduced by the amount of the Executive's cash income, if any, earned from providing personal services during the Liquidated Damage Period; and (B) the Corporation's obligation to maintain the benefits described under Section 7(a)(ii) above shall be reduced to the extent, if any, that the Executive receives such benefits, on no less favorable terms, from another employer during the Liquidated Damage Period. For purposes of this Section,7(b), the term "cash income" shall include amounts of salary, wages, bonuses, incentive compensation and fees paid to the Executive in cash but shall not include shares of stock, stock options, stock appreciation rights or other earned income not paid to the Executive in cash. To the extent the provisions of this Section 7(b) are applicable and an overpayment has been made to the Executive as of the expiration of the Liquidated Damage Period, the Executive shall 4NEXT PAGE reimburse the Corporation in an amount equal to the after tax benefit realized by the Executive from such overpayment (i.e. amount realized net of all federal, state, local, employment and medicare taxes). In making the reimbursement calculation it shall be presumed that the Executive is subject to the highest marginal federal and state income tax rates.
Appears in 1 contract
Samples: Employment Agreement (Community Financial Corp /Va/)
Termination Without Cause; Resignation for Good Reason. The Employee’s employment hereunder may also be terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's ’s incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b6(b) hereof and (at the actual bonus paid to him rates in effect on the year Date of the Term preceding termination Termination) for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination). Subject to Section 20 19 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreement.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee(i) If the Executive’s employment hereunder may also be is terminated by the Company at any time for any reason without Cause or by the Employee Executive resigns for “Good Reason”. For purposes of this Agreement, the Employee Company shall have “Good Reason” pay the Executive, subject to terminate his employment hereunder Section 4(e) below: (A) severance pay equal to twelve (12) months of the Executive’s then-current Base Salary and an amount equal to the Executive’s annual full unprorated TBO (based upon (ithe Executive’s then-current Base Salary) the Company’s failure to perform its material duties hereunder, which failure has not been cured payable by the Company within fifteen in installments during its regular payroll cycle over the twelve (1512) days month period following the termination of its receipt the Executive’s employment, provided that the first payment shall be made on the sixtieth (60th) day after the termination of written notice thereof from the Employee; Executive’s employment, and such first payment shall include payment of any amounts that would otherwise be due prior thereto, (iiB) a reduction by pro rata portion of the Executive’s Annual Bonus for the year of termination, if and to the extent that the Company (without the consent of the Employeeachieves its performance metrics for such year, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided payable when bonuses relating to the Employee; (iii) the assignment year of termination are normally paid to the Employee of duties inconsistent with the Employee’s status as a other senior executive officer executives of the Company, or the designation by the Company but in no event later than March 15th of the Employee year following the year to any position or capacity other than (A) Chief Financial Officer of the Companywhich such bonus relates, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer any Annual Bonus in respect of a previously completed fiscal year to the extent earned but unpaid as of the Company; date of the termination or resignation of Executive’s employment, payable as soon as practicable following the date of the termination or resignation of the Executive’s employment but no later than the sixtieth (iv60th) day after such termination or resignation, (D) the relocation Other Accrued Compensation and Benefits, payable as soon as practicable following the date of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location termination or outside resignation of the New York City metropolitan areas; Executive’s employment but no later than the sixtieth (v60th) day after such termination or resignation, and (E) subject to the assignment Executive’s timely election of duties inconsistent with continuation coverage under the Company’s rulesConsolidated Omnibus Budget Reconstruction Act of 1985, policies or proceduresas amended (“COBRA”), including without limitation, commencing upon the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the EmployeeExecutive’s employment not in accordance with employment, the terms hereof; or (vii) any “Change in Control” of Company shall continue to provide group medical, dental and vision continuation coverage for the Company. For purposes of this Agreement, a “Change in Control” shall mean Executive and shall be deemed his eligible dependents under COBRA at the same cost to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, Executive as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities senior executives of the Company or any successor entity of until the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater earlier of (i) the amount he would be entitled to under Company policy in effect at end of the time of termination, period during which the Executive or his dependents are eligible for COBRA coverage and (ii) his Base Salary plus the greater date on which the Executive is eligible for group health coverage from another employer of his target bonus under Section 7(b) hereof and him (in which event the actual bonus paid to him Executive shall promptly notify the Company in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”writing). As a condition to receiving the Severance PaymentExcept as otherwise provided in this Agreement, the Employee will be required Executive shall have no further rights to execute and deliver receive any other compensation or benefits after such termination or resignation of employment.
(ii) If, following a termination of employment without Cause or a resignation for Good Reason, the Company’s standard release agreement (the “Release Agreement”) within 30 days Executive materially breaches a provision of the Date of Termination. Subject to Section 20 5, Section 6 or Section 7 hereof, the Severance Payment will Non-Compete Agreement, or paragraphs 2 through 6 of the Employment Covenants Agreement, the Executive shall not be paid over eligible, as of the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment datessuch material breach, for any further payments and benefits described in accordance with the terms Sections 4(b)(i)(A), (B), (C), or (E) and any and all obligations and agreements of the Release Company with respect to such payments shall thereupon cease; provided, however, that, prior to ceasing payments and benefits pursuant to this Section 4(b)(ii), the Company shall first give the Executive at least fifteen days’ prior written notice of its intention to terminate his payments and benefits and the grounds for such action and, solely with respect to a breach of paragraph 4 (Return of Company Property/Materials) of the Employment Covenants Agreement, such grounds have not been corrected by the Executive within fifteen days following his receipt of such notice.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee(i) If the Executive incurs a “Separation from Service” within the meaning of Section 409A of the Code and the Regulations thereunder, by reason of the Company’s termination of the Executive’s employment hereunder may also be terminated by without Cause, or if the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate Executive resigns from his employment hereunder for Good Reason, the Executive shall be entitled to the following:
(A) An amount equal to the Other Accrued Compensation and Benefits;
(B) One year’s Base Salary at the rate then in effect, and one year’s target bonus at the rate then in effect, payable in equal installments pursuant to the Company’s normal payroll practices and subject to all legally required and customary withholdings for the twelve (12) month following termination; and
(C) Monthly payments to the Executive equal to the full premium amount (determined as of the date of termination) for continued coverage under the Company’s health plan pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, (“COBRA”) for the Executive, and, to the extent that the Executive is providing coverage for his spouse or eligible dependents as of the termination date, for such individuals; provided, however, that the Company’s obligation to pay such premiums shall cease immediately upon the earlier of (i) the Company’s failure to perform its material duties hereunderpassage of eighteen (18) months, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent expiration of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; statutory COBRA period and (iii) the assignment to date the Employee of duties inconsistent with Executive becomes eligible for coverage under any other group health plan (as an employee or otherwise) or Medicare. Notwithstanding the Employee’s status as a senior executive officer of the Companyforegoing, or the designation by if the Company terminates the Executive’s employment without Cause, the Company shall provide the Executive with no less than ninety (90) days’ written notice or payment of three (3) months Base Salary in lieu of ninety (90) days’ written notice, which shall be in addition to payments described under this Section 5(b)(i).
(ii) Unless otherwise provided herein, all payments and benefits provided under this Section 5(b) shall commence on the Employee first payroll date following the 60th day after the Executive’s termination of employment. The Company shall not be required to any position or capacity other than (A) Chief Financial Officer of make the Companypayments and provide the benefits provided for under this Section 5(b)(i)(A), (B) Chief Financial Officer or (C) unless the Executive executes and delivers to the Company, within sixty (60) days following the Executive’s termination of employment, a release substantially in the form attached hereto as Exhibit A, and the release has become effective and irrevocable in its entirety in such 60-day period. The Executive’s failure or refusal to sign the release (or the Executive’s revocation of such release in accordance with applicable laws) will result in the forfeiture of the payments and benefits under this Section 5(b)(i)(A), (B) or (C). To the extent any amount payable under this Section 5 is deferred compensation subject to the Code, if the period during which the Executive has discretion to execute or revoke the general release of claims straddles two of the Executive’s taxable years, then the Company shall make the severance payments starting in the second of such taxable years, regardless of which taxable year the Executive actually deliver the executed general release of claims to the Company. The Executive may not, directly or indirectly, designate the calendar year or timing of payments. This Section 5(b)(ii) shall expressly not apply to payments made on account of a Change in Control, pursuant to Section 5(b)(iv) hereof.
(iii) If, following a termination of employment without Cause or a resignation for Good Reason, the Executive breaches the provisions of Sections 6 through l0 hereof or breaches any provision set forth in the executed copy of the general release of claims, the Executive shall not be eligible, as of the date of such breach, for the payments and benefits described in Section 5(b)(i)(A), (B) or (C), and any and all obligations and agreements of the Company with respect to such payments shall thereupon cease. This Section 5(b)(iii) shall expressly not apply to payments made on account of a Change in Control, pursuant to Section 5(b)(iv) hereof.
(iv) If the Company undergoes a Change in Control, and within 24 months of such Change in Control the Executive is terminated without Cause or resigns for Good Reason, then the Executive shall be entitled to all payments set forth in this Paragraph 5(b) except that:
(A) Instead of the one year’s Base Salary and target bonus referred to in Section 5(b)(i)(B), the Executive shall be eligible for two year’s Base Salary and two years’ target bonus.
(B) Instead of the amounts specified in Section 5(b)(iv)(A) being made in monthly payments as referred to in Section 5(b)(i)(C), they shall be paid in a lump sum on the date the Executive incurs a Separation from Service within the meaning of Section 409A of the Code and the Regulations thereunder, or on such later date required under Section 409A of the Code and the Regulations thereunder.
(C) In the event that it is determined that any payment or distribution of any type to or for the benefit of an Executive made by the Company, by any of its Affiliates, by any person who acquires ownership or effective control or ownership of a substantial portion of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group assets (within the meaning of Rule 13d-3 Code Section 280G) or by any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the rules and regulations promulgated under terms of any equity compensation plan, this Agreement or otherwise (the Securities Exchange Act of 1934, as amended“Total Payments”), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established would be subject to the excise tax imposed by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company Code Section 4999 or any successor entity of the Company, interest or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, penalties with respect to such excise tax ( the “Excise Tax”), then, notwithstanding any act other provision of this Agreement or failure any equity compensation plan to act constituting Good Reason hereunderthe contrary, any right of the Executive to any payment or benefit under this Agreement or any such equity compensation plan shall be reduced or eliminated, but only to the extent necessary to avoid imposition of the Excise Tax. In no case, however, shall such cutback be made if Total Payments after the imposition of the Excise Tax are greater than Total Payments cut back as provided in this Section 5(b)(iv) to avoid the Excise Tax.
(D) In the event that a cutback of Total Payments is permitted under Section 5(b)(iv)(C), and except as required by Code Section 409A or to the extent that Code 409A permits discretion, the Compensation Committee shall have the right, in the Compensation Committee’s sole discretion, to designate those rights, payments, or benefits and all other agreements that should be reduced or eliminated so as to provide the Executive with the maximum pre-tax amount which avoids imposition of the Excise Tax. For example, the Compensation Committee may choose to cut back cash severance, if that would yield a higher pre-tax amount than cutting back equity. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of extent any payment or benefit constitutes deferred compensation under Code Section 409A, in order to comply with Code Section 409A the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee Compensation Committee shall instead accomplish such reduction by first provide written notice to the Company, which notice specifically identifies the event reducing or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety eliminating any cash payments (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedurespayments to be made furthest in the future being reduced first), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination by reducing or eliminating any accelerated vesting of employmentoptions or stock appreciation rights, and (5) the Company shall pay to the Employee a severance payment equal to the greater then by reducing or eliminating any accelerated vesting of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreementrestricted stock or restricted stock units.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee(i) If the Executive’s employment hereunder may also be is terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment Executive should resign for Good Reason, prior to the expiration of the Term, she shall be entitled to receive: (1A) the Salary provided for in Section 3(a) as accrued through the date of such resignation or termination, payable within 30 days following termination and (subject to the Executive’s execution and delivery of a general release of all claims against the Affiliated Companies and the expiration of any release revocation period, which release shall be consistent with the terms of this Agreement and in form reasonably acceptable to the Company shall provide (the Employee with at least “Release”), within sixty (60) days’ notice (which time period may be shortened by mutual agreement calendar days following termination of employment), continued payment of the partiesExecutive’s then-current Salary for a period of six (6) of its intent to terminate this Agreement without Cause; months (2) the Company shall pay to the Employee all accrued or vested compensation“Continuation Period”), including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (payable in accordance with the Company’s normal business expense reimbursement procedures)usual payment practices; provided that the first payment shall be made on the sixtieth (60th) calendar day following termination of employment and shall include payment of any amounts that would otherwise be due prior thereto; (B) at the time of, on the terms of, and otherwise consistent with payments to similarly-situated executives, (4x) all awards theretofore granted any Annual Bonus earned but not yet paid in respect of any calendar year preceding the year in which such termination or resignation occurs and (y) an Annual Bonus for the calendar year in which the Executive’s termination of employment or resignation occurs equal to a pro rata portion of the Executive’s target Annual Bonus, if any, for such year, determined on the basis of the number of days in such year through the date of the Executive’s termination of employment or resignation, provided, however, that if the Executive’s employment is terminated during the first three months of a fiscal year, no such bonus shall be payable with respect to that fiscal year; and (C) any unreimbursed expenses. Except to the Employee under extent required pursuant to Section 22 hereof, during the Continuation Period, Salary payments to the Executive shall be payable in accordance with the customary payroll practices of the Company's incentive plans shall continue . Subject to vest (the Executive’s execution and delivery of the Release and the restrictions thereon lapseexpiration of any release revocation period within sixty (60) on their then existing schedule notwithstanding the calendar 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 Company shall pay same terms and conditions as are in effect immediately prior to such termination or resignation, until the Employee a severance payment equal earlier to the greater occur of (i) the amount he would be entitled to under Company policy in effect at last day of the time of termination, Continuation Period and (ii) his Base Salary plus such time as the greater Executive is entitled to comparable benefits provided by a subsequent employer. Anything herein to the contrary notwithstanding, the Company shall have no obligation to continue to maintain during the Continuation Period any plan or program solely as a result of his target bonus 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 she been eligible to participate therein or had such plan or program continued to be maintained by the Company.
(ii) Except as may be provided under the terms of any applicable grants to the Executive under the LTIP, Section 18, any plan or arrangement in which the Executive participates, or as may be otherwise required by applicable law (including, without limitation, the provisions of Section 4980B(f) of the Internal Revenue Code of 1986, as amended (the “Code”)), 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 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 her pursuant to this Section 7(b) hereof and the actual bonus paid or other benefits to him which she is entitled pursuant hereto, except as provided in the year immediately preceding paragraph. Notwithstanding anything to the contrary in this Agreement, the right of the Term preceding Executive to receive payments provided for in this Section 7(b) shall be subject to Section 8 of this Agreement.
(iii) The date of termination for of employment by the remainder Company pursuant to this Section 7(b) shall be the date specified in the written notice of termination from the Company to the Executive or, if no date is specified therein, ten business days after receipt by the Executive of the Termwritten 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 the written notice of resignation from the Executive to the Company which, but in the case of a proposed resignation to which the 30-day cure period provided for in subsection 7(a)(iii) above applies shall be no event less than 31 days after the delivery of such notice to the Company; and in the case of a 12proposed resignation to which the 30-month day cure period (the “Severance Payment ”). As a condition to receiving the Severance Paymentdoes not apply and in which no date is specified therein, the Employee will date of resignation shall be required to execute and deliver ten business days after receipt by the Company’s standard release agreement (the “Release Agreement”) within 30 days Company of the Date written notice of Termination. Subject to Section 20 hereof, resignation from the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release AgreementExecutive.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee’s employment hereunder may also be terminated by Subject to Executive signing and not revoking a separation agreement and release of known and unknown claims in the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction form provided by the Company (including nondisparagement and no cooperation provisions) (the “Release”) and provided that such Release becomes effective and irrevocable no later than sixty (60) days following the termination date or such earlier date required by the release (the “Release Deadline”), if the Executive’s employment is terminated without Cause by the consent of the Employee, which consent may be revoked at any time) Corporation (except in the Employee’s Base Salary, case of death or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange CommissionDisability), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates Executive resigns his employment for Good Reason, the Executive shall be entitled to the following:
(i) continued payment of Executive’s Base Salary for a period equal to one (1) year following the Company shall provide termination date;
(ii) payment of four Quarterly Bonus payments to be made quarterly following the Employee with at least sixty termination date;
(60iii) days’ notice (which time period may be shortened by mutual agreement The Corporation will also continue the benefits under Section 4(d), except disability benefits coverage, for the Severance Period, if such benefits are available subject to the terms of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall plans, or pay to the Employee all Executive an amount equal to the Corporation’s contribution for these benefits. Disability benefits will cease immediately on the date of termination;
(iv) any earned unpaid bonus for the fiscal year prior to the termination, payable at the same time other employees of the Corporation are paid such bonus;
(v) a prorated amount of the Quarterly Bonus for the calendar quarter in which the termination occurs based on the date of termination, payable at the same time other employees of the ` Corporation are paid such bonus;
(a) any earned but unpaid Base Salary through the termination date, (b) accrued or vested compensation, including salary, commissionbut unpaid vacation pay, and bonus(es(c) reimbursement of expenses incurred through the Date of Terminationtermination date in accordance with Section 4(f) hereof; the whole, (3) owing as at the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (termination date, payable in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to laws of the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding state in which Executive works as of the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period date (the “Severance Payment Basic Payments”). As a condition to receiving the Severance Payment, the Employee will be required to execute ; and deliver the Company’s standard release agreement (the “Release Agreement”vii) within 30 days twelve (12) months’ accelerated vesting of the Date of Termination. Subject Stock Option, subject at all times to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the ESOP. The Executive agrees that the foregoing payments in Section 7(b) represents the Executive’s complete entitlement to severance or other benefits in the event of the termination of Executive’s employment. Executive further acknowledges that if the Release does not become effective by the Release Deadline, Executive will forfeit any rights to severance or benefits under this Section 7(b) or elsewhere in this Agreement. For the purposes of this Agreement, “Cause” means:
(i) fraud or embezzlement by the Executive from the Corporation;
(ii) conviction of the Executive of a criminal act or other offence relating to the Executive’s employment; or
(iii) any breach of this Agreement by the Executive not cured within thirty (30) days after written notice by the Corporation to the Executive thereof.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee(i) If the Executive incurs a “Separation from Service” within the meaning of Section 409A of the Code and the Regulations thereunder, by reason of the Company’s termination of the Executive’s employment without Cause, or if the Executive resigns from her employment hereunder may also be terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee Executive shall have be entitled to the following:
(A) An amount equal to the Other Accrued Compensation and Benefits;
(B) One year’s Base Salary at the rate then in effect, and one year’s target bonus at the rate then in effect, payable in equal installments pursuant to the Company’s normal payroll practices and subject to all legally required and customary withholdings for the twelve (12) month following termination; and
(C) Monthly payments to the Executive equal to the full premium amount (determined as of the date of termination) for continued coverage under the Company’s health plan pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, (“Good Reason” COBRA”) for the Executive, and, to terminate his employment hereunder the extent that the Executive is providing coverage for her spouse or eligible dependents as of the termination date, for such individuals; provided, however, that the Company’s obligation to pay such premiums shall cease immediately upon the earlier of (i) the Company’s failure to perform its material duties hereunderpassage of eighteen (18) months, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent expiration of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; statutory COBRA period and (iii) the assignment to date the Employee of duties inconsistent with Executive becomes eligible for coverage under any other group health plan (as an employee or otherwise) or Medicare. Notwithstanding the Employee’s status as a senior executive officer of the Companyforegoing, or the designation by if the Company terminates the Executive’s employment without Cause, the Company shall provide the Executive with no less than ninety (90) days’ written notice or payment of three (3) months Base Salary in lieu of ninety (90) days’ written notice, which shall be in addition to payments described under this Section 5(b)(i).
(ii) Unless otherwise provided herein, all payments and benefits provided under this Section 5(b) shall commence on the Employee first payroll date following the 60th day after the Executive’s termination of employment. The Company shall not be required to any position or capacity other than (A) Chief Financial Officer of make the Companypayments and provide the benefits provided for under this Section 5(b)(i)(A), (B) Chief Financial Officer or (C) unless the Executive executes and delivers to the Company, within sixty (60) days following the Executive’s termination of employment, a release substantially in the form attached hereto as Exhibit A, and the release has become effective and irrevocable in its entirety in such 60-day period. The Executive’s failure or refusal to sign the release (or the Executive’s revocation of such release in accordance with applicable laws) will result in the forfeiture of the payments and benefits under this Section 5(b)(i)(A), (B) or (C). To the extent any amount payable under this Section 5 is deferred compensation subject to the Code, if the period during which the Executive has discretion to execute or revoke the general release of claims straddles two of the Executive’s taxable years, then the Company shall make the severance payments starting in the second of such taxable years, regardless of which taxable year the Executive actually deliver the executed general release of claims to the Company. The Executive may not, directly or indirectly, designate the calendar year or timing of payments. This Section 5(b)(ii) shall expressly not apply to payments made on account of a Change in Control, pursuant to Section 5(b)(iv) hereof.
(iii) If, following a termination of employment without Cause or a resignation for Good Reason, the Executive breaches the provisions of Sections 6 through 10 hereof or breaches any provision set forth in the executed copy of the general release of claims, the Executive shall not be eligible, as of the date of such breach, for the payments and benefits described in Section 5(b)(i)(A), (B) or (C), and any and all obligations and agreements of the Company with respect to such payments shall thereupon cease, This Section 5(b)(iii) shall expressly not apply to payments made on account of a Change in Control, pursuant to Section 5(b)(iv) hereof.
(iv) If the Company undergoes a Change in Control, and within 24 months of such Change in Control the Executive is terminated without Cause or resigns for Good Reason, then the Executive shall be entitled to all payments set forth in this Paragraph 5(b) except that:
(A) Instead of the one year’s Base Salary and target bonus referred to in Section 5(b)(i)(B), the Executive shall be eligible for two year’s Base Salary and two years’ target bonus.
(B) Instead of the amounts specified in Section 5(b)(iv)(A) being made in monthly payments as referred to in Section 5(b)(i)(C), they shall be paid in a lump sum on the date the Executive incurs a Separation from Service within the meaning of Section 409 A of the Code and the Regulations thereunder, or on such later date required under Section 409A of the Code and the Regulations thereunder.
(C) In the event that it is determined that any payment or distribution of any type to or for the benefit of an Executive made by the Company, by any of its Affiliates, by any person who acquires ownership or effective control or ownership of a substantial portion of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group assets (within the meaning of Rule 13d-3 Code Section 280G) or by any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the rules and regulations promulgated under terms of any equity compensation plan, this Agreement or otherwise (the Securities Exchange Act of 1934, as amended“Total Payments”), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established would be subject to the excise tax imposed by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company Code Section 4999 or any successor entity of the Company, interest or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, penalties with respect to such excise tax (the “Excise Tax”), then, notwithstanding any act other provision of this Agreement or failure any equity compensation plan to act constituting Good Reason hereunderthe contrary, any right of the Executive to any payment or benefit under this Agreement or any such equity compensation plan shall be reduced or eliminated, but only to the extent necessary to avoid imposition of the Excise Tax. In no case, however, shall such cutback be made if Total Payments after the imposition of the Excise Tax are greater than Total Payments cut back as provided in this Section 5(b)(iv) to avoid the Excise Tax.
(D) In the event that a cutback of Total Payments is permitted under Section 5(b)(iv)(C), and except as required by Code Section 409A or to the extent that Code 409A permits discretion, the Compensation Committee shall have the right, in the Compensation Committee’s sole discretion, to designate those rights, payments, or benefits and all other agreements that should be reduced or eliminated so as to provide the Executive with the maximum pre-tax amount which avoids imposition of the Excise Tax. For example, the Compensation Committee may choose to cut back cash severance, if that would yield a higher pre-tax amount than cutting back equity. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of extent any payment or benefit constitutes deferred compensation under Code Section 409A, in order to comply with Code Section 409A the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee Compensation Committee shall instead accomplish such reduction by first provide written notice to the Company, which notice specifically identifies the event reducing or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety eliminating any cash payments (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedurespayments to be made furthest in the future being reduced first), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination by reducing or eliminating any accelerated vesting of employmentoptions or stock appreciation rights, and (5) the Company shall pay to the Employee a severance payment equal to the greater then by reducing or eliminating any accelerated vesting of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreement.restricted stock or restricted stock units:
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee’s (i) If the Executive's employment hereunder may also be is terminated by the Company at any time for any reason without Cause other than death, disability (as defined in Section 6(e) hereof) or by for Cause, or, if the Employee Executive should resign for “Good Reason”. For purposes Reason prior to the expiration of the Term, he shall be entitled (A) to receive a lump sum severance payment in an amount equal to the Executive's then current base salary for the then remaining portion of the Term, plus (B) all amounts due to the Executive under Section 5(i) above shall be accelerated and due and payable to the Executive, to the extent not paid to the Executive as of the termination of this Agreement, which payments shall be due immediately upon the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent termination or resignation of the EmployeeExecutive's employment and, which consent may be revoked if not so paid, shall bear interest at any timethe rate of 15% per annum from such date until paid, and (C)
(1) to continue participation in the Employee’s Base Salary, or substantial reduction plans and arrangements described in the other benefits provided clauses (b) and (f) of Section 5 hereof (to the Employee; (iiiextent permissible by law and the terms of such plans and arrangements) for the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer then remaining portion of the Company, or Term (the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission"Benefits Period"), or (C2) Chief Operating Officer at the election of the Company; (iv) Executive at any time following termination of this Agreement and during the relocation Benefits Period, to receive a gross bonus payment in an amount which after payment therefrom of all applicable federal and state income and employment taxes, will equal the cost to the Company at the time of the Employee’s principle place Executive's election, attributable to the Executive's participation in the plans and arrangements described in clauses (b) and (f) of employment to a location more than thirty-five Section 5 hereof for the Benefits Period less any portion thereof during which the Executive has continued his participation in such plans and arrangements described in clause (35b) miles from its current Newark, New Jersey location or outside and (f) of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not Section 5 hereof in accordance with the terms hereofsubsection 6(b)(i)(C)(1) above; which payment shall be due following termination or (vii) any “Change in Control” resignation of the Company. For purposes Executive's employment immediately upon the Executive's delivery of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the CompanyCompany of his election pursuant to subsection 6(b)(i)(C)(2), and if not so paid, shall bear interest at the rate of 15% per annum for such date until paid, and (D) to have all stock options which notice specifically identifies the event or circumstances giving rise have been granted to the Good Reason Executive to immediately become fully exercisable for which the Employee is terminating his employment, within ninety (90) days a period of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, three (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding months after the termination of employment, and or resignation date (5as the case may be) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release AgreementPlans and the relevant stock option agreement, and (E) upon his written notice to the Company at any time within three months following the termination or resignation date (as the case may be), to purchase his Company owned automobile at a purchase price equal to the book value of said automobile as carried on the books and records of the Company, plus all applicable excise taxes.
(ii) In the event of any dispute as to whether the Executive's employment was terminated by the Company for a reason other than for Cause or whether the Executive resigned for Good Reason, the Executive shall continue to be provided with the health insurance benefits provided by the Company during the arbitration proceedings provided for in Section 8 below. Further, any monies which would be payable to the Executive pursuant to this Section 6(b) if the Executive were to prevail in such arbitration proceedings shall be deposited promptly into interest bearing escrow accounts to be established by the Company in the name of the American Arbitration Association, as trustee, in a federally insured depository institution (other than the Company or any affiliated entity) for such purpose, and the accounts shall be established at separate institutions in amounts such that the principal plus interest anticipated to accrue during the course of arbitration proceedings shall not exceed the limit of federal insurance applicable to each such account. The total of the escrowed amounts, together with the accrued interest thereon, shall be paid to the Executive or revert to the Company, as the case may be, in accordance with the final resolution of the dispute pursuant to Section 8.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee(i) If the Executive incurs a “Separation from Service” within the meaning of Section 409A of the Code and the Regulations thereunder, by reason of the Company’s termination of the Executive’s employment hereunder may also be terminated by without Cause, or if the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate Executive resigns from his employment hereunder for Good Reason, the Executive shall be entitled to the following:
(A) An amount equal to the Other Accrued Compensation and Benefits;
(B) One year’s Base Salary at the rate then in effect, and one year’s target bonus at the rate then if effect, payable in equal installments pursuant to the Company’s normal payroll practices and subject to all legally required and customary withholdings for the twelve (12) month following termination; and
(C) Monthly payments to the Executive equal to the full premium amount (determined as of the date of termination) for continued coverage under the Company’s health plan pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, (“COBRA”) for the Executive, and, to the extent that the Executive is providing coverage for his spouse or eligible dependents as of the termination date, for such individuals; provided, however, that the Company’s obligation to pay such premiums shall cease immediately upon the earlier of (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen passage of eighteen (1518) days of its receipt of written notice thereof from the Employee; months (ii) a reduction by the Company (without the consent expiration of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; statutory COBRA period and (iii) the assignment to date the Employee of duties inconsistent with Executive becomes eligible for coverage under any other group health plan (as an employee or otherwise) or Medicare. Notwithstanding the Employee’s status as a senior executive officer of the Companyforegoing, or the designation by if the Company terminates the Executive’s employment without Cause, the Company shall provide the Executive with no less than ninety (90) days’ written notice or payment of three (3) months Base Salary in lieu of ninety (90) days’ written notice, which shall be in addition to payments described under this Section 5(b)(i).
(ii) Unless otherwise provided herein, all payments and benefits provided under this Section 5(b) shall commence on the Employee first payroll date following the 60th day after the Executive’s termination of employment. The Company shall not be required to any position or capacity other than (A) Chief Financial Officer of make the Companypayments and provide the benefits provided for under this Section 5(b)(i)(A), (B) Chief Financial Officer or (C) unless the Executive executes and delivers to the Company, within sixty (60) days following the Executive’s termination of employment, a release substantially in the form attached hereto as Exhibit A, and the release has become effective and irrevocable in its entirety in such 60-day period. The Executive’s failure or refusal to sign the release (or the Executive’s revocation of such release in accordance with applicable laws) will result in the forfeiture of the payments and benefits under this Section 5(b)(i)(A), (B) or (C). To the extent any amount payable under this Section 5 is deferred compensation subject to the Code, if the period during which the Executive has discretion to execute or revoke the general release of claims straddles two of the Executive’s taxable years, then the Company shall make the severance payments starting in the second of such taxable years, regardless of which taxable year the Executive actually deliver the executed general release of claims to the Company. The Executive may not, directly or indirectly, designate the calendar year or timing of payments. This Section 5(b)(ii) shall expressly not apply to payments made on account of a Change in Control, pursuant to Section 5(b)(iv) hereof.
(iii) If, following a termination of employment without Cause or a resignation for Good Reason, the Executive breaches the provisions of Sections 6 through 10 hereof or breaches any provision set forth in the executed copy of the general release of claims, the Executive shall not be eligible, as of the date of such breach, for the payments and benefits described in Section 5(b)(i)(A), (B) or (C), and any and all obligations and agreements of the Company with respect to such payments shall thereupon cease. This Section 5(b)(iii) shall expressly not apply to payments made on account of a Change in Control, pursuant to Section 5(b)(iv) hereof.
(iv) If the Company undergoes a Change in Control, and within 24 months of such Change in Control the Executive is terminated without Cause or resigns for Good Reason, then the Executive shall be entitled to all payments set forth in this Paragraph 5(b) except that:
(A) Instead of the one year’s Base Salary and target bonus referred to in Section 5(b)(i)(B), the Executive shall be eligible for two year’s Base Salary and two years’ target bonus.
(B) Instead of the amounts specified in Section 5(b)(iv)(A) being made in monthly payments as referred to in Section 5(b)(i)(C), they shall be paid in a lump sum on the date the Executive incurs a Separation from Service within the meaning of Section 409A of the Code and the Regulations thereunder, or on such later date required under Section 409A of the Code and the Regulations thereunder.
(C) In the event that it is determined that any payment or distribution of any type to or for the benefit of an Executive made by the Company, by any of its Affiliates, by any person who acquires ownership or effective control or ownership of a substantial portion of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group assets (within the meaning of Rule 13d-3 Code Section 280G) or by any affiliate of such person, whether paid or payable or distributed or distributable pursuant to the rules and regulations promulgated under terms of any equity compensation plan, this Agreement or otherwise (the Securities Exchange Act of 1934, as amended“Total Payments”), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established would be subject to the excise tax imposed by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company Code Section 4999 or any successor entity of the Company, interest or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, penalties with respect to such excise tax (the “Excise Tax”), then, notwithstanding any act other provision of this Agreement or failure any equity compensation plan to act constituting Good Reason hereunderthe contrary, any right of the Executive to any payment or benefit under this Agreement or any such equity compensation plan shall be reduced or eliminated, but only to the extent necessary to avoid imposition of the Excise Tax. In no case, however, shall such cutback be made if Total Payments after the imposition of the Excise Tax are greater than Total Payments cut back as provided in this Section 5(b)(iv) to avoid the Excise Tax.
(D) In the event that a cutback of Total Payments is permitted under Section 5(b)(iv)(C), and except as required by Code Section 409A or to the extent that Code 409A permits discretion, the Compensation Committee shall have the right, in the Compensation Committee’s sole discretion, to designate those rights, payments, or benefits and all other agreements that should be reduced or eliminated so as to provide the Executive with the maximum pre-tax amount which avoids imposition of the Excise Tax. For example, the Compensation Committee may choose to cut back cash severance, if that would yield a higher pre-tax amount than cutting back equity. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of extent any payment or benefit constitutes deferred compensation under Code Section 409A, in order to comply with Code Section 409A the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee Compensation Committee shall instead accomplish such reduction by first provide written notice to the Company, which notice specifically identifies the event reducing or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety eliminating any cash payments (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedurespayments to be made furthest in the future being reduced first), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination by reducing or eliminating any accelerated vesting of employmentoptions or stock appreciation rights, and (5) the Company shall pay to the Employee a severance payment equal to the greater then by reducing or eliminating any accelerated vesting of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreementrestricted stock or restricted stock units.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee(i) If the Executive’s employment hereunder may also be is terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment Executive should resign for Good Reason, prior to the expiration of the Term, she shall be entitled to receive: (1A) the Salary provided for in Section 3(a) as accrued through the date of such resignation or termination, payable within 30 days following termination and (subject to the Executive’s execution and delivery of a general release of all claims against the Affiliated Companies and the expiration of any release revocation period, which release shall be consistent with the terms of this Agreement and in form reasonably acceptable to the Company shall provide (the Employee with at least “Release”), within sixty (60) days’ notice (which time period may be shortened by mutual agreement calendar days following termination of employment), continued payment of the partiesExecutive’s then-current Salary for a period of eighteen (18) of its intent to terminate this Agreement without Cause; months (2) the Company shall pay to the Employee all accrued or vested compensation“Continuation Period”), including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (payable in accordance with the Company’s normal business expense reimbursement procedures)usual payment practices; provided that the first payment shall be made on the sixtieth (60th) calendar day following termination of employment and shall include payment of any amounts that would otherwise be due prior thereto; (B) at the time of, on the terms of, and otherwise consistent with payments to similarly-situated executives, (4x) all awards theretofore granted any Annual Bonus earned but not yet paid in respect of any calendar year preceding the year in which such termination or resignation occurs and (y) an Annual Bonus for the calendar year in which the Executive’s termination of employment or resignation occurs equal to a pro rata portion of the Executive’s target Annual Bonus, if any, for such year, determined on the basis of the number of days in such year through the date of the Executive’s termination of employment or resignation, provided, however, that if the Executive’s employment is terminated during the first three months of a fiscal year, no such bonus shall be payable with respect to that fiscal year; and (C) any unreimbursed expenses. Except to the Employee under extent required pursuant to Section 22 hereof, during the Continuation Period, Salary payments to the Executive shall be payable in accordance with the customary payroll practices of the Company's incentive plans shall continue . Subject to vest (the Executive’s execution and delivery of the Release and the restrictions thereon lapseexpiration of any release revocation period within sixty (60) on their then existing schedule notwithstanding the calendar 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 Company shall pay same terms and conditions as are in effect immediately prior to such termination or resignation, until the Employee a severance payment equal earlier to the greater occur of (i) the amount he would be entitled to under Company policy in effect at last day of the time of termination, Continuation Period and (ii) his Base Salary plus such time as the greater Executive is entitled to comparable benefits provided by a subsequent employer. Anything herein to the contrary notwithstanding, the Company shall have no obligation to continue to maintain during the Continuation Period any plan or program solely as a result of his target bonus 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 she been eligible to participate therein or had such plan or program continued to be maintained by the Company.
(ii) Except as may be provided under the terms of any applicable grants to the Executive under the LTIP, Section 18, any plan or arrangement in which the Executive participates, or as may be otherwise required by applicable law (including, without limitation, the provisions of Section 4980B(f) of the Internal Revenue Code of 1986, as amended (the “Code”)), 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 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 her pursuant to this Section 7(b) hereof and the actual bonus paid or other benefits to him which she is entitled pursuant hereto, except as provided in the year immediately preceding paragraph. Notwithstanding anything to the contrary in this Agreement, the right of the Term preceding Executive to receive payments provided for in this Section 7(b) shall be subject to Section 8 of this Agreement.
(iii) The date of termination for of employment by the remainder Company pursuant to this Section 7(b) shall be the date specified in the written notice of termination from the Company to the Executive or, if no date is specified therein, ten business days after receipt by the Executive of the Termwritten 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 the written notice of resignation from the Executive to the Company which, but in the case of a proposed resignation to which the 30-day cure period provided for in subsection 7(a)(iii) above applies shall be no event less than 31 days after the delivery of such notice to the Company; and in the case of a 12proposed resignation to which the 30-month day cure period (the “Severance Payment ”). As a condition to receiving the Severance Paymentdoes not apply and in which no date is specified therein, the Employee will date of resignation shall be required to execute and deliver ten (10) business days after receipt by the Company’s standard release agreement (the “Release Agreement”) within 30 days Company of the Date written notice of Termination. Subject to Section 20 hereof, resignation from the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release AgreementExecutive.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The If the Employee’s employment hereunder may also be with the Company is terminated by the Company at any time for any reason without Cause (as defined in Section 4.3), or by the Employee’s voluntary resignation for Good Reason (as defined in Section 4.2), other than in connection with a Change in Control (as defined in Section 7.2(a)), then the Employee for shall be paid all accrued and unpaid base salary and any accrued but unused vacation through the date of termination. In addition, subject to the Employee’s execution and non-revocation of a binding severance and mutual release agreement in a form satisfactory to the Company (hereinafter, a “Good ReasonSeverance Agreement”. For purposes ) and subject to the terms and conditions of Section 19 of this Agreement, the Employee shall have “Good Reason” be eligible to terminate his employment hereunder upon receive the following separation benefits:
(a) an amount equal to the product of (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen one twelfth (151/12) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee’s then-current annualized base salary (provided, which consent may be revoked at any time) in however, that if Employee’s employment is terminated by the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status voluntary resignation for Good Reason as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one result of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation material reduction of the Employee’s principle place of employment base salary, then the Employee’s then-current annualized base salary shall refer to a location more than thirty-five her base salary as in effect immediately before such material reduction took effect) and (35ii) miles from its current Newarksix (6), New Jersey location or outside of the New York City metropolitan areas; less any amounts required to be withheld under applicable law, which amount shall be payable in six (v6) the assignment of duties inconsistent substantially equal monthly installments, in accordance with the Company’s rulespayroll practices in effect from time to time beginning on the Payment Commencement Date (as defined below); and (b) the amount of any bonus for the prior year that was approved but not yet paid to the Employee at the time of the Employee’s termination of employment, policies or proceduresless any amounts required to be withheld under applicable law, including without limitationwhich amount shall be paid in a manner and timing consistent with the payments to other similarly situated employees and consistent with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended, but in no event later than March 15 of the year following the year of performance; provided, in both cases, that the Severance Agreement has been executed and any applicable revocation period with respect thereto has expired within sixty (60) days following the Employee’s date of termination (such 60th day, the “Payment Commencement Date”); provided, however, that if the 60th day following the Employee’s date of termination occurs in the calendar year following the year of termination, then the Payment Commencement Date shall be no earlier than January 1 of the year following the year of termination; and
5.2 upon the Employee’s termination from employment pursuant to this Section 5, the Company shall make contributions to the cost of COBRA (Consolidated Omnibus Budget Reconciliation Act) coverage on behalf of the Employee and any applicable dependents for a period of six (6) months after the Employee’s termination if the Employee elects COBRA coverage, and only for so long as such coverage continues in force; provided, however, that if the Employee commences new employment and is eligible for a new group health plan, the Company’s Code contributions toward COBRA coverage shall end when the new employment begins. The cost of Business Conduct COBRA shall be determined on the same basis as the Company’s contribution to Company-provided health and Ethics; (vi) any purported dental insurance coverage in effect immediately before termination of the Employee’s employment not in accordance for an active employee with the terms hereof; or (vii) any “Change in Control” same coverage elections. At the end of the Company. For purposes of this Agreementsix (6) month period, a “Change in Control” shall mean the Employee may continue such COBRA, if applicable, and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of responsible for all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment premiums thereafter.”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreement.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee’s (a) Notwithstanding the provisions of Section 1 of this Agreement, the Board of Directors of the Corporation may, without Cause (as hereafter defined), terminate the Executive's employment hereunder may also be terminated by the Company under this Agreement at any time in any lawful manner by giving not less than thirty (30) days written notice to the Executive ("Notice of Termination"), which notice shall indicate the specific provision(s) in this Agreement relied upon for such termination. The Executive may resign for Good Reason (as hereafter defined) at any reason time by giving not less than thirty (30) days written notice to the Corporation ("Notice of Resignation"), which notice shall indicate the specific provision(s) in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for a resignation for Good Reason. In the event the Corporation terminates the Executive's employment without Cause or the Executive resigns for Good Reason, and, in either such event, the Executive offers in writing to continue to provide the services contemplated by and on the terms of this Agreement and such offer is not accepted by the Employee Corporation unconditionally in writing within five (5) days thereafter, then the Executive shall be entitled to liquidated damages, subject in the case of the Executive's resignation for “Good Reason”, to the provisions of Section 7(d) of this Agreement, as follows:
(i) The Executive shall be paid a lump sum cash payment by the Corporation, within thirty-five (35) days after a Notice of Termination is given by the Corporation to the Executive pursuant to this Section 7(a) of the Agreement, (unless such payment is subject to the limitations set forth in Section 409A of the Internal Revenue Code, in which case such payment shall be made 185 days after the date of termination) in an amount equal to 1.0 times the total cash compensation (including bonus) paid or payable to the Executive during the twelve (12) full consecutive months immediately preceding the effective date of the Executive's termination of employment; and
(ii) The Corporation shall maintain in full force and effect for the continued benefit of the Executive for twelve (12) months following the effective date of the Executive's termination or resignation (the "Liquidated Damage Period"), as the case may be, at no cost to the Executive, all employee benefit plans and programs or arrangements in which the Executive was entitled to participate immediately prior to such termination as described in Section 4(a) of this Agreement (other than stock-based compensation plans of the Corporation or CFC), provided that continued participation is possible under the general terms and provisions of such plans and programs. In the event that the Executive's participation in any such plan or program is barred, the Corporation shall arrange to provide the Executive with benefits substantially similar to those which the Executive was entitled to receive under such plans and programs.
(i) In the event that the Executive becomes entitled to liquidated damages pursuant to Section 7(a) above, (A) the Corporation's obligations under Section 7(a)(i) above with respect to cash damages shall be reduced by the amount of the Executive's cash income, if any, earned from providing personal services during the Liquidated Damage Period; and (B) the Corporation's obligation to maintain the benefits described under Section 7(a)(ii) above shall be reduced to the extent, if any, that the Executive receives such benefits, on no less favorable terms, from another employer during the Liquidated Damage Period. For purposes of this Section 7(b), the term "cash income" shall include amounts of salary, wages, bonuses, incentive compensation and fees paid to the Executive in cash but shall not include shares of stock, stock options, stock appreciation rights or other earned income not paid to the Executive in cash. To the extent the provisions of this Section 7(b) are applicable and an overpayment has been made to the Executive as of the expiration of the Liquidated Damage Period, the Executive shall reimburse the Corporation in an amount equal to the after tax benefit realized by the Executive from such overpayment (i.e. amount realized net of all federal, state, local, employment and medicare taxes). In making the reimbursement calculation it shall be presumed that the Executive is subject to the highest marginal federal and state income tax rates.
(ii) The Executive agrees that in the event he becomes entitled to liquidated damages pursuant to Section 7(a) above, throughout the Liquidated Damage Period, he shall promptly inform the Corporation of the nature and amounts of cash income and the type of health benefits and coverage which he earns or receives from providing personal services, and shall provide such documentation of such cash income and such health benefits and coverage as the Corporation may request. In the event of changes to such cash income or such health benefits or coverage from time to time, the Executive shall inform the Corporation of such changes, in each case within five days after the change occurs, and shall provide such documentation concerning the change as the Corporation may request.
(c) For purposes of this Agreement, the Employee shall have “"Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” " shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreement.mean:
Appears in 1 contract
Samples: Employment Agreement (Community Financial Corp /Va/)
Termination Without Cause; Resignation for Good Reason. The If the Employee’s employment hereunder may also be with the Company is terminated by the Company at any time for any reason without Cause (as defined in Section 4.3), or by the Employee’s voluntary resignation for Good Reason (as defined in Section 4.2), other than in connection with a Change in Control (as defined in Section 7.2(a)), then the Employee for shall be paid all accrued and unpaid base salary and any accrued but unused vacation through the date of termination. In addition, subject to the Employee’s execution and non-revocation of a binding severance and mutual release agreement in a form satisfactory to the Company (hereinafter, a “Good ReasonSeverance Agreement”. For purposes ) and subject to the terms and conditions of Section 18 of this Agreement, the Employee shall have “Good Reason” be eligible to terminate his employment hereunder upon receive the following separation benefits:
(a) an amount equal to the product of (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen one twelfth (151/12) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee’s then-current annualized base salary (provided, which consent may be revoked at any time) in however, that if Employee’s employment is terminated by the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status voluntary resignation for Good Reason as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one result of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation material reduction of the Employee’s principle place of employment base salary, then the Employee’s then-current annualized base salary shall refer to a location more than thirty-five her base salary as in effect immediately before such material reduction took effect) and (35ii) miles from its current Newarksix (6), New Jersey location or outside of the New York City metropolitan areas; less any amounts required to be withheld under applicable law, which amount shall be payable in six (v6) the assignment of duties inconsistent substantially equal monthly installments, in accordance with the Company’s rulespayroll practices in effect from time to time beginning on the Payment Commencement Date (as defined below); and (b) the amount of any bonus for the prior year that was approved but not yet paid to the Employee at the time of the Employee’s termination of employment, policies or proceduresless any amounts required to be withheld under applicable law, including without limitationwhich amount shall be paid in a manner and timing consistent with the payments to other similarly situated employees and consistent with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) but in no event later than March 15 of the year following the year of performance; provided, in both cases, that the Severance Agreement has been executed and any applicable revocation period with respect thereto has expired within sixty (60) days following the Employee’s date of termination (such 60th day, the “Payment Commencement Date”); provided, however, that if the 60th day following the Employee’s date of termination occurs in the calendar year following the year of termination, then the Payment Commencement Date shall be no earlier than January 1 of the year following the year of termination; and
5.2 upon the Employee’s termination from employment pursuant to this Section 5, the Company shall make contributions to the cost of COBRA (Consolidated Omnibus Budget Reconciliation Act) coverage on behalf of the Employee and any applicable dependents for a period of six (6) months after the Employee’s termination if the Employee elects COBRA coverage, and only for so long as such coverage continues in force; provided, however, that if the Employee commences new employment and is eligible for a new group health plan, the Company’s Code contributions toward COBRA coverage shall end when the new employment begins. The cost of Business Conduct COBRA shall be determined on the same basis as the Company’s contribution to Company-provided health and Ethics; (vi) any purported dental insurance coverage in effect immediately before termination of the Employee’s employment not in accordance for an active employee with the terms hereof; or (vii) any “Change in Control” same coverage elections. At the end of the Company. For purposes of this Agreementsix (6) month period, a “Change in Control” shall mean the Employee may continue such COBRA, if applicable, and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of responsible for all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreementpremiums thereafter.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee’s employment hereunder may also be terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a material reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, Company or a substantial adverse alteration in the designation by the Company nature or status of the Employee to any position or capacity other than Employee’s responsibilities; (Aiv) Chief Financial Officer a substantial diminution of the Company, (B) Employee’s responsibilities as the Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Executive Officer of the Company; (ivv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from any of its current Newark, New Jersey location or outside of the New York City metropolitan areasarea; (vvi) removal of the Employee from the office of Chief Executive Officer of the Company (without the consent of the Employee); (vii) the assignment of duties substantially inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and EthicsConduct; (viviii) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (viiix) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) the Company or all or substantially all of its assets shall be sold to a party that is not an affiliate of IDT, (B) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the CompanyIDT, or (BC) the stockholders of IDT or the Company shall approve a complete liquidation or dissolution of IDT or the CompanyCompany (other than for purposes of reforming the entity in another entity or jurisdiction). The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment during the periods referred to in the next succeeding paragraph shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating intends to terminate his employment, within ninety (90) days (fifteen (15) days in the event of Change in Control) of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effectiveeffective on the thirty-first (31st) business day following such notice from the Employee. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty ninety (6090) days’ written notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, salary and bonus(es) bonus through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), and (4) all awards theretofore granted to the Employee under the Company's ’s incentive plans (including the Equity Grant) shall continue to immediately vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination day immediately prior to the Date of employmentTermination, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus (at the greater of his target bonus under Section 7(brate in effect on the Termination Date) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event and (ii) ONE MILLION, TWO HUNDRED TWENTY-FIVE THOUSAND DOLLARS ($1,225,000.00) (less than a 12-month period any required deductions or withholding) (the “Severance Payment Amount” and the payment thereof, the “Severance Payment”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 forty-five (45) days of following the Date of Termination. Subject to Section 20 19 hereof, the Severance Payment will be paid one-half (1/2) within ten (10) days of the effective date of the Release Agreement (provided that the Release Agreement shall not have been revoked by the Employee prior thereto), and one-half (1/2) in equal payments over the six (6) month period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreement.
Appears in 1 contract
Samples: Employment Agreement
Termination Without Cause; Resignation for Good Reason. The Employee(i) If, prior to the expiration of the Term, the Executive’s employment hereunder may also be with the Company is terminated by the Company at any time for any reason without Cause or by if the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate Executive resigns from his employment hereunder upon for Good Reason, then, in addition to the Termination Amount and the payment of any unpaid earned Bonus for the year immediately preceding the year in which such termination or resignation occurs, the Executive shall be entitled to receive an amount equal to the sum of the following amounts (collectively, the “Severance Amount”):
(1) an amount equal to the pro rata portion of the Bonus for the year in which the termination or resignation occurs, calculated by multiplying (x) the Minimum Target Bonus for the year of termination by (y) a fraction, the numerator of which is the number of days the Executive was employed during the year of such termination or resignation and the denominator of which is 365; plus
(2) if at the time of such termination or resignation the Executive is not “retirement eligible” within the meaning of the Company’s Equity Plan Retirement Policy (or if the Executive is “retirement eligible” and such termination or resignation occurs after a Change on Control or within six months of a Change of Control as described below), an amount equal to the Applicable Multiple (as defined below) multiplied by the sum of: (i) the Company’s failure to perform its material duties hereunderBase Salary in effect for the year of termination or resignation, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the EmployeeMinimum Target Bonus; and (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions Reference Benefits Value (as described in the Company’s periodic filings made with the Securities and Exchange Commissiondefined below), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and such termination or resignation (iia) his Base Salary plus the greater Executive is “retirement eligible” within the meaning of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement Equity Plan Retirement Policy and (the “Release Agreement”b) a Change of Control has not occurred (and a Change of Control does not occur within 30 days six month following such termination or resignation and it is not reasonably demonstrated that such termination of employment or Good Reason event was in contemplation of the Date of Termination. Subject Change in Control during such six month period), then the Executive shall not receive the amount specified under Section 6(c)(i)(2) above but shall instead be eligible to Section 20 hereof, receive the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on 5 entitlements provided under the Company’s regularly scheduled payroll payment datesEquity Plan Retirement Policy, subject to and in accordance with the terms and conditions of the Release Agreementsuch policy.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The EmployeeEmployer may terminate Executive’s employment hereunder may also be terminated by the Company under this Section 3.1 at any time for any reason without Cause or upon not less than thirty (30) days’ prior written notice to Executive; provided, however, that, in the event that such notice is given, Executive shall be allowed to seek other employment during such notice period. In addition, Executive may terminate Executive’s employment under this Section 3.1 by the Employee voluntarily resigning for “Good Reason”. For purposes of this Agreement, the Employee Executive shall have “Good Reason” to terminate his employment hereunder upon give Employer not less than thirty (i30) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of days’ prior written notice thereof from the Employee; (ii) of a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If In the Employee gives notice of his intent to terminate his event Executive’s employment with is terminated by Employer without Cause or Executive resigns for Good Reason, the Employee shall first provide written notice in either case, then in addition to the Companyall Accrued Compensation, which notice specifically identifies the event or circumstances giving rise and subject to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure Executive’s execution and if the Company fails to cure non-revocation within thirty (30) business days of its receipt the Date of Termination of the noticeGeneral Release (as defined below), Executive shall be entitled to continue to receive his Base Salary (“Salary Continuation”) through the Employeetwelve-month anniversary of the Date of Termination (the “Severance Period”) plus an amount equal to the Incentive Bonus earned during the previous fiscal year from the Date of Termination (“Severance Bonus” and, together with the Salary Continuation, “Severance”)), if and only if Executive has executed and delivered to the Company a General Release substantially in form and substance as set forth in Exhibit C attached hereto (“General Release”) and the General Release has become effective, and only so long as Executive has not revoked or breached the provisions of the General Release or materially breached the provisions of Section 4 hereof and does not apply for unemployment compensation chargeable to the Company or any subsidiary of the Company during the Severance Period. Subject to Section 20.2, Severance shall be paid in monthly installments in accordance with Employer’s regular payroll practices during the Severance Period. In addition to the Severance, (a) in the event that the Executive’s employment with the Company is terminated by the Company without Cause or due to Executive’s resignation for Good Reason shall be deemed effective. If prior to the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement payment of the parties) First Transition Bonus, then, subject to the conditions applicable to the payment of its intent to terminate this Agreement without Cause; (2) Severance, the Company shall pay Executive a lump-sum cash amount equal to the Employee all accrued or vested compensation, including salary, commissionFirst Transition Bonus on the First Payment Date (as defined above) and (b) in the event that the Employment Period terminates as a result of a Sale of the Company, and bonus(es) through the Date Sale Bonus payable pursuant to Section 2.5 above is less than the aggregate amount of TerminationSeverance that Executive would have been entitled to receive if Executive’s employment had been terminated by the Company without Cause on the day immediately prior to such Sale of the Company, (3) the Company shall reimburse increase the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted Sale Bonus payable under Section 2.5 by an amount equal to the Employee under amount by which such Severance amount exceeds such Sale Bonus. For the Company's incentive plans avoidance of doubt, such increased amount shall continue be deemed to vest be part of the Sale Bonus and not Severance. If Executive is eligible for and elects to receive continuation group health coverage mandated by Section 4980B of the Internal Revenue Code or similar state laws (“COBRA”) during the Severance Period, Executive will be responsible for paying such COBRA premiums and the restrictions thereon lapse) on their then existing schedule notwithstanding Company will reimburse Executive for the termination amount of employmentthe COBRA premiums (“Health Care Continuation”); provided, and (5) however, that the Company shall pay have no obligation to reimburse Executive with respect to such COBRA premiums to the Employee a severance payment equal extent that the Company reasonably determines that reimbursement of such COBRA premiums could result in the imposition of excise taxes on the Company for any failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended. Notwithstanding anything in this Section 3.1 to the greater contrary, any portion of (i) the amount he Salary Continuation, Severance Bonus or the Health Care Continuation which would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus otherwise have been paid to him in the year Executive or reimbursed before the first normal payroll payment date falling on or after the fortieth (40th) day following the date of the Term preceding Executive’s termination for the remainder of the Term, but in no event less than a 12-month period employment (the “Severance First Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release AgreementDate”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will shall be paid over the period of time covered thereby following the effective date of the Release Agreement made on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release AgreementFirst Payment Date.
Appears in 1 contract
Samples: Executive Employment Agreement (Aspect Software Group Holdings Ltd.)
Termination Without Cause; Resignation for Good Reason. The Employee(i) If the Executive’s employment hereunder may also be is terminated by the Company at any time for any reason without Cause or by the Employee Executive resigns for “Good Reason”. For purposes , including, for the avoidance of this Agreementdoubt, during the period while the Executive is employed as a Special Advisor, the Employee Company shall have “Good Reason” pay the Executive, subject to terminate his employment hereunder Section 4(e) below: (A) severance pay equal to twelve (12) months of the Executive’s then-current Base Salary and an amount equal to the Executive’s annual full unprorated TBO (based upon (ithe Executive’s then-current Base Salary) the Company’s failure to perform its material duties hereunder, which failure has not been cured payable by the Company within fifteen in installments during its regular payroll cycle over the twelve (1512) days of its receipt of written notice thereof from month period following the Employee; (ii) a reduction by the Company (without the consent termination of the EmployeeExecutive’s employment, which consent may provided that the first payment shall be revoked at any timemade on the sixtieth (60th) in day after the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer termination of the CompanyExecutive’s employment, or the designation by the Company and such first payment shall include payment of the Employee to any position or capacity other than (A) Chief Financial Officer of the Companyamounts that would otherwise be due prior thereto, (B) Chief Financial Officer a pro rata portion of one the Executive’s Annual Bonus for the year of termination, if and to the extent that the Company achieves its performance metrics for such year, payable when bonuses are normally paid to other senior executives of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less later than March 15th of the year following the year to which such bonus relates, (C) any Annual Bonus in respect of a 12-month period previously completed fiscal year to the extent earned but unpaid as of the date of the termination or resignation of Executive’s employment, payable on the sixtieth (60th) day after the termination or resignation of the Executive’s employment, (D) the Other Accrued Compensation and Benefits, and (E) subject to the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconstruction Act of 1985, as amended (“Severance Payment COBRA”). As , on a condition to receiving monthly basis, commencing on the Severance Paymentsixtieth (60th) day after the termination of the Executive’s employment, with such payment including any amounts that would otherwise be due prior thereto, the Employee will be required to execute group medical, dental and deliver vision continuation coverage premiums for the Company’s standard release agreement (the “Release Agreement”) within 30 days Executive and his eligible dependents under COBRA in excess of the Date amount the Executive would have paid if he were an active employee for the COBRA continuation coverage period, which amount shall be includible as compensation income to the Executive; provided that the Executive or his dependents are eligible and remain eligible for COBRA coverage; provided, further, that if the Executive receives group health coverage from another employer of Terminationhim (in which event the Executive shall promptly notify the Company in writing), such continuation of coverage by the Company under this Section 4(b)(i) shall immediately cease. Subject Except as otherwise provided in this Agreement, the Executive shall have no further rights to receive any other compensation or benefits after such termination or resignation of employment.
(ii) If, following a termination of employment without Cause or a resignation for Good Reason, the Executive materially breaches a provision of Section 20 5, Section 6 or Section 7 hereof, the Severance Payment will Non-Compete Agreement, or paragraphs 2 through 6 of the Employment Covenants Agreement, the Executive shall not be paid over eligible, as of the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment datessuch material breach, for any further payments and benefits described in accordance with the terms Sections 4(b)(i)(A), (B), (C), or (E) and any and all obligations and agreements of the Release Company with respect to such payments shall thereupon cease; provided, however, that, prior to ceasing payments and benefits pursuant to this Section 4(b)(ii), the Company shall first give the Executive at least fifteen days’ prior written notice of its intention to terminate his payments and benefits and the grounds for such action and, solely with respect to a breach of paragraph 4 (Return of Company Property/Materials) of the Employment Covenants Agreement, such grounds have not been corrected by the Executive within fifteen days following his receipt of such notice.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee’s employment hereunder may also be terminated by (a) Notwithstanding the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes provisions of Section 1 of this Agreement, the Employee Board of Directors of the Corporation may, without Cause (as hereafter defined), terminate the Executive's employment under this Agreement at any time in any lawful manner by giving not less than thirty (30) days written notice to the Executive ("Notice of Termination"), which notice shall have “indicate the specific provision(s) in this Agreement relied upon for such termination. The Executive may resign for Good Reason (as hereafter defined) at any time by giving not less than thirty (30) days written notice to the Corporation ("Notice of Resignation"), which notice shall indicate the specific provision(s) in this Agreement relied upon and shall set forth in reasonable detail the facts and circumstances claimed to provide a basis for a resignation for Good Reason” . In the event the Corporation terminates the Executive's employment without Cause or the Executive resigns for Good Reason, and, in either such event, the Executive offers in writing to terminate his employment hereunder upon continue to provide the services contemplated by and on the terms of this Agreement and such offer is not accepted by the Corporation unconditionally in writing within five (5) days thereafter, then the Executive shall be entitled to liquidated damages, subject in the case the Executive's resignation for Good Reason to the provisions of Section 7(d) of this Agreement, as follows: 3NEXT PAGE
(i) the Company’s failure to perform its material duties hereunder, which failure has not been cured The Executive shall be paid a lump sum cash payment by the Company Corporation, within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside days after a Notice of Termination is given by the Corporation to the Executive pursuant to this Section 7(a) of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment an amount equal to the greater of (iA) 1.5 times the total cash compensation (including bonus) paid or payable to the Executive during the twelve (12) full consecutive months immediately preceding the effective date of the Executive's termination of employment or (B) the amount he salary due to the Executive for the remaining term of this Agreement under Section 3(a) (without any present value adjustment) that the Executive would be have been entitled to under Company policy in effect at the time of termination, and receive had such termination not occurred; and
(ii) his Base Salary plus The Corporation shall maintain in full force and effect for the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year continued benefit of the Term preceding termination Executive for the remainder of the Term, but in no event less than a twelve (12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby months following the effective date of the Release Executive's termination or resignation (the "Liquidated Damage Period"), as the case may be, at no cost to the Executive, all employee benefit plans and programs or arrangements in which the Executive was entitled to participate immediately prior to such termination as described in Sections 4(a) and 4(b) of this Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms (other than stock-based compensation plans of the Release AgreementCorporation or CFC), provided that continued participation is possible under the general terms and provisions of such plans and programs. In the event that the Executive's participation in any such plan or program is barred, the Corporation shall arrange to provide the Executive with benefits substantially similar to those which the Executive was entitled to receive under such plans and program.
(b) (i) In the event that the Executive becomes entitled to liquidated damages pursuant to Section 7(a) above, (A) the Corporation's obligations under Section 7(a)(i) above with respect to cash damages shall be reduced by the amount of the Executive's cash income, if any, earned from providing personal services during the Liquidated Damage Period; and (B) the Corporation's obligation to maintain the benefits described under Section 7(a)(ii) above shall be reduced to the extent, if any, that the Executive receives such benefits, on no less favorable terms, from another employer during the Liquidated Damage Period. For purposes of this Section 7(b), the term "cash income" shall include amounts of salary, wages, bonuses, incentive compensation and fees paid to the Executive in cash but shall not include shares of stock, stock options, stock appreciation rights or other earned income not paid to the Executive in cash. To the extent the provisions of this Section 7(b) are applicable and an overpayment has been made to the Executive as of the expiration of the Liquidated Damage Period, the Executive shall reimburse the Corporation in an amount equal to the after tax benefit realized by the Executive from such overpayment (i.e. amount realized net of all federal, state, local, employment and medicare taxes). In making the reimbursement calculation it shall be presumed that the Executive is subject to the highest marginal federal and state income tax rates. This Section 7(b) shall not be interpreted to require or permit any reduction of benefits to which the Executive may be entitled under Section 9.
Appears in 1 contract
Samples: Employment Agreement (Community Financial Corp /De/)
Termination Without Cause; Resignation for Good Reason. The Employee’s (i) If the Executive's employment hereunder may also be is terminated by the Company at any time for any reason without Cause other than death, disability (as defined in Section 6(e) hereof) or by for Cause, or, if the Employee Executive should resign for “Good Reason”. For purposes Reason prior to the expiration of the Term, he shall be entitled (A) to receive a lump sum severance payment in an amount equal to the Executive's then current base salary for the then remaining portion of the Term, plus (B) all amounts due to the Executive under Section 5(i) above shall be accelerated and due and payable to the Executive, to the extent not paid to the Executive as of the termination of this Agreement, which payments shall be due immediately upon the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent termination or resignation of the EmployeeExecutive's employment and, which consent may be revoked if not so paid, shall bear interest at any timethe rate of 15% per annum from such date until paid, and (C)
(1) to continue participation in the Employee’s Base Salary, or substantial reduction plans and arrangements described in the other benefits provided clauses (b) and (f) of Section 5 hereof (to the Employee; (iiiextent permissible by law and the terms of such plans and arrangements) for the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer then remaining portion of the Company, or Term (the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission"Benefits Period"), or (C2) Chief Operating Officer at the election of the Company; (iv) Executive at any time following termination of this Agreement and during the relocation Benefits Period, to receive a gross bonus payment in an amount which after payment therefrom of all applicable federal and state income and employment taxes, will equal the cost to the Company at the time of the Employee’s principle place Executive's election, attributable to the Executive's participation in the plans and arrangements described in clauses (b) and (f) of employment to a location more than thirty-five Section 5 hereof for the Benefits Period less any portion thereof during which the Executive has continued his participation in such plans and arrangements described in clause (35b) miles from its current Newark, New Jersey location or outside and (f) of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not Section 5 hereof in accordance with the terms hereofsubsection 6(b)(i)(C)(1) above; which payment shall be due following termination or (vii) any “Change in Control” resignation of the Company. For purposes Executive's employment immediately upon the Executive's delivery of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the CompanyCompany of his election pursuant to subsection 6(b)(i)(C)(2), and if not so paid, shall bear interest at the rate of 15% per annum for such date until paid, and (D) to have all stock options which notice specifically identifies the event or circumstances giving rise have been granted to the Good Reason Executive to immediately become fully exercisable for which the Employee is terminating his employment, within ninety (90) days a period of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, three (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding months after the termination of employment, and or resignation date (5as the case may be) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release AgreementPlans and the relevant stock option agreement, and (E) to continue to have use of a Company owned automobile and to receive all reimbursements associated therewith in accordance with the provisions of Section 5(a) hereof for the balance of the Term, or upon his written notice to the Company at any time within three months following the termination or resignation date (as the case may be), to purchase his Company owned automobile at a purchase price equal to the book value of said automobile as carried on the books and records of the Company, plus all applicable excise taxes.
(ii) In the event of any dispute as to whether the Executive's employment was terminated by the Company for a reason other than for Cause or whether the Executive resigned for Good Reason, the Executive shall continue to be provided with the health insurance benefits provided by the Company during the arbitration proceedings provided for in Section 8 below. Further, any monies which would be payable to the Executive pursuant to this Section 6(b) if the Executive were to prevail in such arbitration proceedings shall be deposited promptly into interest bearing escrow accounts to be established by the Company in the name of the American Arbitration Association, as trustee, in a federally insured depository institution (other than the Company or any affiliated entity) for such purpose, and the accounts shall be established at separate institutions in amounts such that the principal plus interest anticipated to accrue during the course of arbitration proceedings shall not exceed the limit of federal insurance applicable to each such account. The total of the escrowed amounts, together with the accrued interest thereon, shall be paid to the Executive or revert to the Company, as the case may be, in accordance with the final resolution of the dispute pursuant to Section 8.
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee’s employment hereunder may also be terminated by the Company at any time for any reason without Cause or by the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate his employment hereunder upon (i) the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen thirty (1530) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; or (viiv) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (32) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (43) all awards theretofore granted the Equity Grant, to the Employee under the Company's incentive plans shall continue extent not vested prior thereto or scheduled to vest in accordance with its terms prior to the dates set forth in this sentence, shall vest (A) as to three eighths (3/8) of the total amount thereof, on the first anniversary of the Date of Termination, (B) as to on half (1/2) of the total amount thereof, on the second anniversary of the Date of Termination, and (C) as to all remaining unvested portions thereof, on the restrictions thereon lapse) on their then existing schedule notwithstanding third anniversary of the termination Date of employmentTermination, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and FIVE HUNDRED SIXTY THREE THOUSAND SEVEN HUNDRED FIFTY DOLLARS ($563,750.00) ) or (ii) his Base Salary plus (at the greater rate in effect on the Date of his target bonus under Section 7(bTermination) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period Term (the “Severance Payment Payment”). As a condition to receiving the Severance PaymentPayment and the acceleration of the vesting of the Equity Grant, the Employee will be required to execute execute, deliver and deliver comply with the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination). Subject to Section 20 19 hereof, the Severance Payment will be paid in equal payments over the twelve (12) month period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release Agreement.
Appears in 1 contract
Samples: Employment Agreement (Idt Corp)
Termination Without Cause; Resignation for Good Reason. The (i) If the Employee’s 's employment hereunder may also be is terminated by the Company at any time Without Cause pursuant to Section 5(a)(5), or due to the Employee's resignation for any reason without Cause or by the Employee for “Good Reason”. For purposes of this AgreementReason pursuant to Section 5(a)(6), the Employee shall have “Good Reason” Company shall, subject to terminate his employment hereunder upon Section 6(c)(ii), (i) if Employee's employment is so terminated prior to the Company’s failure to perform its material duties hereunder, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from the Employee; (ii) a reduction by the Company (without the consent second anniversary of the EmployeeCommencement Date, pay or provide to Employee any benefits to which consent the Employee may be revoked at entitled under any timeemployee benefit plan or program pursuant to Section 3(b) hereof in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as which he is a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than (A) Chief Financial Officer of the Company, (B) Chief Financial Officer of one of the Company’s principal divisions (as described in the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not participant in accordance with the terms hereof; of such plan or (vii) any “Change in Control” program up to and including the date immediately prior to the second anniversary of the Company. For purposes Commencement Date, and (ii) continue to pay to the Employee, in lieu of this Agreement, a “Change any other payments or benefits (other than as provided in Control” shall mean clause (i) above and shall be deemed payments due with respect to have occurred if (A) any person or group (within the meaning of Rule 13d-3 vested portions of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right Incentive Compensation referred to terminate the Employee’s employment for Good Reason in Section 3(d) which shall not be affected by the limitations of this Section 6(c)(i)) and on the regular payroll dates of the Company, his base salary through the second anniversary of the Commencement Date, at the rate provided in Section 3(a) hereof.
(ii) In addition, the Employee agrees to keep the Chairman of the Board of the Company (or the Chairman's designee) apprised of the Employee's incapacity due employment status during the entire period of time that the Employee shall be entitled to physical or mental illness. The Employee's continued employment shall not constitute consent toreceive benefits pursuant to Section 6(c)(i) above, or a waiver of rightsand, if requested, to provide appropriate supporting documentation with respect to the salary, bonuses or other compensation earned by and benefits made available to the Employee in respect of any act employment secured by the Employee. In the event the Employee secures employment, the Company shall be entitled to deduct from the amounts payable to the Employee pursuant to Section 6(c)(i), any salary, bonuses or failure other compensation paid to act constituting Good Reason hereunder. Notwithstanding the foregoingEmployee in connection with such employment, a termination shall not be treated as a resignation for Good Reason if and the Employee shall have consented in writing promptly repay to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment equal to the greater of (i) the amount he would be entitled to under Company policy in effect at the time of termination, and (ii) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus any amounts paid to him in by the year of the Term preceding termination for the remainder of the Term, but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject Company pursuant to Section 20 hereof, 6(c)(i) which the Severance Payment will be paid over the period of time covered thereby following the effective date of the Release Agreement on the Company’s regularly scheduled payroll payment dates, and in accordance with the terms of the Release AgreementCompany was entitled to deduct from such amounts pursuant to this Section 6(c)(ii).
Appears in 1 contract
Termination Without Cause; Resignation for Good Reason. The Employee(i) If, prior to the expiration of the Term, the Executive’s employment hereunder may also be is terminated by the Company at any time for any reason without Cause Cause, or by if the Employee for “Good Reason”. For purposes of this Agreement, the Employee shall have “Good Reason” to terminate Executive resigns from his employment hereunder upon (i) the Company’s failure to perform its material duties hereunderfor Good Reason, which failure has not been cured by the Company within fifteen (15) days of its receipt of written notice thereof from shall pay the Employee; (ii) a reduction by the Company (without the consent of the Employee, which consent may be revoked at any time) in the Employee’s Base Salary, or substantial reduction in the other benefits provided to the Employee; (iii) the assignment to the Employee of duties inconsistent with the Employee’s status as a senior executive officer of the Company, or the designation by the Company of the Employee to any position or capacity other than Executive (A) Chief Financial Officer a lump sum cash payment equal to a pro-rata portion of his bonus for the Companyyear in which the termination of employment occurs, (B) Chief Financial Officer of one of which shall be paid on the Company’s principal divisions (as described in date such bonus would have been payable to the Company’s periodic filings made with the Securities and Exchange Commission), or (C) Chief Operating Officer of Executive had he remained employed by the Company; (iv) the relocation of the Employee’s principle place of employment to a location more than thirty-five (35) miles from its current Newark, New Jersey location or outside of the New York City metropolitan areas; (v) the assignment of duties inconsistent with the Company’s rules, policies or procedures, including without limitation, the Company’s Code of Business Conduct and Ethics; (vi) any purported termination of the Employee’s employment not in accordance with the terms hereof; or (vii) any “Change in Control” of the Company. For purposes of this Agreement, a “Change in Control” shall mean and shall be deemed to have occurred if (A) any person or group (within the meaning of Rule 13d-3 of the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended), other than Xxxxxx Xxxxx, members of his immediate family, his affiliates, trusts or private foundations established by or on his behalf, and the heirs, executors or administrators of Xxxxxx Xxxxx, shall acquire in one or a series of transactions, whether through sale of stock or merger, voting securities representing more than 50% of the voting power of all outstanding voting securities of the Company or any successor entity of the Company, or (B) the stockholders of the Company shall approve a complete liquidation or dissolution of the Company. The Employee's right to terminate the Employee’s employment for Good Reason shall not be affected by the Employee's incapacity due to physical or mental illness. The Employee's continued employment shall not constitute consent to, or a waiver of rights, with respect to any act or failure to act constituting Good Reason hereunder. Notwithstanding the foregoing, a termination shall not be treated as a resignation for Good Reason if the Employee shall have consented in writing to the occurrence of the event giving rise to the claim of resignation for Good Reason. If the Employee gives notice of his intent to terminate his employment with Good Reason, the Employee shall first provide written notice to the Company, which notice specifically identifies the event or circumstances giving rise to the Good Reason for which the Employee is terminating his employment, within ninety (90) days of when such event or circumstance giving rise to the Good Reason becomes effective or transpires. The notice of Good Reason must give the Company the opportunity to cure and if the Company fails to cure within thirty (30) business days of its receipt of the notice, the Employee’s resignation for Good Reason shall be deemed effective. If the Company terminates the Employee’s employment without Cause or the Employee terminates his employment for Good Reason, (1) the Company shall provide the Employee with at least sixty (60) days’ notice (which time period may be shortened by mutual agreement of the parties) of its intent to terminate this Agreement without Cause; (2) the Company shall pay to the Employee all accrued or vested compensation, including salary, commission, and bonus(es) through the Date of Termination, (3) the Company shall reimburse the Employee for unpaid and approved business expenses through such Date of Termination (in accordance with the Company’s normal business expense reimbursement procedures), (4) all awards theretofore granted to the Employee under the Company's incentive plans shall continue to vest (and the restrictions thereon lapse) on their then existing schedule notwithstanding the termination of employment, and (5) the Company shall pay to the Employee a severance payment an amount equal to the greater of the Executive’s Base Salary (i) at the amount he would be entitled to under Company policy rate in effect at on the time of termination, and date the Executive’s employment is terminated) for (iix) his Base Salary plus the greater of his target bonus under Section 7(b) hereof and the actual bonus paid to him in the year of the Term preceding termination for the remainder of the Termterm or (y) a one-year period following the Executive’s termination of employment as described in this Section 4(b), but in no event less than a 12-month period (the “Severance Payment ”). As a condition to receiving the Severance Payment, the Employee will be required to execute and deliver the Company’s standard release agreement (the “Release Agreement”) within 30 days of the Date of Termination. Subject to Section 20 hereof, the Severance Payment will which shall be paid over the period of time covered thereby following described below; and (C) the effective date of the Release Agreement Other Accrued Compensation and Benefits. The severance pay described in subsection (B) shall be paid in substantially equal installments (based on the Company’s regularly scheduled normal payroll practices) over the six-month period following termination of employment, commencing within 30 days after the termination date; provided, however, that to the extent that any portion of the severance pay exceeds the Section 409A “separation pay exception” amount described in Section 22 below and would otherwise be payable after March 15 following the calendar year in which the termination of employment occurs, such portion shall instead be paid in a lump sum payment datesbetween March 1 and March 15 following the calendar year in which the termination of employment occurs. The Executive shall have no further rights under this Agreement or otherwise to receive any other compensation or benefits after such termination or resignation of employment.
(ii) The Company shall not be required to make the payments and provide the benefits provided for under Section 4(b)(i) (including the Other Accrued Compensation and Benefits), unless the Executive executes and delivers to the Company, a release substantially in the form used by the Company at the time of the Executive’s termination of employment and the release has become effective and irrevocable in its entirety.
(iii) If, following a termination of employment without Cause or a resignation for Good Reason, the Executive breaches the provisions of Section 5 or 7 hereof, the Executive shall not be eligible, as of the date of such breach, for the payments and benefits described in Section 4(b)(i), and in accordance with the terms any and all obligations and agreements of the Release AgreementCompany with respect to such payments shall thereupon cease.
Appears in 1 contract
