Compensation After Termination. (a) If the Company determines that the Employee has incurred a Disability, the Company agrees to continue to pay Employee his current Base Salary beginning on the date of determination of Disability, and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the Disability. (b) If the Employment Period is terminated by the Company without Cause, Employee shall be entitled to receive as severance pay (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonus) an amount equal to the greater of (i) his current Base Salary for a period equal to twelve (12) months and (ii) Employee’s current Base Salary for the remainder of the Employment Period. In addition, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments in accordance with the Company’s general payroll practices for salaried employees until the March 15th of the year following the year of termination with the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because of the six-month delay. After the expiration of the six-month delay period following the date of termination, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other obligations hereunder or otherwise with respect to Employee’s employment from and after the termination or expiration date, and the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity). (c) If the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid by the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination of
Appears in 1 contract
Sources: Executive Employment Agreement (Regent Communications Inc)
Compensation After Termination. (a) If the Company determines that the Employee has incurred a Disability, the Company agrees to continue to pay Employee his current Base Salary beginning on the date of determination of Disability, and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the Disability.
(bi) If the Employment Period has commenced and is terminated pursuant to Executive’s resignation without Good Reason, death or Incapacity, Executive shall only be entitled to receive his Base Salary through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from Parent, Symbion or their Subsidiaries, except as may be required by applicable law.
(ii) If the Employment Period has commenced and is terminated by the Company for Cause, Executive shall only be entitled to his Base Salary’ through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Parent, Symbion or their Subsidiaries, except as may be required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to any unvested equity owned by Executive in Parent, Symbion or any Subsidiary.
(iii) If the Employment Period has commenced and is terminated (1) by the Company without Cause, Employee (2) by Executive for Good Reason or (3) this Agreement is not renewed by the Company or is allowed to expire by the Company, then subject to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance pay compensation the following (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonuscollectively, “Severance Pay”): (A) an amount equal to the greater sum of (i) his Executive’s then-current annual Base Salary for a period equal to twelve (12) months and (ii) Employee’s current Base Salary for the remainder of the Employment Period. In additionSalary, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees until the March 15th employees; (B) continuation of the year following welfare benefits described in Section 3(b) for 12 months (the year of termination with “Severance Period”) to the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because extent permissible under the terms of the six-month delay. After relevant benefit plans at no cost to Executive; (C) the expiration Bonus payable to Executive within 2 and 1/2 months after the end of the sixapplicable year; (D) with respect to the portion of each restricted stock award held by Executive as of date on which the Employment Period is terminated that is subject to time-month delay period based vesting (the “Time-Based RSA”), accelerated vesting of the Time-Based RSA to the vesting event next following the date of termination, on which the monthly installment payments will continue until the Employee Employment Period is paid the remaining amounts terminated; and (if anyE) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other obligations hereunder or otherwise with respect to Employee’s employment from and after the termination or expiration date, and portion of each performance stock unit award held by the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity).
(c) If Executive as of the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that date on which the Employment Period has otherwise expired, or if the Employee’s employment is terminated due that has been converted into “earned shares” (the “Earned PSUs”), accelerated vesting of the Earned PSUs to Employee’s death or disability within 12 months prior to or the vesting event next following a Change of Control notwithstanding that the date on which the Employment Period has otherwise expiredis terminated. For purposes of this Section 4(g), Employee “Bonus” shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) mean an amount equal to 2.99 times his Executive’s then-current annual Base Salary Salary, multiplied by the percentage contained in Section 3(d) hereof. For the avoidance of doubt, the acceleration provisions set forth in subsections (based upon D) and (E) herein shall apply to the greater Executive’s Time-Based RSAs and Earned PSUs in addition to any acceleration provisions in the applicable award agreements (except as otherwise expressly provided therein) and the unvested portion of (A) Employee’s Base Salary any restricted stock awards and performance share unit awards held by Executive as of the date on which the Employment Period ends (after giving effect to the acceleration provisions set forth in subsections (D) and (E) herein and the terms and conditions of the Change of Controlapplicable award agreements and the Surgery Partners, or Inc. 2015 Omnibus Incentive Plan (Bas amended from time to time)) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum forfeited and in immediately available funds as provided herein, offset by any amounts previously paid by the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination ofno further force and effect.
Appears in 1 contract
Compensation After Termination. (a) If In the event the Company determines that terminates the Employee has incurred a Disability, Executive's employment with the Company agrees for any reason other than "Cause" (as defined below), Executive shall be entitled to continue to pay Employee his current Base Salary beginning on the date of determination of Disability, and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer a severance payment in an amount equal to Employee’s after-tax Base one year of his Salary per month on in additional to any portion of his Salary that has been earned, but not yet paid to him, and all unused PTO time, through the same basis date of termination. Such severance payment will be paid in a single lump sum not more than 30 days after the date of termination. In addition, Executive shall retain all stock options which have vested as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms effective date of the applicable long-term disability policytermination; provided that such options will expire no earlier than one year after the effective date of the termination. Notwithstanding the foregoing, the amount payable exercise period for Executive's vested stock options will be extended for one month for each full month after one year from the Effective Date the Executive is employed by the Company within prior to termination as long as the number of GPS tracking units in activated service as of the date of termination equals or exceeds the target number of units set forth in Schedule B hereto for the month during which termination occurs. However, in no event shall the exercise period for such yearvested stock options be extended for more than three years beyond the termination date. For purposes hereof, the amount payable by the Company a unit shall be reduced considered "in activated service" if it is installed on an offender being tracked by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence a customer of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the Disability.
(b) If In the Employment Period is terminated by event the Company without terminates the Executive's employment for Cause, Employee or Executive voluntarily terminates his employment, Executive shall be entitled to receive as severance pay (in addition only that portion of his Salary that has been earned, but not yet paid to the payment of the Base Salary him, and all unused PTO time, through the date of termination as well as a prorated Senior Management Plan Bonus) an amount equal to the greater of (i) his current Base Salary for a period equal to twelve (12) months and (ii) Employee’s current Base Salary for the remainder of the Employment Period. In addition, all unvested stock options, shares of restricted stock and other equity awards held by Employee whether or not vested, shall accelerate and vest in full immediately terminate as of the effective date of termination. Since the Employee is a “specified employee” under Section 409A termination of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments in accordance with the Company’s general payroll practices for salaried employees until the March 15th of the year following the year of termination with the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because of the six-month delay. After the expiration of the six-month delay period following the date of termination, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other obligations hereunder or otherwise with respect to Employee’s employment from and after the termination or expiration date, and the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity).
(c) If In this Agreement, "Cause" means any of the Employee’s employment is terminated following: (i) engaging in (A) willful or gross misconduct or (B) willful or gross neglect, (ii) repeatedly failing to adhere to the directions of the Board or the written policies and practices of the Company, (iii) the commission of a felony or a crime of moral turpitude, or any crime involving the Company, (iv) fraud, misappropriation, embezzlement or material or repeated insubordination, (v) a material breach by either the Executive of the terms of this Agreement, including the failure of Executive to devote an average of 50 hours per week to the business and affairs of the Company or the Employee failure of Executive to spend the minimum amount of time in the Company's headquarters office or traveling on Company business for any reason the reasons described in Section 2(a) hereof (the "Time Covenant"), (other than Employee’s death a termination of employment by the Executive), or disability (vi) any illegal act detrimental to the Company, all as determined in the sole discretion of the Board. If the Company believes that Cause for termination exists, the Company shall notify Executive of that belief, and that notice shall describe the event or circumstance believed to constitute Cause for termination. If that event or circumstance may reasonably be remedied or corrected, Executive shall have 30 days to effect that correction or remedy. If not corrected or remedied within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired30 day period, or if the Employee’s event or circumstance is not of a nature that it may be remedied or corrected, Cause for termination shall immediately be deemed to exist, and Executive's employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as deemed terminated. The parties agree that a breach of the date of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall Time Covenant may be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid cured by the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable Executive's future compliance therewith after the expiration initial notice of six months breach thereof from the Company, but that continued breach thereof after the date receipt of such termination ofnotice shall not be curable.
Appears in 1 contract
Compensation After Termination. (a) If the Company determines that the Employee has incurred a Disability, the Company agrees to continue to pay Employee his current Base Salary beginning on the date of determination of Disability, and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the Disability.
(b) If the Employment Period has commenced and is terminated by the Company without CauseCause or by Executive for Good Reason or this Agreement is not renewed by the Company or is allowed to expire by the Company, Employee then subject to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance pay compensation the following (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonuscollectively, “Severance Pay”): (A) an amount equal to the greater sum of (i) his Executive’s then-current annual Base Salary for a period equal to twelve (12) months and (ii) Employee’s current Base Salary for the remainder of the Employment Period. In additionSalary, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments for 12 months beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees until the March 15th employees; (B) continuation of the year following welfare benefits described in Section 3(b) for 12 months (the year of termination with “Severance Period”) to the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because extent permissible under the terms of the six-month delay. After relevant benefit plans at no cost to Executive; (C) the expiration Bonus payable to Executive within 2 and 1/2 months after the end of the sixapplicable year; (D) with respect to the portion of each restricted stock award held by Executive as of date on which the Employment Period is terminated that is subject to time-month delay period based vesting (the “Time-Based RSA”), accelerated vesting of the Time-Based RSA to the vesting event next following the date of termination, on which the monthly installment payments will continue until the Employee Employment Period is paid the remaining amounts terminated; and (if anyE) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other obligations hereunder or otherwise with respect to Employee’s employment from and after the termination or expiration date, and portion of each performance stock unit award held by the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity).
(c) If Executive as of the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that date on which the Employment Period has otherwise expired, or if the Employee’s employment is terminated due that has been converted into “earned shares” (the “Earned PSUs”), accelerated vesting of the Earned PSUs to Employee’s death or disability within 12 months prior to or the vesting event next following a Change of Control notwithstanding that the date on which the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date is terminated. For purposes of terminationthis Section 4(g)(iii), (iix) “Bonus” shall mean an amount equal to 2.99 times his Executive’s then-current annual Base Salary (based upon Salary, multiplied by the greater of (Apercentage contained in Section 3(d) Employee’s Base Salary hereof as of the date of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to in effect on the date of termination, and (ivy) if the vesting Employment Period is terminated by the Executive by reason of all stock optionsSection 4(b)(ii), shares the term “Base Salary” and the bonus percentage described in Section 4(g)(iii)(x) shall be the Base Salary and bonus percentage, as applicable, as in effect immediately prior to the material reduction in such Base Salary or bonus percentage, as applicable, described in Section 4(b)(ii). For the avoidance of doubt, the unvested portion of any restricted stock awards and other equity performance share unit awards held by Employee shall accelerate Executive as of the date on which the Employment Period ends (after giving effect to the acceleration provisions set forth in subsections (D) and vest (E) herein and the acceleration provisions in full. These amounts any applicable equity award agreement or plan as well as the terms and conditions of the applicable award agreements and the Surgery Partners, Inc. 2015 Omnibus Incentive Plan (as amended from time to time)) shall be paid in a lump sum forfeited and in immediately available funds as provided herein, offset by any amounts previously paid by of no further force and effect. For the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s termination avoidance of employment occurs on or prior to the March 15th of the year following the year of the Change of Controldoubt, the lump sum will be paid immediately accelerated vesting of Executive’s equity awards as set forth in subsections (but D) and (E) are in addition to, and not later than in lieu of, any additional accelerated vesting under the applicable March 15th) following equity or long-term incentive award agreements and/or the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination ofapplicable plan.
Appears in 1 contract
Compensation After Termination. (a) If the Company determines that the Employee has incurred a Disability, the Company agrees to continue to pay Employee his current Base Salary beginning on the date of determination of Disability, and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the Disability.
(bi) If the Employment Period has commenced and is terminated pursuant to Executive’s resignation without Good Reason, death or Incapacity, Executive shall only be entitled to receive her Base Salary through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from Parent, Symbion or their Subsidiaries, except as may be required by applicable law.
(ii) If the Employment Period has commenced and is terminated by the Company for Cause, Executive shall only be entitled to her Base Salary through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from Parent, Symbion or their Subsidiaries, except as may be required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to any unvested equity owned by Executive in Parent, Symbion or any Subsidiary.
(iii) If the Employment Period has commenced and is terminated (1) by the Company without Cause, Employee (2) by Executive for Good Reason or (3) this Agreement is not renewed by the Company or is allowed to expire by the Company, then subject to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance pay compensation the following (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonuscollectively, “Severance Pay”): (A) an amount equal to the greater sum of (i) his Executive’s then-current annual Base Salary for a period equal to twelve (12) months and (ii) Employee’s current Base Salary for the remainder of the Employment Period. In additionSalary, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees until the March 15th employees; (B) continuation of the year following welfare benefits described in Section 3(b) for 12 months (the year of termination with “Severance Period”) to the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because extent permissible under the terms of the six-month delay. After relevant benefit plans at no cost to Executive; (C) the expiration Bonus payable to Executive within 2 and 1/2 months after the end of the sixapplicable year; (D) with respect to the portion of each restricted stock award held by Executive as of date on which the Employment Period is terminated that is subject to time-month delay period based vesting (the “Time-Based RSA”), accelerated vesting of the Time-Based RSA to the vesting event next following the date of termination, on which the monthly installment payments will continue until the Employee Employment Period is paid the remaining amounts terminated; and (if anyE) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other obligations hereunder or otherwise with respect to Employee’s employment from and after the termination or expiration date, and portion of each performance stock unit award held by the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity).
(c) If Executive as of the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that date on which the Employment Period has otherwise expired, or if the Employee’s employment is terminated due that has been converted into “earned shares” (the “Earned PSUs”), accelerated vesting of the Earned PSUs to Employee’s death or disability within 12 months prior to or the vesting event next following a Change of Control notwithstanding that the date on which the Employment Period has otherwise expiredis terminated. For purposes of this Section 4(g), Employee “Bonus” shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) mean an amount equal to 2.99 times his Executive’s then-current annual Base Salary (based upon Salary, multiplied by the greater percentage contained in Section 3(d) hereof. For the avoidance of (A) Employee’s Base Salary doubt, the unvested portion of any restricted stock awards and performance share unit awards held by Executive as of the date on which the Employment Period ends (after giving effect to the acceleration provisions set forth in subsections (D) and (E) herein and the terms and conditions of the Change of Controlapplicable award agreements and the Surgery Partners, or Inc. 2015 Omnibus Incentive Plan (Bas amended from time to time)) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum forfeited and in immediately available funds as provided herein, offset by any amounts previously paid by the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination ofno further force and effect.
Appears in 1 contract
Compensation After Termination. (a) If the Company determines that the Employee has incurred a Disability, Employment Period is terminated (i) by the Company agrees for Good Cause, (ii) by Executive upon proper notice or (iii) upon expiration of the Employment Period, then the Company shall have no further obligations hereunder or otherwise with respect to continue to pay Employee his current Executive's employment from and after the termination or expiration date (except payment of Executive's Base Salary beginning on accrued through the date of determination termination, Stock Options that have vested through the date of Disabilitythe Executive's termination and any other accrued and unpaid benefits, if any), and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company shall be reduced by the amount payable continue to have all other rights available hereunder (including without limitation, all rights under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability. Nothing Section 3 at law or in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the Disabilityequity).
(b) If the Employment Period is terminated by the Company without Good Cause, Employee the Executive shall be entitled to receive as severance pay (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonus) an amount equal to the greater of receive:
(i) his current Base Salary for a period equal to twelve (12) months and (ii) Employee’s current Executive's Base Salary for the remainder of the remainder of any Initial Period or then current Renewal Period to be paid in the same manner as if Executive had remained employed with the Company;
(ii) Executive's employee benefit plans (as described Section 2.2(e) above) for the remainder of any Initial Period or then current Renewal Period to be maintained in the same manner as if Executive had remained employed with the Company; Employment PeriodAgreement - ▇▇▇▇▇▇▇▇ ▇. In addition▇▇▇▇▇
(iii) An amount equal to Executive's Base Salary for three (3) months to be paid in cash, all unvested stock optionsin full, shares within thirty (30) days of restricted stock the effective date of Executive's termination; and
(iv) All Stock Options that are scheduled to vest during the Initial Period shall be accelerated and other equity awards held by Employee shall accelerate and vest in full deemed to have vested as of the date of terminationthe Executive's termination without Good Cause. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended Stock Options that have vested (“Code”), amounts that are deferred compensation are not payable or been deemed pursuant to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b2.3(b)(iv) will be payable in regular installments in accordance with the Company’s general payroll practices for salaried employees until the March 15th to have vested) as of the year following the year of termination with the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because of the six-month delay. After the expiration of the six-month delay period following the date of termination, the monthly installment payments will continue until the Employee is paid the remaining amounts such termination shall remain exercisable for a period of ninety (if any90) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other obligations hereunder or otherwise with respect to Employee’s employment from and after the termination or expiration date, and the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity)days.
(c) If the Employee’s employment Employment Period is terminated by either the Company or the Employee for any reason other than Employee’s of Executive's death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expiredTotal Disability, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee Executive shall be entitled to receive (i) all compensation Executive's Base Salary accrued through the date of death or Total Disability and for the six-month period immediately following the date of death or Total Disability as well as any other accrued and unpaid prior benefits. All Stock Options that are scheduled to vest on the date next succeeding anniversary of termination, (ii) an amount equal the Effective Date shall be accelerated and deemed to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary have vested as of the date of the Change of Control, Executive's death or Total Disability. Stock Options that have vested (Bor been deemed pursuant to this Section 2.3(c) Employee’s highest Base Salary at any time following the commencement to have vested) as of the Employment Period), Executive's death or Total Disability shall remain exercisable for one year following such date. All Stock Options that have not vested (iiior been deemed pursuant to this Section 2.4(c) an amount equal to 2.99 times the average have vested) as of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts Executive's death or Disability shall be paid in a lump sum and in immediately available funds forfeited to the Company as provided herein, offset by any amounts previously paid of such date.
(d) If the Employment Period is terminated by the Company by reason of a Termination Without Cause Pursuant to Employee pursuant Merger (as hereinafter defined), Executive shall be entitled to Sections 2.6(areceive:
(i) or (b) above. If All Stock Options that are scheduled to vest during the Employee’s termination Initial Period shall be accelerated and deemed to have vested as of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of terminationthe Executive's Termination Without Cause Pursuant to Merger. If the Employee’s termination Stock Options that have vested (or been deemed pursuant to this Section 2.3(d)(i) to have vested) as of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination ofshall remain exercisable for a period of ninety (90) days.
(ii) Executives' base salary through the date of termination and for a period of six-months thereafter; and
(iii) An amount equal to the pro rata portion (based upon a 365 day year) of any cash bonuses which Executive is entitled to receive hereunder, if any.
Appears in 1 contract
Compensation After Termination. (a) If the Company determines that the Employee has incurred a Disability, the Company agrees to continue to pay Employee his current Base Salary beginning on the date of determination of Disability, and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the Disability.
(b) If the Employment Period is terminated by the Company without Cause, Employee shall be entitled to receive as severance pay (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonus) an amount equal to the greater of (i) his current Base Salary for a period equal to twelve (12) months and (ii) Employee’s current Base Salary for the remainder of the Employment Period. In addition, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments in accordance with the Company’s general payroll practices for salaried employees until the March 15th of the year following the year of termination with the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because of the six-month delay. After the expiration of the six-month delay period following the date of termination, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other obligations hereunder or otherwise with respect to Employee’s employment from and after the termination or expiration date, and the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity).
(c) If the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid by the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination ofof employment. If the payment due under this Section 2.6(c) is subject to a delay of six or less months, the Company shall establish, and hold such amount due, in a rabbi trust until payable to the Employee. Employee shall not be required to mitigate the amount of any payment required by this Section 2.6(c) by seeking other employment or otherwise and no such payment shall be offset or reduced by the amount of any compensation or benefits provided to Employee in any subsequent employment. In the event that the payment amounts due to Employee pursuant to this Section 2.6(c) and other provisions of this Agreement, plus any other compensation or benefits provided to Employee under any other agreement, plan or arrangement with the Company, following a Change of Control would result in an “excess parachute payment” within the meaning of Section 280G of the Code, then the amount due to Employee shall be capped at the maximum amount payable to Employee before such “excess parachute payment” provisions would otherwise apply by reducing first, the amount of Base Salary otherwise payable in cash compensation under Section 2.6(c)(ii), and second, the amount of Senior Management Bonus otherwise payable in cash compensation under Section 2.6(c)(iii). For purposes of determining the limitations under Section 280G of the Code, it is recognized that the non-competition and non-solicitation provisions of Section 3 of this Agreement constitute a refraining from the performance of services such that the reasonable value for such provisions is excluded from the determination of the amount of “parachute payments” as defined by Section 280G of the Code. If any tax for excess parachute payments is imposed on the Employee under Section 4999 of the Code, the Company will be responsible for payment of the tax, penalty, interest and any related audit costs incurred by Employee, including any payments necessary to place the Employee in the same taxable position he would have been had no excess parachute payments existed, and the Employee will be required to return to the Company any excess amounts received over the limitations of Section 280G of the Code. All calculations, valuations and amounts payable under this Section 2.6(c), and the limitations imposed by Section 280G of the Code, shall be calculated at Company expense by an independent accounting firm that is mutually agreed upon by the Company and the Employee.
Appears in 1 contract
Sources: Executive Employment Agreement (Regent Communications Inc)
Compensation After Termination. (ai) If the Company determines that the Employee has incurred a Employment Period is terminated pursuant to Executive's resignation without Good Reason, death or Disability, the Company agrees Executive shall only be entitled to continue to pay Employee his current receive her Base Salary beginning on through the date of determination of Disabilitytermination and her earned but unpaid Bonus for the previous calendar year and shall not be entitled to any other salary, and ending one year thereafterbonus, provided that compensation or benefits from the Company or its Subsidiaries, except as may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from be required by applicable law.
(ii) If the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable Employment Period is terminated by the Company within such yearfor Cause, Executive shall only be entitled to her Base Salary through the amount payable by date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis or its Subsidiaries, except as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to Section 1.4 after any unvested equity owned by Executive in the Company’s determination of the DisabilityCompany or any Subsidiary.
(biii) If the Employment Period is terminated by the Company without CauseCause or by Executive for Good Reason, Employee then subject to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance pay (in addition to 4(g)(i) above as severance compensation the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonusfollowing (collectively, "Severance Pay"): (A) an amount equal to the greater of (i) his current Base Salary for a period equal to twelve (12) months and (ii) Employee’s of Executive's then-current annual Base Salary for the remainder of the Employment Period. In additionSalary, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s 's general payroll practices for salaried employees until the March 15th employees; (B) continuation of the year following welfare benefits described in Section 3(b) for twelve (12) months to the year of termination with extent permissible under the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because terms of the six-month delay. After relevant benefit plans at the expiration same cost to Executive as if Executive were an active employee of the sixCompany or an equivalent COBRA payments if such continuation is not permissible; (C) the Bonus for the current calendar year payable to Executive within 2 and 1/2 months after the end of the applicable year(to the extent not previously paid), paid in a lump sum at the time that bonuses are regularly paid to employees; (D) with respect to the portion of each restricted stock award held by Executive as of date on which the Employment Period is terminated that is subject to time-month delay period based vesting (the "Time-Based RSA''), accelerated vesting of the Time-Based RSA to the vesting event next following the date on which the Employment Period is terminated; and (E) with respect to the portion of terminationeach performance stock unit award held by the Executive as of the date on which the Employment Period is terminated that has been converted into "earned shares" (the "Earned PSUs"), accelerated vesting of the Earned PSUs to the vesting event next following the date on which the Employment Period is terminated. For purposes of this Section 4(giii), "Bonus" shall mean an amount equal to Executive's then current annual Base Salary, multiplied by the percentage contained in Section 3(d) hereof. For the avoidance of doubt, the monthly installment unvested portion of any restricted stock awards and performance share unit awards held by Executive as of the date on which the Employment Period ends (after giving effect to the acceleration provisions set forth in subsections (D) and (E) herein and the terms and conditions of the applicable award agreements and the Surgery Partners, Inc. 2015 Omnibus Incentive Plan (as amended from time to time) shall be forfeited and of no further force and effect. Further, for purposes of clarity, the acceleration of vesting stated in subsections (D) and (E) control despite any language to the contrary in the Plan and applicable award agreements.
(iv) If, within 90 days before or within 12 months following a Change in Control, either (A) the Company terminates the employment of Executive hereunder without Cause under Section 4(a) above, or (B) Executive terminates her employment for Good Reason under Section 4(b) above, then, in lieu of any other compensation that may be specified in this Agreement, the Company will pay Executive (A) an amount equal to twelve (12) months of Executive's then current annual Base Salary, payable in a lump sum no later than 60-days after the Termination Date; (B) continuation of the welfare benefits described in Section 3(b) for twelve (12) months to the extent permissible under the terms of the relevant benefit plans at the same cost to Executive as if Executive were an active employee of the Company or an equivalent COBRA payments will continue until if such continuation is not permissible; (C) the Employee is Bonus for the current calendar year payable to Executive within 2 and 1/2 months after the end of the applicable year(to the extent not previously paid), paid in a lump sum at the remaining amounts time that bonuses are regularly paid to employees (if any"Change in Control Severance Pay") due as well as comply with the obligations set out in the Plan and applicable award agreements If any payment obligation under this Section 2.6(b4(g) arises, no compensation received from other employment (or otherwise) will reduce the Company's obligation to make the payment(s) described in this Section 4 (g).
(v) Notwithstanding Sections 4(g)(iii) or (iv), Executive's right to receive Severance Pay or Change in Control Severance Pay hereunder is conditioned upon: (A) Executive executing, and not revoking, a written and mutually acceptable separation agreement and general release of all claims against the Company, its Subsidiaries and Affiliates and their respective managers, directors, officers, shareholders, members, representatives, agents, attorneys, predecessors, successors and assigns (other than a claim for the severance payments described in Section 4(g)(iii) or (iv) and Executive's rights to future distributions and payments related to the continued ownership of any equity securities in the Company that Executive will continue to own after such termination), in form and substance acceptable to the Company, which shall among other things, contain a general release by Executive of all claims, but not Executive's rights to vested benefits and equity, rights to indemnification and defense, arising out of her employment and termination of employment by the Company (a "Release Agreement'') within 30 days of Executive's Termination Date; and (B) Executive's material compliance with all of her obligations which survive termination of this Agreement. Employee However, under no circumstances will Executive be required to be bound to additional restrictive covenant obligations. The Severance Pay is intended to be in lieu of all other payments to which Executive might otherwise be entitled by the Company in respect of her termination without Cause or resignation with Good Reason. If the Executive executes the Release Agreement stated herein, the Company and its Subsidiaries and Affiliates shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other further obligations hereunder or otherwise with respect to Employee’s Executive's employment from and after the date of termination or expiration dateof employment with the Company (the "Termination Date"), and the Company and its Subsidiaries and Affiliates shall continue to have all other rights available hereunder (including, including without limitation, all rights under Sections 3, 4, and 6 hereunder at law or in equity).. The Release Agreement will be provided to Executive no later than her Termination Date,
(cvi) If Except as otherwise expressly provided herein, all of Executive's rights to salary, bonuses, benefits and other compensation hereunder which might otherwise accrue or become payable after the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change termination of Control notwithstanding that the Employment Period has otherwise expiredshall cease upon such termination, or if the Employee’s employment is terminated due other than those expressly required under applicable law (such as COBRA). All amounts payable to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee Executive as severance hereunder shall be entitled subject to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid required withholdings by the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination ofCompany.
Appears in 1 contract
Compensation After Termination. (a) If the Employment Period is terminated (i) by reason of Executive’s death, (ii) by the Company determines that the Employee has incurred a for Cause or by reason of Executive’s Permanent Disability, or (iii) by Executive without Good Reason, then the Company agrees shall have no further obligations hereunder, including under Section 2, or otherwise with respect to continue to pay Employee his current Executive’s employment from and after the termination date, except (x) for payment of Executive’s Base Salary beginning and Benefits accrued through the date of termination and any Annual Bonus due for the immediately preceding fiscal year to the extent unpaid on the date of determination of such termination, and (y) in the event the Employment Period is terminated due to Executive’s death or Permanent Disability, Executive shall receive a pro rata Annual Bonus as provided in Section 3.2(b)(iv), and ending one year thereafter, provided that the Company may cease making payments within shall continue to have all other rights available hereunder at law, in equity or otherwise in connection with such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and termination; provided, however, such pro rata Annual Bonus, if any, shall be paid at such time as such Annual Bonus would normally be required to be paid under the Company’s annual bonus plan; provided further, that if allowed the Employment Period is terminated by the terms reason of the applicable long-term disability policy, the amount payable by the Company within Executive’s Permanent Disability and such year, the amount payable by the Company shall pro rata Annual Bonus would be reduced by the amount payable under the applicable long-term disability policy Company’s annual bonus plan earlier than the date which is six (6) months following the date on which Executive incurs a Separation from Service with the Company, payment of such that the aggregate amount received by Employee Annual Bonus shall equal the Employee’s after-tax Base Salary per month be made on the same basis as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(adate which is six (6) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable months following Executive’s Separation from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the DisabilityService.
(b) If the Employment Period is terminated by the Company without CauseCause or by Executive with Good Reason, Employee then, in either case, the Company shall be entitled pay, or provide, to receive as severance pay Executive:
(in addition to the payment of the i) Executive’s Base Salary and Benefits accrued through the date of termination as well as a prorated Senior Management Plan Bonustermination;
(ii) any Annual Bonus due for the immediately preceding fiscal year to the extent unpaid on the date of such termination;
(iii) an amount equal to one (1) year of the greater of (i) his current annual Base Salary (at such amount before any diminution of Base Salary constituting Good Reason for Executive’s resignation), payable to Executive in a period equal to twelve lump sum on the date which is six (126) months and following Executive’s Separation from Service; and
(iiiv) Employee’s current Base Salary for a pro-rated portion (based upon the remainder number of days elapsed in the fiscal year in which the Employment Period. In addition, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of Period is terminated through the date of such termination. Since the Employee is a “specified employee” under Section 409A ) of the Internal Revenue Code Annual Bonus, if any, that would have been payable to Executive for such fiscal year (before any diminution in the target amount of 1986such Annual Bonus constituting Good Reason for Executive’s resignation) had Executive remained employed by the Company for the entire fiscal year. Such pro rata Annual Bonus, if any, shall be paid at such time as such Annual Bonus would normally be required to be paid under the Company’s annual bonus plan; provided, however, that if such pro rata Annual Bonus would be payable under the Company’s annual bonus plan earlier than the date which is six (6) months following the date on which Executive incurs a Separation from Service with the Company, payment of such Annual Bonus shall be made on the date which is six (6) months following Executive’s Separation from Service; provided that the Company’s obligation under Sections 3.2(b)(iii) and (iv) is contingent on, if the Company so elects in its sole discretion, Executive’s and Company’s execution, delivery and non-rescission of a mutual release of all claims against the Company and the Executive, as amended (“Code”)applicable, amounts that are deferred compensation are not payable to in the Employee until six months after his date form of terminationExhibit A attached hereto. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due Except for its obligations under this Section 2.6(b3.2(b) will be payable and as otherwise provided in regular installments in accordance with the Company’s general payroll practices for salaried employees until the March 15th of the year following the year of termination with the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because of the six-month delay. After the expiration of the six-month delay period following the date of terminationSection 3.3, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other further obligations hereunder hereunder, including under Section 2, or otherwise with respect to EmployeeExecutive’s employment from and after the termination or expiration date, and the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity).
(c) If the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid by the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination of
Appears in 1 contract
Compensation After Termination. (a) If the Company determines that the Employee has incurred a DisabilityExecutive's employment is terminated for Cause or Executive resigns without Good Reason, the Company agrees to continue to pay Employee his current Base Salary beginning on the date of determination of Disability, and ending one year thereafter, provided that the Company may cease making payments he will be paid within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence thirty (30) days of the Disability, Date of Termination any Accrued Obligation and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the Disability.nothing more; or
(b) If the Employment Period Executive's employment is terminated by the Company without Causefor any reason other than death or Disability, Employee shall he will be entitled to receive as severance pay (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonus) an amount equal to the greater of paid: (i) his current Base Salary for a period equal to twelve (12) months the Accrued Obligation; and (ii) Employee’s current his Base Salary for the remainder of the Employment Period. In addition, all unvested stock options, shares of restricted stock Term (pro-rated for any partial year); and other equity awards held by Employee shall accelerate and vest in full as (iii) 100% of the date of termination. Since Annual Bonus Target (as defined on SCHEDULE I TO EXHIBIT A) for the Employee is a “specified employee” under Section 409A remainder of the Internal Revenue Code of 1986, as amended Term (“Code”pro-rated for any partial year), less any amounts that are deferred compensation are not payable to received by the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A Executive from another employer during any year of the Code, Term which amounts due under this Section 2.6(b) will shall be payable in regular installments in accordance with applied against the Company’s general payroll practices for salaried employees until 's payments received by the March 15th Executive during that year of the year following the year of termination with the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because of the six-month delayTerm. After the expiration of the six-month delay period following the date of terminationHowever, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b). Employee Executive shall have no obligation not be obligated to mitigate these post-employment payments by seeking seek other employment. The Company shall have no other obligations hereunder or otherwise with respect to Employee’s employment from and after the termination or expiration date, and the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity).; or
(c) If the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s Executive's employment is terminated due to Employee’s his death or disability within 12 months prior to Disability, he (or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall his Estate if legally required) will be entitled to receive paid: (i) all compensation accrued the Accrued Obligation; and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times fifty percent (50%) of his current Base Salary for the remainder of the Term (based upon pro-rated for any partial year); and fifty percent (50%) of the greater Annual Bonus Target for the remainder of the Term (Apro-rated for any partial year). The Accrued Obligation will be paid within thirty (30) Employee’s days of the Date of Termination, with the remaining payments to be made over the term of the Agreement and in accord with the Company's normal payroll practices for Base Salary as of the date of the and Annual Bonus, unless there is a Change of in Control, or (B) Employee’s highest in which case the remaining Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts Annual Bonus shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid by the Company to Employee pursuant to Sections 2.6(awithin thirty (30) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year days of the Change of in Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination of.
Appears in 1 contract
Compensation After Termination. (ai) If the Company determines that the Employee has incurred a DisabilityEmployment Period is terminated pursuant to Executive's resignation without Good Reason, the Company agrees death or Incapacity, Executive shall only be entitled to continue to pay Employee his current receive his/her Base Salary beginning on through the date of determination of Disabilitytermination and shall not be entitled to any other salary, and ending one year thereafterbonus, provided that compensation or benefits from the Company or its Subsidiaries, except as may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from be required by applicable law.
(ii) If the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable Employment Period is terminated by the Company within such yearfor Cause, Executive shall only be entitled to his/her Base Salary through the amount payable by date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis or its Subsidiaries, except as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to Section 1.4 after any unvested equity owned by Executive in the Company’s determination of the DisabilityCompany or any Subsidiary.
(biii) If the Employment Period is terminated by the Company without CauseCause or by Executive for Good Reason, Employee then subject to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance pay compensation the following (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonuscollectively, "Severance Pay"): (A) an amount equal to the greater of (i) his current Base Salary for a period equal to twelve (12) months and (ii) Employee’s of Executive's then-current annual Base Salary for the remainder of the Employment Period. In additionSalary, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s 's general payroll practices for salaried employees until the March 15th employees; (B) continuation of the year following welfare benefits described in Section 3(c) for twelve (12) months to the year of termination with extent permissible under the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because terms of the six-month delay. After relevant benefit plans at the expiration same cost to Executive as if Executive were an active employee of the sixCompany; (C) the Bonus payable to Executive within 3 months after the end of the applicable year (to the extent not previously paid), paid in a lump sum at the time that bonuses are regularly paid to employees; (D) with respect to the portion of each restricted stock award held by Executive as of date on which the Employment Period is terminated that is subject to time-month delay period based vesting (the "Time-Based RSA"), accelerated vesting of the Time-Based RSA to the vesting event next following the date on which the Employment Period is terminated; and (E) with respect to the portion of terminationeach performance stock unit award held by the Executive as of the date on which the Employment Period is terminated that has been converted into "earned shares" (the "Earned PSUs"), accelerated vesting of the Earned PSUs to the vesting event next following the date on which the Employment Period is terminated; and (F) with respect to each performance stock unit award issued after December 31, 2021, held by the executive as of the date on which the Employment Period ends that have not been converted to Earned PSUs, the monthly installment payments Executive's rights under the award will continue until be fully vested based on the Employee is paid number of shares that would be earned under the remaining amounts award based on performance measured through the end of Employment Period. For purposes of this Section 4(g), "Bonus" shall mean an amount equal to Executive's then-current annual Base Salary, multiplied by the percentage contained in Section 3(e) hereof. For the avoidance of doubt, the unvested portion of any restricted stock awards and performance share unit awards held by Executive as of the date on which the Employment Period ends (if anyafter giving effect to the acceleration provisions set forth in subsections (D), (E) due and (F) herein and the terms and conditions of the applicable award agreements and the Surgery Partners, Inc. 2015 Omnibus Incentive Plan (as amended from time to time)) shall be forfeited and of no further force and effect.
(iv) If, within 90 days prior to or 12 months following a Change in Control, either (A) the Company terminates the employment of Executive hereunder without Cause under Section 4(a) above, or (B) Executive terminates his/her employment for Good Reason under Section 4(b) above, then, in lieu of any other compensation that may be specified in this Agreement, the Company will pay Executive the Severance Pay in a single lump-sum payment not later than 30 days after termination. If any payment obligation under this Section 2.6(b4(g) arises, no compensation received from other employment (or otherwise) will reduce the Company's obligation to make the payment(s) described in this paragraph.
(v) Notwithstanding Sections 4(g)(iii) or (iv), Executive's right to receive Severance Pay hereunder is conditioned upon: (A) Executive executing, and not revoking, a written separation agreement and general release of all claims against the Company, its Subsidiaries and Affiliates and their respective managers, directors, officers, shareholders, members, representatives, agents, attorneys, predecessors, successors and assigns (other than a claim for the severance payments described in Section 4(g)(iii) or (iv) and Executive's rights to future distributions and payments related to the continued ownership of any equity securities in the Company that Executive will continue to own after such termination), in form and substance acceptable to the Company, which shall among other things, contain a general release by Executive of all claims arising out of his/her employment and termination of employment by the Company (a "Release Agreement") within 30 days of Executive's Termination Date; and (B) Executive's material compliance with all of his/her obligations which survive termination of this Agreement. Employee The Severance Pay is intended to be in lieu of all other payments to which Executive might otherwise be entitled in respect of his/her termination without Cause or resignation with Good Reason. The Company and its Subsidiaries and Affiliates shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other further obligations hereunder or otherwise with respect to Employee’s Executive's employment from and after the date of termination or expiration dateof employment with the Company (the "Termination Date"), and the Company and its Subsidiaries and Affiliates shall continue to have all other rights available hereunder (including, including without limitation, all rights under Sections 3, 4, and 6 hereunder at law or in equity).
(cvi) If Notwithstanding the Employee’s employment is terminated by either foregoing, the Company Release Agreement (x) shall not require the release of Executive's rights arising from the express terms of this Agreement or the Employee for any reason applicable award agreement that are associated with a termination of employment; (y) shall not impose any postemployment restrictions other than Employee’s death or disability within 24 months prior to or following those set forth in this Agreement, and (z) shall take into account and preserve Executive's rights in the event that a Change in Control occurs within 90 days after termination of Control notwithstanding that employment (or such longer tail period as may be provided by any agreement between Executive and the Company).
(vii) Except as otherwise expressly provided herein, all of Executive's rights to salary, bonuses, benefits and other compensation hereunder which might otherwise accrue or become payable after the termination of the Employment Period has otherwise expiredshall cease upon such termination, or if the Employee’s employment is terminated due other than those expressly required under applicable law (such as COBRA). All amounts payable to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee Executive as severance hereunder shall be entitled subject to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid required withholdings by the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination ofCompany.
Appears in 1 contract
Compensation After Termination. (a) If the Employment Period is terminated (i) by reason of Executive’s death, (ii) by the Company determines that the Employee has incurred a for Cause or by reason of Executive’s Permanent Disability, or (iii) by Executive without Good Reason, then the Company agrees shall have no further obligations hereunder, including under Section 2, or otherwise with respect to continue to pay Employee his current Executive’s employment from and after the termination date, except (x) for payment of Executive’s Base Salary beginning and Benefits accrued through the date of termination and any Annual Bonus due pursuant to Section 2.2 for the immediately preceding fiscal year to the extent unpaid on the date of determination of such termination, and (y) in the event the Employment Period is terminated due to Executive’s death or Permanent Disability, Executive shall receive a pro rata Annual Bonus as provided in Section 3.2(b)(iv), and ending one year thereafter, provided that the Company may cease making payments within shall continue to have all other rights available hereunder at law, in equity or otherwise in connection with such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and termination; provided, however, such pro rata Annual Bonus, if any, shall be paid at such time as such Annual Bonus would normally be required to be paid under the Company’s annual bonus plan, subject to Section 2.2; provided further, that if allowed the Employment Period is terminated by the terms reason of the applicable long-term disability policy, the amount payable by the Company within Executive’s Permanent Disability and such year, the amount payable by the Company shall pro rata Annual Bonus would be reduced by the amount payable under the applicable long-term disability policy Company’s annual bonus plan earlier than the date which is six (6) months following the date on which Executive incurs a Separation from Service with the Company, payment of such that the aggregate amount received by Employee Annual Bonus shall equal the Employee’s after-tax Base Salary per month be made on the same basis as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(adate which is six (6) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable months following Executive’s Separation from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the DisabilityService.
(b) If the Employment Period is terminated by the Company without CauseCause or by Executive with Good Reason, Employee then, in either case, the Company shall be entitled pay, or provide, to receive as severance pay Executive:
(in addition to the payment of the i) Executive’s Base Salary and Benefits accrued through the date of termination as well as a prorated Senior Management Plan Bonus) an amount equal to the greater of (i) his current Base Salary for a period equal to twelve (12) months and termination;
(ii) Employee’s current Base Salary any Annual Bonus due pursuant to Section 2.2 for the remainder of immediately preceding fiscal year to the Employment Period. In addition, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of extent unpaid on the date of such termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments in accordance with the Company’s general payroll practices for salaried employees until the March 15th of the year following the year of termination with the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because of the six-month delay. After the expiration of the six-month delay period following the date of termination, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other obligations hereunder or otherwise with respect to Employee’s employment from and after the termination or expiration date, and the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity).;
(c) If the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average one (1) year of the Senior Management Bonuses calculated annual Base Salary in effect at the time the Executive incurs such termination (determined without regard for 2006 and each successive full calendar any diminution in such Base Salary constituting Good Reason for Executive’s resignation), payable to Executive in a lump sum on the date which is six (6) months following Executive’s Separation from Service; and
(iv) a pro-rated portion (based upon the number of days elapsed in the fiscal year prior to in which the Employment Period is terminated through the date of such termination) of the Annual Bonus, if any, that would have been payable to Executive for such fiscal year pursuant to Section 2.2 (determined without regard for any diminution in the target amount of such Annual Bonus opportunity constituting Good Reason for Executive’s resignation) had Executive remained employed by the Company for the entire fiscal year. Such pro rata Annual Bonus, if any, shall be paid at such time as such Annual Bonus would normally be required to be paid under the Company’s annual bonus plan, subject to Section 2.2; provided, however, that if such pro rata Annual Bonus would be payable under the Company’s annual bonus plan earlier than the date which is six (6) months following the date on which Executive incurs a Separation from Service with the Company, payment of such Annual Bonus shall be made on the date which is six (6) months following Executive’s Separation from Service; provided that the Company’s obligation under Sections 3.2(b)(iii) and (iv) the vesting is contingent on Executive’s execution, delivery and non-rescission of a general release of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid by claims against the Company to Employee pursuant to Sections 2.6(a) or (b) abovein the form of Exhibit A attached hereto. If the Employee’s termination of employment occurs on or prior Company does not execute and deliver any such release to Executive at least sixty (60) days before the March 15th end of the year six (6) month period following the year of the Change of ControlExecutive’s Separation from Service, the lump sum will Company shall be paid immediately (but deemed to have elected not later than the applicable March 15th) following the date to require Executive’s execution of terminationsuch a release. If the Employee’s termination Company shall have timely executed and delivered such a release to Executive, and Executive either fails to execute and deliver the release to the Company at least thirty (30) days before the end of employment occurs later than the March 15th of the year following the year of the Change of Controlthat six (6) month period, or she does so but rescinds such release before any payment is otherwise due under Section 3.2(b)(iii) or Section 3.2(b)(iv), the lump sum will be immediately payable Company shall have no obligations under Sections 3.2(b)(iii) and (iv). Except for the Company’s obligations, if any, under this Section 3.2(b) and as otherwise provided in Section 3.3, the Company shall have no further obligations hereunder, including under Section 2, or otherwise with respect to Executive’s employment, from and after the expiration of six months after the date of such termination ofdate.
Appears in 1 contract
Sources: Employment Agreement (Dolan Co.)
Compensation After Termination. (a) If (I) either Company terminates this Agreement without Cause or the Company determines that the Employee has incurred a Disability, the Company agrees to continue to pay Employee his current Base Salary beginning on the date of determination of DisabilityExecutive resigns for Good Reason, and ending one year thereafter(II) there has not been a Change in Control prior to the termination date where the consideration to Company's shareholders is greater than $10 per share (adjusted appropriately for stock dividends, provided that splits and the like occurring after the Commencement Date), Executive's compensation shall be as follows:
(i) Company may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in shall pay Executive an amount equal to Employee’s after12 months' salary at his then-tax Base Salary per month on the same basis current salary rate inclusive of accrued annual leave.
(ii) Vesting of Executive's stock options and restricted shares will be frozen as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms termination date. Options vested as of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company termination date shall be reduced by exerciseable for a six-month period following the amount payable date of termination.
(iii) The bonus and Bonus Shares under Section 10(d) for the applicable long-term disability policy such that year prior to the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis year of termination, if unpaid as he was immediately before incurrence of the Disability. Nothing in this termination date, shall be computed and paid as provided under Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier10(d). The Employment Period may bonus and Bonus Shares under Section 10(d) for the year in which termination occurs shall be terminated pursuant to Section 1.4 after the Company’s determination of the Disabilityzero.
(b) If (I) either Company terminates this Agreement without Cause or the Employment Period Executive resigns for Good Reason, and (II) there has been a Change in Control prior to the termination date where the consideration to Company's shareholders is greater than $10 per share (adjusted appropriately for stock dividends, splits and the like occurring after the Commencement Date), Executive's compensation shall be as follows:
(i) Company shall pay Executive an amount equal to salary at his then-current rate for the greater of 12 months or the balance of the term of this Agreement inclusive of accrued annual leave.
(ii) Executive's stock options and restricted shares will immediately vest in full. Options as so vested shall be exerciseable for a six-month period following the date of termination.
(iii) The bonus and Bonus Shares under Section 10(d) for the year prior to the year of termination, if unpaid as of the termination date, shall be computed and paid as provided under Section 10(d). The bonus and Bonus Shares under Section 10(d) for the year in which termination occurs shall be computed after the end of the year of termination, and pro rated and paid for the portion of the termination year prior to the termination date.
(c) If this Agreement is terminated by due to Executive's death or Disability, Executive's compensation shall be as follows:
(i) Company shall pay Executive an amount equal to 12 months' salary at his then-current salary rate.
(ii) Executive's stock options and restricted shares will immediately vest in full, and options shall be exercisable for a one-year period following the date of termination.
(iii) The bonus and Bonus Shares under Section 10(d) for the year prior to the year of termination, if unpaid as of the termination date, shall be computed and paid as provided under Section 10(d). The bonus and Bonus Shares under Section 10(d) for the year in which termination occurs shall be computed after the end of the year of termination, and pro rated and paid for the portion of the termination year prior to the termination date.
(d) If Company without terminates this Agreement with Cause, Employee Executive's compensation shall be entitled to receive as severance follows:
(i) Company shall pay (in addition Executive only for cash compensation earned up to the payment date of the Base Salary through termination.
(ii) All options that were not exercised prior to the date of termination as well as a prorated Senior Management Plan Bonuswill be terminated, and unvested restricted shares shall be forfeited.
(iii) an amount equal The bonus and Bonus Shares under Section 10(d) for the year prior to the greater year of termination, if unpaid as of the termination date, shall be computed and paid as provided under Section 10(d). The bonus and Bonus Shares under Section 10(d) for the year in which termination occurs shall be zero.
(e) If Executive resigns without Good Reason, Executive's compensation shall be as follows:
(i) his current Base Salary Company shall pay Executive only for a period equal cash compensation earned up to twelve (12) months and (ii) Employee’s current Base Salary for the remainder of the Employment Period. In addition, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination.
(ii) All options and restricted shares that are unvested as of the termination date shall be forfeited. Since Options that are vested as of the Employee is termination date shall be exercisable for a “specified employee” six-month period following the date of termination
(iii) The bonus and Bonus Shares under Section 409A 10(d) for the year prior to the year of termination, if unpaid as of the termination date, shall be computed and paid as provided under Section 10(d). The bonus and Bonus Shares under Section 10(d) for the year in which termination occurs shall be zero.
(f) If this Agreement ends at the normal expiration of a term, then:
(i) Company shall pay Executive only for cash compensation earned up to the date of termination.
(ii) Vesting of options and restricted shares will be frozen as of the termination date. Options vested as of the termination date shall be exercisable for a six-month period following the date of termination.
(iii) The bonus and Bonus Shares under Section 10(d) for the year of termination, shall be computed and paid after termination as provided under Section 10(d).
(g) Notwithstanding anything to the contrary contained herein, in the event it shall be determined that any compensation payment or distribution by the Company to or for the benefit of the Executive would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (“the "Code”"), amounts that are deferred compensation are not payable the Change in Control severance payment will be reduced to the Employee until six months after his date of termination. Notwithstanding extent necessary so that no excise tax will be imposed, but only if to do so would result in the preceding sentence Executive retaining a larger amount, on an after-tax basis, taking into account the excise and as an exception income taxes imposed on all payments made to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments in accordance with the Company’s general payroll practices for salaried employees until the March 15th of the year following the year of termination with the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because of the six-month delay. After the expiration of the six-month delay period following the date of termination, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other obligations hereunder or otherwise with respect to Employee’s employment from and after the termination or expiration date, and the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity)Executive hereunder.
(c) If the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid by the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination of
Appears in 1 contract
Sources: Employment Agreement (Catuity Inc)
Compensation After Termination. (a) If the Company determines that Term of Employment is terminated (i) by the Employee has incurred a DisabilityBank for Cause (as defined below) or due to the death or disability of the Executive, (ii) by the Executive other than for Good Reason (as defined in Section 5(e)) or (iii) through expiration of the Term of Employment, the Company agrees Bank shall have no further obligations hereunder or otherwise with respect to continue to pay Employee his current the Executive’s employment from and after the termination or expiration date (except payment of the Executive’s Base Salary beginning on and any bonus accrued and reimbursement of all reasonable travel and other business related expenses incurred through the date of determination of Disability, termination or expiration) and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible Bank shall continue to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the Disabilityhave all other rights available hereunder.
(b) If the Term of Employment Period is terminated (i) by the Company without CauseBank Without Cause (as defined in Section 5(d)) or (ii) by the Executive for Good Reason (as defined in Section 5(e))), Employee the Executive shall be entitled to receive as severance pay (in addition to the payment of the Base Salary and reimbursement of expenses through the date of termination as well as a prorated Senior Management Plan Bonus) termination), an amount equal to the greater of (i) his current Base Salary for a period equal to twelve (12) months and (ii) EmployeeExecutive’s current remaining Base Salary for the remainder of the Employment Period. In addition, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments in accordance with the Company’s general payroll practices for salaried employees until the March 15th of the year following the year of termination with the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because payable within thirty (30) days of the six-month delayend of the Term of Employment. After the expiration thirtieth (30th) day following the end of the sixTerm of Employment, the outstanding severance payment shall, until paid, bear interest per annum at the prime lending rate as published in The Wall Street Journal on the thirty-month delay period first (31st) day following the date end of terminationthe Term of Employment. Except as otherwise specifically provided herein, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company Bank shall have no other obligations hereunder or otherwise with respect to Employeethe Executive’s employment from and after the termination or expiration date, and the Company Bank shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity)hereunder.
(c) If the Employee’s employment is terminated by either the Company No termination under Section 5 shall terminate or the Employee for adversely affect any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as rights of the date Executive then vested under any disability or other benefit program of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid by the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination ofBank.
Appears in 1 contract
Sources: Employment Agreement (First Guaranty Bancshares, Inc.)
Compensation After Termination. (ai) If the Company determines that the Employee has incurred a DisabilityEmployment Period is terminated pursuant to Executive’ s resignation without Good Reason, the Company agrees death or Incapacity, Executive shall only be entitled to continue to pay Employee his current receive her Base Salary beginning on through the date of determination of Disabilitytermination and shall not be entitled to any other salary, and ending one year thereafterbonus, provided that compensation or benefits from the Company or its Subsidiaries, except as may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from be required by applicable law.
(ii) If the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable Employment Period is terminated by the Company within such yearfor Cause, Executive shall only be entitled to her Base Salary through the amount payable by date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis or its Subsidiaries, except as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant required by applicable law. In addition , in such event, Executive shall automatically forfeit any rights to Section 1.4 after any unvested equity owned by Executive in the Company’s determination of the DisabilityCompany or any Subsidiary.
(biii) If the Employment Period is terminated by the Company without CauseCause or by Executive for Good Reason, Employee then subject to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance pay compensation the following (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonuscollectively, “Severance Pay”): (A) an amount equal to the greater of (i) his current Base Salary for a period equal to twelve (12) months and (ii) Employeeof Executive’s then-current annual Base Salary for the remainder of the Employment Period. In additionSalary, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees until the March 15th of the year following the year of termination with the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because of the six-month delay. After the expiration of the six-month delay period following the date of termination, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other obligations hereunder or otherwise with respect to Employee’s employment from and after the termination or expiration date, and the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity).
(c) If the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of Control, or ; (B) Employee’s highest Base Salary at any time following the commencement continuation of the Employment Periodwelfare benefits described in Section 3(b) for twelve (12) months to the extent permissible under the terms of the relevant benefit plans at the same cost to Executive as if Executive were an active employee of the Company; (C) the Bonus payable to Executive within 3 months after the end of the applicable year (to the extent not previously paid), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously at the time that bonuses are regularly paid by the Company to Employee pursuant to Sections 2.6(aemployees; (D) or (b) above. If the Employee’s termination of employment occurs on or prior with respect to the March 15th portion of each restricted stock award held by Executive as of date on which the Employment Period is terminated that is subject to time-based vesting (the “Time-Based RSA” ), accelerated vesting of the year following TimeBased RSA to the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) vesting event next following the date on which the Employment Period is terminated; and (E) with respect to the portion of termination. If each performance stock unit award held by the Employee’s termination of employment occurs later than the March 15th Executive as of the year date on which the Employment Period is terminated that has been converted into “earned shares “ (the “Earned PSUs”), accelerated vesting of the Earned PSUs to the vesting event next following the year date on which the Employment Period is terminated. For purposes of this Section 4(g), “Bonus” shall mean an amount equal to Executive’s then-current annual Base Salary, multiplied by the percentage contained in Section 3(d) hereof. For the avoidance of doubt, the unvested portion of any restricted stock awards and performance share unit awards held by Executive as of the Change date on which the Employment Period ends (after giving effect to the acceleration provisions set forth in subsections (D) and (E) herein and the terms and conditions of Controlthe applicable award agreements and the Surgery Partners, the lump sum will Inc. 2015 Omnibus Incentive Plan (as amended from time to time)) shall be immediately payable after the expiration forfeited and of six months after the date of such termination ofno further force and effect.
Appears in 1 contract
Compensation After Termination. (a) If Executive is terminated by the Company determines that the Employee has incurred a Disabilityfor Cause or resigns, then the Company agrees shall have no further obligations hereunder or otherwise with respect to continue to pay Employee his current Base Salary beginning on Executive’s employment hereunder from and after the date of determination said termination (except payment of Disabilitythe Base Salary and other amounts owed to Executive for reimbursable business expenses accrued through the date of said termination), and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company shall be reduced by the amount payable continue to have all other rights available hereunder (including, without limitation, all rights under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability. Nothing Restrictive Covenants at law or in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the Disabilityequity).
(b) If the Employment Period Executive is terminated by the Company without Cause, Employee Executive shall be entitled to receive as severance pay (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonus) an amount equal to the greater of (i) his current Base Salary that would otherwise have been payable if Executive continued his employment hereunder, for a period equal to twelve (12) months and (ii) Employee’s current Base Salary for the remainder of the Employment Period. In addition6 month period, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments in accordance with the Company’s general payroll practices for salaried employees until policies, reduced by the March 15th amount of the year following the year of termination with the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because of the six-month delay. After the expiration of the six-month delay period following the date of termination, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments compensation earned by seeking Executive at other employment. The Company shall have no other obligations hereunder or otherwise with respect to EmployeeExecutive’s employment from and after the termination or expiration date, and the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 the Restrictive Covenants at law or in equity).
(c) If the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment Executive is terminated due to EmployeePermanent Disability or death, Executive or Executive’s death or disability within 12 months prior to or following a Change of Control notwithstanding that estate, as the Employment Period has otherwise expiredcase may be, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) as severance pay an amount equal to 2.99 times his current the Base Salary that would otherwise have been payable if Executive continued his employment hereunder for the period that otherwise would be remaining in the Term (based upon without any further adjustment as described in Section 2.1), payable in accordance with the greater of (A) EmployeeCompany’s Base Salary payroll policies. Notwithstanding the foregoing, in the event Executive is Permanently Disabled or dies as of the date of the Change of Controla result of, or (B) Employeein the conduct of, his employment activities hereunder, then Executive or Executive’s highest Base Salary at any time following estate, as the commencement of the Employment Period)case may be, (iii) shall be entitled to receive severance pay in an amount equal to 2.99 times the average Base Salary that would otherwise have been payable if Executive continued his employment hereunder (without any further adjustment as described in Section 2.1) for a period of not less than eighteen (18) months, payable in accordance with the Senior Management Bonuses calculated for 2006 Company’s payroll policies. The Company shall have no other obligations hereunder or otherwise with respect to Executive’s employment from and each successive full calendar year prior to after the date of terminationtermination date, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid by the Company shall continue to Employee pursuant to Sections 2.6(a) have all other rights available hereunder (including, without limitation, all rights under the Restrictive Covenants at law or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination ofin equity).
Appears in 1 contract
Compensation After Termination. (a) If Executive is terminated by the Company determines that the Employee has incurred a Disabilityfor Cause or resigns, then the Company agrees shall have no further obligations hereunder or otherwise with respect to continue to pay Employee his current Base Salary beginning on Executive’s employment hereunder from and after the date of determination said termination (except payment of Disabilitythe Base Salary and other amounts owed to Executive for reimbursable business expenses accrued through the date of said termination), and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company shall be reduced by the amount payable continue to have all other rights available hereunder (including, without limitation, all rights under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability. Nothing Restrictive Covenants at law or in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the Disabilityequity).
(b) If the Employment Period Executive is terminated by the Company without CauseCause or if Executive resigns his employment for Good Reason, Employee Executive shall be entitled to receive as severance pay (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonus) an amount equal to the greater of (i) his current Base Salary that would otherwise have been payable if Executive continued his employment hereunder, for a period equal to twelve six (126) months and (ii) Employee’s current Base Salary for the remainder of the Employment Period. In additionmonth period, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments in accordance with the Company’s general payroll practices for salaried employees until policies, reduced by the March 15th amount of the year following the year of termination with the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because of the six-month delay. After the expiration of the six-month delay period following the date of termination, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments compensation earned by seeking Executive at other employment, provided, Executive signs a general release agreement in a form to be provided by the Company. The Company shall have no other obligations hereunder or otherwise with respect to EmployeeExecutive’s employment from and after the termination or expiration date, and the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 the Restrictive Covenants at law or in equity).
(c) If the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment Executive is terminated due to EmployeePermanent Disability or death, Executive or Executive’s death or disability within 12 months prior to or following a Change of Control notwithstanding that estate, as the Employment Period has otherwise expiredcase may be, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) as severance pay an amount equal to 2.99 times his current the Base Salary that would otherwise have been payable if Executive continued his employment hereunder for the period that otherwise would be remaining in the Term (based upon without any further adjustment as described in Section 2.1), payable in accordance with the greater of (A) EmployeeCompany’s Base Salary payroll policies, provided, Executive or his estate signs a general release agreement in a form to be provided by the Company. Notwithstanding the foregoing, in the event Executive is Permanently Disabled or dies as of the date of the Change of Controla result of, or (B) Employeein the conduct of, his employment activities hereunder, then Executive or Executive’s highest Base Salary at any time following estate, as the commencement of the Employment Period)case may be, (iii) shall be entitled to receive severance pay in an amount equal to 2.99 times the average Base Salary that would otherwise have been payable if Executive continued his employment hereunder (without any further adjustment as described in Section 2.1) for a period of not less than eighteen (18) months, payable in accordance with the Senior Management Bonuses calculated for 2006 Company’s payroll policies, provided, Executive or his estate signs a general release agreement in a form to be provided by the Company. The Company shall have no other obligations hereunder or otherwise with respect to Executive’s employment from and each successive full calendar year prior to after the date of terminationtermination date, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid by the Company shall continue to Employee pursuant to Sections 2.6(a) have all other rights available hereunder (including, without limitation, all rights under the Restrictive Covenants at law or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination ofin equity).
Appears in 1 contract
Compensation After Termination. (a) If the Company determines that Term of Employment is terminated (i) by the Employee has incurred a DisabilityBank for Cause (as defined below) or due to the death or disability of the Executive, (ii) by the Executive other than for Good Reason (as defined in Section 5(e)) or (iii) through expiration of the Term of Employment, the Company agrees Bank shall have no further obligations hereunder or otherwise with respect to continue to pay Employee his current the Executive’s employment from and after the termination or expiration date (except payment of the Executive’s Base Salary beginning on and any bonus accrued and reimbursement of all reasonable travel and other business related expenses incurred through the date of determination of Disability, termination or expiration) and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible Bank shall continue to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the Disabilityhave all other rights available hereunder.
(b) If the Term of Employment Period is terminated (i) by the Company without CauseBank Without Cause (as defined in Section 5(d)) or (ii) by the Executive for Good Reason (as defined in Section 5(e)), Employee the Executive shall be entitled to receive as severance pay (in addition to the payment of the Base Salary and reimbursement of expenses through the date of termination as well as a prorated Senior Management Plan Bonus) termination), an amount equal to the greater of (i) his current Base Salary for a period equal to twelve (12) months and (ii) EmployeeExecutive’s current remaining Base Salary for the remainder of the Employment Period. In addition, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments in accordance with the Company’s general payroll practices for salaried employees until the March 15th of the year following the year of termination with the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because payable within thirty (30) days of the six-month delayend of the Term of Employment. After the expiration thirtieth (30th) day following the end of the sixTerm of Employment, the outstanding severance payment shall, until paid, bear interest per annum at the prime lending rate as published in The Wall Street Journal on the thirty-month delay period first (31st) day following the date end of terminationthe Term of Employment. Except as otherwise specifically provided herein, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company Bank shall have no other obligations hereunder or otherwise with respect to Employeethe Executive’s employment from and after the termination or expiration date, and the Company Bank shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity)hereunder.
(c) If the Employee’s employment is terminated by either the Company No termination under Section 5 shall terminate or the Employee for adversely affect any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as rights of the date Executive then vested under any disability or other benefit program of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid by the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination ofBank.
Appears in 1 contract
Sources: Employment Agreement (First Guaranty Bancshares, Inc.)
Compensation After Termination. (ai) If the Company determines that the Employee has incurred a DisabilityEmployment Period is terminated pursuant to Executive’s resignation without Good Reason, the Company agrees death or Incapacity, Executive shall only be entitled to continue to pay Employee his current receive his/her Base Salary beginning on through the date of determination of Disabilitytermination and shall not be entitled to any other salary, and ending one year thereafterbonus, provided that compensation or benefits from the Company or its Subsidiaries, except as may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from be required by applicable law.
(ii) If the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable Employment Period is terminated by the Company within such yearfor Cause, Executive shall only be entitled to his/her Base Salary through the amount payable by date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis or its Subsidiaries, except as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to Section 1.4 after any unvested equity owned by Executive in the Company’s determination of the DisabilityCompany or any Subsidiary.
(biii) If the Employment Period is terminated by the Company without CauseCause or by Executive for Good Reason, Employee then subject to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance pay compensation the following (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonuscollectively, “Severance Pay”): (A) an amount equal to the greater of (i) his current Base Salary for a period equal to twelve (12) months and (ii) Employeeof Executive’s then-current annual Base Salary for the remainder of the Employment Period. In additionSalary, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees until the March 15th employees; (B) continuation of the year following welfare benefits described in Section 3(b) for twelve (12) months to the year of termination with extent permissible under the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because terms of the six-month delay. After relevant benefit plans at the expiration same cost to Executive as if Executive were an active employee of the sixCompany; (C) the Bonus payable to Executive within 3 months after the end of the then current year, paid in a lump sum; (D) with respect to the portion of each restricted stock award held by Executive as of date on which the Employment Period is terminated that is subject to time-month delay period based vesting (the “Time-Based RSA”), accelerated vesting of the Time-Based RSA to the vesting event next following the date on which the Employment Period is terminated; and (E) with respect to the portion of terminationeach performance stock unit award held by the Executive as of the date on which the Employment Period is terminated that has been converted into “earned shares” (the “Earned PSUs”), accelerated vesting of the Earned PSUs to the vesting event next following the date on which the Employment Period is terminated; and (F) with respect to each performance stock unit award issued after December 31, 2021, held by the executive as of the date on which the Employment Period ends that have not been converted to Earned PSUs, the monthly installment payments Executive’s rights under the award will continue until be fully vested based on the Employee is paid number of shares that would be earned under the remaining amounts award based on performance measured through the end of Employment Period. For purposes of this Section 4(g), “Bonus” shall mean an amount equal to Executive’s then-current annual Base Salary, multiplied by the percentage contained in Section 3(d) hereof. For the avoidance of doubt, the unvested portion of any restricted stock awards and performance share unit awards held by Executive as of the date on which the Employment Period ends (if anyafter giving effect to the acceleration provisions set forth in subsections (D), (E) due and (F) herein and the terms and conditions of the applicable award agreements and the Surgery Partners, Inc. 2015 Omnibus Incentive Plan (as amended from time to time)) shall be forfeited and of no further force and effect.
(iv) If, within 90 days prior to or 12 months following a Change in Control, either (A) the Company terminates the employment of Executive hereunder without Cause under Section 4(a) above, or (B) Executive terminates his/her employment for Good Reason under Section 4(b) above, then, in lieu of any other compensation that may be specified in this Agreement, the Company will pay Executive the Severance Pay in a single lump-sum payment not later than 30 days after termination. If any payment obligation under this Section 2.6(b4(g) arises, no compensation received from other employment (or otherwise) will reduce the Company’s obligation to make the payment(s) described in this paragraph.
(v) Notwithstanding Sections 4(g)(iii) or (iv), Executive’s right to receive Severance Pay hereunder is conditioned upon: (A) Executive executing, and not revoking, a written separation agreement and general release of all claims against the Company, its Subsidiaries and Affiliates and their respective managers, directors, officers, shareholders, members, representatives, agents, attorneys, predecessors, successors and assigns (other than a claim for the severance payments described in Section 4(g)(iii) or (iv) and Executive’s rights to future distributions and payments related to the continued ownership of any equity securities in the Company that Executive will continue to own after such termination), in form and substance acceptable to the Company, which shall among other things, contain a general release by Executive of all claims arising out of his/her employment and termination of employment by the Company (a “Release Agreement”) within 30 days of Executive’s Termination Date; and (B) Executive’s material compliance with all of his/her obligations which survive termination of this Agreement. Employee The Severance Pay is intended to be in lieu of all other payments to which Executive might otherwise be entitled in respect of his/her termination without Cause or resignation with Good Reason. The Company and its Subsidiaries and Affiliates shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other further obligations hereunder or otherwise with respect to EmployeeExecutive’s employment from and after the date of termination or expiration dateof employment with the Company (the “Termination Date”), and the Company and its Subsidiaries and Affiliates shall continue to have all other rights available hereunder (including, including without limitation, all rights under Sections 3, 4, and 6 hereunder at law or in equity).
(cvi) If Notwithstanding the Employeeforegoing, the Release Agreement (x) shall not require the release of Executive’s employment is terminated by either rights arising from the Company express terms of this Agreement or the Employee for any reason applicable award agreement that are associated with a termination of employment; (y) shall not impose any postemployment restrictions other than Employeethose set forth in this Agreement, and (z) shall take into account and preserve Executive’s death or disability within 24 months prior to or following rights in the event that a Change in Control occurs within 90 days after termination of Control notwithstanding that employment (or such longer tail period as may be provided by any agreement between Executive and the Company).
(vii) Except as otherwise expressly provided herein, all of Executive’s rights to salary, bonuses, benefits and other compensation hereunder which might otherwise accrue or become payable after the termination of the Employment Period has otherwise expiredshall cease upon such termination, or if the Employee’s employment is terminated due other than those expressly required under applicable law (such as COBRA). All amounts payable to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee Executive as severance hereunder shall be entitled subject to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid required withholdings by the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination ofCompany.
Appears in 1 contract
Compensation After Termination. (a) If Executive’s employment is terminated (i) by the Company determines that for Cause or (ii) by Executive pursuant to a Voluntary Termination (except in the Employee has incurred event the Voluntary Termination occurs on or within 12 months after a DisabilityChange in Control (defined below)), then the Company agrees shall have no further obligations hereunder or otherwise with respect to continue to pay Employee his current Base Salary beginning on Executive’s employment from and after the applicable termination or expiration date (except payment of Executive’s salary and provision of benefits, in each case which have accrued through the date of determination of Disability, and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement termination or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the Disabilityexpiration).
(b) If the Employment Period Executive’s employment is terminated by the Company without Cause, Employee or by Executive on or within 12 months after a Change in Control, then, as Executive’s sole and exclusive remedy Executive shall be entitled to receive (i) as severance pay (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonus) an amount equal to the greater of (i) his Executive’s then current Base Salary base salary for a period equal to twelve of one (121) months and (ii) Employee’s current Base Salary for the remainder of the Employment Period. In additionyear, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments in accordance with the Company’s general payroll practices for salaried employees until employees, and (ii) through the March 15th date which is 3 months after last day of employment to make available to Executive medical and dental benefits on the same terms and conditions as would have been made available to Executive had Executive remained employed by the Company or one of its Affiliates during such period, it being understood that Executive will not be able to make any changes in coverage during this period except for changes in beneficiaries and modifications resulting from changes in life status events which are effected by Executive pursuant to the terms and conditions of the year following applicable benefit program, and (iii) between the year date which is 3 months after the last day of termination with employment and the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because first anniversary of the six-month delay. After last day of employment, to the extent Executive chooses to continue Employee’s coverage under the Company’s medical and dental plans pursuant to the Consolidated Omnibus Reconciliation Act of 1985 (“COBRA”), the Company agrees to pay the applicable premiums; with all of the foregoing being subject, however, to (A) the execution and delivery by Executive of the Company’s then current form of separation agreement and general release applicable to similarly situated employees, the current form of which is attached as Exhibit A hereto, and (B) the expiration of any rescission period provided thereby (without the six-month delay period following the date of termination, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(brescission having been exercised). Employee shall have no obligation to mitigate these post-In the event Executive’s employment payments is terminated by seeking other employment. The the Company without Cause, or by Executive on or within 12 months after a Change in Control, then the Company shall have no other further obligations hereunder or otherwise with respect to EmployeeExecutive’s employment from and after the termination or expiration date, date except and only to the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or extent set forth in equity)the immediately preceding sentence.
(c) If For purposes hereof, the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a term “Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee in Control” shall be entitled deemed to receive occur if (i1) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of there shall be consummated (A) Employee’s Base Salary any consolidation, merger or reorganization involving the Company, unless such consolidation, merger or reorganization is a “Non-Control Transaction” (as of the date of the Change of Control, defined below) or (B) Employee’s highest Base Salary at any time following the commencement sale, lease, exchange or other transfer (in one transaction or a series of related transactions) of all, or substantially all, of the Employment Periodassets of the Company, or (2) the stockholders of the Company shall approve any plan or proposal for liquidation or dissolution of the Company, or (3) any person (as such term is used in Section 13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), shall become the beneficial owner (iiiwithin the meaning of Rule 13d-3 under the Exchange Act) an amount equal to 2.99 times the average of more than 50% of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to combined voting power of the date of termination, and Company’s then outstanding voting securities other than (iva) the vesting of all stock options, a person who owns or owned shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided hereinClass B Common Stock of the Company, offset by any amounts previously paid by the Company to Employee pursuant to Sections 2.6(a) or (b) above. If pursuant to a plan or arrangement entered into by such person and the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination ofCompany,
Appears in 1 contract
Compensation After Termination. (a) If the Employment Period is terminated (i) by reason of Executive’s death, (ii) by the Company determines that the Employee has incurred a for Cause or by reason of Executive’s Permanent Disability, or (iii) by Executive without Good Reason, then the Company agrees shall have no further obligations hereunder, including under Section 2, or otherwise with respect to continue to pay Employee his current Executive’s employment from and after the termination date, except (x) for payment of Executive’s Base Salary beginning and Benefits accrued through the date of termination and any Annual Bonus due pursuant to Section 2.2 for the immediately preceding fiscal year to the extent unpaid on the date of determination of such termination, and (y) in the event the Employment Period is terminated due to Executive’s death or Permanent Disability, Executive shall receive a pro rata Annual Bonus as provided in Section 3.2(b)(iv), and ending one year thereafter, provided that the Company may cease making payments within shall continue to have all other rights available hereunder at law, in equity or otherwise in connection with such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and termination; provided, however, such pro rata Annual Bonus, if any, shall be paid at such time as such Annual Bonus would normally be required to be paid under the Company’s annual bonus plan; provided further, that if allowed the Employment Period is terminated by the terms reason of the applicable long-term disability policy, the amount payable by the Company within Executive’s Permanent Disability and such year, the amount payable by the Company shall pro rata Annual Bonus would be reduced by the amount payable under the applicable long-term disability policy Company’s annual bonus plan earlier than the date which is six (6) months following the date on which Executive incurs a Separation from Service with the Company, payment of such that the aggregate amount received by Employee Annual Bonus shall equal the Employee’s after-tax Base Salary per month be made on the same basis as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(adate which is six (6) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable months following Executive’s Separation from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the DisabilityService.
(b) If the Employment Period is terminated by the Company without CauseCause or by Executive with Good Reason, Employee then, in either case, the Company shall be entitled pay, or provide, to receive as severance pay Executive:
(in addition to the payment of the i) Executive’s Base Salary and Benefits accrued through the date of termination as well as a prorated Senior Management Plan Bonus) an amount equal to the greater of (i) his current Base Salary for a period equal to twelve (12) months and termination;
(ii) Employee’s current Base Salary any Annual Bonus due pursuant to Section 2.2 for the remainder of immediately preceding fiscal year to the Employment Period. In addition, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of extent unpaid on the date of such termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments in accordance with the Company’s general payroll practices for salaried employees until the March 15th of the year following the year of termination with the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because of the six-month delay. After the expiration of the six-month delay period following the date of termination, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other obligations hereunder or otherwise with respect to Employee’s employment from and after the termination or expiration date, and the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity).;
(c) If the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average one (1) year of the Senior Management Bonuses calculated annual Base Salary in effect at the time the Executive incurs such termination (determined without regard for 2006 and each successive full calendar any diminution in such Base Salary constituting Good Reason for Executive’s resignation), payable to Executive in a lump sum on the date which is six (6) months following Executive’s Separation from Service; and
(iv) a pro-rated portion (based upon the number of days elapsed in the fiscal year prior to in which the Employment Period is terminated through the date of such termination) of the Annual Bonus, if any, that would have been payable to Executive for such fiscal year pursuant to Section 2.2 (determined without regard for any diminution in the target amount of such Annual Bonus opportunity constituting Good Reason for Executive’s resignation) had Executive remained employed by the Company for the entire fiscal year. Such pro rata Annual Bonus, if any, shall be paid at such time as such Annual Bonus would normally be required to be paid under the Company’s annual bonus plan; provided, however, that if such pro rata Annual Bonus would be payable under the Company’s annual bonus plan earlier than the date which is six (6) months following the date on which Executive incurs a Separation from Service with the Company, payment of such Annual Bonus shall be made on the date which is six (6) months following Executive’s Separation from Service; provided that the Company’s obligation under Sections 3.2(b)(iii) and (iv) the vesting is contingent on Executive’s execution, delivery and non-rescission of a general release of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid by claims against the Company to Employee pursuant to Sections 2.6(a) or (b) abovein the form of Exhibit A attached hereto. If the Employee’s termination of employment occurs on or prior Company does not execute and deliver any such release to Executive at least sixty (60) days before the March 15th end of the year six (6) month period following the year of the Change of ControlExecutive’s Separation from Service, the lump sum will Company shall be paid immediately (but deemed to have elected not later than the applicable March 15th) following the date to require Executive’s execution of terminationsuch a release. If the Employee’s termination Company shall have timely executed and delivered such a release to Executive, and Executive either fails to execute and deliver the release to the Company at least thirty (30) days before the end of employment occurs later than the March 15th of the year following the year of the Change of Controlthat six (6) month period, or she does so but rescinds such release before any payment is otherwise due under Section 3.2(b)(iii) or Section 3.2(b)(iv), the lump sum will be immediately payable Company shall have no obligations under Sections 3.2(b)(iii) and (iv). Except for the Company’s obligations, if any, under this Section 3.2(b) and as otherwise provided in Section 3.3, the Company shall have no further obligations hereunder, including under Section 2, or otherwise with respect to Executive’s employment, from and after the expiration of six months after the date of such termination ofdate.
Appears in 1 contract
Compensation After Termination. (a) If In the Company determines event this Agreement expires pursuant to its terms or in the event the Executive's employment terminates hereunder for any reason, the Corporation shall have no further obligations or duties to the Executive, except that the Employee has incurred a Disability, the Company agrees to continue to pay Employee his current Base Salary beginning on the date of determination of Disability, and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the Disability.
(b) If the Employment Period is terminated by the Company without Cause, Employee Executive shall be entitled to receive as severance pay (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonus) an amount equal to the greater of receive:
(i) his current Base Salary for a period equal to twelve (12) months All salary due and (ii) Employee’s current Base Salary for the remainder of the Employment Period. In addition, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable owing to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception Executive hereunder up to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments in accordance with the Company’s general payroll practices for salaried employees until the March 15th of the year following the year of termination with the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because of the six-month delay. After the expiration of the six-month delay period following the date of termination, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other obligations hereunder or otherwise with respect to Employee’s employment from and after the termination or expiration date, as the case may be (hereinafter collectively referred to as the "Termination Date"), and any bonus or incentive compensation for any year prior to the year of termination which has not been paid, and any bonus or incentive compensation for the year of termination (which shall be pro-rated based on the number of days in the year to the Termination Date), provided that, if such bonus or incentive compensation is discretionary in amount, the Executive shall receive, on the Termination Date, a payment for the year of termination at least equal to a pro-rata portion of the prior year's bonus or incentive compensation payment made to her, and if the bonus or incentive compensation is non-discretionary, the Executive shall receive, on the date such bonus or incentive compensation would otherwise have been payable, a payment for the year of termination at least equal to a pro-rata portion of the amount which would have been payable for the entire year (with the entire year's amount calculated in a manner consistent with the terms of the non-discretionary plan or program);
(ii) Expense reimbursements due and owing to the Executive as of the Termination Date, plus payment for accrued vacation as of the Termination Date at the rate of the then-prevailing Minimum Salary;
(iii) Payment, in accordance with prior Corporation practice, of health and medical benefits and of life insurance premiums contemplated hereby through the Termination Date and, in the case of death or disability, (A) any payments and benefits to which the Executive is entitled under the Deferred Compensation Agreement and (B) payment pursuant to the Long-Term Incentive Plan, simultaneous with the payment thereof to other executive officers of the Corporation receiving similar payments of such number of shares of the Corporation's Common Stock (or the equivalent value thereof (assuming the shares are freely-tradeable) in cash in lieu thereof) determined by multiplying 150,000 shares of the Corporation's Common Stock (subject to adjustment as provided elsewhere herein) or their equivalent value in cash (assuming the shares are freely-tradeable), as the case may be, by a fraction the numerator of which is the number of weeks which elapsed from the date Executive's employment hereunder commenced to the Termination Date and the Company shall continue denominator of which is 208;
(iv) In the case of expiration of the Term of Employment, payment pursuant to have the Long-Term Incentive Plan of all the shares of Common Stock (or the equivalent value thereof in cash (assuming the shares are freely-tradeable) to which she is then entitled (i.e., upon or as a result of completion of the Measurement Period), such payment to be simultaneous with the payment to other executive officers of the Corporation receiving similar payments;
(v) All rights available hereunder to the Option set forth in Section 5 hereof, subject to the terms of the Stock Option Plan (including, without limitation, as such terms are to be modified for the Executive in accordance with the terms of this Agreement; and
(vi) Payment of all rights under Sections 3, 4, and 6 at law or in equity)applicable amounts due to the Executive pursuant to clause (b) below.
(cb) If In the Employee’s event Executive's employment is terminated by either the Company or the Employee hereunder prior to February 27, 1999 for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of terminationdeath, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period)disability, (iii) an amount equal voluntary termination by the Executive (other than pursuant to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and Section 8(c) hereof) or (iv) for Cause, then the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts Executive shall be paid entitled, in addition to any amounts payable pursuant to Paragraph 9(a) above, to receive a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid by payment on the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s termination of employment occurs on or prior Termination Date equal to the March 15th of present value, discounted at the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following Prime Rate from the date of termination. If the Employee’s termination of employment occurs later than amounts would otherwise by payable hereunder (the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination of"Present
Appears in 1 contract
Sources: Employment Agreement (Rite Aid Corp)
Compensation After Termination. (ai) If the Company determines that the Employee has incurred a DisabilityEmployment Period is terminated pursuant to Executive’s resignation without Good Reason, the Company agrees death or Incapacity, Executive shall only be entitled to continue to pay Employee receive his current Base Salary beginning on through the date of determination of Disabilitytermination and shall not be entitled to any other salary, and ending one year thereafterbonus, provided that compensation or benefits from the Company or its Subsidiaries, except as may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from be required by applicable law.
(ii) If the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable Employment Period is terminated by the Company within such yearfor Cause, Executive shall only be entitled to his Base Salary through the amount payable by date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis or its Subsidiaries, except as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant required by applicable law. In addition , in such event, Executive shall automatically forfeit any rights to Section 1.4 after any unvested equity owned by Executive in the Company’s determination of the DisabilityCompany or any Subsidiary.
(biii) If the Employment Period is terminated by the Company without CauseCause or by Executive for Good Reason, Employee then subject to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance pay compensation the following (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonuscollectively, “Severance Pay”): (A) an amount equal to the greater of (i) his current Base Salary for a period equal to twelve (12) months and (ii) Employeeof Executive’s then-current annual Base Salary for the remainder of the Employment Period. In additionSalary, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees until the March 15th of the year following the year of termination with the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because of the six-month delay. After the expiration of the six-month delay period following the date of termination, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other obligations hereunder or otherwise with respect to Employee’s employment from and after the termination or expiration date, and the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity).
(c) If the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of Control, or ; (B) Employee’s highest Base Salary at any time following the commencement continuation of the Employment Periodwelfare benefits described in Section 3(b) for twelve (12) months to the extent permissible under the terms of the relevant benefit plans at the same cost to Executive as if Executive were an active employee of the Company; (C) the Bonus payable to Executive within 3 months after the end of the applicable year (to the extent not previously paid), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously at the time that bonuses are regularly paid by the Company to Employee pursuant to Sections 2.6(aemployees; (D) or (b) above. If the Employee’s termination of employment occurs on or prior with respect to the March 15th portion of each restricted stock award held by Executive as of date on which the Employment Period is terminated that is subject to time-based vesting (the “Time-Based RSA”), accelerated vesting of the year following TimeBased RSA to the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) vesting event next following the date on which the Employment Period is terminated; and (E) with respect to the portion of termination. If each performance stock unit award held by the Employee’s termination of employment occurs later than the March 15th Executive as of the year date on which the Employment Period is terminated that has been converted into “earned shares “ (the “Earned PSUs”), accelerated vesting of the Earned PSUs to the vesting event next following the year date on which the Employment Period is terminated. For purposes of this Section 4(g), “Bonus” shall mean an amount equal to Executive’s then-current annual Base Salary, multiplied by the percentage contained in Section 3(d) hereof. For the avoidance of doubt, the unvested portion of any restricted stock awards and performance share unit awards held by Executive as of the Change date on which the Employment Period ends (after giving effect to the acceleration provisions set forth in subsections (D) and (E) herein and the terms and conditions of Controlthe applicable award agreements and the Surgery Partners, the lump sum will Inc. 2015 Omnibus Incentive Plan (as amended from time to time)) shall be immediately payable after the expiration forfeited and of six months after the date of such termination ofno further force and effect.
Appears in 1 contract
Compensation After Termination. (a) If (I) either Company terminates this Agreement without Cause or the Executive resigns for Good Reason, but (II) there has not been a Change in Control prior to the termination date where the consideration to Company's shareholders is greater than $10 per share (adjusted appropriately for stock dividends, splits and the like occurring after the Commencement Date), Executive's compensation shall be as follows:
(i) Company determines that the Employee has incurred a Disability, the Company agrees to continue to shall pay Employee his current Base Salary beginning on the date of determination of Disability, and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in Executive an amount equal to Employee’s after12 months' salary at her then-tax Base Salary per month on the same basis current salary rate.
(ii) Vesting of Executive's stock options and restricted shares will be frozen as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms termination date. Options vested as of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company termination date shall be reduced by exerciseable for a six-month period following the amount payable date of termination.
(iii) The bonus and Bonus Shares under Section 10(d) for the applicable long-term disability policy such that year prior to the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis year of termination, if unpaid as he was immediately before incurrence of the Disability. Nothing in this termination date, shall be computed and paid as provided under Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier10(d). The Employment Period may bonus and Bonus Shares under Section 10(d) for the year in which termination occurs shall be terminated pursuant to Section 1.4 after the Company’s determination of the Disabilityzero.
(b) If (I) either Company terminates this Agreement without Cause or the Employment Period Executive resigns for Good Reason, and (II) there has been a Change in Control prior to the termination date where the consideration to Company's shareholders is greater than $10 per share (adjusted appropriately for stock dividends, splits and the like occurring after the Commencement Date), Executive's compensation shall be as follows:
(i) Company shall pay Executive an amount equal to salary at her then-current rate for the greater of 12 months or the balance of the term of this Agreement.
(ii) Executive's stock options and restricted shares will immediately vest in full. Options as so vested shall be exerciseable for a six-month period following the date of termination.
(iii) The bonus and Bonus Shares under Section 10(d) for the year prior to the year of termination, if unpaid as of the termination date, shall be computed and paid as provided under Section 10(d). The bonus and Bonus Shares under Section 10(d) for the year in which termination occurs shall be computed after the end of the year of termination, and pro rated and paid for the portion of the termination year prior to the termination date.
(c) If this Agreement is terminated by due to Executive's death or Disability, Executive's compensation shall be as follows:
(i) Company shall pay Executive an amount equal to 12 months' salary at her then-current salary rate.
(ii) Executive's stock options and restricted shares will immediately vest in full, and options shall be exercisable for a one-year period following the date of termination.
(iii) The bonus and Bonus Shares under Section 10(d) for the year prior to the year of termination, if unpaid as of the termination date, shall be computed and paid as provided under Section 10(d). The bonus and Bonus Shares under Section 10(d) for the year in which termination occurs shall be computed after the end of the year of termination, and pro rated and paid for the portion of the termination year prior to the termination date.
(d) If Company without terminates this Agreement with Cause, Employee Executive's compensation shall be entitled to receive as severance follows:
(i) Company shall pay (in addition Executive only for cash compensation earned up to the payment date of the Base Salary through termination.
(ii) All options that were not exercised prior to the date of termination as well as a prorated Senior Management Plan Bonuswill be terminated, and unvested restricted shares shall be forfeited.
(iii) an amount equal The bonus and Bonus Shares under Section 10(d) for the year prior to the greater year of termination, if unpaid as of the termination date, shall be computed and paid as provided under Section 10(d). The bonus and Bonus Shares under Section 10(d) for the year in which termination occurs shall be zero.
(e) If Executive resigns without Good Reason, Executive's compensation shall be as follows:
(i) his current Base Salary Company shall pay Executive only for a period equal cash compensation earned up to twelve (12) months and (ii) Employee’s current Base Salary for the remainder of the Employment Period. In addition, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination.
(ii) All options and restricted shares that are unvested as of the termination date shall be forfeited. Since Options that are vested as of the Employee is termination date shall be exercisable for a “specified employee” six-month period following the date of termination
(iii) The bonus and Bonus Shares under Section 409A 10(d) for the year prior to the year of termination, if unpaid as of the termination date, shall be computed and paid as provided under Section 10(d). The bonus and Bonus Shares under Section 10(d) for the year in which termination occurs shall be zero.
(f) If this Agreement ends at the normal expiration of a term, then:
(i) Company shall pay Executive only for cash compensation earned up to the date of termination.
(ii) Vesting of options and restricted shares will be frozen as of the termination date. Options vested as of the termination date shall be exercisable for a six-month period following the date of termination.
(iii) The bonus and Bonus Shares under Section 10(d) for the year of termination, shall be computed and paid after termination as provided under Section 10(d).
(g) Notwithstanding anything to the contrary contained herein, in the event it shall be determined that any compensation payment or distribution by the Company to or for the benefit of the Executive would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (“the "Code”"), amounts that are deferred compensation are not payable the Change in Control severance payment will be reduced to the Employee until six months after his date of termination. Notwithstanding extent necessary so that no excise tax will be imposed, but only if to do so would result in the preceding sentence Executive retaining a larger amount, on an after-tax basis, taking into account the excise and as an exception income taxes imposed on all payments made to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments in accordance with the Company’s general payroll practices for salaried employees until the March 15th of the year following the year of termination with the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because of the six-month delay. After the expiration of the six-month delay period following the date of termination, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b). Employee shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other obligations hereunder or otherwise with respect to Employee’s employment from and after the termination or expiration date, and the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity)Executive hereunder.
(c) If the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid by the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination of
Appears in 1 contract
Sources: Employment Agreement (Catuity Inc)
Compensation After Termination. (a) If the Company determines that the Employee has incurred a Disability, the Company agrees to continue to pay Employee his current Base Salary beginning on the date of determination of Disability, and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the Disability.
(bi) If the Employment Period has commenced and is terminated pursuant to Executive’s resignation without Good Reason, death or Incapacity, Executive shall only be entitled to receive her Base Salary through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from Parent, Symbion, or their Subsidiaries, except as may be required by applicable law.
(ii) If the Employment Period has commenced and is terminated by the Company for Cause, Executive shall only be entitled to her Base Salary through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company, Parent or their Subsidiaries, except as may be required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to any unvested equity owned by Executive in Parent, Symbion or any Subsidiary.
(iii) If the Employment Period has commenced and is terminated by the Company without CauseCause or by Executive for Good Reason or this Agreement is not renewed by the Company or allowed to expire by the Company, Employee then subject to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance pay compensation the following (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonuscollectively, “Severance Pay”): (A) an amount equal to the greater sum of (i) his Executive’s then-current annual Base Salary for a period equal to twelve (12) months and (ii) Employee’s current Base Salary for the remainder of the Employment Period. In additionSalary, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees until the March 15th employees; (B) continuation of the year following welfare benefits described in Section 3(b) for 12 months (the year of termination with “Severance Period”) to the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because extent permissible under the terms of the six-month delay. After relevant benefit plans at no cost to Executive; and (C) the expiration Bonus payable to Executive within 2 and 1/2 months after the end of the six-month delay period following the date applicable year. For purposes of termination, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b4(g). Employee , “Bonus” shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other obligations hereunder or otherwise with respect to Employee’s employment from and after the termination or expiration date, and the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity).
(c) If the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) mean an amount equal to 2.99 times his Executive’s then-current annual Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of ControlSalary, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid multiplied by the Company to Employee pursuant to Sections 2.6(apercentage contained in Section 3(d) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination ofhereof.
Appears in 1 contract
Compensation After Termination. (a) If the Company determines that the Employee has incurred a Disability, the Company agrees to continue to pay Employee his current Base Salary beginning on the date of determination of Disability, and ending one year thereafter, provided that the Company may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable by the Company within such year, the amount payable by the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant to Section 1.4 after the Company’s determination of the Disability.
(bi) If the Employment Period has commenced and is terminated pursuant to Executive’s resignation without Good Reason, death or Incapacity, Executive shall only be entitled to receive his Base Salary through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from Parent, Symbion, or their Subsidiaries, except as may be required by applicable law.
(ii) If the Employment Period has commenced and is terminated by the Company for Cause, Executive shall only be entitled to his Base Salary through the date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company, Parent or their Subsidiaries, except as may be required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to any unvested equity owned by Executive in Parent, Symbion or any Subsidiary.
(iii) If the Employment Period has commenced and is terminated by the Company without CauseCause or by Executive for Good Reason or this Agreement is not renewed by the Company or allowed to expire by the Company, Employee then subject to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance pay compensation the following (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonuscollectively, “Severance Pay”): (A) an amount equal to the greater sum of (i) his Executive’s then-current annual Base Salary for a period equal to twelve (12) months and (ii) Employee’s current Base Salary for the remainder of the Employment Period. In additionSalary, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees until the March 15th employees; (B) continuation of the year following welfare benefits described in Section 3(b) for 12 months (the year of termination with “Severance Period”) to the regular installment payment that immediately precedes March 15 to include any installment amounts that would otherwise be delayed because extent permissible under the terms of the six-month delay. After relevant benefit plans at no cost to Executive; and (C) the expiration Bonus payable to Executive within 2 and 1/2 months after the end of the six-month delay period following the date applicable year. For purposes of termination, the monthly installment payments will continue until the Employee is paid the remaining amounts (if any) due under this Section 2.6(b4(g). Employee , “Bonus” shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other obligations hereunder or otherwise with respect to Employee’s employment from and after the termination or expiration date, and the Company shall continue to have all other rights available hereunder (including, without limitation, all rights under Sections 3, 4, and 6 at law or in equity).
(c) If the Employee’s employment is terminated by either the Company or the Employee for any reason other than Employee’s death or disability within 24 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, or if the Employee’s employment is terminated due to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee shall be entitled to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) mean an amount equal to 2.99 times his Executive’s then-current annual Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of ControlSalary, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid multiplied by the Company to Employee pursuant to Sections 2.6(apercentage contained in Section 3(d) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination ofhereof.
Appears in 1 contract
Compensation After Termination. (ai) If the Company determines that the Employee has incurred a DisabilityEmployment Period is terminated pursuant to Executive’s resignation without Good Reason, the Company agrees death or Incapacity, Executive shall only be entitled to continue to pay Employee his current receive her Base Salary beginning on through the date of determination of Disabilitytermination and shall not be entitled to any other salary, and ending one year thereafterbonus, provided that compensation or benefits from the Company or its Subsidiaries, except as may cease making payments within such year if Employee becomes eligible to receive and begins receiving long-term disability payments from be required by applicable law.
(ii) If the applicable insurer in an amount equal to Employee’s after-tax Base Salary per month on the same basis as he was immediately before incurrence of the Disability, and provided, further, that if allowed by the terms of the applicable long-term disability policy, the amount payable Employment Period is terminated by the Company within such yearfor Cause, Executive shall only be entitled to her Base Salary through the amount payable by date of termination and shall not be entitled to any other salary, bonus, compensation or benefits from the Company shall be reduced by the amount payable under the applicable long-term disability policy such that the aggregate amount received by Employee shall equal the Employee’s after-tax Base Salary per month on the same basis or its Subsidiaries, except as he was immediately before incurrence of the Disability. Nothing in this Section 2.6(a) is to be construed as a reason to delay the commencement or reduce the amount of long-term disability benefits payable from the Company’s insurance carrier. The Employment Period may be terminated pursuant required by applicable law. In addition, in such event, Executive shall automatically forfeit any rights to Section 1.4 after any unvested equity owned by Executive in the Company’s determination of the DisabilityCompany or any Subsidiary.
(biii) If the Employment Period is terminated by the Company without CauseCause or by Executive for Good Reason, Employee then subject to the conditions described in Section 4(g)(v) below, Executive shall be entitled to receive as severance pay compensation the following (in addition to the payment of the Base Salary through the date of termination as well as a prorated Senior Management Plan Bonuscollectively, “Severance Pay”): (A) an amount equal to the greater of (i) his current Base Salary for a period equal to twelve (12) months and (ii) Employeeof Executive’s then-current annual Base Salary for the remainder of the Employment Period. In additionSalary, all unvested stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full as of the date of termination. Since the Employee is a “specified employee” under Section 409A of the Internal Revenue Code of 1986, as amended (“Code”), amounts that are deferred compensation are not payable to the Employee until six months after his date of termination. Notwithstanding the preceding sentence and as an exception to the six-month delay otherwise required by Section 409A of the Code, amounts due under this Section 2.6(b) will be payable in regular installments beginning within 30 days following the Termination Date in accordance with the Company’s general payroll practices for salaried employees until the March 15th employees; (B) continuation of the year following welfare benefits described in Section 3(b) for twelve (12) months to the extent permissible under the terms of the relevant benefit plans at the same cost to Executive as if Executive were an active employee of the Company; (C) the Bonus payable to Executive within 3 months after the end of the year of termination (to the extent not previously paid), paid in a lump sum at the time that bonuses are regularly paid to employees; (D) any awarded but unpaid Annual Bonus for the prior year; (E) with respect to the regular installment payment portion of each restricted stock award held by Executive as of date on which the Employment Period is terminated that immediately precedes March 15 is subject to include any installment amounts that would otherwise be delayed because time-based vesting (the “Time-Based RSA”), accelerated vesting of the six-month delay. After Time- Based RSA to the expiration of the six-month delay period vesting event next following the date on which the Employment Period is terminated; (E) with respect to the portion of each performance stock unit award held by the Executive as of the date on which the Employment Period is terminated that has been converted into “earned shares” (the “Earned PSUs”), accelerated vesting of the Earned PSUs will occur when the Employment Period ends; and (F) with respect to each performance stock unit award held by the Executive that have not been converted to Earned PSUs, the Executive’s rights under the award will be fully vested based on the number of shares that would be earned under the award based on performance measured through the end of the Employment Period. For purposes of this Section 4(g), “Bonus” shall mean an amount equal to Executive’s then-current annual Base Salary, multiplied by the percentage contained in Section 3(d) hereof. With respect to any PSU award, it is further agreed that if Executive’s employment is terminated without Cause or Executive terminates her employment for Good Reason before the Performance Period End Date (as defined in such PSU award agreement), and a Change in Control occurs within 90 days following such termination, then notwithstanding such termination the monthly installment payments terms of Section 3(b) of the award agreement shall apply to determine Earned Shares as if the Executive were still employed by the Company, and Section 6(a) of the award agreement shall apply to such Earned Shares. For the avoidance of doubt, the unvested portion of any restricted stock awards and performance share unit awards held by Executive as of the date on which the Employment Period ends (after giving effect to the acceleration provisions set forth in subsections (D), (E) and (F) herein and the terms and conditions of the applicable award agreements and the Surgery Partners, Inc. 2015 Omnibus Incentive Plan (as amended from time to time)) shall be forfeited and of no further force and effect.
(iv) If, within 90 days prior to or 12 months following a Change in Control, either (A) the Company terminates the employment of Executive hereunder without Cause under Section 4(a) above, or (B) Executive terminates her employment for Good Reason under Section 4(b) above, then, in lieu of any other compensation that may be specified in this Agreement, the Company will continue until pay Executive the Employee is paid the remaining amounts (if any) due Severance Pay in a single lump-sum payment not later than 30 days after termination. If any payment obligation under this Section 2.6(b4(g) arises, no compensation received from other employment (or otherwise) will reduce the Company’s obligation to make the payment(s) described in this paragraph.
(v) Notwithstanding Sections 4(g)(iii) or (iv), Executive’s right to receive Severance Pay hereunder is conditioned upon: (A) Executive executing, and not revoking, a written separation agreement and general release of all claims against the Company, its Subsidiaries and Affiliates and their respective managers, directors, officers, shareholders, members, representatives, agents, attorneys, predecessors, successors and assigns (other than a claim for the severance payments described in Section 4(g)(iii) or (iv) and Executive’s rights to future distributions and payments related to the continued ownership of any equity securities in the Company that Executive will continue to own after such termination), in form and substance acceptable to the Company, which shall among other things, contain a general release by Executive of all claims arising out of her employment and termination of employment by the Company (a “Release Agreement”) within 30 days of Executive’s Termination Date; and (B) Executive’s material compliance with all of her obligations which survive termination of this Agreement. Employee The Severance Pay is intended to be in lieu of all other payments to which Executive might otherwise be entitled in respect of her termination without Cause or resignation with Good Reason. The Company and its Subsidiaries and Affiliates shall have no obligation to mitigate these post-employment payments by seeking other employment. The Company shall have no other further obligations hereunder or otherwise with respect to EmployeeExecutive’s employment from and after the date of termination or expiration dateof employment with the Company (the “Termination Date”), and the Company and its Subsidiaries and Affiliates shall continue to have all other rights available hereunder (including, including without limitation, all rights under Sections 3, 4, and 6 hereunder at law or in equity).
(cvi) If Notwithstanding the Employeeforegoing, the Release Agreement (x) shall not require the release of Executive’s employment is terminated by either rights arising from the Company express terms of this Agreement or the Employee for any reason applicable award agreement that are associated with a termination of employment; (y) shall not impose any postemployment restrictions other than Employeethose set forth in this Agreement, and (z) shall take into account and preserve Executive’s death or disability within 24 months prior to or following rights in the event that a Change in Control occurs within 90 days after termination of Control notwithstanding that employment (or such longer tail period as may be provided by any agreement between Executive and the Company).
(vii) Except as otherwise expressly provided herein, all of Executive’s rights to salary, bonuses, benefits and other compensation hereunder which might otherwise accrue or become payable after the termination of the Employment Period has otherwise expiredshall cease upon such termination, or if the Employee’s employment is terminated due other than those expressly required under applicable law (such as COBRA). All amounts payable to Employee’s death or disability within 12 months prior to or following a Change of Control notwithstanding that the Employment Period has otherwise expired, Employee Executive as severance hereunder shall be entitled subject to receive (i) all compensation accrued and unpaid prior to the date of termination, (ii) an amount equal to 2.99 times his current Base Salary (based upon the greater of (A) Employee’s Base Salary as of the date of the Change of Control, or (B) Employee’s highest Base Salary at any time following the commencement of the Employment Period), (iii) an amount equal to 2.99 times the average of the Senior Management Bonuses calculated for 2006 and each successive full calendar year prior to the date of termination, and (iv) the vesting of all stock options, shares of restricted stock and other equity awards held by Employee shall accelerate and vest in full. These amounts shall be paid in a lump sum and in immediately available funds as provided herein, offset by any amounts previously paid required withholdings by the Company to Employee pursuant to Sections 2.6(a) or (b) above. If the Employee’s termination of employment occurs on or prior to the March 15th of the year following the year of the Change of Control, the lump sum will be paid immediately (but not later than the applicable March 15th) following the date of termination. If the Employee’s termination of employment occurs later than the March 15th of the year following the year of the Change of Control, the lump sum will be immediately payable after the expiration of six months after the date of such termination ofCompany.
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