Upon a Change of Control. i. If, within ninety (90) days prior to the Change of Control or within eighteen (18) months following a Change of Control (as defined in Section 6 hereof), the Company or any successor thereto terminates the Employee’s employment other than for Cause, or the Employee terminates his employment for Good Reason, then, in lieu of any payments to the Employee or on the Employee’s behalf under Section 5(a) hereof, (i) all unvested options, restricted stock and restricted stock units which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) shall vest as of the date of termination (notwithstanding anything to the contrary in Section 2(b) of this Agreement) with respect to 100% of the unvested portion of such awards; and (ii) the Company shall pay, within thirty (30) days of such termination, a lump sum payment equal to the Employee’s then-current annual base salary for a period of six (6) months; provided, however, that if such termination occurs prior to a Change of Control, such severance payments shall be made at the time and in the manner set forth in Section 5(a)(i) during the period beginning on the date of termination through the date of the Change of Control with any severance remaining to be paid under this Section 5(c)(i) payable in a lump sum on the closing date of the Change of Control; and, ii. If the Employee is participating in the Company’s group health plan and/or dental plan at the time the Employee’s employment terminates (whether such termination is as described in (i) above), and the Employee exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company will pay or, at its option, reimburse the Employee, for the full premium cost of that participation for six (6) months following the date on which the Employee’s employment with the Company terminates or, if earlier, until the date the Employee becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer, with such amount payable on a pro-rata basis in accordance with the Company’s regular payroll practices for benefits. The Company will also pay the Employee on the date of termination any base salary earned but not paid through the, date of termination and pay for any vacation time accrued but not used to that date. In addition, the Company will pay the Employee any bonus which has been awarded to the Employee, but not yet paid on the date of termination of his employment, payable within 30 days of the date of termination.
Appears in 1 contract
Upon a Change of Control. i. If, within ninety (90) days prior to the a Change of Control or within eighteen one year (1818 months following a 2012 IPO) months following a Change of Control (as defined in Section 6 hereof), the Company or any successor thereto terminates the EmployeeExecutive’s employment other than for Cause, or the Employee Executive terminates his employment for Good Reason, then, in lieu of any payments to the Employee Executive or on the EmployeeExecutive’s behalf under Section 5(a) hereof, (i) all of the Executive’s then remaining unvested options, restricted stock and restricted stock units which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) shall automatically vest as of the date of termination (notwithstanding anything to the contrary in Section 2(b) of this Agreement) with respect to 100% of the unvested portion of such awards; and (ii) the Company shall pay, within thirty (30) days of such termination, a lump sum payment equal to the EmployeeExecutive’s then-current annual base salary for a period of six twelve (612) months; provided, however, that if such termination occurs prior to a Change of Control, such severance payments shall be made at the time and in the manner set forth in Section 5(a)(i) during the period beginning on the date of termination through the date of the Change of Control with any severance remaining to be paid under this Section 5(c)(i) payable in a lump sum on the closing date of the Change of Control; and,
ii. The Company and the Executive agree that in the event it shall be determined that any of the payments or benefits received or to be received by the Executive in connection with a Change of Control or the Executive’s termination from employment would be subject to the excise tax imposed by Section 4999 of the Code, together with any interest or penalties imposed with respect to such excise tax (the “Excise Tax”), then the Executive shall be entitled to promptly receive from the Company an additional lump sum cash payment (the “Gross-Up Payment”) in an amount such that, after payment by the Executive of all taxes related to such payments and benefits, including any income taxes and the Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such payments and benefits. Any such Gross-Up Payment shall be made to the Executive within 60 days following the date that the Excise Tax is due.
iii. If the Employee Executive is participating in the Company’s group health plan and/or dental plan at the time the EmployeeExecutive’s employment terminates (whether such termination is as described in (i) above), and the Employee Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company will pay or, at its option, reimburse the EmployeeExecutive, for the full premium cost of that participation for six twelve (612) months following the date on which the EmployeeExecutive’s employment with the Company terminates or, if earlier, until the date the Employee Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer, with such amount payable on a pro-rata basis in accordance with the Company’s regular payroll practices for benefits. The Company will also pay the Employee Executive on the date of termination any base salary earned but not paid through the, date of termination and pay for any vacation time accrued but not used to that date. In addition, the Company will pay the Employee Executive any bonus which has been awarded to the EmployeeExecutive, but not yet paid on the date of termination of his employment, payable within 30 days of the date of termination.
Appears in 1 contract
Upon a Change of Control. i. If, within ninety (90) days prior to the a Change of Control or within eighteen (18) months following a Change of Control (as defined in Section 6 hereof), the Company or any successor thereto terminates the EmployeeExecutive’s employment other than for CauseCause pursuant to Section 4(b) of this Agreement, or the Employee Executive terminates his her employment for Good ReasonReason pursuant to Section 4(c) of this Agreement, then, in lieu of any payments to the Employee Executive or on the EmployeeExecutive’s behalf under Section 5(a) hereof, (i) all :
i. All of the Executive’s then remaining unvested stock options, restricted stock and restricted stock units which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) shall vest as of that are outstanding immediately prior to the date of termination shall (notwithstanding anything to the contrary in the applicable award agreement) remain outstanding and eligible to vest until the Payment Commencement Date and, subject to Section 2(b) of this Agreement) with respect to 100% 5(c)(iii), automatically become fully vested as of the unvested portion of such awards; and (Payment Commencement Date.
ii) the . The Company shall pay, within thirty (30) days of such terminationon the Payment Commencement Date, a lump sum payment equal to twelve (12) months of the EmployeeExecutive’s then-current annual base salary for a period of six (6) monthssalary; provided, however, that if such termination occurs prior to a Change of Control, such severance payments shall be made at the time and in the manner set forth in Section 5(a)(i) during the period beginning on the date of termination through the date of the Change of Control with any severance remaining to be paid under this Section 5(c)(i) payable in a lump sum on the closing date of the Change of Control; and,Control (or, if later, the Payment Commencement Date).
iiiii. If the Employee Executive is participating in the Company’s group health plan and/or dental plan at the time the EmployeeExecutive’s employment terminates (whether such termination is as described in (i) above)terminates, and the Employee Executive exercises his her right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company will pay or, at its option, reimburse the Employee, Executive the Benefits Payment for the full premium cost of that participation for six twelve (612) months following the date on which the EmployeeExecutive’s employment with the Company terminates or, if earlier, until the date the Employee Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer, with such amount payable on a pro-rata basis in accordance with the Company’s regular payroll practices for benefitsbenefits beginning on the Payment Commencement Date.
iv. The Company will also pay the Employee on Executive the date of termination any base salary earned but not paid through the, date of termination and pay for any vacation time accrued but not used to that dateAccrued Amounts. In addition, the Company will pay the Employee Executive any bonus which has been awarded to the EmployeeExecutive, but not yet paid on the date of termination of his her employment, payable within 30 days in a lump sum on the later of such date when bonuses are paid to executives of the date Company generally in accordance with the timing rules of terminationSection 2(a) and the Payment Commencement Date.
v. Any obligation of the Company to provide the Executive severance payments or other benefits under this Section 5(c) (other than the Accrued Amounts) is conditioned on the Executive’s signing, returning and not revoking the Employee Release by the deadline specified therein (and in all events within 60 days following the termination of the Executive’s employment), which release shall not apply to (i) claims for indemnification in the Executive’s capacity as an officer or director of the Company under the Company’s Certificate of Incorporation, By-laws or agreement, if any, providing for director or officer indemnification, (ii) rights to receive insurance coverage and payments under any policy maintained by the Company and (iii) rights to receive retirement benefits that are accrued and fully vested at the time of the Executive’s termination and rights under such plans protected by ERISA.
Appears in 1 contract
Upon a Change of Control. i. If, within ninety (90) days prior to the a Change of Control or within eighteen (18) months following a Change of Control (as defined in Section 6 hereof), the Company or any successor thereto terminates the EmployeeExecutive’s employment other than for CauseCause pursuant to Section 4(b) of this Agreement (which, for the avoidance of doubt, shall not include a termination due to death or disability under Section 4(e) of this Agreement), the Executive’s employment terminates as a result of the Company’s delivery of a notice of non-renewal in accordance with Section 1(a) of this Agreement, or the Employee Executive terminates his employment for Good ReasonReason pursuant to Section 4(c) of this Agreement, then, in lieu of any payments to the Employee Executive or on the EmployeeExecutive’s behalf under Section 5(a) hereof, (i) all :
i. All of the Executive’s then-unvested stock options, restricted stock and restricted stock units which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) shall vest as of that are outstanding immediately prior to the date of termination shall (notwithstanding anything to the contrary in the applicable award agreement) remain outstanding and eligible to vest until the Payment Commencement Date and, subject to Section 2(b) of this Agreement) with respect to 100% 5(c)(vi), automatically become fully vested as of the unvested portion of such awards; and (Payment Commencement Date.
ii) the . The Company shall pay, within thirty (30) days of such terminationon the Payment Commencement Date, a lump sum payment equal to eighteen (18) months of the EmployeeExecutive’s then-current annual base salary for a period of six (6) monthssalary; provided, however, that if such termination occurs prior to a Change of Control, such severance payments shall be made at the time and in the manner set forth in Section 5(a)(i) during the period beginning on the date of termination through the date of the Change of Control with any severance remaining to be paid under this Section 5(c)(i5(c)(ii) payable in a lump sum on the closing date of the Change of Control; and,Control (or, if later, the Payment Commencement Date).
iiiii. If the Employee Executive is participating in the Company’s group health plan and/or dental plan at the time the EmployeeExecutive’s employment terminates (whether such termination is as described in (i) above)terminates, and the Employee Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company will pay or, at its option, reimburse the Employee, Executive the Benefits Payment for the full premium cost of that participation for six eighteen (618) months following the date on which the EmployeeExecutive’s employment with the Company terminates or, if earlier, until the date the Employee Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer, with such amount payable on a pro-rata basis in accordance with the Company’s regular payroll practices for benefitsbenefits beginning on the Payment Commencement Date.
iv. The Company shall pay the Executive a pro-rata portion of his Target Bonus for the year in which the date of termination occurs, calculated based on the number of days the Executive has been employed by the Company in such year and payable on the Payment Commencement Date.
v. The Company will also pay the Employee on Executive the date of termination any base salary earned but not paid through the, date of termination and pay for any vacation time accrued but not used to that dateAccrued Amounts. In addition, the Company will pay the Employee Executive any bonus which has been awarded to the EmployeeExecutive, but not yet paid on the date of termination of his employment, payable within 30 days in a lump sum on the later of such date when bonuses are paid to executives of the date Company generally in accordance with the timing rules of terminationSection 2(a) and the Payment Commencement Date.
vi. Any obligation of the Company to provide the Executive severance payments or other benefits under this Section 5(c) (other than the Accrued Amounts) is conditioned on the Executive’s signing, returning and not revoking the Employee Release by the deadline specified therein (and in all events within sixty (60) days following the termination of the Executive’s employment), which release shall not apply to (i) claims for indemnification in the Executive’s capacity as an officer or director of the Company under the Company’s Certificate of Incorporation, By-laws or agreement, if any, providing for director or officer indemnification, (ii) rights to receive insurance coverage and payments under any policy maintained by the Company and (iii) rights to receive retirement benefits that are accrued and fully vested at the time of the Executive’s termination and rights under such plans protected by XXXXX. The Executive agrees to provide the Company prompt notice of the Executive’s eligibility to participate in the health plan and, if applicable, dental plan of any new employer. The Executive further agrees to repay any overpayment of health benefit premiums made by the Company hereunder.
Appears in 1 contract
Upon a Change of Control. i. If, within ninety (90i) days prior to the Change of Control or within eighteen (18) months following If a Change of Control occurs and, within one (1) year following such Change of Control, the Company terminates the Executive's employment Other Than for Cause as defined in Section 6 (d) hereof, then and subject to the provisions of Section 6 (d) (i), the Company or any successor thereto terminates shall pay the Employee’s employment other than for Cause, or the Employee terminates his employment for Good Reason, then, in lieu of any payments to the Employee or on the Employee’s behalf under Section 5(a) hereof, (i) all unvested options, restricted stock and restricted stock units which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) shall vest as of the date of termination (notwithstanding anything to the contrary in Section 2(b) of this Agreement) with respect to 100% of the unvested portion of such awards; and (ii) the Company shall payExecutive, within thirty ten (3010) business days of such termination, a lump sum payment equal to twice the Employee’s then-current then annual base salary Base Salary of the Executive and if the Executive is eligible for, and chooses to elect health insurance continuation in accordance with the COBRA, pay the same portion of the premium payments of the Executive as were being paid by the Company prior to termination under COBRA for a period of six eighteen (618) months; provided, however, that if such termination occurs prior to a Change of Control, such severance payments shall be made at the time and in the manner set forth in Section 5(a)(i) during the period beginning on the date of termination through the date of the Change of Control with any severance remaining to be paid under this Section 5(c)(i) payable in a lump sum on the closing date of the Change of Control; and,
ii. If the Employee is participating in the Company’s group health plan and/or dental plan at the time the Employee’s employment terminates (whether such termination is as described in (i) above), and the Employee exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company will pay or, at its option, reimburse the Employee, for the full premium cost of that participation for six (6) months following the date on which the Employee’s employment with the Company terminates or, if earlier, until the date the Employee becomes eligible to enroll in the Executive receives comparable health (or, if applicable, dental) plan of a new insurance from another employer, with such amount payable on a pro-rata basis in accordance with the Company’s regular payroll practices for benefits. The Company will also pay the Employee on the date of termination any base salary earned but not paid through the, date of termination and pay for any vacation time accrued but not used to that datewhichever shall first occur. In addition, the Company will pay shall provide the Employee Executive with up to twelve (12) months of outplacement services not to exceed a value of $25,000.
(ii) Notwithstanding the foregoing or any bonus other provision of this Agreement, the payments and benefits to which has been awarded the Executive would be entitled pursuant to Section 6(e) as a result of a Change of Control shall be reduced to the Employee, but maximum amount for which the Company will not yet paid on the date of termination of his employment, payable within 30 days be limited in its deduction pursuant to Section 280G of the date Internal Revenue Code of termination1986, as amended, or any successor provision.
(iii) A Change of Control shall be deemed to take place if at any time during the term hereof: (A) any Person or "group" (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934), other than the Company or any of its Affiliates, becomes a beneficial owner (within the meaning of Rule 13d-3 as promulgated under the Securities Exchange Act of 1934), directly or indirectly, of securities representing fifty (50%) percent or more of the total number of votes that may be cast for the election of directors of the Company and two-thirds (2/3) of the Board has not consented to such event prior to its occurrence or within sixty (60) days thereafter, provided that if the consent occurs after the event it shall only be valid for purposes of this Section 6(e) if a majority of the consenting Board is comprised of directors of the Company who were such immediately prior to the event; (B) any merger or consolidation involving the Company or any sale or other transfer of all or substantially all of the assets of the Company, or any combination of the foregoing, and two-thirds of the Board has not consented to such event prior to its occurrence or within sixty (60) days thereafter, provided that if the consent occurs after the event it shall only be valid for purposes of this Section 6(e) if a majority of the consenting Board is comprised of directors of the Company who were such immediately prior to the event; or (C) within twelve (12) months after a tender offer or exchange offer for voting securities of the Company (other than by the Company) the individuals who were directors of the Company immediately prior thereto shall cease to constitute a majority of the Board.
Appears in 1 contract
Samples: Employment Agreement (Benthos Inc)
Upon a Change of Control. i. If, within ninety (90) days prior to the a Change of Control or within eighteen (18) months following a Change of Control (as defined in Section 6 hereof), the Company or any successor thereto terminates the EmployeeExecutive’s employment other than for CauseCause pursuant to Section 4(b) of this Agreement, the Executive’s employment terminates as a result of the Company’s delivery of a notice of non-renewal in accordance with Section 1(a) of this Agreement, or the Employee Executive terminates his employment for Good ReasonReason pursuant to Section 4(c) of this Agreement, then, in lieu of any payments to the Employee Executive or on the EmployeeExecutive’s behalf under Section 5(a) hereof, (i) all :
i. All of the Executive’s then remaining unvested stock options, restricted stock and restricted stock units which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) shall vest as of that are outstanding immediately prior to the date of termination shall (notwithstanding anything to the contrary in the applicable award agreement) remain outstanding and eligible to vest until the Payment Commencement Date and, subject to Section 2(b) of this Agreement) with respect to 100% 5(c)(v), automatically become fully vested as of the unvested portion of such awards; and (Payment Commencement Date.
ii) the . The Company shall pay, within thirty (30) days of such terminationon the Payment Commencement Date, a lump sum payment equal to eighteen (18) months of the EmployeeExecutive’s then-current annual base salary for a period of six (6) monthssalary; provided, however, that if such termination occurs prior to a Change of Control, such severance payments shall be made at the time and in the manner set forth in Section 5(a)(i) during the period beginning on the date of termination through the date of the Change of Control with any severance remaining to be paid under this Section 5(c)(i5(c)(ii) payable in a lump sum on the closing date of the Change of Control; and,Control (or, if later, the Payment Commencement Date).
iiiii. If the Employee Executive is participating in the Company’s group health plan and/or dental plan at the time the EmployeeExecutive’s employment terminates (whether such termination is as described in (i) above)terminates, and the Employee Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company will pay or, at its option, reimburse the Employee, Executive the Benefits Payment for the full premium cost of that participation for six eighteen (618) months following the date on which the EmployeeExecutive’s employment with the Company terminates or, if earlier, until the date the Employee Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer, with such amount payable on a pro-rata basis in accordance with the Company’s regular payroll practices for benefitsbenefits beginning on the Payment Commencement Date.
iv. The Company shall pay the Executive a pro-rata portion of his Target Bonus for the year in which the date of termination occurs, calculated based on the number of days the Executive has been employed by the Company in such year and payable on the Payment Commencement Date.
v. The Company will also pay the Employee on Executive the date of termination any base salary earned but not paid through the, date of termination and pay for any vacation time accrued but not used to that dateAccrued Amounts. In addition, the Company will pay the Employee Executive any bonus which has been awarded to the EmployeeExecutive, but not yet paid on the date of termination of his employment, payable within 30 days in a lump sum on the later of such date when bonuses are paid to executives of the date Company generally in accordance with the timing rules of terminationSection 2(a) and the Payment Commencement Date. 77178035_7
vi. Any obligation of the Company to provide the Executive severance payments or other benefits under this Section 5(c) (other than the Accrued Amounts) is conditioned on the Executive’s signing, returning and not revoking the Employee Release by the deadline specified therein (and in all events within 60 days following the termination of the Executive’s employment), which release shall not apply to (i) claims for indemnification in the Executive’s capacity as an officer or director of the Company under the Company’s Certificate of Incorporation, By-laws or agreement, if any, providing for director or officer indemnification, (ii) rights to receive insurance coverage and payments under any policy maintained by the Company and (iii) rights to receive retirement benefits that are accrued and fully vested at the time of the Executive’s termination and rights under such plans protected by ERISA.
Appears in 1 contract
Upon a Change of Control. i. If, within ninety (90) days prior to the Change of Control or within eighteen (18) months following a Change of Control (as defined in Section 6 hereof), the Company or any successor thereto terminates the EmployeeExecutive’s employment other than for Cause, or the Employee Executive terminates his her employment for Good Reason, then, in lieu of any payments to the Employee Executive or on the EmployeeExecutive’s behalf under Section 5(a) hereof, (i) all of the Executive’s then remaining unvested options, restricted stock and restricted stock units which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) shall automatically vest as of the date of termination (notwithstanding anything to the contrary in Section 2(b) of this Agreement) with respect to 100% of the unvested portion of such awards; and (ii) the Company shall pay, within thirty (30) days of such termination, a lump sum payment equal to the EmployeeExecutive’s then-current annual base salary for a period of six twelve (612) months; provided, however, that if such termination occurs prior to a Change of Control, such severance payments shall be made at the time and in the manner set forth in Section 5(a)(i) during the period beginning on the date of termination through the date of the Change of Control with any severance remaining to be paid under this Section 5(c)(i) payable in a lump sum on the closing date of the Change of Control; and,
ii. If the Employee Executive is participating in the Company’s group health plan and/or dental plan at the time the EmployeeExecutive’s employment terminates (whether such termination is as described in (i) above), and the Employee Executive exercises his her right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company will pay or, at its option, reimburse the EmployeeExecutive, for the full premium cost of that participation for six twelve (612) months following the date on which the EmployeeExecutive’s employment with the Company terminates or, if earlier, until the date the Employee Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer, with such amount payable on a pro-rata basis in accordance with the Company’s regular payroll practices for benefits. The Company will also pay the Employee Executive on the date of termination any base salary earned but not paid through the, date of termination and pay for any vacation time accrued but not used to that date. In addition, the Company will pay the Employee Executive any bonus which has been awarded to the EmployeeExecutive, but not yet paid on the date of termination of his her employment, payable within 30 days of the date of termination
iii. Any obligation of the Company to provide the Executive severance payments or other benefits under this Section 5(c) is conditioned on the Executive’s signing an effective and reasonable release of claims in the form provided by the Company (the “Employee Release”) within 60 days following the termination of the Executive’s employment, which release shall not apply to (i) claims for indemnification in the Executive’s capacity as an officer or director of the Company under the Company’s Certificate of Incorporation, By-laws or agreement, if any, providing for director or officer indemnification, (ii) rights to receive insurance coverage and payments under any policy maintained by the Company and (iii) rights to receive retirement benefits that are accrued and fully vested at the time of the Executive’s termination and rights under such plans protected by ERISA.
Appears in 1 contract
Upon a Change of Control. i. If, within ninety (90) days prior to the a Change of Control or within eighteen (18) months following a Change of Control (as defined in Section 6 hereof), the Company or any successor thereto terminates the EmployeeExecutive’s employment other than for CauseCause pursuant to Section 4(b) of this Agreement, or the Employee Executive terminates his employment for Good ReasonReason pursuant to Section 4(c) of this Agreement, then, in lieu of any payments to the Employee Executive or on the EmployeeExecutive’s behalf under Section 5(a) hereof, (i) all :
i. All of the Executive’s then remaining unvested stock options, restricted stock and restricted stock units which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) shall vest as of that are outstanding immediately prior to the date of termination shall (notwithstanding anything to the contrary in the applicable award agreement) remain outstanding and eligible to vest until the Payment Commencement Date and, subject to Section 2(b) of this Agreement) with respect to 100% 5(c)(v), automatically become fully vested as of the unvested portion of such awards; and (Payment Commencement Date
ii) the . The Company shall pay, within thirty (30) days of such terminationon the Payment Commencement Date, a lump sum payment equal to twelve (12) months of the EmployeeExecutive’s then-current annual base salary for a period of six (6) monthssalary; provided, however, that if such termination occurs prior to a Change of Control, such severance payments shall be made at the time and in the manner set forth in Section 5(a)(i) during the period beginning on the date of termination through the date of the Change of Control with any severance remaining to be paid under this Section 5(c)(i5(c)(ii) payable in a lump sum on the closing date of the Change of Control; and,Control (or, if later, the Payment Commencement Date).
iiiii. If the Employee Executive is participating in the Company’s group health plan and/or dental plan at the time the EmployeeExecutive’s employment terminates (whether such termination is as described in (i) above)terminates, and the Employee Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company will pay or, at its option, reimburse the Employee, Executive the Benefits Payment for the full premium cost of that participation for six twelve (612) months following the date on which the EmployeeExecutive’s employment with the Company terminates or, if earlier, until the date the Employee Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer, with such amount payable on a pro-rata basis in accordance with the Company’s regular payroll practices for benefitsin
iv. The Company will also pay the Employee on Executive the date of termination any base salary earned but not paid through the, date of termination and pay for any vacation time accrued but not used to that dateAccrued Amounts. In addition, the Company will pay the Employee Executive any bonus which has been awarded earned to the EmployeeExecutive, but not yet paid on the date of termination of his employment, payable within 30 days in a lump sum on the later of such date when bonuses are paid to executives of the date Company generally in accordance with the timing rules of terminationSection 2(a) and the Payment Commencement Date.
v. Any obligation of the Company to provide the Executive severance payments or other benefits under this Section 5(c) (other than the Accrued Amounts) is conditioned on the Executive’s signing, returning and not revoking the Employee Release by the deadline specified therein (and in all events within sixty (60) days following the termination of the Executive’s employment), which release shall not apply to (i) claims for indemnification in the Executive’s capacity as an officer or director of the Company under the Company’s Certificate of Incorporation, By-laws or agreement, if any, providing for director or officer indemnification, (ii) rights to receive insurance coverage and payments under any policy maintained by the Company and (iii) rights to receive retirement benefits that are accrued and fully vested at the time of the Executive’s termination and rights under such plans protected by ERISA.
Appears in 1 contract
Upon a Change of Control. i. If, within ninety (90) days prior to the Change of Control or within eighteen one year (1818 months following a 2012 IPO) months following a Change of Control (as defined in Section 6 hereof), the Company or any successor thereto terminates the EmployeeExecutive’s employment other than for Cause, or the Employee Executive terminates his employment for Good Reason, then, in lieu of any payments to the Employee Executive or on the EmployeeExecutive’s behalf under Section 5(a) hereof, (i) all of the Executive’s then remaining unvested options, restricted stock and restricted stock units which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) shall automatically vest as of the date of termination (notwithstanding anything to the contrary in Section 2(b) of this Agreement) with respect to 100% of the unvested portion of such awards; and (ii) the Company shall pay, within thirty (30) days of such termination, a lump sum payment equal to the EmployeeExecutive’s then-current annual base salary for a period of six (6) monthsmonths (twelve (12) months following a 2012 IPO); provided, however, that if such termination occurs prior to a Change of Control, such severance payments shall be made at the time and in the manner set forth in Section 5(a)(i) during the period beginning on the date of termination through the date of the Change of Control with any severance remaining to be paid under this Section 5(c)(i) payable in a lump sum on the closing date of the Change of Control; and,
ii. If the Employee Executive is participating in the Company’s group health plan and/or dental plan at the time the EmployeeExecutive’s employment terminates (whether such termination is as described in (i) above), and the Employee Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company will pay or, at its option, reimburse the EmployeeExecutive, for the full premium cost of that participation for six (6) months (twelve (12) following a 2012 IPO) following the date on which the EmployeeExecutive’s employment with the Company terminates or, if earlier, until the date the Employee Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer, with such amount payable on a pro-rata basis in accordance with the Company’s regular payroll practices for benefits. The Company will also pay the Employee Executive on the date of termination any base salary earned but not paid through the, date of termination and pay for any vacation time accrued but not used to that date. In addition, the Company will pay the Employee Executive any bonus which has been awarded to the EmployeeExecutive, but not yet paid on the date of termination of his employment, payable within 30 days of the date of termination.
Appears in 1 contract
Upon a Change of Control. i. If, within ninety (90) days prior to the a Change of Control or within eighteen (18) months following a Change of Control (as defined in Section 6 hereof), the Company or any successor thereto terminates the EmployeeExecutive’s employment other than for CauseCause pursuant to Section 4(b) of this Agreement (which, for the avoidance of doubt, shall not include a termination due to death or disability under Section 4(e) of this Agreement), the Executive’s employment terminates as a result of the Company’s delivery of a notice of non-renewal in accordance with Section 1(a) of this Agreement, or the Employee Executive terminates his employment for Good ReasonReason pursuant to Section 4(c) of this Agreement, then, in lieu of any payments to the Employee Executive or on the EmployeeExecutive’s behalf under Section 5(a) hereof, (i) all :
i. All of the Executive’s then-unvested stock options, restricted stock and restricted stock units which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) shall vest as of that are outstanding immediately prior to the date of termination shall (notwithstanding anything to the contrary in the applicable award agreement) remain outstanding and eligible to vest until the Payment Commencement Date and, subject to Section 2(b) of this Agreement) with respect to 100% 5(c)(vi), automatically become fully vested as of the unvested portion of such awards; and (Payment Commencement Date.
ii) the . The Company shall pay, within thirty (30) days of such terminationon the Payment Commencement Date, a lump sum payment equal to twelve (12) months of the EmployeeExecutive’s then-current annual base salary for a period of six (6) monthssalary; provided, however, that if such termination occurs prior to a Change of Control, such severance payments shall be made at the time and in the manner set forth in Section 5(a)(i) during the period beginning on the date of termination through the date of the Change of Control with any severance remaining to be paid under this Section 5(c)(i5(c)(ii) payable in a lump sum on the closing date of the Change of Control; and,Control (or, if later, the Payment Commencement Date).
iiiii. If the Employee Executive is participating in the Company’s group health plan and/or dental plan at the time the EmployeeExecutive’s employment terminates (whether such termination is as described in (i) above)terminates, and the Employee Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company will pay or, at its option, reimburse the Employee, Executive the Benefits Payment for the full premium cost of that participation for six twelve (612) months following the date on which the EmployeeExecutive’s employment with the Company terminates or, if earlier, until the date the Employee Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer, with such amount payable on a pro-rata basis in accordance with the Company’s regular payroll practices for benefitsbenefits beginning on the Payment Commencement Date.
iv. The Company shall pay the Executive a pro-rata portion of his Target Bonus for the year in which the date of termination occurs, calculated based on the number of days the Executive has been employed by the Company in such year and payable on the Payment Commencement Date.
v. The Company will also pay the Employee on Executive the date of termination any base salary earned but not paid through the, date of termination and pay for any vacation time accrued but not used to that dateAccrued Amounts. In addition, the Company will pay the Employee Executive any bonus which has been awarded to the EmployeeExecutive, but not yet paid on the date of termination of his employment, payable within 30 days in a lump sum on the later of such date when bonuses are paid to executives of the date Company generally in accordance with the timing rules of terminationSection 2(a) and the Payment Commencement Date.
vi. Any obligation of the Company to provide the Executive severance payments or other benefits under this Section 5(c) (other than the Accrued Amounts) is conditioned on the Executive’s signing, returning and not revoking the Employee Release by the deadline specified therein (and in all events within sixty (60) days following the termination of the Executive’s employment), which release shall not apply to (i) claims for indemnification in the Executive’s capacity as an officer or director of the Company under the Company’s Certificate of Incorporation, By-laws or agreement, if any, providing for director or officer indemnification, (ii) rights to receive insurance coverage and payments under any policy maintained by the Company and (iii) rights to receive retirement benefits that are accrued and fully vested at the time of the Executive’s termination and rights under such plans protected by EXXXX. The Executive agrees to provide the Company prompt notice of the Executive’s eligibility to participate in the health plan and, if applicable, dental plan of any new employer. The Executive further agrees to repay any overpayment of health benefit premiums made by the Company hereunder.
Appears in 1 contract
Upon a Change of Control. i. If, within ninety (90) days prior to the Change of Control or within eighteen (18) months following If a Change of Control (as defined in Section 6 hereof), occurs and the Company or any successor thereto terminates the EmployeeExecutive’s employment hereunder other than for Cause, or Cause during the Employee terminates his employment for Good ReasonTerm and within two (2) years following such Change of Control, then, in lieu of any payments to the Employee or on the Employee’s behalf of Executive under Section 5(a) 5.d or 5.e hereof, the Company, in addition to providing Executive the Final Payment, (i) all unvested options, restricted stock and restricted stock units which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performanceA) shall vest as pay Executive an amount equal to one year of Base Salary at the rate in effect at the date of termination (notwithstanding anything to the contrary in Section 2(b) of this Agreement) with respect to 100% of the unvested portion of such awards; and (ii) the Company shall payor, within thirty (30) days of such terminationif higher, a lump sum payment equal to the Employee’s then-current annual base salary for a period of six (6) months; provided, however, that if such termination occurs prior to a Change of Control, such severance payments shall be made at the time and in the manner set forth in Section 5(a)(i) during the period beginning on the date of termination through the date of the Change of Control with any severance remaining to Control, which amount shall be paid under this Section 5(c)(i) payable in a single lump sum on the closing date of the Change of Control; and,
ii. If within ten (10) business days following the Employee is participating Release Deadline and (B) shall pay the full cost of Executive’s continued participation in the Company’s group health plan and/or and dental plan at the time the Employee’s employment terminates (whether such termination is as described in (i) above), and the Employee exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company will pay or, at its option, reimburse the Employee, for the full premium cost of that participation for six (6) months following the date on which the Employee’s employment with the Company terminates one year or, if earlierless, until for so long as Executive remains entitled to continue such participation under applicable law. The obligations of the date Company hereunder, however, other than for the Employee becomes eligible to enroll in the health (orFinal Payment, if applicableany, dental) plan of are subject to Executive signing a new employer, with such amount payable on a pro-rata basis timely and effective Employee Release in accordance with the Companyrules specified in subsection (d) above. Notwithstanding the generality of the foregoing, (i) if the Change of Control is not a “change in control event” (as that term is defined at Section 1.409A-3(i)(5) of the Treasury Regulations), so much of the amounts described in this paragraph as do not exceed the amounts that would have been payable to Executive under Section 5.d. or Section 5.e., as the case may be, had termination occurred prior to the Change of Control, and that constitute nonqualified deferred compensation subject to Section 409A of the Code, shall be paid in the same manner and on the same schedule as described in Sections 5.d. and 5.e., and (ii) if at the relevant time Executive is a Specified Employee, so much of the amounts payable hereunder as constitute nonqualified deferred compensation subject to Section 409A of the Code and that would be payable during the six-month period following Executive’s regular payroll practices termination shall instead be accumulated and paid in a single lump sum upon the day after the conclusion of such six-month period.
ii. If any payment or benefit Executive would receive pursuant to this Agreement or otherwise (“Payment”) would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for benefitsthis sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be equal to the Reduced Amount. The Company will also pay “Reduced Amount” shall be either (x) the Employee on largest portion of the date Payment that would result in no portion of termination any base salary earned but not paid through the, date of termination and pay for any vacation time accrued but not used to that date. In addition, the Company will pay the Employee any bonus which has been awarded Payment being subject to the EmployeeExcise Tax or (y) the largest portion, but not yet paid up to and including the total Payment, whichever amount, after taking into account all applicable federal, state and local employment taxes, income taxes, and the Excise Tax (all computed at the highest applicable marginal rate), results in the Executive’s receipt, on the date of termination of his employmentan after-tax basis, payable within 30 days of the date greatest economic benefit notwithstanding that all or some portion of terminationthe Payment may be subject to the Excise Tax. If a reduction in payments or benefits constituting Parachute Payments is necessary so that the Payment equals the Reduced Amount, reduction shall occur in the manner that results in the greatest economic benefit for Executive to the extent permitted by Section 409A of the Code, to the extent applicable, and Section 280G of the Code.
Appears in 1 contract
Upon a Change of Control. i. If(i) Subject to the provisions of Section 5(a)(iii), if, within ninety (90) days prior to the a Change of Control or within eighteen (18) months one year following a Change of Control (as defined in Section 6 hereof), the Company or any successor thereto terminates the EmployeeExecutive’s employment other than for Cause, or the Employee Executive terminates his employment for Good Reason, then, in lieu of any payments to the Employee Executive or on the EmployeeExecutive’s behalf under Section 5(a) hereof, (ia) all of the Executive’s then remaining unvested options, restricted stock stock, and restricted stock units which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) shall vest as of that are outstanding immediately prior to the date of termination (shall, notwithstanding anything to the contrary in Section 2(b) of this Agreement) with respect to 100% terms of the unvested portion stock or equity compensation plans and any applicable award agreements, remain outstanding and eligible to vest until the Payment Commencement Date and, subject to Section 5(a)(iii), automatically become fully vested as of such awardsthe Payment Commencement Date; and (iib) the Company shall pay, within thirty (30) days of such terminationon the Payment Commencement Date, a lump sum payment equal to two (2) times (x) the EmployeeExecutive’s then-current annual base salary for a period of six plus (6y) monthsthe Executive’s Target Bonus; provided, however, that if such termination occurs prior to a Change of Control, such severance payments shall be made at the time and in the manner set forth in Section 5(a)(i) during the period beginning on the date of termination through the date of the Change of Control with any severance remaining to be paid under this Section 5(c)(i) payable in a lump sum on the closing date of the Change of ControlControl (or, if later, the Payment Commencement Date); and,
(ii. ) If the Employee Executive is participating in the Company’s group health plan and/or dental plan at the time the EmployeeExecutive’s employment terminates (whether and such termination is as described in (i5(c)(i) above), and the Employee Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, then, in lieu of any payments to the Executive or on the Executive’s behalf under Section 5(a) hereof, the Company will pay or, at its option, reimburse the EmployeeExecutive, for the full premium cost of that participation for six twenty-four (624) months (or such shorter period during which COBRA participation is permitted by law) following the date on which the EmployeeExecutive’s employment with the Company terminates or, if earlier, until the date the Employee Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer, with such amount payable on a pro-rata basis in accordance with the Company’s regular payroll practices for benefitsbenefits beginning on the Payment Commencement Date. In the event that the Company elects to reimburse the Executive for the full premium cost of that participation, it shall gross up such payment’s tax consequences, if any, to the Executive. Notwithstanding the foregoing, if the payment or reimbursement by the Company of the premium costs, including payment of any gross up for any tax consequences, described in the preceding sentence will subject or expose the Company to taxes or penalties, the Executive and the Company agree to make good faith efforts to renegotiate the provisions of this Section 5(a)(ii) and to enter into a substitute arrangement pursuant to which the Company may not be subjected or exposed to taxes or penalties but which will not adversely affect the full economic value to the Executive of the benefits promised by this provision. For avoidance of any doubt, nothing in this provision will require the Executive to accept any renegotiated agreement that would disadvantage him economically or require that he accept a lesser quality of health care coverage for himself and his family. The Company will also pay the Employee Executive on the date of termination any base salary earned but not paid through the, the date of termination and pay for any vacation time accrued but not used to that date. In addition, the Company will pay the Employee Executive any bonus which has been awarded to the EmployeeExecutive, but not yet paid on the date of termination of his employment, payable within 30 days in a lump sum at such time when bonuses are paid to executives of the date Company generally in accordance with the timing rules of terminationSection 2(a).
Appears in 1 contract
Upon a Change of Control. i. If, within ninety (90) days prior to the Change of Control or within eighteen (18) months following a Change of Control (as defined in Section 6 hereof), the Company or any successor thereto terminates the EmployeeExecutive’s employment other than for Cause, or the Employee Executive terminates his employment for Good Reason, then, in lieu of any payments to the Employee Executive or on the EmployeeExecutive’s behalf under Section 5(a) hereof, (i) all of the Executive’s then remaining unvested options, restricted stock and restricted stock units which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) shall automatically vest as of the date of termination (notwithstanding anything to the contrary in Section 2(b) of this Agreement) with respect to 100% of the unvested portion of such awards; and (ii) the Company shall pay, within thirty (30) days of such termination, a lump sum payment equal to the EmployeeExecutive’s then-current annual base salary for a period of six twelve (612) months; provided, however, that if such termination occurs prior to a Change of Control, such severance payments shall be made at the time and in the manner set forth in Section 5(a)(i) during the period beginning on the date of termination through the date of the Change of Control with any severance remaining to be paid under this Section 5(c)(i) payable in a lump sum on the closing date of the Change of Control; and,
ii. If the Employee Executive is participating in the Company’s group health plan and/or dental plan at the time the EmployeeExecutive’s employment terminates (whether such termination is as described in (i) above), and the Employee Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company will pay or, at its option, reimburse the EmployeeExecutive, for the full premium cost of that participation for six twelve (612) months following the date on which the EmployeeExecutive’s employment with the Company terminates or, if earlier, until the date the Employee Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer, with such amount payable on a pro-rata basis in accordance with the Company’s regular payroll practices for benefits. The Company will also pay the Employee Executive on the date of termination any base salary earned but not paid through the, date of termination and pay for any vacation time accrued but not used to that date. In addition, the Company will pay the Employee Executive any bonus which has been awarded to the EmployeeExecutive, but not yet paid on the date of termination of his employment, payable within 30 days of the date of termination.
Appears in 1 contract
Upon a Change of Control. i. If, within ninety (90) days prior to the Change of Control or within eighteen (18) months following If a Change of Control occurs and, within one (as defined in Section 6 hereof)1) year following such Change of Control, the Company or any successor thereto terminates the Employee’s Executive's employment other than Other Than for Cause, Cause or the Employee Executive terminates his employment for Good Reason, then, in lieu of any payments then and subject to the Employee or on the Employee’s behalf under provisions of Section 5(a) hereof5(i), (i) all unvested options, restricted stock and restricted stock units which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) shall vest as of the date of termination (notwithstanding anything to the contrary in Section 2(b) of this Agreement) with respect to 100% of the unvested portion of such awards; and (ii) the Company shall paypay the Executive, within thirty ten (3010) business days of such termination, a lump sum payment equal to the Employee’s then-current sum of his annual base salary Base Salary and if the Executive is eligible for, and chooses to elect health insurance continuation in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), pay the premium payments of the Executive under COBRA for a period of six twelve (612) months; provided, however, that if such termination occurs prior subject to a Change of Control, such severance payments shall be made at the time and in the manner set forth in Section 5(a)(i) during the period beginning on the date of termination through the date of the Change of Control with any severance remaining to be paid under this Section 5(c)(i) payable in a lump sum on the closing date of the Change of Control; and,
ii. If the Employee is participating in the Company’s group health plan and/or dental plan at the time the Employee’s employment terminates (whether such termination is as described in (i) above), and the Employee exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company will pay or, at its option, reimburse the Employee, for the full premium cost of that participation for six (6) months following the date on which the Employee’s employment with the Company terminates or, if earlier, until the date the Employee becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer, with such amount payable on a pro-rata basis in accordance with the Company’s regular payroll practices for benefits. The Company will also pay the Employee on the date of termination any base salary earned but not paid through the, date of termination and pay for any vacation time accrued but not used to that date. In addition, the Company will pay the Employee any bonus which has been awarded Executive contribution applicable to the Employee, but not yet paid Executive on the date of termination of his employment, payable within 30 days of the date of termination.
ii. Notwithstanding the foregoing, the payments and benefits to which the Executive would be entitled pursuant to Section 5(h)(i) as a result of a Change of Control shall be reduced to the maximum amount for which the Company will not be limited in its deduction pursuant to Section 280G of the Internal Revenue Code of 1986, as amended, or any successor provision. Any such reduction shall be applied to the amounts due under Section 5(h)(i) as the Executive may determine.
iii. A Change of Control shall be deemed to take place if at any time during the term hereof: (A) any Person or "group" (within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934), other than the Company or any of its Affiliates, becomes a beneficial owner (within the meaning of Rule 13d-3 as promulgated under the Securities Exchange Act of 1934), directly or indirectly, of securities representing fifty percent (50%) or more of the total number of votes that may be cast for the election of directors of the Company and two-thirds of the Board has not consented to such event prior to its occurrence or within sixty (60) days thereafter, provided that if the consent occurs after the event it shall only be valid for purposes of this Section 5(h) if a majority of the consenting Board is comprised of directors of the Company who were such immediately prior to the event; (B) any merger or consolidation involving the Company or any sale or other transfer of all or substantially all of the assets of the Company, or any combination of the foregoing, and two-thirds of the Board has not consented to such event prior to its occurrence or within sixty days thereafter, provided that if the consent occurs after the event it shall only be valid for purposes of this Section 5(h) if a majority of the consenting Board is comprised of directors of the Company who were such immediately prior to the event; or (C) within twelve (12) months after a tender offer or exchange offer for voting securities of the Company (other than by the Company) the individuals who were directors of the Company immediately prior thereto shall cease to constitute a majority of the Board.
Appears in 1 contract
Upon a Change of Control. i. If, within ninety (90i) days prior to the Change of Control or within eighteen (18) months following If a Change of Control (as defined in Section 6 hereof)) occurs, all of the Company or any successor thereto terminates the EmployeeExecutive’s employment other than for Cause, or the Employee terminates his employment for Good Reason, then, in lieu of any payments to the Employee or on the Employee’s behalf under Section 5(a) hereof, (i) all remaining unvested options, restricted stock options and restricted stock units which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units options based on individual or Company performance) and Restricted Shares shall vest as fully vest, effective upon the consummation of such Change of Control. If, within one year following such Change of Control or otherwise in connection with such Change of Control, the date Company or any successor thereto terminates the Executive’s employment other than for Cause, or the Executive terminates his employment for Good Reason, then, in lieu of termination (notwithstanding anything any payments to the contrary in Executive or on the Executive’s behalf under Section 2(b5(a) of this Agreement) with respect to 100% of the unvested portion of such awards; and hereof, (iii) the Company shall pay, within thirty (30) days of such termination, (x) a lump sum payment equal to the EmployeeExecutive’s then-current annual base salary for a period of six eighteen (618) months; provided, however, that if such termination occurs prior to and (y) pay a Change of Control, such severance payments shall be made at the time and in the manner set forth in Section 5(a)(i) during pro-rata portion (for the period beginning on from January 1 of the date year of termination through the date of the Change of Control with any severance remaining to be paid under this Section 5(c)(itermination) payable in a lump sum on the closing date of the Change of Controltarget cash bonus for the year in which the Executive is terminated; and,
(ii. If ) The Company and the Employee is participating Executive agree that in the Companyevent it shall be determined that any of the payments or benefits received or to be received by the Executive in connection with a Change of Control or the Executive’s group health plan and/or dental plan at termination from employment would be subject to the time excise tax imposed by Section 4999 of the Employee’s employment terminates Code, together with any interest or penalties imposed with respect to such excise tax (whether such termination is as described in (i) abovethe “Excise Tax”), then the Executive shall be entitled to promptly receive from the Company an additional lump sum cash payment (the “Gross-Up Payment”) in an amount such that, after payment by the Executive of all taxes related to such payments and benefits, including any income taxes and the Employee exercises his right to continue participation in those plans under Excise Tax imposed upon the federal law known as COBRA, or any successor lawGross-Up Payment, the Company will pay or, at its option, reimburse Executive retains an amount of the Employee, for the full premium cost of that participation for six (6) months following the date on which the Employee’s employment with the Company terminates or, if earlier, until the date the Employee becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer, with such amount payable on a proGross-rata basis in accordance with the Company’s regular payroll practices for benefits. The Company will also pay the Employee on the date of termination any base salary earned but not paid through the, date of termination and pay for any vacation time accrued but not used to that date. In addition, the Company will pay the Employee any bonus which has been awarded Up Payment equal to the Employee, but not yet paid on the date of termination of his employment, payable within 30 days of the date of terminationExcise Tax imposed upon such payments and benefits.
Appears in 1 contract
Samples: Employment Agreement (Sirtris Pharmaceuticals, Inc.)
Upon a Change of Control. i. If, within ninety (90) days prior to the Change of Control or within eighteen (18) months following a Change of Control (as defined in Section 6 hereof), the Company or any successor thereto terminates the EmployeeExecutive’s employment other than for Cause, or the Employee Executive terminates his employment for Good Reason, then, in lieu of any payments to the Employee Executive or on the EmployeeExecutive’s behalf under Section 5(a) hereof, (i) all of the Executive’s then remaining unvested options, restricted stock and restricted stock units which, by their terms, vest only based on the passage of time (disregarding any acceleration of the vesting of such options, restricted stock or restricted stock units based on individual or Company performance) shall automatically vest as of the date of termination (notwithstanding anything to the contrary in Section 2(b) of this Agreement) with respect to 100% of the unvested portion of such awards; and (ii) the Company shall pay, within thirty (30) days of such terminationon the Payment Commencement Date, a lump sum payment equal to the EmployeeExecutive’s then-current annual base salary for a period of six (6) monthssalary; provided, however, that if such termination occurs prior to a Change of Control, such severance payments shall be made at the time and in the manner set forth in Section 5(a)(i) during the period beginning on the date of termination through the date of the Change of Control with any severance remaining to be paid under this Section 5(c)(i) payable in a lump sum on the closing date of the Change of Control; and,
ii. If the Employee Executive is participating in the Company’s group health plan and/or dental plan at the time the EmployeeExecutive’s employment terminates (whether such termination is as described in (i) above), and the Employee Executive exercises his right to continue participation in those plans under the federal law known as COBRA, or any successor law, the Company will pay or, at its option, reimburse the EmployeeExecutive, for the full premium cost of that participation for six twelve (612) months following the date on which the EmployeeExecutive’s employment with the Company terminates or, if earlier, until the date the Employee Executive becomes eligible to enroll in the health (or, if applicable, dental) plan of a new employer, with such amount payable on a pro-rata basis in accordance with the Company’s regular payroll practices for benefitsbenefits beginning on the Payment Commencement Date. Notwithstanding the foregoing, if the payment or reimbursement by the Company of the premium costs described in the preceding sentence will subject or expose the Company to taxes or penalties, the Executive and the Company agree to renegotiate the provisions of this Section 5(b)(ii) in good faith and enter into a substitute arrangement pursuant to which the Company will not be subjected or exposed to taxes or penalties and the Executive will be provided with payments or benefits with an economic value that is no less than the economic value of the premium costs described herein. The Company will also pay the Employee Executive on the date of termination any base salary earned but not paid through the, date of termination and pay for any vacation time accrued but not used to that date. In addition, the Company will pay the Employee Executive any bonus which has been awarded to the EmployeeExecutive, but not yet paid on the date of termination of his employment, payable within 30 days in a lump sum on the Payment Commencement Date.
iii. Any obligation of the date Company to provide the Executive severance payments or other benefits under this Section 5(c) is conditioned on the Executive’s signing an effective and reasonable release of terminationclaims in the form provided by the Company (the “Employee Release”) within 60 days following the termination of the Executive’s employment, which release shall not apply to (i) claims for indemnification in the Executive’s capacity as an officer or director of the Company under the Company’s Certificate of Incorporation, By-laws or agreement, if any, providing for director or officer indemnification, (ii) rights to receive insurance coverage and payments under any policy maintained by the Company and (iii) rights to receive retirement benefits that are accrued and fully vested at the time of the Executive’s termination and rights under such plans protected by ERISA.
Appears in 1 contract
