Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect. (b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b). (c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect. (d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee: (i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; (ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows: (A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement. (e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings. (f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination. (g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 2 contracts
Sources: Employment Agreement (International Card Establishment Inc), Employment Agreement (International Card Establishment Inc)
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period following a change in control that the Employee fails you fail to perform his your duties hereunder as a result of incapacity due to physical or mental illness, the Employee you shall continue to receive his Salary your full base salary at the rate then in effect and any benefits or awards under any Plans shall continue to accrue during such period, to the extent not inconsistent with such Plans, until the Employee's your employment is terminated pursuant to Section 6.2 of this Agreementand in accordance with paragraphs 5(i) and 5(vi) hereof. Thereafter, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee your benefits shall be paid, determined in equal monthly installments, 100% of his Salary, at accordance with the rate Plans then in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officerseffect. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's your employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of Retirement or Death following a Change change in control of Controlthe Company, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer Company shall pay to the Employee:
(i) his you your full Salary base salary through the Date of Termination at the rate in effect at just prior to the time a Notice of Termination is given;
given plus any benefits or awards (iiincluding both the cash and stock components) which pursuant to the terms of any Plans have been earned or become payable, but which have not yet been paid to you. Thereupon the Company shall have no further obligations to you under this Agreement. If, within twenty-four (24) months after a change in control of the Company shall have occurred, as defined in Section 4 above, your employment by the Company shall be terminated (a) by the Company other than for periods Cause, Disability or Retirement or (b) by you for Good Reason based on an event occurring concurrent with or subsequent to a change in control, then, by no later than the fifth day following the Date of Termination (in lieu except as otherwise provided), you shall be entitled, without regard to any contrary provisions of any further payments pursuant Plan, to Section 3 of this Agreement), a severance benefit (the “Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(ABenefit”) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest lesser of (x) $300,000 the Specified Benefits (as defined in subsection (A) below), or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 Capped Benefit (as amendeddefined in subsection (B) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employeebelow). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 2 contracts
Sources: Change in Control Agreement (Electro Scientific Industries Inc), Change in Control Agreement (Electro Scientific Industries Inc)
Compensation Upon Termination or During Disability. (a) If the EmployeeExecutive's employment shall be terminated by reason of his death, the Employer Company shall pay to such person as he shall designate in writing notice filed with the EmployerCompany, or or, if no such person shall be designated, to his estate as a lump sum death benefit, his full Salary (plus the incentive compensation set forth in Section 5.2 of this Agreement, on a pro rata basis) to the date of his death in addition to any payments to the EmployeeExecutive's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, Company for his benefit and such payments shall, assuming the Employer Company is in compliance with the provisions of this Agreement, fully discharge the EmployerCompany's obligations with respect to Section 3 5 of this Agreement, but all other obligations of the Employer Company under this Agreement, including the obligations to register Executive's Registrable Securities and to indemnify, defend and hold harmless the EmployeeExecutive, shall remain in effect.
(b) During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee Executive shall continue to receive his Salary (plus the incentive compensation set forth in Section 5.2 of this Agreement, on a pro rata basis) until the EmployeeExecutive's employment is terminated pursuant to Section 6.2 of this Agreement, 13.2 or until the Employee terminates his employment pursuant to Section 6.4(a13.4(b) of this Agreement, whichever first occursexcept that the Salary shall be reduced by any amounts the Executive shall receive in disability payments made pursuant to Company funded disability insurance. After termination, the Employee Executive shall be paidreceive Severance Pay (as hereinafter defined), in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, reduced by any disability payments otherwise payable by or pursuant to plans provided insurance funded by the Employer to its executive officersCompany. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee Executive shall provide consulting services to the Employer Company during the period that he is receiving payments pursuant to this Section 9(b16(b).
(c) If the EmployeeExecutive's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer Company shall pay the Employee Executive his full Salary (plus the incentive compensation set forth in Section 5.2 of this Agreement, on a pro rata basis) through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer Company shall, assuming the Employer Company is in compliance with the provisions of this Agreement, have no further obligations obligation with respect to Section 3 5 of this Agreement, but all other obligations of the Employer Company under this Agreement, including the obligations to register Executive's Registrable Securities and to indemnify, defend and hold harmless the EmployeeExecutive, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer Company shall terminate the EmployeeExecutive's employment other than pursuant to Sections 6.2 13.1, 13.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control13.3 hereof, and/or (B) the Employee Executive shall terminate his employment for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer Company shall pay to the EmployeeExecutive:
(i) his full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) if the Executive's employment is terminated either by the Executive for Good Reason or by the Company other than pursuant to the proper exercise by the Company of its rights pursuant to sections 13.1, 13.2 or 13.3 hereof, for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), A) a lump sum amount payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest greater of (x1) $300,000 or (y) three (3) times total the remaining compensation (including value the incentive compensation set forth in Section 5.2 of this Agreement) payable to the stock options granted during Executive as though the Agreement had been performed through July 31, 2005 or such periodlater date to which the term of this Agreement has been extended (the "Extension Date") and (2) the total compensation earned by the Employee Executive during the twelve month one-year period prior to such Date of Termination ("Severance Pay"); and (B) continuation of all employee benefit plans and immediate vesting of all stock awards and options to the fullest extent permitted by any applicable law and the continued right of the Executive to receive all benefits under such plans until the latter of (1) July 31, 2005, or, if this Agreement has been extended, the Extension Date or (2) two year from the Date of Termination; and
(iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense legal fees and expenses incurred by him (including attorneys fees) Executive in contesting or disputing any such termination or in successfully seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee Executive shall not be required to mitigate the amount of any payment provided for in this Section 9 16 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 16 be reduced by any compensation earned by the Employee Executive as the result of employment by another employer or business or by profits earned by the Employee Executive from any other source at any time before and or after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 2 contracts
Sources: Employment Agreement (Saratoga Brands Inc), Employment Agreement (Saratoga Brands Inc)
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) 5.1 During any period following a Change in Control that the Employee fails you fail to perform his your duties hereunder as a result of incapacity due to physical or mental illness, the Employee you shall continue to receive his Salary your full base salary at the rate then in effect and any benefits or awards under any Plans shall continue to accrue during such period, to the extent not inconsistent with such Plans, until the Employee's your employment is terminated pursuant to Section 6.2 of this Agreementand in accordance with paragraphs 4.1, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement4.4 and 4.5 hereof. Thereafter, whichever first occurs. After termination, the Employee your benefits shall be paid, determined in equal monthly installments, 100% of his Salary, at accordance with the rate Plans then in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)effect.
(c) 5.2 If the Employee's your employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of your death following a Change in Control of Controlthe Company, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer Company shall pay to the Employee:
(i) his you your full Salary base salary through the Date of Termination at the rate in effect at just prior to the time a Notice of Termination is givengiven plus any benefits or awards (including both the cash and stock components) which pursuant to the terms of any Plans have been earned or become payable, but which have not yet been paid to you. Thereupon the Company shall have no further obligations to you under this Agreement.
5.3 If within twenty-four (24) months after a Change in Control shall have occurred, as defined in Section 3 above, your employment by the Company shall be terminated (a) by the Company other than for Cause or Disability or (b) by you for Good Reason, then, by no later than the fifth day following the Date of Termination (except as otherwise provided), you shall be entitled to, and shall be paid, without regard to any contrary provisions of any Plan, a severance benefit (the “Severance Benefit”) equal to either (x) the Specified Benefits (as defined in subsection 5.3.1 below), or (y) the Capped Benefit (as defined in subsection 5.3.2 below). You shall be entitled, in your sole discretion, to elect to receive either the Specified Benefits or the Capped Benefit.
5.3.1 The “Specified Benefits” are as follows:
(a) the Company shall pay your full base salary through the Date of Termination at the rate in effect just prior to the time a Notice of Termination is given plus any benefits or awards (including both cash and stock components) which pursuant to the terms of any Plans have been earned or become payable, but which have not yet been paid to you (including amounts which previously had been deferred at your request);
(iib) as severance pay and in lieu of any further salary for periods subsequent to the Date of Termination, the Company shall pay to you in a single payment an amount in cash equal to (i) an amount equal to two (2) times the higher of (A) your annual base salary at the rate in effect just prior to the time a Notice of Termination is given, or (B) your annual base salary in lieu effect immediately prior to the Change in Control of any further payments pursuant the Company, plus (ii) an amount equal to Section 3 two (2) times the average of this Agreement), Severance Pay the cash bonuses paid to you during the previous three years;
(as hereinafter defined), payable on the first day following c) for a twenty-four (24) month period after the Date of Termination, as follows:
(A) if (i) the EmployeeCompany shall arrange to provide you and your dependents with life, with or without Good Reasonaccident, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant medical and dental insurance benefits substantially similar to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to those which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement you were receiving immediately prior to the effectiveness Change in Control of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing Company. Notwithstanding the foregoing, the date on which Company shall not provide any such succession becomes effective shall be deemed the Date of Termination. As used in benefit otherwise receivable by you pursuant to this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.paragraph 5.3.1
Appears in 2 contracts
Sources: Change in Control Agreement (Northwest Pipe Co), Change in Control Agreement (Northwest Pipe Co)
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing notice filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officersEmployer. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control (provided that if the Change of Control is pursuant to Section 6.4.2(b) of this Agreement, it is ascertainable on the date of such Termination that such Change of Control has occurred), or if, prior to and not as a result of a Change of Control; or (ii) , the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (xa) $300,000 1,250,000 or (yb) three (3) times total compensation (including the value of the stock options granted during all perquisites, such periodas health and life insurance and car allowance, etc.) received or earned by the Employee from the Employer during the twelve month period months prior to the Termination Date, multiplied by five (5), or
(B) if after or as a result of a Change of Control, the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to ten (10) times: (i) the total compensation, (including the value of all perquisites, such as health and life insurance and car allowance, etc.) and (ii) the value of all stock options, granted to Employee by the Employer, during the twelve (12) months prior to such Date of Termination (in case of either (ii)(A) or (ii)(B), "Severance Pay"); and and
(iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense legal fees and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
. The amount (eif any) In the event of a termination of this Agreement by the Employee as a result of a Change of Control payable pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by (the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d"Severance Total") shall be increased by an amount (the "Increase") sufficient so that after the payment by the Employee of (A) any income taxes on the Increase and (B) any excise tax on the sum of (I) the Severance Total and (II) the Increase, the Employee shall receive have received an amount (net of such taxes) equal to the amount specified in Section 9(d)Severance Total. The Employee shall be entitled to receive initially receive the entire amount provided for in Section 9(dSeverance Total (together with any such additional payments required to cover any excise and income taxes payable on said amount) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the amount permitted amount to be received without incurring such excise tax, and the Employer agrees to use its best efforts to support the Employee's position that such payments amounts are not subject to excise tax in any dealings dispute with the Internal Revenue Service any or in any appropriate legal other administrative or judicial proceedings.
(fiv) The value of the stock options described above will be determined using a Black-Scholes valuation methodology by an investment bank reasonably acceptable to both Company and Employee. The fees for such valuation will be paid by the Company.
(e) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(gf) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) hereunder if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 2 contracts
Sources: Employment Agreement (Brightpoint Inc), Employment Agreement (Brightpoint Inc)
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness ("disability period"), the Employee shall continue to receive his Salary full salary at the rate then in effect for such period until the Employee's his employment is terminated pursuant to Section 6.2 10(b), provided that payments so made to Employee during the disability period shall be reduced by the sum of this Agreementthe amounts, if any, payable to Employee at or until prior to the Employee terminates time of any such payment under disability benefit plans of the Company and which were not previously applied to reduce any such payment.
(b) If Employee's employment is terminated by his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After terminationdeath, the Employee Company shall pay to Employee's heirs, in a lump sum, an amount equal to his full salary for the period ending May 31, 2004.
(c) If Employee's employment shall be paidterminated for Cause, in equal monthly installments, 100% the Company shall pay Employee his full salary through the Date of his Salary, Termination at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (Ai) in breach of this Agreement, the Employer Company shall terminate the Employee's employment other than pursuant to Sections 6.2 Section 10(b) or 6.3 hereof 10(c) (it being understood that a purported termination pursuant to Section 6.2 10(b) or 6.3 hereof 10(c) which is disputed and finally determined not to have been proper shall be a termination by the Employer Company in breach of this Agreement), including as a result of a Change of Control, and/or ) or (Bii) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of ControlReason, then then
(A) the Employer Company shall pay to the Employee:
(i) Employee his full Salary salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(iiB) in lieu of any further salary, bonus, or incentive compensation payments to Employee for periods subsequent to the Date of Termination Termination, the Company shall pay as severance pay to Employee an amount equal to (1) Employee's average annual cash compensation received from the Company during the three full calendar years immediately preceding the Date of Termination, multiplied by (2) the greater of (w) the number of years (including partial years) that would have been remaining in lieu the Employment Period if Employee's employment by the Company had not so terminated and (x) three, such payment to be made (y) if Employee's termination is based on a change of any further payments pursuant to Section 3 control of this Agreement)the Company, Severance Pay (as hereinafter defined), payable in a lump sum on or before the first fifth day following the Date of Termination, or (z) if Employee's termination results from any other cause, in substantially equal semimonthly installments on the fifteenth and last days of each month commencing with the month in which the Date of Termination occurs and continuing for the number of consecutive semimonthly payment dates (including the first such date as follows:aforesaid) equal to the product obtained by multiplying the number of years (including partial years) applicable under clause (w) above by 24;
(AC) all options to purchase the Company's common stock granted to Employee under the Company's option plan or otherwise shall immediately become fully vested and shall terminate on such date as they would have terminated if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Company had not terminated and, if Employee's termination is based on a change of control of the Company and Employee for Good Reason elects, not more than 30 days after the Date of Termination, to surrender any or by all of such options to the Employer other than pursuant to Sections 6.2 Company, the Company shall pay Employee on or 6.3 hereof, before the fifth day following such surrender a lump sum amount cash payment equal to the highest excess of (x1) $300,000 or (y) three (3) times total compensation (including the fair market value of on the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination of the securities issuable upon exercise of the options surrendered over ("Severance Pay"); 2) the aggregate exercise price of the options surrendered;
(D) the Company shall maintain in full force and effect, for the continued benefit of Employee, for a number of years equal to the greater of (1) the number of years (including partial years) that would have been remaining in the Employment Period if Employee's employment by the Company had not so terminated and (iii2) three, all employee benefit plans and programs in which Employee was entitled to participate immediately prior to the Date of Termination provided that Employee's continued participation is possible under the general terms and provisions of such plans and programs. In the event that Employee's participation in any such plan or program is barred, the Company shall arrange to provide Employee with benefits substantially similar to those which Employee would otherwise have been entitled to receive under such plans and programs from which his continued participation is barred; and
(E) if termination of Employee's employment arises out of a breach by the Company of this Agreement, the Company shall pay all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreementsuch breach, including damages for any and all costs loss of benefits to Employee under the Company's employee benefit plans which Employee would have received if the Company had not breached this Agreement and expense had Employee's employment continued for the then remaining term of the Employment Period, and including all reasonable legal fees and expenses incurred by him (including attorneys fees) in contesting or disputing any as a result of such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementtermination.
(e) In the event of a termination of this Agreement by the If Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in shall terminate his employment under Section 9(d10(d)(ii), the Severance Pay Company shall be pay Employee his full salary through the average taxable compensation Date of Termination at the Employee for rate in effect at the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes time Notice of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which Termination is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsgiven.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 11 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement Notwithstanding anything in form and substance satisfactory this Agreement to the Employeecontrary, the Company shall not be obligated to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness pay any portion of any amount otherwise payable to Employee pursuant to this Section 11 if the Company could not reasonably deduct such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement portion solely by operation of lawSection 280G of the Internal Revenue Code of 1986, as amended.
Appears in 1 contract
Compensation Upon Termination or During Disability. The Employee shall be entitled to the following benefits during a period of disability, or upon termination of his employment, as the case may be, provided that such period or termination occurs prior to the expiration of this Agreement:
(a) If During any period that the Employee fails to perform his full- time duties with the Employer as a result of incapacity due to physical or mental illness, he shall continue to receive his base salary at the rate in effect at the commencement of any such period together with all compensation payable to him under the Employer's disability plan or program or other similar plan during such period, until his employment is terminated pursuant to Section 7(a) hereof. Thereafter, or in the event the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person his benefits shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge determined under the Employer's obligations retirement, insurance and other compensation programs then in effect in accordance with respect to Section 3 the terms of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effectsuch programs.
(b) During If at any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated (i) by reason of his death (ii) by the Employer for Cause or terminated Disability or (iii) by him for any reason (other than, following the Employee without Good Reason prior to or more than twelve months after, occurrence of a Change of in Control, for Good Reason), the Employer shall pay him or the Employee his full Salary through appropriate payee, as the Date of Termination, at the rate case may be (as determined in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance accordance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d9(b) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(ihereof) his full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;, plus all other amounts to which he is entitled under any compensation plan of the Employer at the time such payments are due, and the Employer shall have no further obligations to him under this Agreement.
(iic) If, prior to a Change in Control, the Employee's employment shall be terminated by the Employer other than for periods subsequent Cause or Disability, he shall be entitled to the benefits provided below:
(i) the Employer shall pay to the Employee his full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given, no later than the fifth (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first 5th) day following the Date of Termination, as follows:plus all other amounts to which he is entitled under any compensation plan of the Employer, at the time such payments are due;
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employer shall pay the Employee, at the time such payments would have been made had the Employee's employment not been terminated hereunder, all salary, bonus payments and vested portions of retirement and employee benefit plans that would have been payable to the Employee pursuant to this Agreement had the Employee continued to be employed for the remaining duration of this Agreement, assuming for the purpose of such continuing payments that the Employee's salary for each year of such remaining duration is equal to his salary at the Date of Termination and that his annual bonus for each year of such remaining duration is equal to the average of the annual bonuses paid to him by the Employer with respect to the three (or, if less, the number of years the Employee has been employed by the Employer) fiscal years ended immediately prior to the fiscal year in which the Date of Termination occurs; and
(iii) the Employer shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Employer which are in effect on the date the Notice of Termination is sent to the Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against actions which may be applicable to such acts or omissions.
(d) If, following a Change in Control, the Employee's employment should be terminated either by the Employer other than for Cause or Disability or by the Employee for Good Reason or Reason, he shall be entitled to the benefits below:
(i) the Employer shall pay to the Employee his full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; plus all salary and bonus payments that would have been payable to the Employee pursuant to this Agreement had the Employee continued to be employed for the duration of this Agreement, assuming for the purpose of such payments that his salary for each year of such duration is equal to his salary at the Date of Termination and that his annual bonus for each year of such duration is equal to the average of the annual bonuses paid to him by the Employer (or its predecessors) with respect to the three (or, if less, the number of years the Employee has been employed with the Employer and its predecessors) fiscal years ended immediately prior to the fiscal year in which the Date of Termination occurs; plus all other than pursuant amounts to Sections 6.2 or 6.3 hereofwhich he is entitled under any compensation plan of the Employer, including but not limited to vested portions of retirement and employee benefit plans in cash in a lump sum amount equal no later than the fifteenth (15th) day following the Date of Termination; and
(ii) the Employer shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Employer which are in effect on the date the Notice of Termination is sent to the highest Employee with respect to all of (x) $300,000 his acts and omissions while an officer or (y) three (3) times total compensation (including value director as fully and completely as if such termination had not occurred, and until the final expiration or running of the stock options granted during such period) earned by the Employee during the twelve month period prior all periods of limitation against actions which may be applicable to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law acts or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementomissions.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 8 by seeking other employment or otherwise, nor shall .
(f) In the amount event the employment of any payment provided for in this Section 9 be reduced the Employee is terminated by any compensation earned the Employer without Cause or the Employee's employment is terminated by the Employee as under conditions entitling him to payment hereunder and the result Employer fails to make timely payment of employment by another employer or business or by profits earned by the amounts then owed to the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirectunder this Agreement, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would shall be entitled to under Section 9(d)(ii)(Binterest on such amounts at the rate of one percent (1%) if he terminated his employment above the prime rate (defined as the base rate on corporate loans at large U.S. money center commercial banks as published by the Wall Street Journal), compounded monthly, for Good Reason, except for purposes of implementing the foregoing, period from the date on such amounts were otherwise due until payment is made to the Employee (which any such succession becomes effective interest shall be deemed in addition to all rights which the Date of Termination. As used in Employee is otherwise entitled to under this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law).
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's Executive’s employment shall be terminated by reason of his death, the Employer shall pay to such person as he the Executive shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's Executive’s spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's ’s obligations with respect to Section 3 II of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the EmployeeExecutive, shall remain in effect.
(b) During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee Executive shall continue to receive his Salary until the Employee's Executive’s employment is terminated pursuant to Section 6.2 5.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's Executive’s employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlExecutive, the Employer shall pay the Employee Executive his full Salary (but excluding bonus or other compensation) through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 II of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the EmployeeExecutive, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee Officer fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness (a "disability"), the Employee Officer shall continue to receive his Salary a salary and other benefits in effect for such period until the EmployeeOfficer's employment is terminated as in Paragraph 7(a) (ii) hereof, provided that payments so made to the Officer during the disability period shall be reduced by the amounts, if any, paid to the Officer under any disability benefits plans maintained by the Company.
(b) If the Officer's employment is terminated pursuant to Section 6.2 Paragraph 7(a) (ii) hereof because of this Agreementhis disability, the Company shall pay to the Officer the Officer's salary through the end of the month during which such termination occurs, and shall deliver any assignments, correction of assignments, or until other instruments reasonable or necessary in order to provide the Employee terminates his employment Officer with record title to the interests earned by the Officer prior to the date of termination pursuant to Section 6.4(a) of this Agreement, whichever first occursthe Override Plan. After termination, If the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at Officer should die prior to the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving has received all payments provided for pursuant to this Section 9(bParagraph 8(b), the balance of such payments shall be made to the Officer's estate.
(c) If the EmployeeOfficer's employment is terminated pursuant to Paragraph 7(a) (i) hereof because of his death, the Company shall be pay to the Officer's estate that portion of the Officer's salary that would have accrued through the end of the month during which the Officer's death occurred, and the Company shall deliver or cause to deliver any assignments, correction of assignments, or other instruments reasonable or necessary in order to provide the Officer's estate with record title to the interests earned by the Officer prior to the date of termination pursuant to the Override Plan.
(d) If the employment is terminated pursuant to Paragraph 7 hereof and for Cause any cause other than the Officer's death or disability, the Company shall pay or otherwise account to the Officer for all compensation and benefits provided for herein and in the Override Plan through the Date of Termination provided for in Paragraph 7 (d) hereof; provided, however, that subject to Paragraph 8(e), if the Company terminates the Officer's employment for any reason other than specifically provided in Paragraph 7(a) or if the Officer terminates his employment for cause as defined in Paragraph 7(b), the Company shall pay to the Officer the amount of salary that would otherwise have accrued from the Date of Termination through the balance of the Term and shall deliver or cause to deliver any assignments, correction of assignments or other instruments reasonable or necessary in order to provide the Officer with record title to (i) the overriding royalty interests vested in the Officer prior to the Date of Termination pursuant to the Override Plan and (ii) overriding royalty interests burdening interests acquired by the Company in Reserved Prospects within one year after the Date of Termination that would have been vested in the Officer pursuant to the Override Plan (determined as of the date on which notice of termination is delivered to or by the Company) if he had been employed with the Company at the time of such acquisition.
(e) If the employment is terminated by the Employee without Good Reason Officer following a Change of Control, then in lieu of the salary for the balance of the Term payable as provided in Paragraph 8(d), and subject to paragraph 8(g), then the Company (i) shall pay to the Officer in a lump sum in cash within five (5) days of the Date of Termination an amount equal to three times the sum of (x) the Officer's salary (calculated at the rate of his salary for the 12 months preceding the date of termination) plus (y) a bonus equal to the average annualized bonus received by the Officer prior to or more termination, and (ii) shall make all of the Officer's options, performance shares, and restricted stock fully vested and exercisable.
(f) Following a termination "for cause" under paragraph 7(b) other than twelve months after, in connection with a Change of Control, the Employer Officer may in the Officer's sole discretion, by delivery of a notice to the Company within thirty (30) days following such termination, elect to receive from the Company a lump sum payment by bank cashier's check equal to the present value of the flow of cash payments that would otherwise be paid to the Officer pursuant to paragraph 8(d) (not including any payments attributable to overriding royalties granted under the Override Plan). Such present value shall pay be determined as of the Employee his full Salary through date of delivery of the Date notice of Terminationelection of the Officer and shall be based on a discount rate equal to the interest rate on 90-day U.S. Treasury Bills, at as reported in the rate in effect at Wall Street Journal (or similar publication) on the time Notice date of Termination is givendelivery of the election notice. If the Officer elects to receive a lump sum payment pursuant to this paragraph 8(f), and the Employer shall, assuming Company shall make such payment to the Employer is in compliance with Officer within sixty (60) days following the provisions date on which the Officer notifies the Company of the Officer's election.
(g) Notwithstanding any other provision of this Agreement, have no further obligations with respect and except as provided in paragraph (i). below, the payments or benefits to Section 3 of this Agreement, but all other obligations which the Officer will be entitled under paragraph 8(e) will be reduced to the extent necessary so that the Officer will not be liable for the federal excise tax levied on certain "excess parachute payments" under section 4999 of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effectInternal Revenue Code.
(di) If The limitation of paragraph 8(g) will not apply if the difference between (Aw) in breach the present value of this Agreementall payments to which the Officer is entitled under paragraph 8(e) determined without regard to paragraph 8(g) less (x) the present value of all federal, state and other income and excise taxes for which the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which Officer is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including liable as a result of a Change of Control, and/or such payments exceeds the difference between (By) the Employee shall terminate his present value of all payments to which the Officer is entitled under paragraph 8(e) calculated as if the limitation of paragraph 8(g) applies less (z) the present value of all federal, state and other income and excise taxes for which the Officer is liable as a result of such reduced payments. Present values will be determined using the interest rate specified in section 280G of the Internal Revenue Code and will be the present values as of the date on which the Officer's employment for Good Reason or at any time within twelve months after terminates (unless it is necessary to use a Change of Control, then the Employer shall pay different date in order to the Employee:
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;avoid adverse consequences under section 280G).
(ii) for periods subsequent Whether payments to the Date of Termination (in lieu of any further payments Officer are to be reduced pursuant to Section 3 of this Agreementparagraph 8(g), Severance Pay (as hereinafter definedand the extent to which they are to be so reduced, will be determined by the Officer. The Officer may, at the expense of the Company, hire an accounting firm, law firm or employment consulting firm selected by the Officer to assist him in such determination. If a reduction is made pursuant to paragraph 8(g), payable on the first day following Officer will have the Date of Termination, as follows:right to determine which payments and benefits will be reduced.
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which The Officer shall receive the Employee may be entitled as a matter benefit of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement change made by the Employee as a result Company in the calculation or entitlement of severance compensation following a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation for any other officer of the Employee for the five taxable years prior to Company, such termination or such higher amount as may be permitted an agreement by the Internal Revenue Service Company to compute "base amountgross up" for purposes of the compensation paid to an officer by paying the excise tax imposed by Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer Company shall pay to such person Person as he shall designate in writing a notice filed with the EmployerCompany, or or, if no such person shall be designated, to his estate as a lump sum death benefit, his full Base Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then presently maintained by the EmployerCompany, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, shall fully discharge the EmployerCompany's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effecthereunder.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness (provided that the Employee shall have furnished the Company with a written statement from a qualified doctor to such effect and provided, further, that at the Company's request and expense the Employee shall submit to an examination by a doctor selected by the Company and such doctor shall have concurred in the conclusion of the Employee's doctor), the Employee shall continue to receive his full Base Salary and bonus payments until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement8(b) hereof, or until the Employee terminates his employment pursuant to Section 6.4(a8(d) of this Agreementhereof, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, paid 100% of his Salary, Base Salary at the rate in effect at the time Notice of Termination is given, given for one year, year and thereafter for one additional year at an annual rate amount equal to 5075% of such Base Salary for the Salary which would have been in effect under this Agreement, plusremainder of the Term hereunder less, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer Company and actually paid to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)in substantially equal monthly installments.
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer Company shall pay the Employee his full Base Salary through the Date of Termination, Termination at the rate in effect at the time Notice of Termination is given, given and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, Company shall have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Employee under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer Company shall terminate the Employee's employment other than pursuant to Sections 6.2 8(b) or 6.3 8(c) hereof (it being understood that a purported termination pursuant to Section 6.2 8(b) or 6.3 8(c) hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer Company in breach of this Agreement), including as a result of a Change of Control, and/or ) or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.then
Appears in 1 contract
Sources: Employment Agreement (Dynacs Inc)
Compensation Upon Termination or During Disability. (a) If Upon the EmployeeExecutive's employment shall be terminated by reason of his death, the Employer Company shall pay to such the person as he shall designate designated by the Executive in writing a notice filed with the EmployerCompany or, or if no such person shall be is designated, to his estate as a lump sum death benefit, his full Base Salary to for a period of six months after the date of his death in addition to any payments to the EmployeeExecutive's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension pension, stock option or employee Executive benefit plan or life insurance policy or similar plan or policy then maintained by the EmployerCompany. Upon full payment of all amounts required to be paid under this subsection, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Company shall have no further obligation under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee Executive fails to perform his duties hereunder under this Agreement as a result of incapacity due to physical or mental illness, the Employee Executive shall continue to receive his Salary full base salary until the EmployeeExecutive's employment is terminated pursuant to Section 6.2 6 (b) of this Agreement, or until the Employee Executive terminates his employment pursuant to Section 6.4(a6 (d) (ii) of this Agreement, whichever first occurscomes first. After termination, the Employee Executive shall be paid, receive in equal monthly installments, installments 100% of his Salary, base salary at the rate in effect at the time Notice of Termination is given, delivered for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, plus any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(bCompany ("Disability Payments").
(c) If the EmployeeExecutive's employment shall be is terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer Company shall pay the Employee Executive his full Salary base salary through the Date date of Termination, termination at the rate in effect at the time Notice of Termination is given, delivered and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, Company shall have no further obligations with respect obligation to Section 3 of this Agreement, but all other obligations of the Employer Executive under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer Company shall terminate the EmployeeExecutive's employment other than pursuant to Sections 6.2 6 (b) or 6.3 hereof 6 (c) (it being understood that a purported termination pursuant to Section 6.2 Sections 6 (b) or 6.3 hereof 6 (c) which is disputed and finally determined not to have been proper shall be a termination by the Employer Company in breach of this Agreement), including as a result of a Change of Control, and/or or (B) the Employee Executive shall terminate his employment for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer shall pay to the Employee:then
(i) The Company shall pay the Executive his full Salary base salary through the Date date of Termination termination at the rate then in effect at the time Notice of Termination is given;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination (and in lieu consideration of any further payments pursuant to the rights of the Company under Section 3 5 of this Agreement), Severance Pay (as hereinafter defined), payable the Company shall pay severance pay to the Executive on the first fifth day following the Date date of Terminationtermination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, in a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value entire salary due until the end of the stock options granted during such period) earned by term of this Agreement based on an annual base salary at the Employee highest rate in effect during the twelve month period prior to such Date (12) months immediately preceding the date of Termination ("Severance Pay"); and Termination.
(iii) all other damages to which In the Employee may be entitled as event of a matter of law or equity as result change in control of the termination Company as defined in Section 6 (d), the Company shall pay in a lump sum payment (or in monthly installments at the option of his employment the Executive) the greater of twice the amount of severance pay required in Section 7 (d) (ii) above, or three times the annual base salary at the highest rate in effect during the twelve (12) months immediately preceding the date of the termination.
(iv) In the event of a change in control of the Company as defined in Section 6 (d) above, the total number of outstanding unexercised options (warrants) granted to the Executive under this AgreementAgreement or any previous employment or other agreements, including shall be doubled in quantity while retaining the original exercise price.
(v) The Company shall pay all costs and expense reasonable legal fees and expenses incurred by him (including attorneys fees) the Executive in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by in this Agreement.
(e) In Unless the event Executive is terminated for Cause, the Company shall maintain in full force and effect, for the continued benefit of a the Executive for the greater of the remaining term of this Agreement or eighteen (18) months after termination of this Agreement by the Employee as a result of a Change of Control pursuant to Agreement, all Executive health and hospitalization plans and programs in which the Severance Pay Executive was entitled to participate in immediately prior to the Date of Termination, provided that the Executive's continued participation is as set forth above possible under the general terms and provisions of the plans and programs. If the Executive's participation in Section 9(d)any plan or program is barred, the Severance Pay Company shall be arrange to provide the average taxable compensation of Executive with benefits substantially similar to those which the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be Executive would otherwise have been entitled to initially receive under the entire amount provided for in Section 9(d) plan and shall not be required to repay to the Employer any amount program from which his continued participation is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsbarred.
(f) The Employee Executive shall not be required to mitigate the amount of any payment provided for in this Section 9 7 by seeking other employment or otherwise, nor shall however, the amount of any payment provided for in this Section 9 7 shall not be reduced by any compensation earned by the Employee Executive as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all In the event of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions termination of this Agreement by operation the Executive for Good Reason as a result of lawa change in control, the amount to be utilized in Section 7 (d) (ii) shall be changed to the average compensation of the Executive during this Agreement for the taxable years prior to such termination (all as determined to compute the base amount for purposes of Section 280G of the Internal Revenue Code of 1984, as amended).
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period following a change in control that the Employee fails you fail to perform his your duties hereunder as a result of incapacity due to physical or mental illness, the Employee you shall continue to receive his Salary your full base salary at the rate then in effect and any benefits or awards under any Plans shall continue to accrue during such period, to the extent not inconsistent with such Plans, until the Employee's your employment is terminated pursuant to Section 6.2 of this Agreementand in accordance with paragraphs 5(i) and 5(vi) hereof. Thereafter, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee your benefits shall be paid, determined in equal monthly installments, 100% of his Salary, at accordance with the rate Plans then in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officerseffect. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's your employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of Retirement or Death following a Change change in control of Controlthe Company, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer Company shall pay to the Employee:
(i) his you your full Salary base salary through the Date of Termination at the rate in effect at just prior to the time a Notice of Termination is given;
given plus any benefits or awards (iiincluding both the cash and stock components) which pursuant to the terms of any Plans have been earned or become payable, but which have not yet been paid to you. Thereupon the Company shall have no further obligations to you under this Agreement. If, within twenty-four (24) months after a change in control of the Company shall have occurred, as defined in Section 4 above, your employment by the Company shall be terminated (a) by the Company other than for periods Cause, Disability or Retirement or (b) by you for Good Reason based on an event occurring concurrent with or subsequent to a change in control, then, by no later than the fifth day following the Date of Termination (in lieu except as otherwise provided), you shall be entitled, without regard to any contrary provisions of any further payments pursuant Plan, to Section 3 of this Agreement), a severance benefit (the “Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(ABenefit”) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest lesser of (x) $300,000 the Specified Benefits (as defined in subsection (A) below), or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 Capped Benefit (as amendeddefined in subsection (B) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employeebelow). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d)45 ▇▇. The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise▇▇▇▇ ▇▇▇▇▇▇ June 11, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.2003 Page – 45
Appears in 1 contract
Sources: Change in Control Agreement (Electro Scientific Industries Inc)
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing notice filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 4 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 8.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a8.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his SalaryBase Compensation, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary Base Compensation which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officersEmployer. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b11(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer shall pay the Employee his full Salary Base Compensation through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 4 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 8.2 or 6.3 8.3 hereof (it being understood that a purported termination pursuant to Section 6.2 8.2 or 6.3 8.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve six months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary Base Compensation through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 4 of this Agreement), Severance Pay (as hereinafter defined)severance, payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, in a lump sum amount equal to the highest higher of (xa) $300,000 1,250,000 or (yb) three (3) times the total compensation (including the value of all perquisites, such as health and life insurance and car allowance and the value of all stock options granted during such period) to Employee by Employer received or earned by the Employee from the Employer during the twelve month period months prior to such Date of the Termination Date, multiplied by five (5) ("Severance Pay"); and ) and;
(iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense legal fees and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
. The amount (eif any) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to this Section 9(d11(d) (the "Severance Total") shall be increased by an amount (the "Increase") sufficient so that after the payment by the Employee of (A) any income taxes on the Increase and (B) any excise tax on the sum of (I) the Severance Total and (II) the Increase, the Employee shall receive have received an amount (net of such taxes) equal to the amount specified in Section 9(d)Severance Total. The Employee shall be entitled to receive initially receive the entire amount provided for in Section 9(dSeverance Total (together with any such additional payments required to cover any excise and income taxes payable as aforesaid) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the amount permitted amount to be received without incurring such excise tax, and the Employer agrees to use its best efforts to support the Employee's position that such payments amounts are not subject to excise tax in any dealings dispute with the Internal Revenue Service any or in any appropriate legal other administrative or judicial proceedings.
(fiv) The value of the stock options described above will be determined using a Black-Scholes valuation methodology by an investment bank reasonably acceptable to both Company and Employee. The fees for such valuation will be paid by the Company.
(e) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 11 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 11 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(gf) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) hereunder if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 375,000 or (y) three (3) times time total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and and
(iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If Upon termination of the EmployeeExecutive's employment shall be terminated by reason of his death(or, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 4(a), during a period of this AgreementDisability) following a Change in Control, but all other obligations as defined in Section 2(a), of Company or if there shall be a termination by Company of the Employer under this AgreementExecutive's employment prior to a Change in Control, including or the obligations Executive shall terminate employment with Company for Good Reason prior to indemnifya Change in Control (for which purpose the references in Section 3(c) to changes from circumstances existing immediately prior to or at the time of a Change in Control that constitute Good Reason for termination shall instead be deemed to be references to circumstances existing immediately prior to or at the time that the Change in Control is first anticipated), defend and hold harmless the EmployeeExecutive reasonably demonstrates that such termination by Company or event constituting Good Reason for termination by the Executive (x) was requested by a third party that had previously taken other steps reasonably calculated to result in a Change in Control described in Section 2(a)(i), 2(a)(ii), 2(a)(iii) or 2(a)(iv) and ultimately resulting in such a Change in Control following termination of the Executive's employment or (y) otherwise arose in connection with or in anticipation of a Change in Control described in Section 2(a)(i), 2(a)(ii), 2(a)(iii) or 2(a)(iv) that ultimately occurs following termination of the Executive's employment, the Executive shall remain be entitled to the following benefits:
(a) Except as provided in Section 4(b), during any period that the Executive fails to perform full-time duties with Company as a result of Disability, Company shall pay the Executive the base salary of the Executive at the rate in effect at the commencement of any such period, until such time as the Executive is determined to be eligible for long term disability benefits in accordance with Company's insurance programs then in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the EmployeeExecutive's employment shall be terminated by Company for Cause or terminated Disability or by the Employee without Good Reason prior to or more than twelve months afterExecutive, following a Change of in Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer Company shall pay to the Employee:
(i) Executive his or her full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and Company shall have no further obligation to the Executive under this Agreement.
(c) If the Executive's employment shall be terminated by Company for Cause or Disability, or is terminated by reason of death, Company shall immediately cause to be commenced payment to the Executive (or the Executive's designated beneficiaries or estate, if no beneficiary is designated) of any and all benefits to which the Executive is entitled, if any, under Company's insurance programs then in effect.
(d) Except for termination of the Executive's employment with Company by reason of death, if the Executive's employment with Company shall be terminated (A) by Company other than for Cause or Disability or (B) by the Executive for Good Reason, then the Executive shall be entitled to the benefits provided below:
(i) Company shall pay the Executive the Executive's full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given;.
(ii) In lieu of any further salary payments for periods subsequent to the Date of Termination Termination, Company shall pay as a severance payment (in lieu of any further payments the "Severance Payment") an amount equal to (A) one (1) time (subject to reduction pursuant to Section 3 3(d) in the event of this Agreementa termination of employment by the Executive pursuant to Section 3(d)) the average of the annual compensation which was paid to the Executive by Company (or any corporation affiliated with Company within the meaning of Section 1504 of the Internal Revenue Code of 1986, as amended (the "Code")) and includible in the Executive's gross income for federal income tax purposes for the shorter of the period consisting of (1) the five most recently completed taxable years of the Executive ending before the earlier of the first Change in Control (for which purpose the first Change in Control shall not be deemed to be a Change in Control pursuant to Section 2(a)(v) unless the Executive's termination of employment with Company occurs prior to the first Change in Control pursuant to Section 2(a)(i), Severance Pay (as hereinafter defined2(a)(ii), payable on 2(a)(iii) or 2(a)(iv)) or (2) that portion of such five-year period during which the first day following Executive was employed by Company (for which purpose compensation for a partial year shall be annualized before determining average annual compensation for the period in accordance with temporary or final regulations promulgated under Section 280G(d) of the Code or any successor provision thereto), less (B) $1.00. Such average shall be determined in accordance with temporary or final regulations promulgated under Section 280G(d) of the Code or any successor provision thereto. The Severance Payment shall be made in full within 60 days after termination of employment. Such Severance Payment shall be reduced by any severance pay that the Executive receives from Company, any subsidiary of Company or any successor thereof under any other policy or agreement of Company in the event of involuntary termination of the Executive's employment.
(iii) For a 36 month period after the Date of Termination, as follows:
(A) if (i) Company shall arrange to provide the EmployeeExecutive with life, with disability, accident and health insurance benefits substantially similar to those which the Executive is receiving or without Good Reason, terminates his employment at any time within twelve months after a Change entitled to receive immediately prior to the Notice of Control; or (ii) the Employee's employment is terminated either Termination. Benefits otherwise receivable by the Employee for Good Reason or by the Employer other than Executive pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and this paragraph (iii) shall be reduced to the extent comparable benefits are actually received by the Executive from another employer or other third party during such 36 month period, and any such benefits actually received by the Executive shall be reported to Company.
(iv) Company shall also pay to the Executive all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense legal fees and expenses incurred by him the Executive as a result of such termination (including attorneys fees) all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement).
(v) Notwithstanding any provision to the contrary contained herein except the last sentence of this Section 4(d)(v), if the lump sum cash payment due and the other benefits to which the Executive shall become entitled under this Section 4 hereof, either alone or together with other payments in the nature of compensation to the Executive which are contingent on a change in the ownership or effective control of Company or in the ownership of a substantial portion of the assets of Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 4(d)(v) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 subsequent to the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 4(d)(v) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded subsequent to the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 4(d)(v).
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee Executive shall not be required to mitigate the amount of any payment provided for in this Section 9 4 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 9 4 be reduced by any compensation earned by the Employee Executive as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and retirement benefits after the Date of Termination, or otherwise except as specifically provided in this Section 4.
(f) In addition to all other amounts payable to the Executive under this Section 4, the Executive shall be entitled to receive all benefits payable to the Executive under any other plan or agreement relating to retirement benefits except as specifically provided in this Section 4.
(g) The Employer will require If Company fails to make any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of payment at the business and/or assets of the Employer, by agreement in form times and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and amounts specified herein, or with respect to the same extent that the Employer would be required any fringe benefits, fails to perform it if no provide such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation benefit as specified herein, within 10 days from the Employer in date of written notice from the same amount and on the same terms as he would be entitled Executive to under Section 9(d)(ii)(B) if he terminated his employment for Good ReasonCompany of such failure, except for purposes of implementing the foregoing, the date on which any such succession becomes effective Company shall be deemed to have waived any right to enforce any restriction on employment or non-competition provision contained in any agreement between Company and the Date Executive then in existence which limits the ability of Terminationthe Executive to accept other employment and, thereafter, the Executive may work or consult for any person or business organization which is engaged in the design, development, assembly, manufacture, marketing or sale of any product which competes with any product of Company, or for any person or business organization which is in competition with Company, without liability to Company for such acts. As used A waiver of such restrictive covenant or non-competition provision shall not in any way restrict or limit the Executive's right to enforce the provisions of this Agreement, "Employer" shall mean including any legal or equitable action to enforce any and all payments, rights or benefits under this Agreement, it being the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions intention of this Agreement by operation subsection that such waiver shall be in addition to, not in substitution of, any other rights to which the Executive is entitled hereunder. Once waived, any such restrictive covenant or non-competition provision shall not thereafter be enforceable even though the Executive may later receive the payment, right or benefit which was the basis of lawthe waiver of such restrictive covenant or non-competition provision.
Appears in 1 contract
Sources: Management Agreement (Minntech Corp)
Compensation Upon Termination or During Disability. (a) If Following a change in control of the Employee's Company, as defined by Section 2, upon termination of employment or during a period of Disability Employee shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.following benefits:
(b) i). During any period that the Employee fails to perform his full-time duties hereunder with the Company as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, base salary at the rate in effect at the time Notice commencement of Termination is givenany such period, for one year, and thereafter for one additional year at an annual rate equal together with all amounts payable to 50% Employee under any compensation plan of the Salary which would have been in effect under Company during such period, until this Agreement, plus, in each case, any disability payments otherwise payable by or Agreement is terminated pursuant to plans provided by Section 3(i) above. Thereafter, or in the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the event Employee's ’s employment shall be terminated by reason of Employee’s death, Employee’s benefits shall be determined under the Company’s retirement, insurance and other compensation programs then in effect in accordance with the terms of such programs. ▇▇▇.▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ 877-360-8839 9
(ii). If Employee’s employment shall be terminated by the Company for Cause or terminated by the Employee without other than for Good Reason prior to Reason, Disability, Death or more than twelve months after, a Change of ControlRetirement, the Employer Company shall pay the Employee his Employee’s full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;, plus all other amounts and benefits to which Employee is entitled under any compensation plan of the Company at the time such payments are due, and the Company shall have no further obligations to Employee under this Agreement.
(iiiii). If employment by the Company shall be terminated (a) by the Company other than for Cause, Death or Disability or (b) by Employee for Good Reason, Employee shall be entitled to benefits provided below:
(A) The Company shall pay Employee Employee’s full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts and benefits to which Employee is entitled under any compensation plan of the Company.
(B) In lieu of any further salary payments to Employee for periods subsequent to the Date of Termination, the Company shall pay as severance pay to Employee a lump sum severance payment (together with the payments provided in paragraphs C and D, below, the “Severance Payments”) equal to five (5) times the sum of Employee’s annual base salary in effect immediately prior to the occurrence of the circumstance giving rise to the Notice of Termination given in respect of them.
(in lieu C) The Company shall pay to Employee any deferred compensation, including, but not limited to deferred bonuses, allocated or credited to Employee or Employee’s account as of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:.
(AD) In lieu of shares of common stock of the Company (the “Company’s Shares”) issuable upon exercise of outstanding options (“Options”), if any, granted to Employee under the Company’s Stock Option Plans (which Options shall be cancelled upon the making of the payment referred to below) Employee shall receive an amount in cash equal to the product of (i) the Employeeexcess of the closing price of the Company’s Shares as reported on or nearest the Date of Termination (or, with if not so reported, on the basis of the average of the lowest asked and highest bid prices on or without Good Reasonnearest the Date of Termination), terminates his employment at over the per share exercise price of each Option held by Employee (whether or not then fully exercisable) plus the amount of any time within twelve months after a Change of Control; or applicable cash appreciation rights, times (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value number of the stock options granted during Company’s Shares covered by each such periodOption.
(E) earned by the The Company shall also pay to Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense legal fees and expenses incurred by him Employee as a result of such termination including all such fees and expenses incurred by Employee as a result of such termination (including attorneys fees) all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In Agreement or in connection with any tax audit or proceeding to the event of a termination of this Agreement by extent attributable to the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes application of Section 280G 4999 of the Internal Revenue Code of 1986 1986, as amended (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court“Code”) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment or benefit provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law).
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a6.4(c) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:the
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control (provided that if the Change of Control is pursuant to Section 6.4.2(b) of this Agreement, it is ascertainable on the date of such Termination that such Change of Control has occurred), or if, prior to and not as a result of a Change of Control; or (ii) , the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (xa) $300,000 525,000 or (yb) three (3) times total compensation (including the value of the stock options granted during all perquisites, such periodas health and life insurance and car allowance, etc.) received or earned by the Employee from the Employer during the twelve month period months prior to the Termination Date, multiplied by three (3), or
(B) if after or as a result of a Change of Control, the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to six (6) times: (i) the total compensation received or earned (including the value of all perquisites, such as health and life insurance and car allowance, etc.) and (ii) the value of all stock options granted to the Employee by the Employer, during the twelve (12) months prior to such Date of Termination (in case of either (ii)(A) or (ii)(B), "Severance Pay"); and and
(iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(iv) The value of the stock options described above will be determined using a Black-Scholes valuation methodology by an investment bank reasonably acceptable to
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control The amount (if any) payable pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by (the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d"Severance Total") shall be increased by an amount (the "Increase") sufficient so that after the payment by the Employee of (A) any income taxes on the Increase and (B) any excise tax on the sum of (I) the Severance Total and (II) the Increase, the Employee shall receive have received an amount (net of such taxes) equal to the amount specified in Section 9(d)Severance Total. The Employee shall be entitled to receive initially receive the entire amount provided for in Section 9(dSeverance Total (together with any such additional payments required to cover any excise and income taxes payable as aforesaid) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the amount permitted amount to be received without incurring such excise tax, and the Employer agrees to use its best efforts to support the Employee's position that such payments amounts are not subject to excise tax in any dealings dispute with the Internal Revenue Service any or in any appropriate legal other administrative or judicial proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment The Executive shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant the following benefits during a period of disability, or upon termination of his employment, as the case may be, if such period or termination occurs prior to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the EmployerExecutive's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.termination:
(ba) During any period that the Employee Executive fails to perform his full-time duties hereunder with the Company as a result of incapacity due to physical or mental illness, the Employee injury or similar incapacity, he shall continue to receive his Salary compensation and other benefits payable to him under this Agreement at the rate in effect at the commencement of any such period, less any amounts payable to him under the Company's disability plan or program or other similar plan during such period, or under any governmental program, until the Employee's his employment is terminated pursuant to Section 6.2 9(a) hereof. If, during any period of disability, the Executive's employment shall be terminated by reason of his death, disability or the expiration of this Agreement, not withstanding the provisions of Section 20, his pay shall cease and his benefits, if any, shall, be determined solely under the Company's retirement, insurance and other compensation programs then in effect in accordance with the terms of such programs, and the Company shall have no further obligations to him under this Agreement.
(b) If at any time the Executive's employment shall be terminated (i) by reason of his death, (ii) by the Company for Cause or until the Employee terminates his employment Disability or (iii) by him (other than by reason of a constructive termination pursuant to Section 6.4(a9(c) of this Agreement, whichever first occurs. After terminationhereof), the Employee Company shall be paidpay him (or his appropriate payee, as determined in equal monthly installments, 100% accordance with Section 12(c) hereof) his full base salary through the Date of his Salary, Termination at the rate in effect at the time Notice of Termination is given, for one yearplus all other amounts, if any, to which he is entitled from the Company through the Date of Termination under any compensation plan in each case at the time such payments are due, and thereafter for one additional year at an annual rate equal the Company shall have no further obligations to 50% of the Salary which would have been in effect him under this Agreement, plus. In addition, in each case, any disability payments otherwise payable the event the Executive's employment is terminated by reason of the Executive's death or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his healthDisability, the Employee Executive (or his appropriate payee) shall provide consulting services be entitled to receive a pro rata portion of any bonus that would otherwise have been payable to the Employer during Executive with respect to the period that he year in which the Executive's employment is receiving payments pursuant terminated. For purposes of this provision, if the Executive's bonus for such year has not been determined, the Executive shall be deemed to this Section 9(b)have been entitled to a bonus equal to the bonus paid or payable to the Executive with respect to the immediately preceding year.
(c) If the EmployeeExecutive's employment shall should be terminated by the Company other than for Cause or terminated Disability or by the Employee without Good Reason prior Executive by reason of a constructive termination pursuant to or more than twelve months afterSection 9(c) hereof, he shall be entitled, in exchange for a Change release of Controlthe Company, Zenith and any subsidiaries and affiliates of the Employer Company and their respective officers, directors, shareholders employees and agents, to the benefits provided below ("Severance Payments"):
(i) The Company shall pay to the Employee Executive his full Salary base salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and plus all other amounts to which he is entitled under any compensation plan of the Employer shallCompany, assuming in each case at the Employer is in compliance with time such payments are due;
(ii) The Company shall pay the provisions Executive, at the time such payments would have been made had the Executive's employment not been terminated hereunder, all salary payments that would have been payable to the Executive pursuant to this Agreement had the Executive continued to be employed for the greater of (x) the remaining Term of this AgreementAgreement or (y) two years (the "Severance Period") (assuming for the purpose of such continuing payments that the Executive's salary for each year of such period is equal to his salary at the Date of Termination), plus any bonus that would otherwise have no further obligations been payable to the Executive with respect to Section 3 the Severance Period; provided, however, that to the extent the Executive's bonus for any portion of this Agreementsuch Severance Period had not been determined, the Executive shall be deemed to have been entitled to a bonus equal to the bonus paid or payable to the Executive with respect to the immediately preceding year;
(iii) All stock option rights, stock appreciation rights, and any and all other similar rights theretofore granted to the Executive, including, but not limited to, the Executive's right to receive cash in lieu of exercising stock options, as may be provided in his stock option agreements, shall vest and shall then be exercisable in full, and the Executive shall have 90 days following his termination within which to exercise any and all other obligations such rights and the restrictions on any and all shares of restricted stock granted to the Executive that are outstanding on the Date of Termination shall lapse as of the Employer under Date of Termination;
(iv) During the Severance Period the Company shall, at its cost, arrange to provide the Executive with life, disability, dental, accident and group health insurance benefits substantially similar to those that he was receiving immediately prior to the Notice of Termination plus an additional amount necessary to reimburse the Executive for any taxes imposed solely by reason of his receipt of such benefits following his termination of employment. Notwithstanding the foregoing, the Company shall not provide any benefit otherwise receivable by the Executive pursuant to this Agreement, including subparagraph if an equivalent benefit is actually received by him from another employer or source at any time during the obligations Severance Period. Executive agrees to indemnify, defend and hold harmless the Employee, shall remain in effectreport any such benefit actually received by him.
(d) If (A) in breach of this Agreement, the Employer The Company shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate continue in effect at for the time benefit of the Executive all insurance or other provisions for indemnification, defense or hold-harmless of officers or directors of the Company that are in effect on the date the Notice of Termination is given;
(ii) for periods subsequent sent to the Date Executive or the Company with respect to all of Termination his acts and omissions while an officer or director (in lieu if applicable) as fully and completely as if such termination had not occurred, and until the final expiration or running of any further payments pursuant to Section 3 all periods of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior limitation against actions that may be applicable to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law acts or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementomissions.
(e) In Notwithstanding anything to the contrary in this Agreement, in the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant that Executive becomes entitled to which the Severance Pay is as set forth above in Section 9(d)Payments, if any of the Severance Pay shall Payments will be subject to the average taxable compensation of tax (the Employee for the five taxable years prior to such termination or such higher amount as may be permitted "Excise Tax") imposed by the Internal Revenue Service to compute "base amount" for purposes of Section 280G section 4999 of the Internal Revenue Code of 1986 1986, as amended (the "Code"), Company shall pay to Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of any Excise Tax on the Total Payments (as amendedhereinafter defined) multiplied and any federal, state and local income and other tax and Excise Tax upon the payment provided for by three this Paragraph 10(f), shall be equal to the Total Payments. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (but i) any other payments or benefits received or to be received by Executive in no event may this amount exceed Severance Pay as provided by Section 9(d) connection with a Change in Control or Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with Company, any person whose actions result in a change in control or any person affiliated with Company or such person (which, together with Severance Payments, shall constitute "Total Payments"), shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of section 280G(b)(1) shall be treated as subject to the Excise Tax, unless agreed in the opinion of tax counsel selected by Company's independent auditors and acceptable to Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of section 280G(b)(4) of the Code in excess of the base amount, within the meaning of section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(1) (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by Company's independent auditors in accordance with the Employee)principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the date of termination of employment, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) Executive's employment, Executive shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to Company, at the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position time that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for such reduction in this Section 9 Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by seeking other employment the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or otherwise, nor shall local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Executive's employment (including by reason of any payment provided for the existence or amount of which cannot be determined at the time of the Gross-Up Payment), Company shall make an additional Gross-Up Payment in this Section 9 be reduced by respect of such excess (plus any compensation earned interest, penalties or additions payable by the Employee as Executive with respect to such excess) at the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no amount of such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of lawexcess is finally determined.
Appears in 1 contract
Sources: Employment Agreement (Zenith National Insurance Corp)
Compensation Upon Termination or During Disability. 8.1 In the event of either the death of the Consultant or the termination of this Agreement pursuant to Section 5.1(d), the Company shall pay to the Consultant or the Consultant's personal representatives, as soon as reasonably practicable thereafter, any Base Salary and incentive compensation accrued and unpaid on the occurrence of such event, plus for the succeeding twelve (a12) months after such event the sum of 100% of the Consultant's then-current Base Salary and incentive compensation.
8.2 If the Employee's employment this Agreement shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated Company for Cause or terminated by the Employee without Consultant for other than Good Reason prior to or more than twelve months after, a Change of ControlReason, the Employer Company shall pay the Employee Consultant his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, base salary and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend accrued and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary unpaid incentive compensation through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent , and the Company shall have no further obligations to the Date Consultant under this Agreement.
8.3 If in breach of Termination this Agreement, the Company shall terminate this Agreement (it being understood that a purported termination for Disability or for Cause which is disputed and finally determined by a court of competent jurisdiction not to have been proper shall be a termination by the Company in lieu of any further payments pursuant to Section 3 breach of this Agreement), Severance Pay or if the Consultant shall terminate his employment for Good Reason, then, within 30 days of such termination:
(as hereinafter defined), payable on a) the first day following Company shall pay the Consultant his full Base Salary and accrued and unpaid incentive compensation through the Date of TerminationTermination is given and all other unpaid amounts, if any, to which the Consultant is entitled as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination under any compensation plan or program of the Company at the time such payments are due; and
("Severance Pay"); and (iiib) the Company shall pay all other damages to which the Employee Consultant may be entitled as a matter of law or equity as result of the termination of his employment under this Agreementsuch breach, including damages for any and all costs loss of benefits to the Consultant under any of the Company's employee benefit plans in effect at the time of such termination which the Consultant would have received if the Company had not breached this Agreement and expense had this Agreement continued for the full term provided in Section 2 hereof, and including all legal fees and expenses incurred by him (as a result of such termination, including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by the fees and expenses of enforcing the terms of this Agreement.
8.4 Unless the Consultant is terminated for Cause, the Company shall maintain in full force and effect, for the continued benefit of the Consultant or his personal representatives for twelve (e12) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to months, all employee benefit plans and programs in which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years Consultant was entitled to participate immediately prior to the Date of Termination provided that the Consultant's continued participation is possible under the general terms and provisions of such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee)plans and programs. In the event that the Consultant's participation in any such plan or program is barred or any of a termination of this Agreement such plans have been discontinued by the Employee as a result of a Change of Control Company, the amount payable pursuant Company shall arrange to Section 9(d) shall be increased so that after payment of any excise tax provide the Employee shall receive Consultant with benefits substantially equivalent to those which the amount specified in Section 9(d). The Employee shall be Consultant would otherwise have been entitled to initially receive the entire amount provided for in Section 9(d) under such plans and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsprograms.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Sources: Consulting Agreement (Fact Corp)
Compensation Upon Termination or During Disability. (ai) If the EmployeeUpon Purches's employment shall be terminated by reason of his death, the Employer Corporation shall pay to such the person as he shall designate designated by Consultant in writing a notice filed with the EmployerCorporation or, or if no such person shall be is designated, to his Purches's estate as a lump sum death benefit, his Consultant's full Salary to compensation for a period of six (6) months after the date of his death in addition Purches's death. Upon full payment of amounts required to any payments to be paid under this subsection, the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Corporation shall have no further obligation under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(bii) During any period that the Employee Purches fails to perform his duties hereunder under this Agreement as a result of incapacity due to physical or mental illness, the Employee Consultant shall continue to receive his Salary its full compensation until the EmployeeConsultant's employment relationship is terminated pursuant to Section 6.2 7(ii) of this Agreement, or until Consultant shall receive a lump sum of six months' compensation.
(iii) If the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After terminationConsultant's retention is terminated for Cause as defined in subsection 7(iii), the Employee Corporation shall be paid, in equal monthly installments, 100% pay the Consultant its compensation through the date of his Salary, termination at the rate in effect at the time Notice of Termination is given, for one year, delivered and thereafter for one additional year at an annual rate equal the Corporation shall have no further obligation to 50% of the Salary which would have been in effect Consultant under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(div) If (Aa) in breach of this Agreement, the Employer Corporation shall terminate the Employee's employment Consulting relationship other than pursuant to Sections 6.2 7(iii) (b) or 6.3 hereof 7 (iii) (c) (it being understood that a purported termination pursuant to Section 6.2 Sections 7(iii) (b) or 6.3 hereof 7(iii) (c) which is disputed and finally determined not to have been proper shall be a termination by the Employer Corporation in breach of this Agreement), including as a result of a Change of Control, and/or or (Bb) the Employee Consultant shall terminate his employment the relationship for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer then
(1) The Corporation shall pay to the Employee:
(i) his Consultant its full Salary compensation through the Date date of Termination termination at the rate then in effect at the time Notice of Termination is givengiven through the end of the Term;
(ii2) for periods subsequent to In the Date event of Termination (a Change in lieu of any further payments pursuant to Control as defined in Section 3 of this Agreement7(iv), Severance Pay (as hereinafter defined)the Corporation shall pay Consultant, payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, in a lump sum sum, an amount equal to the highest greater of (xa) $300,000 twice the amount then due through the end of the Term; or (yb) three two times the annual compensation paid to Consultant.
(3) times total compensation (including value In the event of a Change in Control of the stock Corporation as defined in Section 7(iv) above, the total number of outstanding unexercised options (warrants) granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment Consultant under this AgreementAgreement as well as any previous employment, including consultant or other agreements, shall be doubled in quantity while retaining the original exercise price.
(4) The Corporation shall pay all costs and expense reasonable legal fees and expenses incurred by him (including attorneys fees) Consultant in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by in this Agreement.
(ev) In Unless the event Consultant is terminated for Cause, the Corporation shall maintain in full force and effect, for the continued benefit of a Consultant for the greater of the remaining term of this Agreement or eighteen (18) months after termination of this Agreement by the Employee as a result of a Change of Control pursuant Agreement, all health and hospitalization plans and programs in which Consultant was entitled to which the Severance Pay is as set forth above participate in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years immediately prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all Termination as defined in Section 4 of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean provided that Consultant's continued participation is possible under the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the general terms and conditions provisions of this Agreement by operation of lawthe plans and programs. If Consultant's participation in any plan or program is barred, the Corporation shall arrange to provide the Consultant with benefits substantially similar to those which Consultant would otherwise have been entitled to receive under the plan and program from which his continued participation is barred.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness ("Disability Period"), the Employee Executive shall continue to receive his Base Salary at the rate then in effect for such period until the Employee's his employment is terminated pursuant to Section 6.2 6(a)(ii) hereof, provided that payments so made to the Executive shall be reduced by the sum of this Agreementthe amounts, if any, payable to the Executive at or until prior to the Employee terminates time of any such payment under disability benefit plans of the Company or under the Social Security disability insurance program, and which amounts were not previously applied to reduce any such payment.
(b) If the Executive's employment is terminated by his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After terminationdeath, the Employee Company shall be paidpay, in equal monthly installmentsaccordance with Section 10(b) hereof, 100% any amounts due to the Executive under Section 4 hereof through the date of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)death.
(c) If the EmployeeExecutive's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior Company for Cause, pursuant to or more than twelve months after, a Change of Control, Section 6(a)(iii) the Employer Company shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
Executive (i) his full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
; (ii) for periods subsequent to the Date of Termination (in lieu of any further payments Bonus declared and payable pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A4(b) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); hereof and (iii) all other damages any expense reimbursement due the Executive pursuant to which Section 4(f) hereof. Following such payments the Employee may be entitled as a matter of law or equity as result of Company shall have no further obligations to the termination of his employment Executive under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(ed) In If (i) the event of a termination of this Agreement by Company shall terminate the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable Executive's employment pursuant to Section 9(d6(b) hereof, (ii) the Executive shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated terminate his employment for Good ReasonReason pursuant to Section 6(c)(ii), except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.then:
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness ("disability period"), the Employee shall continue to receive his Salary full salary at the rate then in effect for such period until the Employee's his employment is terminated pursuant to Section 6.2 10(b), provided that payments so made to Employee during the disability period shall be reduced by the sum of this Agreementthe amounts, if any, payable to Employee at or prior to the time of any such payment under disability benefit plans of the Company and which were not previously applied to reduce any such payment.
(b) If Employee's employment is terminated by his death, the Company shall pay to Employee's spouse, or until the Employee terminates if he leaves no spouse to his employment pursuant estate, an amount equal to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, full salary at the rate then in effect at for a period of one year after the time Notice date of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)death.
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer Company shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary salary through the Date of Termination at the rate in effect at the time Notice of Termination is given.
(d) If (i) in breach of this Agreement, the Company shall terminate Employee's employment other than pursuant to Section 10(b) or 10(c) (it being understood that a purported termination pursuant to Section 10(b) or 10(c) which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (ii) Employee shall terminate his employment for Good Reason (other than as a result of a management change of control), then
(A) the Company shall (I) pay Employee his full salary and provide Employee his benefits through the Date of Termination at the rate or level in effect at the time Notice of Termination is given and (II) pay Employee his full Bonus for the calendar year in which the Date of Termination occurs, at such time as such Bonus would have been paid if Employee's employment by the Company had not so terminated;
(iiB) in lieu of any further salary or bonus payments to Employee for periods subsequent to the Date of Termination Termination, the Company shall pay as severance pay to Employee an amount equal to (1) Employee's average annual cash compensation received from the Company during the three full calendar years immediately preceding the Date of Termination, multiplied by (2) the greater of (w) the number of years (including partial years) that would have been remaining in lieu of any further payments the Employment Period if Employee's employment by the Company had not so terminated but the Employment Period were not thereafter extended pursuant to the proviso of Section 3 and (x) three, such payment to be made (y) if Employee's termination is based on a change of this Agreement)control of the Company, Severance Pay (as hereinafter defined), payable in a lump sum on or before the first fifth day following the Date of Termination, or (z) if Employee's termination results from any other cause, in substantially equal semimonthly installments on the fifteenth and last days of each month commencing with the month in which the Date of Termination occurs and continuing for the number of consecutive semimonthly payment dates (including the first such date as follows:aforesaid) equal to the product obtained by multiplying the number of years (including partial years) applicable under clause (w) above by 24;
(AC) all options to purchase the Company's common stock granted to Employee under the Company's option plan or otherwise shall immediately become fully vested and shall terminate on such date as they would have terminated if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Company had not terminated and, if Employee's termination is based on a change of control of the Company and Employee for Good Reason elects, not more than 30 days after the Date of Termination, to surrender any or by all of such options to the Employer other than pursuant to Sections 6.2 Company, the Company shall pay Employee on or 6.3 hereof, before the fifth day following such surrender a lump sum amount cash payment equal to the highest excess of (x1) $300,000 or (y) three (3) times total compensation (including the fair market value of on the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination of the securities issuable upon exercise of the options surrendered over ("Severance Pay")2) the aggregate exercise price of the options surrendered;
(D) the Company shall maintain in full force and effect, for the continued benefit of Employee, for a number of years equal to the greater of (1) the number of years (including partial years) that would have been remaining in the Employment Period if Employee's employment by the Company had not so terminated but the Employment Period were not thereafter extended pursuant to the proviso of Section 3 and (2) three, all employee benefit plans and programs in which Employee was entitled to participate immediately prior to the Date of Termination provided that Employee's continued participation is possible under the general terms and provisions of such plans and programs. In the event that Employee's participation in any such plan or program is barred, the Company shall arrange to provide Employee with benefits substantially similar to those which Employee would otherwise have been entitled to receive under such plans and programs from which his continued participation is barred; and (iiiE) if termination of Employee's employment arises out of a breach by the Company of this Agreement, the Company shall pay all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreementsuch breach, including damages for any and all costs loss of benefits to Employee under the Company's employee benefit plans which Employee would have received if the Company had not breached this Agreement and expense had Employee's employment continued for the then remaining term of the Employment Period but the Employment Period were not thereafter extended pursuant to the proviso of Section 3, and including all reasonable legal fees and expenses incurred by him (including attorneys fees) in contesting or disputing any as a result of such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementtermination.
(e) In the event of a termination of this Agreement by the If Employee shall terminate his employment for Good Reason as a result of a Change management change of Control pursuant to control, then
(A) the Company shall (I) pay Employee his full salary and provide Employee his benefits through the Date of Termination at the rate or level in effect at the time Notice of Termination is given and (II) pay Employee his full Bonus for the calendar year in which the Severance Pay is Date of Termination occurs, at such time as set forth above such Bonus would have been paid if Employee's employment by the Company had not so terminated;
(B) in Section 9(d)lieu of any further salary or bonus payments to Employee for periods subsequent to the Date of Termination, the Severance Pay Company shall pay as severance pay to Employee an amount equal to Employee's average annual cash compensation received from the Company during the three full calendar years immediately preceding the Date of Termination, such payment to be made in a lump sum on or before the average taxable compensation fifth day following the Date of Termination;
(C) all options to purchase the Company's common stock granted to Employee under the Company's option plan or otherwise shall immediately become fully vested and shall terminate on such date as they would have terminated if Employee's employment by the Company had not terminated and, if Employee elects, not more than 30 days after the Date of Termination, to surrender any or all of such options to the Company, the Company shall pay Employee on or before the fifth day following such surrender a lump sum cash payment equal to the excess of (1) the fair market value on the Date of Termination of the Employee securities issuable upon exercise of the options surrendered over (2) the aggregate exercise price of the options surrendered; and
(D) the Company shall maintain in full force and effect, for the five taxable years continued benefit of Employee, for one year, all employee benefit plans and programs in which Employee was entitled to participate immediately prior to the Date of Termination provided that Employee's continued participation is possible under the general terms and provisions of such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee)plans and programs. In the event of a termination of this Agreement by that Employee's participation in any such plan or program is barred, the Company shall arrange to provide Employee as a result of a Change of Control the amount payable pursuant with benefits substantially similar to Section 9(d) shall be increased so that after payment of any excise tax the those which Employee shall receive the amount specified in Section 9(d). The Employee shall be would otherwise have been entitled to initially receive the entire amount provided for in Section 9(d) under such plans and shall not be required to repay to the Employer any amount programs from which his continued participation is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsbarred.
(f) The If Employee shall terminate his employment under Section 10(d)(ii), the Company shall pay Employee his full salary through the Date of Termination at the rate in effect at the time Notice of Termination is given.
(g) Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 11 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(gh) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement Notwithstanding anything in form and substance satisfactory this Agreement to the Employeecontrary, the Company shall not be obligated to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness pay any portion of any amount otherwise payable to Employee pursuant to this Section 11 if the Company could not reasonably deduct such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement portion solely by operation of lawSection 280G of the Internal Revenue Code of 1986, as amended.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his Employee's death, the Employer Company shall pay pay, to such person as he Employee shall designate in writing a notice filed with the EmployerCompany, or or, if no such person shall be designated, to his Employee's estate as a lump sum death benefit, his full an amount equal to any accrued but unpaid Base Salary to and a prorated Annual Bonus at the date time of his death Employee's death. This amount shall be exclusive of and in addition to any payments to the Employee's spousewidow, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the EmployerCompany. Employee's designated beneficiary or the executor of Employee's estate, as the case may be, shall accept the payment provided for in this paragraph 9 in full discharge and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations release of the Employer Company of and from any further obligations under this Agreement, including the obligations subject to indemnifypayments, defend and hold harmless the Employeeif any, shall remain provided for in effectparagraph 9(f) below.
(b) During any period that the Employee fails to perform his Employee's duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Employee's full Base Salary until the and a prorated Annual Bonus until, if applicable, Employee's employment is terminated pursuant to Section 6.2 paragraph 8(b) hereof. If Employee's employment is terminated by the Company pursuant to paragraph 8(b), the Company shall be discharged and released of and from any further obligations under this Agreement, subject to payments, if any, provided for in paragraph 9(f) below. During any such period and thereafter Employee shall continue to bear the obligations provided for in paragraph 10 below in accordance with the terms of such paragraph 10.
(c) If Employee's employment shall be terminated for Cause or until Employee shall terminate Employee's employment other than for Good Reason, the Company shall pay Employee Employee's full Base Salary and a prorated Annual Bonus through the Date of Termination or the date on which Employee terminates his Employee's employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, given or the date on which Employee terminates Employee's employment. The Company shall be discharged and thereafter for one additional year at an annual rate equal to 50% released of the Salary which would have been in effect and from any further obligations under this Agreement. Thereafter, plus, Employee shall continue to have the obligations provided for in each case, any disability payments otherwise payable by or pursuant paragraphs 9 and 10 below. Nothing contained herein shall be deemed to plans provided be a waiver by the Employer to its executive officers. To the extent physically and mentally capable Company of so doing without potentially impairing or damaging his health, the any rights that it may have against Employee shall provide consulting services in respect of Employee's actions which gave rise to the Employer during the period that he is receiving payments pursuant to this Section 9(b)termination of Employee's employment for Cause.
(cd) If the Company shall terminate Employee's employment other than pursuant to paragraphs 8(b) or 8(c) hereof or if Employee shall be terminated terminate Employee's employment for Cause or terminated by the Good Reason, then
(i) The Company shall continue to pay Employee Employee's full Base Salary in accordance with normal payroll practices and without Good Reason prior to or more than twelve months afterinterest through December 31, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, 2008 at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is given in compliance accordance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(dparagraph 8(f) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is givenhereof;
(ii) The Company shall continue to pay Employee Employee's Annual Bonus in accordance with normal payroll practices and without interest through December 31, 2008;
(iii) The Company shall pay Employee the severance payment in paragraph 9(f) below; and
(iv) The Company shall maintain in full force and effect, for periods subsequent Employee's continued benefit for the full term of this Agreement, all employee benefit plans and programs in which Employee was entitled to participate immediately prior to the Date of Termination provided that Employee's continued participation is possible under the general terms and provisions of such plans and programs. In the event that Employee's participation in any such plan or program is barred, Employee shall be entitled to receive an amount equal to the annual contributions, payments, credits or allocations made by the Company to Employee, to Employee's account or on Employee's behalf under such plans and programs from which Employee's continued participation is barred.
(in lieu of any further payments e) If Employee shall terminate Employee's employment hereunder pursuant to Section 3 paragraph 8(e) hereof, then Employee shall continue to receive Employee's Base Salary and Annual Bonus for a period of this Agreement), Severance Pay the lesser of (as hereinafter defined), payable on the first day following i) one year from the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; Termination or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value remainder of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementterm.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's P▇▇▇▇▇’▇ employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing a notice filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's P▇▇▇▇▇’▇ spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's ’s obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the EmployeeP▇▇▇▇▇, shall remain in effect.
(b) During any period that the Employee P▇▇▇▇▇ fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee P▇▇▇▇▇ shall continue to receive his Salary and other compensation until the Employee's P▇▇▇▇▇’▇ employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's P▇▇▇▇▇’▇ employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer shall pay the Employee P▇▇▇▇▇ his full Salary and other compensation through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the EmployeeP▇▇▇▇▇, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's P▇▇▇▇▇’▇ employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee P▇▇▇▇▇ shall terminate his employment for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer shall pay to the EmployeeP▇▇▇▇▇:
(i) his full Salary and other compensation through the Date last day of Termination the Initial Term or Renewal Term, as the case may be, at the rate in effect at the time Notice of Termination is given;; and
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee P▇▇▇▇▇ may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense legal fees and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement agreement, in form and reasonably substance satisfactory to the EmployeeP▇▇▇▇▇, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) A. During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness ("disability period"), the Employee shall continue to receive his Salary full salary at the rate then in effect for such period until his employment is terminated pursuant to section 5.02B hereof, provided that payments so made to the Employee during the first 360 days of the disability period shall be reduced by the sum of the amounts, if any, payable to the Employee at or prior to the time of any such payment under disability benefit plans of the Company and which were not previously applied to reduce any such payment.
B. If the Employee's employment is terminated by his death, the Company shall pay to the Employee's spouse, or if he leaves no spouse, to his estate, commencing on the next succeeding day which is the fifteenth day or last day of the month, as the case may be, and semimonthly thereafter on the fifteenth and last days of each month, until a total of six payments has been made, an amount on each payment date equal to the semimonthly salary payment payable to the Employee pursuant to Section 6.2 2.01 hereof at the time of this Agreement, or until his death.
C. If the Employee terminates his Employee's employment shall be terminated pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination5.02B, the Company shall pay the Employee shall be paid, in equal monthly installments, 100% his full salary through the date of his Salarytermination, at the rate in effect at the time Notice of Termination is given, for one year, plus all outstanding expenses payable pursuant to section 2.02 hereof and thereafter for one additional year at an annual rate equal the Company shall have no further obligations to 50% of the Salary which would have been in effect Employee under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, .
D. If the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this terminate his employment under clause (ii) of Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control5.02C hereof, the Employer Company shall pay the Employee his full Salary salary through the Date date of Termination, termination at the rate in effect at the time Notice date of Termination is giventermination, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect plus all outstanding expenses payable pursuant to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effectsection 2.02 hereof.
(d) E. If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason of if the Company shall terminate the Employee's employment in breach hereof or at within one year of a "change in control of the Company", for any time within twelve months after a Change of Controlreason other than death or disability under section 5.02A or B, then then:
1. the Employer Company shall pay to the Employee:
(i) Employee his full Salary salary through the Date date of Termination termination at the rate in effect at the time Notice of Termination is giventermination;
(ii) 2. in lieu of any further salary payments to the Employee for periods subsequent to the Date date of Termination (termination, the Company shall pay as severance pay to the Employee an amount equal to $300,000.00 or five times employee's highest rate of pay whichever is higher, such payment to be made in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable a lump sum on or before the first tenth day following the Date date of Terminationtermination.
3. In addition to any rights which the Executive may have under stock option plans of the Company, as follows:the Company shall pay to the Executive in cash an amount equal to the product of three times the difference between (i) and (ii) below, provided that (ii) exceeds (i). For purposes hereof, (i) shall be the aggregate exercise price of all options held by the Executive on the date of termination and (ii) shall be the number of options held by the Executive on the date of termination multiplied by the greater of the closing bid price of the Company's common stock on the date of termination or the price per share paid in connection with any tender offer or other purchase which resulted in the change in control.
4. the Company shall maintain in full force and effect, for the continued benefit of the Employee for three (A3) if years from the date of termination, all employee benefit plans and programs in which the Employee was entitled to participate immediately prior to the date of termination provided that the Employee's continued participation is possible under the general terms and provisions of such plans and programs. All such benefit plans and programs shall be maintained at the level and value provided immediately prior to the date of termination. In the event that the Employee's participation in any such plan or program is barred, the Company shall arrange to provide the Employee with benefits substantially similar to those which the Employee would otherwise have been entitled to receive under such plans and programs from which his continued participation is barred. In lieu of continued participation in such benefit plans and programs, the Employee may notify the Company of his election to receive, and the Company shall pay to the Employee, in a lump sum, the product of (i) the current annual cost of such benefits provided by the Company to the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or multiplied by (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value the "Cash Benefit Package"). If the Employee elects to receive the Cash Benefit Package in lieu of continued participation in benefit plans and programs, the Company shall deliver to the Employee, on or before the tenth day following the later of the stock options granted during such period) earned by the Employee during the twelve month period prior date of termination or receipt of a written notice to such Date of Termination ("Severance Pay"); and (iii) all other damages to which effect from the Employee may be entitled as a matter of law or equity as result Employee, payment in full of the termination Cash Benefit Package along with a written summary of his employment under this Agreement, including all the benefit costs and expense and expenses incurred by him (including attorneys fees) utilized in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In computing the event of a termination of this Agreement by the Employee Cash Benefit Package. Except as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d)required above, the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and Company shall not be required to repay to maintain in force for the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess benefit of the permitted amount and Employee any employee benefit plans or programs following the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsdate of termination.
(f) F. The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 5.03 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) In the Event of Death. If the Employee's employment shall be --------------------- terminated by reason of his death, the Employer Company shall pay to such person as he shall designate in writing a notice filed with the EmployerCompany, or or, if no such person shall be designated, to his estate as a lump sum death benefit, the amount of his accrued but unpaid full Base Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then presently maintained by the EmployerCompany, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, shall fully discharge the EmployerCompany's obligations with respect hereunder. All stock options granted to Section 3 of this Agreement, but all other obligations the employee from and after the date hereof shall become vested and immediately exercisable as of the Employer under this Agreement, including date of Employee's death in accordance with the obligations plan or plans pursuant to indemnify, defend and hold harmless the Employee, shall remain in effectwhich such options are to be issued.
(b) In the Event of Physical or Mental Illness. During any period ------------------------------------------ that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his full Base Salary and bonus payments until the Employee's employment is terminated for Total Disability pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(asubparagraph (i) of this Agreement, whichever first occursSection 3 hereof. After termination, the Employee shall be paid, in equal monthly installments, 100% of paid his Salary, Base Salary at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plusgiven less, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer Company and actually paid to its executive officers. To Employee in substantially equal monthly installments over the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is givenremaining term hereof, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, Company shall have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Employee under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay . All stock options granted to the Employee:
(i) his full Salary through employee from and after the Date date hereof shall become vested and immediately exercisable as of Termination at the rate in effect at date of the time Notice of Termination is given;
(ii) for periods subsequent to given in respect of Total Disability in accordance with the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with plan or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control plans pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall such options are to be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsissued.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness ("disability period"), the Employee shall continue to receive his Salary full salary at the rate then in effect for such period until the Employee's his employment is terminated pursuant to Section 6.2 10(b), provided that payments so made to Employee during the disability period shall be reduced by the sum of this Agreementthe amounts, if any, payable to Employee at or prior to the time of any such payment under disability benefit plans of the Company and which were not previously applied to reduce any such payment.
(b) If Employee's employment is terminated by his death, the Company shall pay to Employee's spouse, or until the Employee terminates if he leaves no spouse to his employment pursuant estate, an amount equal to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, full salary at the rate then in effect at for a period of one year after the time Notice date of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)death.
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer Company shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary salary through the Date of Termination at the rate in effect at the time Notice of Termination is given.
(d) If (i) in breach of this Agreement, the Company shall terminate Employee's employment other than pursuant to Section 10(b) or 10(c) (it being understood that a purported termination pursuant to Section 10(b) or 10(c) which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (ii) Employee shall terminate his employment for Good Reason (other than as a result of a management change of control), then
(A) the Company shall (I) pay Employee his full salary and provide Employee his benefits through the Date of Termination at the rate or level in effect at the time Notice of Termination is given and (II) pay Employee his full Bonus for the calendar year in which the Date of Termination occurs, at such time as such Bonus would have been paid if Employee's employment by the Company had not so terminated;
(iiB) in lieu of any further salary or bonus payments to Employee for periods subsequent to the Date of Termination Termination, the Company shall pay as severance pay to Employee an amount equal to (1) Employee's average annual cash compensation received from the Company during the three full calendar years immediately preceding the Date of Termination, multiplied by (2) the greater of (w) the number of years (including partial years) that would have been remaining in lieu of any further payments the Employment Period if Employee's employment by the Company had not so terminated but the Employment Period were not thereafter extended pursuant to the proviso of Section 3 and (x) three, such payment to be made (y) if Employee's termination is based on a change of this Agreement)control of the Company, Severance Pay (as hereinafter defined), payable in a lump sum on or before the first fifth day following the Date of Termination, or (z) if Employee's termination results from any other cause, in substantially equal semimonthly installments on the fifteenth and last days of each month commencing with the month in which the Date of Termination occurs and continuing for the number of consecutive semimonthly payment dates (including the first such date as follows:aforesaid) equal to the product obtained by multiplying the number of years (including partial years) applicable under clause (w) above by 24;
(AC) all options to purchase the Company's common stock granted to Employee under the Company's option plan or otherwise shall immediately become fully vested and shall terminate on such date as they would have terminated if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Company had not terminated and, if Employee's termination is based on a change of control of the Company and Employee for Good Reason elects, not more than 30 days after the Date of Termination, to surrender any or by all of such options to the Employer other than pursuant to Sections 6.2 Company, the Company shall pay Employee on or 6.3 hereof, before the fifth day following such surrender a lump sum amount cash payment equal to the highest excess of (x1) $300,000 or (y) three (3) times total compensation (including the fair market value of on the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination of the securities issuable upon exercise of the options surrendered over ("Severance Pay")2) the aggregate exercise price of the options surrendered;
(D) the Company shall maintain in full force and effect, for the continued benefit of Employee, for a number of years equal to the greater of (1) the number of years (including partial years) that would have been remaining in the Employment Period if Employee's employment by the Company had not so terminated but the Employment Period were not thereafter extended pursuant to the proviso of Section 3 and (2) three, all employee benefit plans and programs in which Employee was entitled to participate immediately prior to the Date of Termination provided that Employee's continued participation is possible under the general terms and provisions of such plans and programs. In the event that Employee's participation in any such plan or program is barred, the Company shall arrange to provide Employee with benefits substantially similar to those which Employee would otherwise have been entitled to receive under such plans and programs from which his continued participation is barred; and (iiiE) if termination of Employee's employment arises out of a breach by the Company of this Agreement, the Company shall pay all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreementsuch breach, including damages for any and all costs loss of benefits to Employee under the Company's employee benefit plans which Employee would have received if the Company had not breached this Agreement and expense had Employee's employment continued for the then remaining term of the Employment Period but the Employment Period were not thereafter extended pursuant to the proviso of Section 3, and including all reasonable legal fees and expenses incurred by him (including attorneys fees) in contesting or disputing any as a result of such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementtermination.
(e) In the event of a termination of this Agreement by the If Employee shall terminate his employment for Good Reason as a result of a Change management change of Control pursuant to control, then
(A) the Company shall (I) pay Employee his full salary and provide Employee his benefits through the Date of Termination at the rate or level in effect at the time Notice of Termination is given and (II) pay Employee his full Bonus for the calendar year in which the Severance Pay is Date of Termination occurs, at such time as set forth above such Bonus would have been paid if Employee's employment by the Company had not so terminated;
(B) in Section 9(d)lieu of any further salary or bonus payments to Employee for periods subsequent to the Date of Termination, the Severance Pay Company shall pay as severance pay to Employee an amount equal to twice Employee's average annual cash compensation received from the Company during the three full calendar years immediately preceding the Date of Termination, such payment to be made in a lump sum on or before the average taxable compensation fifth day following the Date of Termination;
(C) all options to purchase the Company's common stock granted to Employee under the Company's option plan or otherwise shall immediately become fully vested and shall terminate on such date as they would have terminated if Employee's employment by the Company had not terminated and, if Employee elects, not more than 30 days after the Date of Termination, to surrender any or all of such options to the Company, the Company shall pay Employee on or before the fifth day following such surrender a lump sum cash payment equal to the excess of (1) the fair market value on the Date of Termination of the Employee securities issuable upon exercise of the options surrendered over (2) the aggregate exercise price of the options surrendered; and
(D) the Company shall maintain in full force and effect, for the five taxable years continued benefit of Employee, for two years, all employee benefit plans and programs in which Employee was entitled to participate immediately prior to the Date of Termination provided that Employee's continued participation is possible under the general terms and provisions of such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee)plans and programs. In the event of a termination of this Agreement by that Employee's participation in any such plan or program is barred, the Company shall arrange to provide Employee as a result of a Change of Control the amount payable pursuant with benefits substantially similar to Section 9(d) shall be increased so that after payment of any excise tax the those which Employee shall receive the amount specified in Section 9(d). The Employee shall be would otherwise have been entitled to initially receive the entire amount provided for in Section 9(d) under such plans and shall not be required to repay to the Employer any amount programs from which his continued participation is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsbarred.
(f) The If Employee shall terminate his employment under Section 10(d)(ii), the Company shall pay Employee his full salary through the Date of Termination at the rate in effect at the time Notice of Termination is given.
(g) Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 11 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(gh) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement Notwithstanding anything in form and substance satisfactory this Agreement to the Employeecontrary, the Company shall not be obligated to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness pay any portion of any amount otherwise payable to Employee pursuant to this Section 11 if the Company could not reasonably deduct such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement portion solely by operation of lawSection 280G of the Internal Revenue Code of 1986, as amended.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his her death, the Employer shall pay to such person as he she shall designate in writing a notice filed with the Employer, or if no such person shall be designated, to his her estate as a lump sum benefit, his her full Salary to the date of his her death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his her duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his her Salary and other compensation until the Employee's employment is terminated pursuant to Section Sections 6.2 of this Agreement, or until the Employee terminates his her employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. .
(c) After terminationtermination by Employer without Cause or pursuant to Section 6.2 of this Agreement or termination by Employee pursuant to Section 6.4 of this Agreement, the Employee shall be paid, in equal monthly installmentsone lump sum, 100% of his Salaryher Salary and other compensation and the benefits set forth in Sections 4(a) and (c), at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(cd) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer shall pay the Employee his her full Salary and other compensation through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination. The amounts payable to Employee under this Agreement shall not be treated as damages but as severance compensation to which Employee is entitled by reason of her employment in the circumstances contemplated by this Agreement.
(gf) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement agreement, in form and reasonably substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he she would be entitled to under Section 9(d)(ii)(B) hereunder if he she terminated his her employment for Good Reasonwithin six months after a Change in Control, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. The Employee shall be entitled to the following benefits during a period of disability, or upon termination of his employment, as the case may be, provided that such period or termination occurs during the Term of this Agreement:
(a) If During any period that the Employee fails to perform his full-time duties with the Company as a result of incapacity due to physical or mental illness, he shall continue to receive his base salary at the rate in effect at the commencement of any such period, together with all compensation payable to him under the Company's disability plan or program or other similar plan during such period, until his employment is terminated pursuant to Section 11 hereof. Thereafter, or in the event the Employee's employment shall be terminated by reason of his death, his benefits shall be determined under the Employer shall pay to such person as he shall designate Company's retirement, insurance and other compensation programs then in writing filed effect in accordance with the Employer, or if no terms of such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effectprograms.
(b) During If at any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated terminated: (i) by the Company for Cause or terminated Disability or (ii) by the Employee without him for any reason (other than in a Voluntary Termination or for Good Reason prior to or more than twelve months after, following the occurrence of a Change of in Control), the Employer Company shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which he is entitled through the Date of Termination under any compensation plan of the Company at the time such payments are due, and the Company shall have no further obligations to him under this Agreement.
(c) If the Employee's employment should be terminated: (1) by reason of his death, (2) by the Company other than for Cause or Disability or (3) by the Employee in a Voluntary Termination, he shall be entitled to the benefits provided below:
(i) the Company shall pay to the Employee or the appropriate payee (as determined in accordance with Section 13(c)) (A) his full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; plus (B)(x) in the case of death or a Voluntary Termination all salary and bonus payments that would have been payable to the Employee pursuant to this Agreement for the remaining Term of this Agreement, or (y) in all other cases, all salary and bonus payments that would have been payable to the Employee had the Employee continued to be employed for a period of 12 months, assuming for the purpose of such payments that his salary for such remaining period is equal to his salary at the Date of Termination and that his annual bonus for such remaining Term is equal to the average of the annual bonuses paid to him by the Company with respect to the three fiscal years ended immediately prior to the fiscal year in which the Date of termination occurs; plus (C) all other amounts to which he is entitled under any compensation plan of the Company, in cash in a lump sum no later than the 15th day following the Date of Termination;
(ii) for periods a 12-month period after the Date of Termination, the Company shall arrange to provide the Employee with life, disability, accident and health insurance benefits substantially similar to those which the Employee and his covered family members are receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control); provided, however, that such continued benefits shall be reduced to the extent comparable benefits are actually received by or made available to the Employee without cost during the 12-month period following the Employee's termination of employment (and the Employee agrees that he shall promptly report any such benefits actually received to the Company); and
(iii) the Company shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Company which are in effect on the date the Notice of Termination is sent to the Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against actions which may be applicable to such acts or omissions.
(d) If the Employee's employment should be terminated by the Employee for Good Reason following a Change in Control, he shall be entitled to the benefits provided below:
(i) the Company shall pay to the Employee or the appropriate payee (as determined in accordance with Section 13(c)) (A) his full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; plus (B)(x) in lieu the case of any further death or a Voluntary Termination all salary and bonus payments that would have been payable to the Employee pursuant to Section 3 this Agreement for the remaining Term of this Agreement), Severance Pay or (as hereinafter defined)y) in all other cases, all salary and bonus payments that would have been payable on to the first Employee had the Employee continued to be employed for a period of 24 months, assuming for the purpose of such payments that his salary for such remaining period is equal to his salary at the Date of Termination and that his annual bonus for such remaining Term is equal to the average of the annual bonuses paid to him by the Company with respect to the three fiscal years ended immediately prior to the fiscal year in which the Date of termination occurs; plus (C) all other amounts to which he is entitled under any compensation plan of the Company, in cash in a lump sum no later than the 15th day following the Date of Termination, as follows:;
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) for a 24-month period after the Date of Termination, the Company shall arrange to provide the Employee with life, disability, accident and health insurance benefits substantially similar to those which the Employee and his covered family members are receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control); provided, however, that such continued benefits shall be reduced to the extent comparable benefits are actually received by or made available to the Employee without cost during the 24-month period following the Employee's termination of employment is terminated either by (and the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal agrees that he shall promptly report any such benefits actually received to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"Company); and and
(iii) all other damages to which the Company shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Company which are in effect on the date the Notice of Termination is sent to the Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against actions which may be entitled as a matter of law applicable to such acts or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementomissions.
(e) In Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Employee in connection with the termination of a termination the Employee's employment (whether such benefit is pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, and all such payments and benefits being hereinafter called "Total Payments") would not be deductible (in whole or part), by the Employee Company as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes application of Section 280G of the Internal Revenue Code of 1986 1986, as amended (as amended"Code"), then, to the extent necessary to make the nondeductible portion of the Total Payments deductible, (i) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of the cash payments under this Agreement unless agreed shall first be reduced (if necessary, to by the Employeezero). In the event of a termination of , and (ii) all other non-cash payments under this Agreement by the Employee as a result of a Change of Control the amount payable pursuant shall next be reduced (if necessary, to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(dzero). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) If it is established as described in the preceding subsection (d) that the aggregate benefits paid to or for the Employee's benefit are in an amount that would result in any portion of such "parachute payments" not being deductible by reason of Section 280G of the Code, then the Employee shall have an obligation to pay the Company upon demand an amount equal to the sum of: (i) the excess of the aggregate "parachute payments" paid to or for the Employee's benefit over the aggregate "parachute payments" that could have been paid to or for the Employee's benefit without any portion of such "parachute payments" not being deductible by reason of Section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at the rate provided in Section 1274(b)(2)(B) of the Code from the date of the Employee's receipt of such excess until the date of such payment.
(g) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 Agreement by seeking other employment or otherwise, nor shall .
(h) If the amount employment of any payment provided for in this Section 9 be reduced the Employee is terminated by any compensation earned the Company without Cause or the Employee's employment is terminated by the Employee as under conditions entitling him to payment hereunder and the result Company fails to make timely payment of employment by another employer or business or by profits earned by the amounts then owed to the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirectunder this Agreement, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would shall be entitled to under Section 9(d)(ii)(B) if he terminated his employment interest on such amounts at the rate of 1% above the prime rate (defined as the base rate on corporate loans at large U.S. money center commercial banks as published by the Wall Street Journal), compounded monthly, for Good Reason, except for purposes of implementing the foregoing, period from the date on such amounts were otherwise due until payment is made to the Employee (which any such succession becomes effective interest shall be deemed in addition to all rights which the Date of Termination. As used in Employee is otherwise entitled to under this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law).
Appears in 1 contract
Sources: Employment Agreement (Ihop Corp)
Compensation Upon Termination or During Disability. Upon termination of Employee's employment hereunder or during any period of Employee's physical or mental disability, Employee shall be paid as follows:
(a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until annual base salary at the rate then in effect during any Disability Period provided, however, that such payments shall not continue beyond the earlier of (i) the end of the Term, or (ii) the Date of Termination of this Agreement by the Company pursuant to Section 10(e)(ii), provided that payments so made to Employee shall be reduced by the sum of the amounts, if any, payable to Employee under any disability benefit plans of the Company and which were not previously applied to reduce any such payment. In addition the Company shall reimburse Employee for any theretofore unreimbursed expenses which were incurred prior to the commencement of the Disability Period.
(b) If Employee's employment is terminated pursuant by his death, the Company shall pay to Section 6.2 of this AgreementEmployee's designated beneficiaries, or until if he leaves no designated beneficiaries, to his estate, his annual base salary through the Employee terminates his employment pursuant to Section 6.4(a) date of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, Employee's death at the rate then in effect at and any theretofore unreimbursed expenses and the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal Company shall have no further obligations to 50% of the Salary which would have been in effect Employee under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer Company shall pay the Employee his full Salary through annual base salary (but not the Date of Termination, at the rate compensation described in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(dSections 4(b)) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent given and the Company shall have no further obligations to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(ed) In If the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay Company shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amendedi) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the terminate Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable 's employment other than pursuant to Section 9(d10(b) shall be increased so that after payment of or 10(c) hereof; (ii) assign to Employee any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the duties materially inconsistent with Employee's position in the Company; or (iii) assign to Employee a title, office or status which is inconsistent than that such payments are not subject established herein (unless in the nature of a promotion) then, in addition to excise tax in reimbursement of Employee for any dealings theretofore unreimbursed expenses, the Company shall pay Employee, with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the no offset, an amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory equal to the greater of (a) Employee's annual base salary at the rate in effect at the time Notice of Termination is given, to expressly assume and agree to perform this Agreement in for the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach unexpired term of this Agreement and payment for any accrued, but unused vacation days hereunder; or (b) six (6) months of Employee's annual base salary at the rate in effect at the time Notice of Termination is given and payment for any accrued, but untaken vacation days hereunder. Such payments to be made in a single lump sum within ten (10) days of the termination of this Agreement. During the term of this Agreement Employee shall entitle give the Company immediate notice of any change of address. If Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated shall terminate his employment for Good Reason, except for purposes of implementing the foregoingpursuant to Section 10(d), the date on which Company shall pay Employee, in addition to reimbursement of any such succession becomes effective shall be deemed theretofore unreimbursed expenses, his full salary through the Date of Termination. As used Termination at the rate in effect on the date that Notice of Termination is received by the Company, plus payment for any accrued, but untaken vacation days hereunder and the Company shall have no further obligation to Employee under this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. In the event Executive is disabled or his employment terminates during the Employment Period, the Company shall provide Executive with the payments set forth below. Executive acknowledges and agrees that the payments set forth in this Section 8 constitute liquidated damages for termination of his employment during the Employment Period and that prior to receiving any such payments and as a material condition thereof, Executive shall sign and agree to be bound by a general release of claims against the Company and any entity in control of, controlled by or under common control with the Company (an "Affiliate") in such form as is reasonably satisfactory to the Company.
(a) If the Employee's employment shall be Executive is terminated by reason of his deathpursuant to Sections 6(a), 6(b), 6(c) 6(d), or 6(f), the Employer Company shall pay to such person as he shall designate in writing filed with the EmployerExecutive his accrued, or if no such person shall be designatedbut unpaid Base Salary and, to his estate as a lump sum benefitthe extent permitted by the Company's vacation policy, his full Salary accrued vacation pay, through the Date of Termination (the "Accrued Benefits"), and the Company shall have no further obligations to the date of his death in addition to any payments to the Employee's spouseExecutive under this Agreement; provided, beneficiaries or estate may that, Executive shall also be entitled to receive any other benefit or payment provided pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain Company in effectaccordance with such plan's or policy's terms.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the EmployeeIf Executive's employment is terminated pursuant to Section 6.2 6(e), Executive shall be entitled to (i) payment of this Agreement, or his Accrued Benefits and (ii) the Company shall continue to pay Executive his Base Salary until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% remainder of the Salary which would have been in effect Employment Period as though the termination under this AgreementSection 6(e) had not occurred; provided, plusthat, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officerssuch period shall not be less than three (3) months. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee The Company shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Executive under this Agreement; provided, including the obligations to indemnifythat, defend and hold harmless the Employee, Executive shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall also be entitled to initially receive the entire amount any other benefit or payment provided for in Section 9(d) and shall not be required pursuant to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (plan or an appropriate court) to have been in excess policy of the permitted amount and the Employer agrees to use its best efforts to support the EmployeeCompany in accordance with such plan's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsor policy's terms.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a6.4(c) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 10060% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, unless and thereafter except for one additional year at an annual rate equal to 50% of any such amounts actually received by the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or Employee pursuant to plans provided by the Employer to its executive officersCompany's long-term disability insurance program. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first tenth day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) : If the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, at any time during the Initial Term or any Renewal Term or within twelve months after a Change of Control (provided that if the Change of Control is pursuant to Section 6.4.2(b) of this Agreement, it is ascertainable on the date of such Termination that such Change of Control has occurred), a lump sum amount equal to the highest of (xA) $300,000 Salary (excluding any bonus or (y) three (3) times total compensation (including value of the stock options granted during perquisites, such period) as health and life insurance and car allowance, etc). received by Employee received or earned by the Employee from the Employer during the twelve month period months prior to such Date of the Termination Date, multiplied by (B) two and ninety-nine hundredths (2.99)) ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which any excise tax is due on the Severance Pay is as set forth above in Section 9(d)Pay, then the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any the excise tax on the Employee shall receive the amount specified in Section 9(d). The Employee Severance Pay shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer paid as well as any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that income tax payable on such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingstax.
(f) The Employee shall not be required as a condition to mitigate receiving any amounts under Section IX(d), provide the amount Employer with an acceptable form of any payment provided for in this Section 9 by seeking other employment or otherwiserelease agreement, nor shall whereby the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee Employer is released from any other source at any time before and after the Date of Terminationits obligations hereunder.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness ("disability period"), the Employee shall continue to receive his Salary full salary at the rate then in effect for such period until the Employee's his employment is terminated pursuant to Section 6.2 10(b), provided that payments so made to Employee during the disability period shall be reduced by the sum of this Agreementthe amounts, if any, payable to Employee at or prior to the time of any such payment under disability benefit plans of the Company and which were not previously applied to reduce any such payment.
(b) If Employee's employment is terminated by his death, the Company shall pay to Employee's spouse, or until the Employee terminates if he leaves no spouse to his employment pursuant estate, an amount equal to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, full salary at the rate then in effect at for a period of one year after the time Notice date of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)death.
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer Company shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary salary through the Date of Termination at the rate in effect at the time Notice of Termination is given.
(d) If (i) in breach of this Agreement, the Company shall terminate Employee's employment other than pursuant to Section 10(b) or 10(c) (it being understood that a purported termination pursuant to Section 10(b) or 10(c) which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (ii) Employee shall terminate his employment for Good Reason, then
(A) the Company shall (I) pay Employee his full salary and provide Employee his benefits through the Date of Termination at the rate or level in effect at the time Notice of Termination is given and (II) pay Employee his full Bonus for the calendar year in which the Date of Termination occurs, at such time as such Bonus would have been paid if Employee's employment by the Company had not so terminated;
(iiB) in lieu of any further salary or bonus payments to Employee for periods subsequent to the Date of Termination Termination, the Company shall pay as severance pay to Employee an amount equal to (1) Employee's average annual cash compensation received from the Company during the three full calendar years immediately preceding the Date of Termination, multiplied by (2) the greater of (w) the number of years (including partial years) that would have been remaining in lieu of any further payments the Employment Period if Employee's employment by the Company had not so terminated but the Employment Period were not thereafter extended pursuant to the proviso of Section 3 and (x) three, such payment to be made (y) if Employee's termination is based on a change of this Agreement)control of the Company, Severance Pay (as hereinafter defined), payable in a lump sum on or before the first fifth day following the Date of Termination, or (z) if Employee's termination results from any other cause, in substantially equal semimonthly installments on the fifteenth and last days of each month commencing with the month in which the Date of Termination occurs and continuing for the number of consecutive semimonthly payment dates (including the first such date as follows:aforesaid) equal to the product obtained by multiplying the number of years (including partial years) applicable under clause (w) above by 24;
(AC) all options to purchase the Company's common stock granted to Employee under the Company's option plan or otherwise shall immediately become fully vested and shall terminate on such date as they would have terminated if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Company had not terminated and, if Employee's termination is based on a change of control of the Company and Employee for Good Reason elects, not more than 30 days after the Date of Termination, to surrender any or by all of such options to the Employer other than pursuant to Sections 6.2 Company, the Company shall pay Employee on or 6.3 hereof, before the fifth day following such surrender a lump sum amount cash payment equal to the highest excess of (x1) $300,000 or (y) three (3) times total compensation (including the fair market value of on the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination of the securities issuable upon exercise of the options surrendered over ("Severance Pay"); 2) the aggregate exercise price of the options surrendered;
(D) the Company shall maintain in full force and effect, for the continued benefit of Employee, for a number of years equal to the greater of (1) the number of years (including partial years) that would have been remaining in the Employment Period if Employee's employment by the Company had not so terminated but the Employment Period were not thereafter extended pursuant to the proviso of Section 3 and (iii2) three, all employee benefit plans and programs in which Employee was entitled to participate immediately prior to the Date of Termination provided that Employee's continued participation is possible under the general terms and provisions of such plans and programs. In the event that Employee's participation in any such plan or program is barred, the Company shall arrange to provide Employee with benefits substantially similar to those which Employee would otherwise have been entitled to receive under such plans and programs from which his continued participation is barred; and
(E) if termination of Employee's employment arises out of a breach by the Company of this Agreement, the Company shall pay all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreementsuch breach, including damages for any and all costs loss of benefits to Employee under the Company's employee benefit plans which Employee would have received if the Company had not breached this Agreement and expense had Employee's employment continued for the then remaining term of the Employment Period but the Employment Period were not thereafter extended pursuant to the proviso of Section 3, and including all reasonable legal fees and expenses incurred by him (including attorneys fees) in contesting or disputing any as a result of such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementtermination.
(e) In the event of a termination of this Agreement by the If Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in shall terminate his employment under Section 9(d10(d)(ii), the Severance Pay Company shall be pay Employee his full salary through the average taxable compensation Date of Termination at the Employee for rate in effect at the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes time Notice of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which Termination is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsgiven.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 11 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement Notwithstanding anything in form and substance satisfactory this Agreement to the Employeecontrary, the Company shall not be obligated to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness pay any portion of any amount otherwise payable to Employee pursuant to this Section 11 if the Company could not reasonably deduct such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement portion solely by operation of lawSection 280G of the Internal Revenue Code of 1986, as amended.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness ("disability period"), the Employee Executive shall continue to receive his Salary full salary at the rate then in effect for such period until the Employee's his employment is terminated pursuant to Section 6.2 7(b) hereof, and for a period of this Agreementsix (6) months thereafter, provided that payments so made to the Executive during the first six (6) months of the disability period shall be reduced by the sum of the amounts, if any, payable to the Executive at or prior to the time of any such payment under disability benefit plans of the Company and which were not previously applied to reduce any such payment.
(b) If the Executive's employment is terminated by his death, the Company shall pay to the Executive's spouse, or if he leaves no spouse, to his estate, commencing on the next succeeding day which is the fifteenth day or last day of the month, as the case may be, and monthly thereafter on the fifteenth and last days of each month, until a total of six (6) payments have been made, an amount on each payment date equal to the Employee terminates his employment monthly salary payment to the Executive pursuant to Section 6.4(a5(a) hereof at the time of this Agreement, whichever first occurs. After terminationhis death.
(c) If the Executive's employment shall be terminated for Cause, the Employee Company shall be paid, in equal monthly installments, 100% pay the Executive his full salary through the Date of his Salary, Termination at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, given and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, Company shall have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Executive under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer Company shall terminate the EmployeeExecutive's employment other than pursuant to Sections 6.2 Section 7(b) or 6.3 7(c) hereof (it being understood that a purported termination pursuant to Section 6.2 7(b) or 6.3 7(c) hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer Company in breach of this Agreement), including as a result of a Change of Control, and/or ) or (B) the Employee Executive shall terminate his employment for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer shall pay to the Employeethen:
(i) the Company shall pay the Executive his full Salary salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination Termination, the Company shall pay as severance pay to the Executive an amount equal to the product of (A) the Executive's annual salary rate in lieu effect as of any further payments pursuant to Section 3 the Date of this AgreementTermination, multiplied by (B) the greater of the number of years (including partial years) remaining in the term of employment hereunder or the number three (3), Severance Pay such payment to be made (as hereinafter defined)X) if resulting from a termination based on a change of control of the Company, payable in a lump sum on or before the first fifth day following the Date of Termination, as follows:
or (AY) if resulting from any other cause, in substantially equal monthly installments commencing with the month in which the Date of Termination occurs and continuing for the number of consecutive monthly payment dates (iincluding the first such date as aforesaid) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest product obtained by multiplying the number of (x) $300,000 or (y) three (3) times total compensation years (including value of the stock options granted during such periodpartial years) earned applicable under (ii)(B) above by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"12); and and
(iii) if termination of the Executive's employment arises out of a breach by the Company of this Agreement, the Company shall pay all other damages to which the Employee Executive may be entitled as a matter of law or equity as result of the termination of his employment under this Agreementsuch breach, including damages for any and all costs loss of benefits to the Executive under the Company's employee benefit plans (other than the Company's Incentive Compensation Plan) which the Executive would have received if the Company had not breached this Agreement and expense had the Executive's employment continued for the full term provided in Section 2 hereof, and including all legal fees and expenses incurred by him (including attorneys fees) in contesting or disputing any as a result of such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementtermination.
(e) In If the event Executive shall terminate his employment under clause (ii) of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d)7(d) hereof, the Severance Pay Company shall be pay the average taxable compensation Executive his full salary through the Date of Termination at the Employee for rate in effect at the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes time Notice of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which Termination is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsgiven.
(f) Unless the Executive is terminated for Cause, the Company shall maintain in full force and effect, for the continued benefit of the Executive for the greater of the number of years (including partial years) remaining in the term of employment hereunder or the number three (3), all employee benefit plans and programs in which the Executive was entitled to participate immediately prior to the Date of Termination provided that the Executive's continued participation is possible under the general terms and provisions of such plans and programs. In the event that the Executive's continued participation is possible under the general terms and provisions of such plans and programs. In the event that the Executive's participation in any such plan or program is barred, the Company shall arrange to provide the Executive with benefits substantially similar to those which the Executive would otherwise have been entitled to receive under such plans and programs from which his continued participation is barred.
(g) The Employee Executive shall not be required to mitigate the amount of any payment provided for in this Section 9 8 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Sources: Employment Agreement (Endorex Corp)
Compensation Upon Termination or During Disability. The Employee shall be entitled to the following benefits during a period of disability, or upon termination of his employment, as the case may be, provided that such period or termination occurs during the Term of this Agreement:
(a) If During any period that the Employee fails to perform his full-time duties with the Company as a result of incapacity due to physical or mental illness, he shall continue to receive his base salary at the rate in effect at the commencement of any such period, together with all compensation payable to him under the Company's disability plan or program or other similar plan during such period, until his employment is terminated pursuant to Section 11 hereof. Thereafter, or in the event the Employee's employment shall be terminated by reason of his death, his benefits shall be determined under the Employer shall pay to such person as he shall designate Company's retirement, insurance and other compensation programs then in writing filed effect in accordance with the Employer, or if no terms of such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effectprograms.
(b) During If at any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated terminated: (i) by the Company for Cause or terminated Disability or (ii) by the Employee without him for any reason (other than a Voluntary Termination or for Good Reason prior to or more than twelve months after, a Change of Control, following the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result occurrence of a Change of in Control), and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer Company shall pay to the Employee:
(i) him his full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which he is entitled through the Date of Termination under any compensation plan of the Company at the time such payments are due, and the Company shall have no further obligations to him under this Agreement.
(c) If the Employee's employment should be terminated: (1) by reason of his death, (2) by the Company other than for Cause or Disability or (3) by the Employee in a Voluntary Termination, he shall be entitled to the benefits provided below:
(i) the Company shall pay to the Employee or the appropriate payee (as determined in accordance with Section 13(c)) (A) his full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; plus (B) (x) in the case of death or a Voluntary Termination all salary and bonus payments that would have been payable to the Employee pursuant to this Agreement for the remaining Term of this Agreement, or (y) in all other cases, all salary and bonus payments that would have been payable to the Employee had the Employee continued to be employed for a period of 12 months, assuming for the purpose of such payments that his salary for such remaining period is equal to his salary at the Date of Termination and that his annual bonus for such remaining Term is equal to the average of the annual bonuses paid to him by the Company with respect to the three fiscal years ended immediately prior to the fiscal year in which the Date of termination occurs; plus (C) all other amounts to which he is entitled under any compensation plan of the Company, in cash in a lump sum no later than the 15th day following the Date of Termination;
(ii) for periods a 12-month period after the Date of Termination, the Company shall arrange to provide the Employee with life, disability, accident and health insurance benefits substantially similar to those which the Employee and his covered family members are receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control); provided, however, that such continued benefits shall be reduced to the extent comparable benefits are actually received by or made available to the Employee without cost during the 12-month period following the Employee's termination of employment (and the Employee agrees that he shall promptly report any such benefits actually received to the Company); and
(iii) the Company shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Company which are in effect on the date of the Notice of Termination is sent to the Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against actions which may be applicable to such acts or omissions.
(d) If the Employee's employment should be terminated by the Employee for Good Reason following a Change in Control, he shall be entitled to the benefits provided below:
(i) the Company shall pay to the Employee or the appropriate payee (as determined in accordance with Section 13(c)) (A) his full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; plus (B) (x) in lieu the case of any further death or a Voluntary Termination all salary and bonus payments that would have been payable to the Employee pursuant to Section 3 this Agreement for the remaining Term of this Agreement), Severance Pay or (as hereinafter defined)y) in all other cases, all salary and bonus payments that would have been payable on to the first Employee had the Employee continued to be employed for a period of 24 months, assuming for the purpose of such payments that his salary for such remaining period is equal to his salary at the Date of Termination and that his annual bonus for such remaining Term is equal to the average of the annual bonuses paid to him by the Company with respect to the three fiscal years ended immediately prior to the fiscal year in which the Date of termination occurs; plus (C) all other amounts to which he is entitled under any compensation plan of the Company, in cash in a lump sum no later than the 15th day following the Date of Termination, as follows:;
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) for a 24-month period after the Date of Termination, the Company shall arrange to provide the Employee with life, disability, accident and health insurance benefits substantially similar to those which the Employee and his covered family members are receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control); provided, however, that such continued benefits shall be reduced to the extent comparable benefits are actually received by or made available to the Employee without cost during the 24-month period following the Employee's termination of employment is terminated either by (and the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal agrees that he shall promptly report any such benefits actually received to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"Company); and and
(iii) all other damages to which the Company shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Company which are in effect on the date the Notice of Termination is sent to the Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against actions which may be entitled as a matter of law applicable to such acts or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementomissions.
(e) In Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Employee in connection with the termination of a termination the Employee's employment (whether such benefit is pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, and all such payments and benefits being hereinafter called "Total Payments") would not be deductible (in whole or part), by the Employee Company as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes application of Section 280G of the Internal Revenue Code of 1986 1986, as amended (as amended"Code"), then, to the extent necessary to make the nondeductible portion of the Total Payments deductible, (i) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of the cash payments under this Agreement unless agreed shall first be reduced (if necessary, to by the Employeezero). In the event of a termination of , and (ii) all other non-cash payments under this Agreement by the Employee as a result of a Change of Control the amount payable pursuant shall next be reduced (if necessary, to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(dzero). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) If it is established as described in the preceding subsection (d) that the aggregate benefits paid to or for the Employee's benefit are in an amount that would result in any portion of such "parachute payments" not being deductible by reason of Section 280G of the Code, then the Employee shall have an obligation to pay the Company upon demand an amount equal to the sum of: (i) the excess of the aggregate "parachute payments" paid to or for the Employee's benefit over the aggregate "parachute payments" that could have been paid to or for Employee's benefit without any portion of such "parachute payments" not being deductible by reason of Section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at the rate provided in Section 1274(b)(2)(B) of the Code from the date of the Employee's receipt of such excess until the date of such payment.
(g) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 Agreement by seeking other employment or otherwise, nor shall .
(h) If the amount employment of any payment provided for in this Section 9 be reduced the Employee is terminated by any compensation earned the Company without Cause or the Employee's employment is terminated by the Employee as under conditions entitling him to payment hereunder and the result Company fails to make timely payment of employment by another employer or business or by profits earned by the amounts then owed to the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirectunder this Agreement, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would shall be entitled to under Section 9(d)(ii)(B) if he terminated his employment interest on such amounts at the rate of 1% above the prime rate (defined as the base rate on corporate loans at large U.S. money center commercial banks as published by the Wall Street Journal), compounded monthly, for Good Reason, except for purposes of implementing the foregoing, period from the date on such amounts were otherwise due until payment is made to the Employee (which any such succession becomes effective interest shall be deemed in addition to all rights which the Date of Termination. As used in Employee is otherwise entitled to under this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law).
Appears in 1 contract
Sources: Employment Agreement (Ihop Corp)
Compensation Upon Termination or During Disability. The Employee shall be entitled to the following benefits during a period of disability, or upon termination of his employment, as the case may be, provided that such period or termination occurs prior to the expiration of this Agreement:
(a) If During any period that the Employee fails to perform his full- time duties with the Employer as a result of incapacity due to physical or mental illness, he shall continue to receive his base salary at the rate in effect at the commencement of any such period together with all compensation payable to him under the Employer's disability plan or program or other similar plan during such period, until his employment event the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person his benefits shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge determined under the Employer's obligations retirement, insurance and other compensation programs then in effect in accordance with respect to Section 3 the terms of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effectsuch programs.
(b) During If at any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated (i) by reason of his death (ii) by the Employer for Cause or terminated Disability or (iii) by him for any reason (other than, following the Employee without Good Reason prior to or more than twelve months after, occurrence of a Change of in Control, for Good Reason), the Employer shall pay him or the Employee his full Salary through appropriate payee, as the Date of Termination, at the rate case may be (as determined in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance accordance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d9(b) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(ihereof) his full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;, plus all other amounts to which he is entitled under any compensation plan of the Employer at the time such payments are due, and the Employer shall have no further obligations to him under this Agreement.
(iic) If, prior to a Change in Control, the Employee's employment shall be terminated by the Employer other than for periods subsequent Cause or Disability, he shall be entitled to the benefits provided below:
(i) the Employer shall pay to the Employee his full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given, no later than the fifth (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first 5th) day following the Date of Termination, as follows:plus all other amounts to which he is entitled under any compensation plan of the Employer, at the time such payments are due;
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employer shall pay the Employee, at the time such payments would have been made had the Employee's employment not been terminated hereunder, all salary, bonus payments and vested portions of retirement and employee benefit plans that would have been payable to the Employee pursuant to this Agreement had the Employee continued to be employed for the remaining duration of this Agreement, assuming for the purpose of such continuing payments that the Employee's salary for each year of such remaining duration is equal to his salary at the Date of Termination and that his annual bonus for each year of such remaining duration is equal to the average of the annual bonuses paid to him by the Employer with respect to the three (or, if less, the number of years the Employee has been employed by the Employer) fiscal years ended immediately prior to the fiscal year in which the Date of Termination occurs; and
(iii) the Employer shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Employer which are in effect on the date the Notice of Termination is sent to the Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against actions which may be applicable to such acts or omissions.
(d) If, following a Change in Control, the Employee's employment should be terminated either by the Employer other than for Cause or Disability or by the Employee for Good Reason or Reason, he shall be entitled to the benefits below:
(i) the Employer shall pay to the Employee his full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; plus all salary and bonus payments that would have been payable to the Employee pursuant to this Agreement had the Employee continued to be employed for the duration of this Agreement, assuming for the purpose of such payments that his salary for each year of such duration is equal to his salary at the Date of Termination and that his annual bonus for each year of such duration is equal to the average of the annual bonuses paid to him by the Employer (or its predecessors) with respect to the three (or, if less, the number of years the Employee has been employed with the Employer and its predecessors) fiscal years ended immediately prior to the fiscal year in which the Date of Termination occurs; plus all other than pursuant amounts to Sections 6.2 or 6.3 hereofwhich he is entitled under any compensation plan of the Employer, including but not limited to vested portions of retirement and employee benefit plans in cash in a lump sum amount equal no later than the fifteenth (15th) day following the Date of Termination; and
(ii) the Employer shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Employer which are in effect on the date the Notice of Termination is sent to the highest Employee with respect to all of (x) $300,000 his acts and omissions while an officer or (y) three (3) times total compensation (including value director as fully and completely as if such termination had not occurred, and until the final expiration or running of the stock options granted during such period) earned by the Employee during the twelve month period prior all periods of limitation against actions which may be applicable to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law acts or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementomissions.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 8 by seeking other employment or otherwise, nor shall .
(f) In the amount event the employment of any payment provided for in this Section 9 be reduced the Employee is terminated by any compensation earned the Employer without Cause or the Employee's employment is terminated by the Employee as under conditions entitling him to payment hereunder and the result Employer fails to make timely payment of employment by another employer or business or by profits earned by the amounts then owed to the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirectunder this Agreement, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would shall be entitled to under Section 9(d)(ii)(Binterest on such amounts at the rate of one percent (1%) if he terminated his employment above the prime rate (defined as the base rate on corporate loans at large U.S. money center commercial banks as published by the Wall Street Journal), compounded monthly, for Good Reason, except for purposes of implementing the foregoing, period from the date on such amounts were otherwise due until payment is made to the Employee (which any such succession becomes effective interest shall be deemed in addition to all rights which the Date of Termination. As used in Employee is otherwise entitled to under this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law).
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee Executive shall continue to receive his Salary full salary at the rate then in effect for such period until the Employee's his employment is terminated pursuant to subsection 6(b) hereof (a "Disability Termination"); and, after such Disability Termination, the Company shall pay to the Executive one hundred percent (100%) of the salary he would have otherwise received under Section 6.2 5 hereof for the partial term remaining in the then current term of this Agreement, or until the Employee terminates his employment Agreement plus an additional amount calculated pursuant to Section 6.4(a) of this Agreementsubsection 7(d)(B), whichever first occurs. After termination, and payment so made to the Employee Executive shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one yearaddition to, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been not in effect under this Agreement, plus, in each caselieu of, any disability payments benefits payable under policies or programs maintained by the Company.
(b) If the Executive's employment is terminated by his death, the Company shall pay any amounts due to the Executive under Section 5 through the date of his death, and the Company shall thereafter pay his legal representative or any beneficiary designated by him in writing one hundred percent (100%) of the salary he would have otherwise payable by or received under Section 5 hereof for the partial term remaining in the then current term of this Agreement plus an additional amount calculated pursuant to plans provided subsection 7(d)(B). Any payment under this subsection 7(b) shall be in addition to, and not in lieu of, any periodic payments of death benefits payable under policies or programs maintained by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)Company.
(c) If the EmployeeExecutive's employment shall be terminated by the Company for Cause or terminated by the Employee without Good Reason prior Executive other than pursuant to or more than twelve months after, a Change of Controlsubsection 6(d), the Employer Company shall pay the Employee his full Salary Executive any amounts due under Section 5 through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.;
(d) If (Ai) in breach of this Agreement, the Employer shall terminate the EmployeeExecutive's employment is terminated by the Company for any reason other than pursuant for Cause, (ii) the Company elects not to Sections 6.2 or 6.3 hereof (it being understood that a purported termination renew this Agreement pursuant to Section 6.2 2 hereof, or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (Biii) the Employee Executive shall terminate his employment for Good Reason or at any time within twelve months after a Change of Controlpursuant to subsection 6(d), then the Employer Company shall pay to the Employee:
(i) his full Salary through Executive the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as followsfollowing:
(A) if any and all amounts due under Section 5(a) through the Date of Termination; and
(iB) the Employee, with greater of the amount of salary the Executive would have otherwise received under Section 5 hereof for the partial term remaining in the then current term of this Agreement or without Good Reason, terminates his employment six (6) months salary at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee rate then in effect for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, such period. This amount shall be paid as a lump sum amount equal to the highest of Executive within thirty (x30) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result days of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementemployment.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Sources: Employment Agreement (National Bancshares Corp of Texas)
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness ("Disability Period"), the Employee Executive shall continue to receive his Base Salary at the rate then in effect for such period until the Employee's his employment is terminated pursuant to Section 6.2 6(a)(ii) hereof, provided that payments so made to the Executive shall be reduced by the sum of this Agreementthe amounts, if any, payable to the Executive at or until prior to the Employee terminates time of any such payment under disability benefit plans of the Company or under the Social Security disability insurance program, and which amounts were not previously applied to reduce any such payment.
(b) If the Executive's employment is terminated by his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After terminationdeath, the Employee Company shall be paidpay, in equal monthly installmentsaccordance with Section 10(b) hereof, 100% any amounts due to the Executive under Section 4 hereof through the date of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)death.
(c) If the EmployeeExecutive's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior Company for Cause, pursuant to or more than twelve months after, a Change of Control, section 6(a)(iii) the Employer Company shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
Executive (i) his full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
; (ii) for periods subsequent to the Date of Termination (in lieu of any further payments Bonus declared -6- 7 and payable pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A4(b) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); hereof and (iii) all other damages any expense reimbursements due the Executive pursuant to which Section 4(f) hereof. Following such payments the Employee may be entitled as a matter of law or equity as result of Company shall have no further obligations to the termination of his employment Executive under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(ed) In If (i) the event of a termination of this Agreement by Company shall terminate the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable Executive's employment pursuant to Section 9(d6(b) hereof, (ii) the Executive shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated terminate his employment for Good ReasonReason pursuant to Section 6(c)(ii), except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.then:
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment The Executive shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension the following benefits during a period of disability, or employee benefit plan upon termination of his employment, as the case may be, if such period or life insurance policy or similar plan or policy then maintained by termination occurs during the Employer, and such payments shall, assuming the Employer is in compliance with the provisions Term of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.:
(ba) During any period that the Employee Executive fails to perform his full-time duties hereunder with the Company as a result of incapacity due to physical or mental illness, the Employee injury or similar incapacity, he shall continue to receive his Salary compensation and other benefits payable to him under this Agreement at the rate in effect at the commencement of any such period, less amounts payable to him under the Company’s disability plan or program or other similar plan during such period, or under any governmental program, until the Employee's his employment is terminated pursuant to Section 6.2 8(a) hereof. If, during any period of disability, the Executive’s employment shall be terminated by reason of his death, disability or the expiration of this Agreement, notwithstanding the provisions of this section, his pay shall cease and his benefits, if any, shall be determined solely under the Company’s retirement, insurance and other compensation programs then in effect in accordance with the terms of such programs, and the Company shall have no further obligations to him under this Agreement.
(b) If at any time the Executive’s employment shall be terminated (i) by reason of his death, (ii) by the Company for Cause or until the Employee terminates his employment Disability, or (iii) by him (other than by reason of a constructive termination pursuant to Section 6.4(a8(c) of this Agreement, whichever first occurs. After terminationhereof), the Employee Company shall be paidpay him (or his appropriate payee, as determined in equal monthly installments, 100% accordance with Section 11(c) hereof) his full base salary through the Date of his Salary, Termination at the rate in effect at the time Notice of Termination is given, for one yearplus all other amounts to which he is entitled from the Company through the Date of Termination under any compensation plan in each case at the time such payments are due, and thereafter for one additional year at an annual rate equal the Company shall have no further obligations to 50% of the Salary which would have been in effect him under this Agreement, plus. In addition, in each case, any disability payments otherwise payable the event the Executive’s employment is terminated by reason of the Executive’s death or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his healthDisability, the Employee Executive (or his appropriate payee) shall provide consulting services be entitled to receive a pro rata portion of any bonus that would otherwise have been payable to the Employer during Executive with respect to the period that he year in which the Executive’s employment is receiving payments pursuant terminated. For purposes of this provision, if the Executive’s bonus for such year has not been determined, the Executive shall be deemed to this Section 9(b)have been entitled to a bonus equal to the bonus paid or payable to the Executive with respect to the immediately preceding year.
(c) If the Employee's Executive’s employment shall should be terminated by the Company other than for Cause or terminated Disability or by the Employee without Good Reason prior Executive by reason of a constructive termination pursuant to Section 8(c) hereof, he shall receive the payments and benefits provided below (“Severance Payments”); provided, however, in order to be entitled to any payments or more benefits other than twelve months afterthose specified in subparagraph (i) below Executive must execute a release, in a Change form acceptable to the Company, of Controlthe Company and any subsidiaries and affiliates of the Company and their respective officers, the Employer directors, stockholders, employees and agents:
(i) The Company shall pay to the Employee Executive his full Salary base salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and plus all other amounts to which he is entitled under any compensation plan of the Employer shallCompany, assuming in each case at the Employer is time such payments are due;
(ii) In addition:
(A) in compliance with the provisions event of either (1) a termination by the Company other than for Cause or Disability or (2) a constructive termination pursuant to Section 8(c) pursuant to any subsection other than (iii) (Change in Control), the Company shall pay the Executive, at the time such payments would have been made had the Executive’s employment not been terminated hereunder, all salary payments that would have been payable to the Executive pursuant to this Agreement had the Executive continued to be employed for the greater of (x) the remaining Term of this AgreementAgreement or (y) six months (the “Severance Period”) (assuming for the purpose of such continuing payments that the Executive’s salary for such period is to be based on his rate of salary at the Date of Termination), plus any bonus that would otherwise have no further obligations been payable to the Executive with respect to the Severance Period; provided, however, that to the extent the Executive’s bonus for any portion of such Severance Period had not been determined, the Executive shall be deemed to have been entitled to a bonus equal to the bonus paid or payable to the Executive with respect to the calendar year ended immediately prior to the Date of Termination OR
(B) in the event of a constructive termination pursuant to Section 3 8(c)(iii) (Change in Control), the Company shall pay the Executive in a lump sum, all salary payments that would have been payable to the Executive pursuant to this Agreement had the Executive continued to be employed for the greater of (x) the remaining Term of this AgreementAgreement or (y) two years (the “Severance Period”) (assuming for the purpose of such continuing payments that the Executive’s salary for such period is to be based on his rate of salary at the Date of Termination), plus any bonus that would otherwise have been payable to the Executive with respect to the Severance Period; provided, however, that to the extent the Executive’s bonus for any portion of such Severance Period had not been determined, the Executive shall be deemed to have been entitled to a bonus equal to the bonus paid or payable to the Executive with respect to the calendar year ended immediately prior to the Date of Termination;
(iii) Notwithstanding any provisions in the applicable plans governing them, all stock option rights, stock appreciation rights and any and all other similar rights theretofore granted to the Executive, including, but not limited to, the Executive’s right to receive cash in lieu of exercising stock options, as may be provided in his stock option agreements, shall vest and shall then be exercisable in full, and the Executive shall have 90 days following his termination within which to exercise any and all other obligations such rights and the restrictions on any and all shares of restricted stock granted to the Executive that are outstanding on the Date of Termination shall lapse as of the Employer Date of Termination;
(iv) The Company’s group health plans allow for benefits to extend beyond employment, under this Agreementcertain circumstances and for a specified length of time, including as defined by the obligations federal law called the Consolidated Omnibus Budget Reconciliation Act of 1985 (commonly known as “COBRA”). During the Severance Period, if the Executive and his family are eligible for COBRA coverage, the Company shall, at its cost, pay the Executive’s COBRA premium for his and his family’s coverage, as applicable, under the medical, dental, vision and the employee assistance plan, up until the Executive is no longer eligible for COBRA, or the end of the Severance Period, whichever occurs first. If upon completion of federal COBRA, the Executive and his family are then eligible for the corresponding California COBRA law, AB 1401 (“Cal-COBRA”), which applies to indemnifymedical coverage only, defend the Company shall, at its cost, pay the Executive’s Cal-COBRA premium for his and hold harmless his family’s coverage, as applicable, up until the EmployeeExecutive is no longer eligible for Cal-COBRA, shall remain or the end of the Severance Period, whichever occurs first. During the Severance Period, the Company shall, at its cost, arrange to provide the Executive with life insurance (excluding accidental death and dismemberment). The amount of life insurance coverage will be equal to that in effecteffect for the Executive on the Date of Termination under the Company’s group life insurance program (subject to the age reduction schedule). The Company agrees to pay an additional amount necessary to reimburse the Executive for any taxes imposed solely by reason of his receipt of such benefits following termination of his employment as stated herein.
(d) If (A) in breach of this Agreement, the Employer The Company shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate continue in effect at for the time benefit of the Executive all insurance or other provisions for the indemnification, defense or hold-harmless of officers or directors of the Company that are in effect on the date the Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either given by the Employee for Good Reason Executive or by the Employer other than pursuant Company with respect to Sections 6.2 all of his acts and omissions while an officer as fully and completely as if such termination had not occurred, and until the final expiration or 6.3 hereof, a lump sum amount equal to the highest running of (x) $300,000 or (y) three (3) times total compensation (including value all periods of the stock options granted during such period) earned by the Employee during the twelve month period prior limitation against actions that may be applicable to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law acts or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementomissions.
(e) In Notwithstanding anything to the contrary in this Agreement, in the event of a termination of this Agreement by that the Employee as a result of a Change of Control pursuant Executive becomes entitled to which the Severance Pay is as set forth above in Section 9(d)Payments, if any of the Severance Pay shall Payments will be subject to the average taxable compensation of tax (the Employee for the five taxable years prior to such termination or such higher amount as may be permitted “Excise Tax”) imposed by the Internal Revenue Service to compute "base amount" for purposes of Section 280G section 4999 of the Internal Revenue Code of 1986 1986, as amended (the “Code”), the Company shall pay to the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after payment of any Excise Tax on the Total Payments (as amendedhereinafter defined) multiplied and any federal, state and local income and other tax and Excise Tax upon the Gross-Up Payment provided for by three this Section 9(e), shall be equal to the Total Payments. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (but i) any other payments or benefits received or to be received by the Executive in no event may this amount exceed Severance Pay as provided by Section 9(d) connection with a Change in Control or the Executive’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (which, together with Severance Payments, shall constitute “Total Payments”)), shall be treated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of section 280G(b)(1) shall be treated as subject to the Excise Tax, unless agreed to in the opinion of tax counsel selected by the EmployeeCompany and acceptable to the Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of section 280G(b)(4) of the Code, within the meaning of section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(1) (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the date of termination of employment, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of a termination of this Agreement by the Employee as a result of a Change of Control Executive’s employment, the amount payable pursuant to Section 9(d) Executive shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by Company, at the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position time that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for such reduction in this Section 9 by seeking other employment or otherwiseExcise Tax is finally determined, nor shall the portion of the Gross-Up Payment attributable to such reduction plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive’s employment (including by reason of any payment provided for the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in this Section 9 be reduced by respect of such excess (plus any compensation earned interest, penalties or additions payable by the Employee as Executive with respect to such excess) at the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no amount of such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of lawexcess is finally determined.
Appears in 1 contract
Sources: Employment Agreement (Zenith National Insurance Corp)
Compensation Upon Termination or During Disability. (aIn the event Executive suffers or incurs a Disability as defined in Section 6(b) If or his employment terminates during the Employee's employment Employment Period, the Company shall be terminated by reason provide Executive with the payments and benefits set forth below, subject to the provisions of Section 8(f) hereof. Executive acknowledges and agrees that the payments and benefits set forth in this Section 8 constitute liquidated damages for termination of his deathemployment during the Employment Period.”
3. Section 8(a)(i) of the Employment Agreement is hereby amended in its entirety, to read as follows:
(i) the Employer Company shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to Executive (A) his estate as a lump sum benefit, his full Base Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall accrued vacation pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through soon as practicable V8887/41 01/05/2009 4137777.4 following the Date of Termination at the rate but in effect at the time Notice of Termination is given;
no event later than seventy (ii70) for periods subsequent to days after the Date of Termination and (in lieu of any further payments pursuant B) subject to Section 3 of this Agreement8(f), Severance Pay (as hereinafter defined), payable on over the first day three-year period following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant Company shall pay to Sections 6.2 or 6.3 hereof, a lump sum Executive an amount per annum equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after Base Salary on the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession which shall be a breach of this Agreement and shall entitle paid ratably in accordance with the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing Company’s customary payroll practices. Notwithstanding the foregoing, during the date on which any such succession becomes effective shall be deemed second and third years following the Date of Termination. As used in this Agreement, "Employer" Termination the Company’s obligation to pay continued Base Salary shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound be offset by the terms and conditions economic value of this any compensation actually received (or deferred) for services rendered by Executive to any other entity;”
4. Section 8(a)(iii) of the Employment Agreement by operation of law.is hereby amended in its entirety, to read as follows:
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's your employment shall be terminated by reason of his your death, the Employer Company shall pay pay, to such person as he you shall designate in writing a notice filed with the EmployerCompany, or or, if no such person shall be designated, to his your estate as a lump sum death benefit, his full an amount equal to any accrued but unpaid Base Salary to and a prorated Annual Bonus at the date time of his death your death. This amount shall be exclusive of and in addition to any payments to the Employee's spouseyour widow, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the EmployerCompany. Your designated beneficiary or the executor of your estate, as the case may be, shall accept the payment provided for in this paragraph 8 in full discharge and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations release of the Employer Company of and from any further obligations under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails you fail to perform his your duties hereunder as a result of incapacity due to physical or mental illness, the Employee you shall continue to receive his your full Base Salary and a prorated Annual Bonus until the Employee's your employment is terminated pursuant to Section 6.2 paragraph 7(b) hereof. If your employment is terminated by the Company pursuant to paragraph 7(b), the Company shall be discharged and released of and from any further obligations under this Agreement, . During any such period and thereafter you shall continue to bear the obligations provided for in paragraph 9 below in accordance with the terms of such paragraph 9. Exhibit 10(g) Employment Agreement between Avatar Holdings Inc. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ -- continued
(c) If your employment shall be terminated for Cause or until the Employee terminates his you shall terminate your employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After terminationother than for Good Reason, the Employee Company shall be paid, in equal monthly installments, 100% pay you your full Base Salary through the Date of his Salary, Termination or the date on which you terminate your employment at the rate in effect at the time Notice of Termination is given, for one year, given or the date on which you terminate your employment. The Company shall be discharged and thereafter for one additional year at an annual rate equal to 50% released of the Salary which would have been in effect and from any further obligations under this Agreement. Thereafter, plus, you shall continue to have the obligations provided for in each case, any disability payments otherwise payable by or pursuant paragraph 9 below. Nothing contained herein shall be deemed to plans provided be a waiver by the Employer to its executive officers. To the extent physically and mentally capable Company of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services any rights that it may have against you in respect of your actions which gave rise to the Employer during the period that he is receiving payments pursuant to this Section 9(b)termination of your employment for Cause.
(cd) If the Employee's Company shall terminate your employment other than pursuant to paragraphs 7(b), 7(c) or 7(d) hereof or if you shall be terminated terminate your employment for Cause or terminated by the Employee without Good Reason prior (whether or not during the first two years of your employment hereunder, but after the expiration of any applicable cure period), then
(i) The Company shall continue to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his you your full Base Salary in accordance with normal payroll practices and without interest through the fifth anniversary of the Commencement Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is given in compliance accordance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(dparagraph 7(f) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is givenhereof;
(ii) The Company shall continue to pay you your Annual Bonus in accordance with normal payroll practices and without interest through the fifth anniversary of the Commencement Date; and
(iii) The Company shall maintain in full force and effect, for periods subsequent your continued benefit for the full term of this Agreement, all employee benefit plans and programs in which you were entitled to participate immediately prior to the Date of Termination (provided that your continued participation is possible under the general terms and provisions of such plans and programs. In the event that your participation in lieu of any further payments pursuant such plan or program is barred, you shall be entitled to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum receive an amount equal to the highest of (x) $300,000 annual contributions, payments, credits or (y) three (3) times total compensation (including value of the stock options granted during such period) earned allocations made by the Employee during the twelve month period prior Company to you, to your account or on your behalf under such Date of Termination ("Severance Pay"); plans and (iii) all other damages to programs from which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementyour continued participation is barred.
(e) In If the event Company shall terminate your employment hereunder other than pursuant to paragraphs 7(b), 7(c) or 7(d) hereof, or if you shall terminate your employment pursuant to paragraph 7(e) hereof, you agree, during the entire period of time that you are entitled to receive any benefits pursuant to paragraph 8(d) above, to make known your availability for employment involving services of a termination of this Agreement by the Employee as a result nature substantially similar and of a Change of Control pursuant comparable stature to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation those performed by you on behalf of the Employee Company in a manner customary for executives holding positions substantially similar and of a comparable stature to your position with the five taxable years prior Company. You agree to such termination or such higher amount as may be permitted by keep the Internal Revenue Service to compute "base amount" for purposes of Section 280G Chairman of the Internal Revenue Code Board of 1986 the Company (as amendedor his designee) multiplied apprised of your employment status during such period and , if requested, you will provide appropriate supporting 79 80 Exhibit 10(g) Employment Agreement between Avatar Holdings Inc. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ -- continued documentation with respect to the salary, bonuses or other compensation earned by three (but and benefits made available to you in no event may this amount exceed Severance Pay as provided by Section 9(d) respect of this Agreement unless agreed to by the Employee)such employment. In the event of a termination of you secure employment as described in this Agreement by paragraph (e), the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee Company shall be entitled to initially receive (i) deduct from the entire amount provided for amounts payable to you pursuant to paragraphs 8(d)(i) and 8(d)(ii) above (excluding any accrued but unpaid Annual Bonus through the date of termination) any salary, bonuses or other compensation paid to you in Section 9(dconnection with such employment and (ii) terminate your participation in (and shall not be required to pay you any sums in respect of) any employee benefit plans and programs described in paragraph 8(d)(iii) that are substantially similar to any employee benefit plans and programs in which you participate in connection with such new or existing employment. You agree promptly to repay to the Employer Company any amount which is ultimately and finally determined amounts paid to you by the Internal Revenue Service Company pursuant to paragraphs 8(d)(i) and 8(d)(ii) which the Company was entitled to deduct from such amounts pursuant to this paragraph (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingse).
(f) If the Company shall terminate your employment hereunder pursuant to paragraph 7(d) hereof, then
(i) The Employee Company shall not be required to mitigate pay you your full Base Salary and Annual Bonus through the Date of Termination (it being understood that you shall receive a full Annual Bonus for both the first and second years);
(ii) The Company shall pay you as severance, an aggregate amount of any payment provided for $450,000, which is to be paid over the twelve months following the Date of Termination in this Section 9 by seeking other employment or otherwise, nor equal installments at such times salaries are payable in accordance with normal payroll practices of the Company; and
(iii) the Company shall the amount be discharged and released of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee and from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to further obligations under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing notice filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officersEmployer. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve six months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve six months after a Change of Control; , or (ii) if, prior to and not as a result of a Change of Control, the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (xa) $300,000 1,000,000 or (yb) three (3) times total compensation (including the value of all perquisites, such as health and life insurance and car allowance, etc.) received or earned by the Employee from the Employer during the twelve months prior to the Termination Date, multiplied by the fraction the numerator of which is the number of months remaining in the unexpired of this Agreement and the denominator of which is 12, or
(B) if after or as a result of a Change of Control, the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to ten (10) times the total compensation, (including the value of all perquisites, such as health and life insurance and car allowance, etc.) and the value of all stock options granted during such period) options, received or earned by the Employee during the twelve month period (12) months prior to such Date of Termination (in case of either (ii)(A) or (ii)(B), "Severance Pay"); and and
(iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense legal fees and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(gf) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) hereunder if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness ("disability period"), the Employee Executive shall continue to receive his Salary full salary at the rate then in effect for such period until the Employee's his employment is terminated pursuant to Section 6.2 7(b) hereof, provided that payments so made to the Executive during the first 180 days of this Agreementthe disability period shall be reduced by the sum of the amounts, if any, payable to the Executive at or until prior to the Employee terminates his employment time of any such payment under disability benefit plans of the Company or under the Social Security disability insurance program, and which amounts were not previously applied to reduce any such payment. In addition, upon termination pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination7(b), the Employee Company shall be pay the Executive the Accrued Obligations (as defined in Section 8(b)) through the date of Termination and the Sign-On Equity Grants shall not terminate and shall continue to vest in accordance with Section 5(c)(i) hereof.
(b) If the Executive's employment is terminated by his death, the Company shall pay to the Executive's estate his (w) annual base salary through the Date of Termination, to the extent not previously paid, in equal monthly installmentsand if not yet paid, 100% of his Salary, at any annual bonus earned for the rate in effect at calendar year that preceded the time Notice Date of Termination is given(x) reimbursement for any unreimbursed business expenses incurred by the Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 5(d), (y) payment for one year, and thereafter for one additional year at an annual rate equal to 50% vacation time accrued as of the Salary which would have been in effect Date of Termination but unused and (z) any other amount or benefit due under this Agreement, plus, in each case, any disability payments otherwise payable by an employee benefit plan or pursuant to plans arrangement maintained or provided by the Employer to its executive officersCompany; including the benefits and payments described in the Section 5(e) (such amounts under clauses (w), (x), (y) and (z), collectively the "Accrued Obligations") in accordance with Section 12(c). To the extent physically and mentally capable of so doing without potentially impairing or damaging his healthIn addition, the Employee shall provide consulting services to the Employer during the period that he is receiving payments upon termination pursuant to this Section 9(b)7(a) the Sign-On Equity Grants shall not terminate and shall continue to vest in accordance with Section 5(c)(i) hereof.
(c) If the EmployeeExecutive's employment shall be terminated by the Company for Cause or terminated by the Employee without Executive for other than Good Reason prior to or more than twelve months after, a Change of ControlReason, the Employer Company shall pay the Employee his full Salary Executive the Accrued Obligations (excluding any earned but unpaid bonus for a prior calendar year if the event or events giving rise to the termination for Cause occurred in whole or in part during such prior calendar year) through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, Company shall have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Executive under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer Company shall terminate the EmployeeExecutive's employment other than pursuant to Sections 6.2 without Cause or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee Executive shall terminate his employment for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer shall pay to the Employee:then
(i) his full Salary the Company shall pay the Executive the Accrued Obligations through the Date of Termination at the rate in effect at the time Notice of Termination is given;; and
(ii) for periods subsequent to the Date of Termination Company shall, not later than fifteen (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day 15) business days following the Date of Termination, as follows:
(A) if (i) pay to the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, Executive in a lump sum an amount equal to the highest sum of (x) $300,000 or his then current annual base salary and (y) three the average annual incentive bonus paid or awarded to the Executive during the three-year period (3) times total compensation (including value of or such lesser period during which the stock options granted during such period) earned Executive has been employed by the Employee during Company) preceding the twelve month period prior to such Date calendar year in which the date of Termination ("Severance Pay"); and occurs, but in no event less than $125,000.
(iii) all other damages to which unvested Sign On Equity Grants that would have become vested in accordance with Section 5(c)(i) hereof on the Employee may be entitled December 31 next following the Date of Termination had the Executive remained employed with the Company through such December 31 shall become vested as a matter of law or equity as result of the termination Date of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In Termination on a prorated basis determined on the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation basis of the Employee for number of months elapsed from the five taxable years prior to such termination or such higher amount as may be permitted by most recent December 31 preceding the Internal Revenue Service to compute "base amount" for purposes Date of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after Termination through the Date of Termination.
(ge) The Employer will require any successor (whether direct or indirect, All amounts under this Section 8 shall be conditioned upon the execution by purchase, merger, consolidation or otherwise) to all or substantially all the Executive of a standard release of the business and/or assets of the Employer, by agreement in form Company and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As its affiliates then being generally used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of lawCompany.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the EmployeeExecutive's employment shall be terminated by reason of his death, the Employer Company shall pay to such person as he shall designate in writing notice filed with the EmployerCompany, or or, if no such person shall be designated, to his estate as a lump sum death benefit, his full Salary salary to the date of his death in addition to any payments to the EmployeeExecutive's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the EmployerCompany, and such payments shallshall , assuming the Employer Company is in compliance with the provisions of this Agreement, fully discharge the EmployerCompany's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee Executive shall continue to receive his Base Salary until the EmployeeExecutive's employment is terminated pursuant to Section 6.2 Paragraph 12.2 of this Agreement, or until the Employee Executive terminates his employment pursuant to Section 6.4(aParagraph 12.4(b) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plusless, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officersCompany ("Disability Payments"). To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee The Executive shall provide consulting services to the Employer Company during the period that he is receiving payments pursuant to this Section 9(bParagraph 15(b).
(c) If the EmployeeExecutive's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer Company shall pay the Employee Executive his full Base Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer Company shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations obligation with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer Company shall terminate the EmployeeExecutive's employment other than pursuant to Sections 6.2 Paragraphs 12.2 or 6.3 12.3 hereof (it being understood that a purported termination pursuant to Section 6.2 Paragraphs 12.2 or 6.3 12.3 hereof which is a disputed and finally determined not to have been proper shall be a termination by the Employer Company in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee Executive shall terminate his employment for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer Company shall pay to the Employee:
(i) Executive his full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to given and through the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value date of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result expiration of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination initial term of this Agreement by payable in accordance with the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above Company's normal payroll policies in Section 9(d), the Severance Pay shall be the average taxable compensation full satisfaction of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay Company's obligation to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsExecutive hereunder.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. Upon termination of Employee’s employment pursuant to the terms of this Agreement or during any period of Employee’s physical or mental disability, Employee shall be paid as follows:
(a) If the Employee's ’s employment shall be is terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to his physical or mental illness, the Employee shall continue to receive his Salary until annual base salary at the Employee's rate then in effect during any Disability Period provided, however, that such payments shall not continue beyond the earlier of (i) the end of the Term, or (ii) the Date of Termination of this Agreement by the Company pursuant to Section 10(f)(ii), provided that payments so made to Employee shall be reduced by the sum of the amounts, if any, payable to Employee under any disability benefit plans of the Company and which were not previously applied to reduce any such payment. In addition, the Company shall reimburse Employee for any theretofore unreimbursed expenses which were incurred prior to the commencement of the Disability Period and the Company shall have no further obligations to Employee under this Agreement if his employment is terminated pursuant to Section 6.2 of this Agreement10(b).
(b) If Employee’s employment is terminated by his death, the Company shall pay to Employee’s designated beneficiaries, or until if he leaves no designated beneficiaries, to his estate, his annual base salary through the Employee terminates his employment pursuant to Section 6.4(a) date of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, Employee’s death at the rate then in effect at and any theretofore unreimbursed expenses and the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal Company shall have no further obligations to 50% of the Salary which would have been in effect Employee under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's ’s employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCompany, the Employer Company shall pay the Employee his full Salary through annual base salary (but not the Date of Termination, at the rate compensation described in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d4(b)) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent given and the Company shall have no further obligations to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(ed) In If (i) the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay Company shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the terminate Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable ’s employment other than pursuant to Section 9(d10(a), 10(b) shall be increased so that after payment of any excise tax the or 10(c) hereof or (ii) Employee shall receive terminate his employment for Good Reason pursuant to Section 10(d), then the Company shall have no further obligations to Employee under this Agreement, except, in addition to reimbursement of Employee for any theretofore unreimbursed expenses, the Company shall pay Employee, with no offset, severance (the “Severance”) in an amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay equal to the Employer any amount which greater of (a) Employee’s annual base salary at the rate in effect at the time Notice of Termination is ultimately and finally determined by given for the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach unexpired Term of this Agreement and payment for any accrued, but unused vacation days hereunder; or (b) six (6) months of Employee’s annual base salary at the rate in effect at the time Notice of Termination is given and payment for any accrued, but untaken vacation days hereunder. Such Severance shall entitle the Employee to compensation from the Employer be made in the same amount and a single lump sum on the same terms as he would tenth (10th) day following Employee’s “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h)) (“Separation from Service”) and be entitled subject to under Section 9(d)(ii)(Bapplicable taxes and withholdings.
(e) if he terminated If Employee shall terminate his employment other than for Good Reason, except for purposes the Company shall pay Employee, in addition to reimbursement of implementing the foregoingany theretofore unreimbursed expenses, the date on which any such succession becomes effective shall be deemed his full salary through the Date of Termination. As used Termination at the rate in effect on the date that Notice of Termination is received by the Company, plus payment for any accrued, but untaken vacation days hereunder and the Company shall have no further obligation to Employee under this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment Following a Change in Control, you shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant the benefits described below upon becoming Disabled, or upon termination of your employment, as the case may be, provided that such period or termination occurs during the term of this Agreement. The benefits to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by which you are entitled, subject to the Employer, terms and such payments shall, assuming the Employer is in compliance with the provisions conditions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.are:
(bi) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessUpon becoming Disabled, the Employee you shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, your base salary at the rate in effect at the time Notice commencement of Termination any such period, together with all compensation payable to you under the Corporation’s disability plan or program or other similar plan during such period, until your employment is giventerminated by the Corporation pursuant to Section 3(ii) hereof or by you. Thereafter, for one yearor in the event your employment is terminated by reason of your death, your benefits shall be determined under the Corporation’s retirement, insurance and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been other compensation programs then in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by accordance with the Employer to its executive officers. To the extent physically and mentally capable terms of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)such programs.
(cii) If the Employee's your employment shall be terminated by the Corporation for Cause or terminated by the Employee without you other than for Good Reason prior to or more than twelve months after, a Change of ControlReason, the Employer Corporation shall pay the Employee his you your full Salary through the Date of Terminationbase salary, at the rate in effect at the time Notice of Termination is givenwhen due, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Corporation at the time such payments are due, and the Corporation shall have no further obligations to you under this Agreement.
(iii) If your employment by the Corporation shall be terminated by you for Good Reason or by the Corporation other than for Cause (including Extended Disability), then you shall be entitled to the benefits provided below:
(a) the Corporation shall pay to you your full base salary, when due, through the Date of Termination at the rate in effect at the time Notice of Termination is given, at the time specified in Section 4(iv), plus all other amounts to which you are entitled under any compensation plan of the Corporation at the time such payments are due;
(iib) in lieu of any further salary payments to you for periods subsequent to the Date of Termination, the Corporation shall pay as severance pay to you, at the time specified in Section 4(iv), a lump sum severance payment (together with the payments provided in Sections 4(iii)(c) and (d) below, the “Severance Payments”) equal to 200% of your annual salary as in effect as of the Date of Termination (or immediately prior to the Change in lieu Control, whichever is greater and without regard to whether you have been employed by the Corporation or any of any further payments its subsidiaries for at least 12 consecutive months, and 200% of the average of the annual bonuses awarded to you pursuant to Section 3 of this Agreement)the Corporation’s bonus plan(s) for executive officers, Severance Pay (as hereinafter defined)or any successor bonus plan(s) thereto, payable on with respect to the first day following three fiscal years preceding the Date of Termination, as follows:
(A) ; provided that if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either you shall not have been continuously employed by the Employee Corporation or any of its subsidiaries for Good Reason or by the Employer other than pursuant preceding three full fiscal years, such average annual bonuses shall be determined based on the aggregate of all bonuses paid to Sections 6.2 or 6.3 hereofyou with respect to any of such three fiscal years and the actual period of your employment through the end of the preceding fiscal year (stated in years, including a lump sum amount equal fraction thereof); and provided further that if no bonuses shall have been paid to you with respect to the highest preceding fiscal year, such bonuses (for purposes of computing both the average annual bonuses and the aggregate amount of Severance Payments) shall be the greater of (x) $300,000 the bonus award to you for such fiscal year, if any, theretofore approved by the Corporation’s Board of Directors or a duly constituted committee thereof, (y) three your target bonus for such fiscal year, stated as a percentage of your base annual salary, theretofore approved by the Corporation’s Board of Directors or a duly constituted committee thereof, or (3z) times total compensation (including value your current annual salary multiplied by the highest percentage that your bonuses represented in relation to your base annual salary with respect to either of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result first two of the termination of his employment under this Agreement, including three preceding fiscal years.
(c) the Corporation shall pay to you all costs and expense legal fees and expenses incurred by him you as a result of such termination (including attorneys fees) all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement (as set forth in Section 10 of this Agreement)); and
(d) for a twenty-four (24) month period after such termination, the Corporation shall arrange to provide you with life, disability, accident and group health insurance benefits substantially similar to those that you were receiving immediately prior to the Notice of Termination. Benefits otherwise receivable by you pursuant to this Section 4(iii)(d) shall be reduced to the extent comparable benefits are actually received by you during the twenty-four (24) month period following your termination, and any such benefits actually received by you shall be reported to the Corporation.
(eiv) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above The payments provided for in Section 9(d), 4(iii)(a) shall commence not later than the Severance Pay fifth day following the Date of Termination. The payments provided for in Sections 4(iii)(b) shall be made on the average taxable compensation date which is six months plus two days following the Date of Termination together with interest calculated from the Employee for Date of Termination through the five taxable years prior to such termination or such higher amount as may be permitted by payment EXECUTIVE -7- DATE date at the Internal Revenue Service to compute "base amount" for purposes of Section 280G rate provided in section 1274(d)(1)(C) of the Internal Revenue Code of 1986 1986, as amended (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee“Code”). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(fv) The Employee You shall not be required to mitigate the amount of any payment provided for in this Section 9 4 by seeking other employment or otherwiseotherwise and, nor shall except as provided in Section 4(iii)(d), the amount of any payment or benefit provided for in this Section 9 4 shall not be reduced by any compensation earned by the Employee you as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirectself-employment, by purchaseretirement benefits, mergerby offset against any amount claimed to be owed by you to the Corporation, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If Following a Change in Control of the Employee's Company, as defined by Subsection 2(i), upon termination of your employment or during a period of disability, you shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.following benefits:
(bi) During any period that the Employee fails you fail to perform his your full-time duties hereunder with the Company as a result of incapacity due to physical or mental illness, the Employee you shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, your base salary at the rate in effect at the time Notice commencement of Termination any such period, together will all compensation payable to you under the G▇▇▇▇▇▇▇ Gold Corporation annual incentive plan or other plan during such period, until this Agreement is giventerminated pursuant to Section 3(i) hereof. Thereafter, for one yearor in the event your employment shall be terminated, or by reason of your death, your benefits shall be determined under the Company's retirement, insurance and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been other compensation programs then in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by accordance with the Employer to its executive officers. To the extent physically and mentally capable terms of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)such programs.
(cii) If the Employee's your employment shall be terminated by the Company for Cause or terminated by the Employee without Good Reason prior to Disability, or more than twelve months after, a Change of Controldeath, the Employer Company shall pay the Employee his you your full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;, plus all other amounts to which you are entitled under any compensation plan of the Company at the time such payments are due, and the Company shall have no further obligations to you under this Agreement.
(iiiii) If your employment by the Company shall be terminated (a) by the Company other than for Cause of Disability or (b) upon your Voluntary Termination as set forth in Subsection 3(iii) hereof, then you shall be entitled to the benefits provided below:
(A) The Company shall pay you your full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which you are entitled under any compensation plan of the Company, at the time such payments are due, except as otherwise provided below.
(B) In lieu of any further salary payments to you for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, the Company shall pay as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant severance pay to Sections 6.2 or 6.3 hereofyou, a lump sum amount severance payment (together with the payments provided in Paragraph E below and any payment you may receive pursuant to Paragraph D below, the "Severance Payments") equal to 2.0 times the highest sum of (xi) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); your annual base salary and (iiiii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreementbonuses, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.averaged over the
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If Upon the EmployeeExecutive's employment shall be terminated by reason of his death, the Employer Company shall pay to such the person as he shall designate designated by the Executive in writing a notice filed with the EmployerCompany or, or if no such person shall be is designated, to his estate as a lump sum death benefit, his full Base Salary to for a period of six months after the date of his death in addition to any payments to the EmployeeExecutive's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension pension, stock option or employee Executive benefit plan or life insurance policy or similar plan or policy then maintained by the EmployerCompany. Upon full payment of all amounts required to be paid under this subsection, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Company shall have no further obligation under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee Executive fails to perform his duties hereunder under this Agreement as a result of incapacity due to physical or mental illness, the Employee Executive shall continue to receive his Salary full base salary until the EmployeeExecutive's employment is terminated pursuant to Section 6.2 6 (b) of this Agreement, or until the Employee Executive terminates his employment pursuant to Section 6.4(a6 (d) (ii) of this Agreement, whichever first occurscomes first. After termination, the Employee Executive shall be paid, receive in equal monthly installments, installments 100% of his Salary, base salary at the rate in effect at the time Notice of Termination is given, delivered for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, plus any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(bCompany ("Disability Payments").
(c) If the EmployeeExecutive's employment shall be is terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer Company shall pay the Employee Executive his full Salary base salary through the Date date of Termination, termination at the rate in effect at the time Notice of Termination is given, delivered and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, Company shall have no further obligations with respect obligation to Section 3 of this Agreement, but all other obligations of the Employer Executive under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer Company shall terminate the EmployeeExecutive's employment other than pursuant to Sections 6.2 6 (b) or 6.3 hereof 6 (c) ( it being understood that a purported termination pursuant to Section 6.2 Sections 6 (b) or 6.3 hereof 6 (c) which is disputed and finally determined not to have been proper shall be a termination by the Employer Company in breach of this AgreementAgreement ), including as a result of a Change of Control, and/or or (B) the Employee Executive shall terminate his employment for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer shall pay to the Employee:then
(i) The Company shall pay the Executive his full Salary base salary through the Date date of Termination termination at the rate then in effect at the time Notice of Termination is given;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination (and in lieu consideration of any further payments pursuant to the rights of the Company under Section 3 5 of this Agreement), Severance Pay (as hereinafter defined), payable the Company shall pay severance pay to the Executive on the first fifth day following the Date date of Terminationtermination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, in a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value entire salary due until the end of the stock options granted during such period) earned by term of this Agreement based on an annual base salary at the Employee highest rate in effect during the twelve month period prior to such Date (12) months immediately preceding the date of Termination ("Severance Pay"); and Termination.
(iii) all other damages to which In the Employee may be entitled as event of a matter of law or equity as result change in control of the termination Company as defined in Section 6 (d), the Company shall pay in a lump sum payment (or in monthly installments at the option of his employment the Executive) the greater of twice the amount of severance pay required in Section 7 (d) (ii) above, or three times the annual base salary at the highest rate in effect during the twelve (12) months immediately preceding the date of the termination.
(iv) In the event of a change in control of the Company as defined in Section 6 (d) above, the total number of outstanding unexercised options (warrants) granted to the Executive under this AgreementAgreement or any previous employment or other agreements, including shall be doubled in quantity while retaining the original exercise price.
(v) The Company shall pay all costs and expense reasonable legal fees and expenses incurred by him (including attorneys fees) the Executive in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by in this Agreement.
(e) In Unless the event Executive is terminated for Cause, the Company shall maintain in full force and effect, for the continued benefit of a the Executive for the greater of the remaining term of this Agreement or eighteen (18) months after termination of this Agreement by the Employee as a result of a Change of Control pursuant to Agreement, all Executive health and hospitalization plans and programs in which the Severance Pay Executive was entitled to participate in immediately prior to the Date of Termination, provided that the Executive's continued participation is as set forth above possible under the general terms and provisions of the plans and programs. If the Executive's participation in Section 9(d)any plan or program is barred, the Severance Pay Company shall be arrange to provide the average taxable compensation of Executive with benefits substantially similar to those which the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be Executive would otherwise have been entitled to initially receive under the entire amount provided for in Section 9(d) plan and shall not be required to repay to the Employer any amount program from which his continued participation is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsbarred.
(f) The Employee Executive shall not be required to mitigate the amount of any payment provided for in this Section 9 7 by seeking other employment or otherwise, nor shall however, the amount of any payment provided for in this Section 9 7 shall not be reduced by any compensation earned by the Employee Executive as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all In the event of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions termination of this Agreement by operation the Executive for Good Reason as a result of lawa change in control, the amount to be utilized in Section 7 (d) (ii) shall be changed to the average compensation of the Executive during this Agreement for the taxable years prior to such termination (all as determined to compute the base amount for purposes of Section 280G of the Internal Revenue Code of 1984, as amended).
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer Company shall pay to such person as he the Employee shall designate in writing a notice filed with the EmployerCompany, or or, if no such person shall be designated, to his estate as a lump sum death benefit, an amount equal to the highest annual rate at which his full Base Salary hereunder was paid prior to the date of his death, multiplied by the lesser of (i) two years or (ii) the number of days remaining in the term of this Agreement as provided in Section 1 divided by 360 days per year. So long as the Employee is employed hereunder, subject to availability at a cost which does not reflect any abnormal health or other risks, the Company may purchase and maintain insurance on the life of the Employee with death benefits thereunder payable to the Employee's designated beneficiary or estate which are at least equal to the death benefit provided for in the preceding sentence. Such death benefit shall be exclusive of and in addition to any payments to the Employee's spousewidow, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effectCompany for its executive officers generally.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his full Base Salary at the rate in effect prior to the date of such incapacity until the Date of Termination if the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a7(b) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)hereof.
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Controlas provided in Section 7(c) hereof, the Employer Company shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and the Company shall have no further payment obligations to the Employee under this Agreement.
(d) If the Company shall terminate the Employee's employment other than pursuant to Sections 7(a), 7(b), 7(c) or 7(e) hereof or if the Employee shall terminate his employment pursuant to Section 7(d)(i) or 7(d)(ii) hereof, then
(i) the Company shall pay the Employee his full Base Salary plus any accumulated vacation pay through the Date of Termination at the rate in effect at the time Notice of Termination is given;; and
(ii) in lieu of any further payments to the Employee for periods subsequent to the Date of Termination (in lieu of any further payments pursuant Termination, the Company shall make a severance payment to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first Employee not later than the tenth business day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, in a lump sum amount equal to the highest annual rate at which his Base Salary hereunder was paid prior to the Date of Termination multiplied by the lesser of (A) two years or (B) the number of days remaining in the term of this Agreement as provided in Section 1 divided by 360 days per year; provided, however, that if the Employee shall terminate his employment pursuant to Section 7(d)(i) on or within one year following a Change in Control of the Company, then such lump sum amount shall equal three times the aggregate of (x) $300,000 or the highest annual rate at which the Employee's Base Salary was paid prior to Date of Termination plus (y) three (3) times total compensation (including value the highest amount of the stock options granted during such period) earned by any annual bonus paid to the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable three years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes Date of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee)Termination. In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 8 by seeking other employment or otherwise.
(e) If the Employee terminates this Agreement pursuant to Section 7(d)(iii) hereof, nor the Employee shall receive his full Base Salary through the Date of Termination including any accrued vacation days at the rate then in effect and the Company shall have no further payment obligations to the Employee under this Agreement.
(f) If the Employee's employment with the Company is terminated pursuant to Section 7(e), then the Company shall make a severance payment to the Employee not later than the tenth business day following the Date of Termination in a lump sum amount equal to three times the aggregate of (x) the highest annual rate at which the Employee's Base Salary was paid prior to Date of Termination plus (y) the highest amount of any payment provided for in this Section 9 be reduced by any compensation earned by annual bonus paid to the Employee as during the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after three years prior to the Date of Termination.
(g) Unless the Employee is terminated for Cause or the Employee's employment is terminated pursuant to Section 7(a) or 7(d)(iii) hereof, the Employee shall be entitled to continue to participate, for a period which is the lesser of two years from the Date of Termination or the remaining term of this Agreement, in such health and accident plan or arrangement as is made available by the Company to its executive officers generally. The Employer will require Employee shall not be entitled to participate in any successor (whether direct other employee benefit plan or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all arrangement of the business and/or assets Company following the Date of Termination except as expressly provided by the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness terms of any such succession shall be a breach of this Agreement and shall entitle plan.
(h) The Company will reimburse the Employee for the federal excise tax, if any, which is due pursuant to compensation from Section 4999 of the Employer in the same amount and Internal Revenue Code of 1986, as amended, on the same terms as he would be entitled to under Section 9(d)(ii)(Bcompensation payments (but not this reimbursement payment) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used described in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Sources: Employment Agreement (Plains All American Pipeline Lp)
Compensation Upon Termination or During Disability. (ai) If the EmployeeUpon Vercillo's employment shall be terminated by reason of his death, the Employer Corporation shall pay to such the person as he shall designate ▇▇▇▇gnated by Consultant in writing a notice filed with the EmployerCorporation or, or if no such person shall be is designated, to his Vercillo's estate as a lump sum death benefit, his full Salary to Consu▇▇▇▇▇'▇ ▇▇ll compensation for a period of six (6) months after the date of his death in addition to any payments to Vercillo's death. Upon full payment of amounts requi▇▇▇ ▇▇ ▇▇ paid under this subsection, the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Corporation shall have no further obligation under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(bii) During any period that the Employee Vercillo fails to perform his duties hereunder as under this Agre▇▇▇▇▇ ▇▇ a result of incapacity due to physical or mental illness, the Employee Consultant shall continue to receive his Salary its full compensation until the EmployeeConsultant's employment relationship is terminated pursuant to Section 6.2 7(ii) of this Agreement, or until Consultant shall receive a lump sum of six months' compensation.
(iii) If the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After terminationConsultant's retention is terminated for Cause as defined in subsection 7(iii), the Employee Corporation shall be paid, in equal monthly installments, 100% pay the Consultant its compensation through the date of his Salary, termination at the rate in effect at the time Notice of Termination is given, for one year, delivered and thereafter for one additional year at an annual rate equal the Corporation shall have no further obligation to 50% of the Salary which would have been in effect Consultant under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(div) If (Aa) in breach of this Agreement, the Employer Corporation shall terminate the Employee's employment Consulting relationship other than pursuant to Sections 6.2 7(iii) (b) or 6.3 hereof 7 (iii) (c) (it being understood that a purported termination pursuant to Section 6.2 Sections 7(iii) (b) or 6.3 hereof 7(iii) (c) which is disputed and finally determined not to have been proper shall be a termination by the Employer Corporation in breach of this Agreement), including as a result of a Change of Control, and/or or (Bb) the Employee Consultant shall terminate his employment the relationship for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer then
(1) The Corporation shall pay to the Employee:
(i) his Consultant its full Salary compensation through the Date date of Termination termination at the rate then in effect at the time Notice of Termination is givengiven through the end of the Term;
(ii2) for periods subsequent to In the Date event of Termination (a Change in lieu of any further payments pursuant to Control as defined in Section 3 of this Agreement7(iv), Severance Pay (as hereinafter defined)the Corporation shall pay Consultant, payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, in a lump sum sum, an amount equal to the highest greater of (xa) $300,000 twice the amount then due through the end of the Term; or (yb) three two times the annual compensation paid to Consultant.
(3) times total compensation (including value In the event of a Change in Control of the stock Corporation as defined in Section 7(iv) above, the total number of outstanding unexercised options (warrants) granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment Consultant under this AgreementAgreement as well as any previous employment, including consultant or other agreements, shall be doubled in quantity while retaining the original exercise price.
(4) The Corporation shall pay all costs and expense reasonable legal fees and expenses incurred by him (including attorneys fees) Consultant in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by in this Agreement.
(ev) In Unless the event Consultant is terminated for Cause, the Corporation shall maintain in full force and effect, for the continued benefit of a Consultant for the greater of the remaining term of this Agreement or eighteen (18) months after termination of this Agreement by the Employee as a result of a Change of Control pursuant Agreement, all health and hospitalization plans and programs in which Consultant was entitled to which the Severance Pay is as set forth above participate in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years immediately prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all Termination as defined in Section 4 of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean provided that Consultant's continued participation is possible under the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the general terms and conditions provisions of this Agreement by operation of lawthe plans and programs. If Consultant's participation in any plan or program is barred, the Corporation shall arrange to provide the Consultant with benefits substantially similar to those which Consultant would otherwise have been entitled to receive under the plan and program from which his continued participation is barred.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment The Employee shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension the following benefits during a period of disability, or employee benefit plan upon termination of her employment, as the case may be, if such period or life insurance policy or similar plan or policy then maintained by termination occurs during the Employer, and such payments shall, assuming the Employer is in compliance with the provisions Term of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.:
(ba) During any period that the Employee fails to perform his her full-time duties hereunder with the Company as a result of incapacity due to physical or mental illness, the Employee injury or similar incapacity, she shall continue to receive his Salary her compensation and other benefits payable to her under this Agreement at the rate in effect at the commencement of any such period, together with all compensation payable to her under the Company's disability plan or program or other similar plan during such period, until the Employee's her employment is terminated pursuant to Section 6.2 9(a) hereof. Thereafter, or in the event the Employee's employment shall be terminated by reason of her death, her benefits shall be determined under the Company's retirement, insurance and other compensation programs then in effect in accordance with the terms of such programs, and the Company shall have no further obligations to her under this Agreement.
(b) If at any time the Employee's employment shall be terminated (i) by reason of her death, (ii) by the Company for Cause or until the Employee terminates his employment Disability or (iii) by her (other than by reason of a constructive termination pursuant to Section 6.4(a9(c) of this Agreement, whichever first occurs. After terminationhereof), the Employee Company shall be paidpay her (or her appropriate payee, as determined in equal monthly installments, 100% accordance with Section 12 (c) hereof) her full base salary through the Date of his Salary, Termination at the rate in effect at the time Notice of Termination is given, for one yearplus all other amounts to which she is entitled under any compensation plan of the Company at the time such payments are due, and thereafter for one additional year at an annual rate equal the Company shall have no further obligations to 50% of the Salary which would have been in effect her under this Agreement, plus. In addition, in each casethe event the Employee's employment is terminated by reason of the Employee's death or Disability, the Employee (or her appropriate payee) shall be entitled to receive a pro rata portion of any disability payments bonus that would otherwise have been payable by or pursuant to plans provided by the Employer Employee with respect to its executive officersthe year in which the Employee's employment is terminated. To For purposes of this provision, if the extent physically and mentally capable of so doing without potentially impairing or damaging his healthEmployee's bonus for such year has not been determined, the Employee shall provide consulting services be deemed to have been entitled to a bonus equal to the Employer highest annual bonus paid or payable to the Employee during the period that he is receiving payments pursuant to this Section 9(b)three consecutive years immediately preceding her termination.
(c) If the Employee's employment shall should be terminated by the Company other than for Cause or terminated Disability or by the Employee without Good Reason prior by reason of a constructive termination pursuant to or more than twelve months afterSection 9(c) hereof, a Change of Control, she shall be entitled to the Employer benefits provided below ("Severance Payments"):
(i) The Company shall pay to the Employee his her full Salary base salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, plus all other amounts to which she is entitled under any compensation plan of the Company, in each case at the time such payments are due;
(ii) Company shall pay to Employee a cash lump sum payment, no later than the fifteenth day following the effective date of the Notice of Termination, equal to the greater of (a) two times the sum of (x) her Base Salary at the rate in effect as of the effective date of the Notice of Termination and (y) the Employer shallhighest annual bonus paid or payable to Employee during the three consecutive years immediately preceding her termination of employment, assuming or (b) the Employer "actuarial equivalent" of all Base Salary and bonus payments that would have been payable to Employee pursuant to Paragraphs 3 and 4 of this Agreement had Employee continued to be employed through the Expiration Date (the "Severance Period"), assuming, for purposes of this Paragraph, that the annual bonus payable to Employee pursuant to Paragraph 4 of this Agreement for each year of such remaining term is equal to the highest annual bonus paid or payable to Employee during the three consecutive years immediately preceding her termination of employment. For purposes of this subparagraph 10(c)(ii), "actuarial equivalent" shall be determined by an actuary selected by Company, subject to approval by Employee, and calculated in compliance accordance with the provisions actuarial assumptions used by the Pension Benefit Guaranty Corporation to value liabilities for pension plans terminating as of this Agreementthe effective date of Employee's or Company's Notice of Termination;
(iii) All stock option rights, have no further obligations with respect to Section 3 of this Agreementstock appreciation rights, but and any and all other obligations of the Employer under this Agreement, including the obligations similar rights theretofore granted to indemnify, defend and hold harmless the Employee, including, but not limited to, the Employee's right to receive cash in lieu of exercising stock options, as may be provided in her stock option agreements, shall remain vest and shall then be exercisable in effectfull, and the Employee shall have 90 days following her termination within which to exercise any and all such rights and the restrictions on any and all shares of restricted stock granted to the Employee that are outstanding on the Date of Termination shall lapse as of the Date of Termination;
(iv) During the Severance Period the Company shall, at its cost, arrange to provide the Employee with life, disability, dental, accident and group health insurance benefits substantially similar to those that she was receiving immediately prior to the Notice of Termination plus an additional amount necessary to reimburse the Employee for any taxes imposed solely by reason of her receipt of such benefits following her termination of employment. Notwithstanding the foregoing, the Company shall not provide any benefit otherwise receivable by the Employee pursuant to this subparagraph if an equivalent benefit is actually received by her at any time during the Severance Period and any such benefit actually received by her shall be reported to the Company.
(d) If (A) The Company shall continue in breach effect for the benefit of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment all insurance or other provisions for Good Reason indemnification, defense or at any time within twelve months after a Change hold- harmless of Control, then officers or directors of the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate Company that are in effect at on the time date the Notice of Termination is given;
(ii) for periods subsequent sent to the Date Employee or the Company with respect to all of Termination (in lieu her acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of any further payments pursuant to Section 3 all periods of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior limitation against actions that may be applicable to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law acts or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementomissions.
(e) In The Employee shall have the right to terminate her employment under this Agreement upon thirty (30) days notice to the Company without liability to the Company for damages incurred solely by reason of such termination.
(f) Nothwithstanding anything to the contrary in this Agreement, in the event of a termination of this Agreement by the that Employee as a result of a Change of Control pursuant becomes entitled to which the Severance Pay is as set forth above in Section 9(d)Payments, if any of the Severance Pay shall Payments will be subject to the average taxable compensation of tax (the Employee for the five taxable years prior to such termination or such higher amount as may be permitted "Excise Tax") imposed by the Internal Revenue Service to compute "base amount" for purposes of Section 280G section 4999 of the Internal Revenue Code of 1986 1986, as amended (the "Code"), Company shall pay to Employee an additional amount (the "Gross-Up Payment") such that the net amount retained by Employee, after deduction of any Excise Tax on the Total Payments (as amendedhereinafter defined) multiplied and any federal, state and local income and other tax and Excise Tax upon the payment provided for by three this Paragraph 10(f), shall be equal to the Total Payments. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (but i) any other payments or benefits received or to be received by Employee in no event may this amount exceed Severance Pay as provided by Section 9(d) connection with a Change in Control or Employee's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with Company, any person whose actions result in a change in control or any person affiliated with Company or such person (which, together with Severance Payments, shall constitute "Total Payments"), shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of section 280G(b)(1) shall be treated as subject to the Excise Tax, unless agreed in the opinion of tax counsel selected by Company's independent auditors and acceptable to Employee, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of section 280G(b)(4) of the Code in excess of the base amount, within the meaning of section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(1) (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by Company's independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Employee shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Employee)'s residence on the date of termination of employment, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of a termination of this Agreement Employee's employment, Employee shall repay to Company, at the time that the amount of such reduction in Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position extent that such payments are not subject to excise repayment results in a reduction in Excise Tax and/or a federal, state or local income tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(fdeduction) The Employee shall not be required to mitigate plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Employee's employment (including by reason of any payment provided for the existence or amount of which cannot be determined at the time of the Gross-Up Payment), Company shall make an additional Gross-Up Payment in this Section 9 respect of such excess (plus any interest, penalties or additions payable by seeking other employment or otherwise, nor shall the Employee with respect to such excess) at the time that the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Terminationsuch excess is finally determined.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Sources: Employment Agreement (Zenith National Insurance Corp)
Compensation Upon Termination or During Disability. (a) If Upon termination of the EmployeeExecutive's employment shall be terminated by reason of his death(or, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 4(a), during a period of this AgreementDisability) following a Change in Control, but all other obligations as defined in Section 2(a), of Company or if there shall be a termination by Company of the Employer under this AgreementExecutive's employment prior to a Change in Control, including or the obligations Executive shall terminate employment with Company for Good Reason prior to indemnifya Change in Control (for which purpose the references in Section 3(c) to changes from circumstances existing immediately prior to or at the time of a Change in Control that constitute Good Reason for termination shall instead be deemed to be references to circumstances existing immediately prior to or at the time that the Change in Control is first anticipated), defend and hold harmless the EmployeeExecutive reasonably demonstrates that such termination by Company or event constituting Good Reason for termination by the Executive (x) was requested by a third party that had previously taken other steps reasonably calculated to result in a Change in Control described in Section 2(a)(i), 2(a)(ii), 2(a)(iii) or 2(a)(iv) and ultimately resulting in such a Change in Control following termination of the Executive's employment or (y) otherwise arose in connection with or in anticipation of a Change in Control described in Section 2(a)(i), 2(a)(ii), 2(a)(iii) or 2(a)(iv) that ultimately occurs following termination of the Executive's employment, the Executive shall remain be entitled to the following benefits:
(a) Except as provided in Section 4(b), during any period that the Executive fails to perform full-time duties with Company as a result of Disability, Company shall pay the Executive the base salary of the Executive at the rate in effect at the commencement of any such period, until such time as the Executive is determined to be eligible for long term disability benefits in accordance with Company's insurance programs then in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the EmployeeExecutive's employment shall be terminated by Company for Cause or terminated Disability or by the Employee without Good Reason prior to or more than twelve months afterExecutive, following a Change of in Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer Company shall pay to the Employee:
(i) Executive his or her full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and Company shall have no further obligation to the Executive under this Agreement.
(c) If the Executive's employment shall be terminated by Company for Cause or Disability, or is terminated by reason of death, Company shall immediately cause to be commenced payment to the Executive (or the Executive's designated beneficiaries or estate, if no beneficiary is designated) of any and all benefits to which the Executive is entitled, if any, under Company's insurance programs then in effect.
(d) Except for termination of the Executive's employment with Company by reason of death, if the Executive's employment with Company shall be terminated (A) by Company other than for Cause or Disability or (B) by the Executive for Good Reason, then the Executive shall be entitled to the benefits provided below:
(i) Company shall pay the Executive the Executive's full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given;.
(ii) In lieu of any further salary payments for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, Company shall pay as follows:
a severance payment (Athe "Severance Payment") if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum an amount equal to the highest of (x) $300,000 or (yA) three (3) times total compensation (including value subject to reduction pursuant to Section 3(d) in the event of a termination of employment by the Executive pursuant to Section 3(d)) the average of the stock options granted during such periodannual compensation which was paid to the Executive by Company (or any corporation affiliated with Company within the meaning of Section 1504 of the Internal Revenue Code of 1986, as amended (the "Code")) earned by and includible in the Employee during Executive's gross income for federal income tax purposes for the twelve month shorter of the period consisting of (1) the five most recently completed taxable years of the Executive ending before the earlier of the first Change in Control (for which purpose the first Change in Control shall not be deemed to be a Change in Control pursuant to Section 2(a)(v) unless the Executive's termination of employment with Company occurs prior to the first Change in Control pursuant to Section 2(a)(i), 2(a)(ii), 2(a)(iii) or 2(a)(iv)) or (2) that portion of such Date five-year period during which the Executive was employed by Company (for which purpose compensation for a partial year shall be annualized before determining average annual compensation for the period in accordance with temporary or final regulations promulgated under Section 280G(d) of the Code or any successor provision thereto), less (B) $1.00. Such average shall be determined in accordance with temporary or final regulations promulgated under Section 280G(d) of the Code or any successor provision thereto. The Severance Payment shall be made in full within 60 days after termination of employment. Such Severance Payment shall be reduced by any severance pay that the Executive receives from Company, any subsidiary of Company or any successor thereof under any other policy or agreement of Company in the event of involuntary termination of the Executive's employment. Notwithstanding the foregoing provisions of this Section 4(d)(ii), if a Change in Control occurs on or before the first anniversary of the commencement of Executive's employment with Company and Executive would otherwise be entitled to a Severance Payment hereunder, then Company shall pay to Executive a Severance Payment equal to Executive's annual base salary in effect at the time the Notice of Termination ("Severance Pay"); and is given.
(iii) all other damages For a 36 month period after the Date of Termination, Company shall arrange to provide the Executive with life, disability, accident and health insurance benefits substantially similar to those which the Employee may Executive is receiving or entitled to receive immediately prior to the Notice of Termination. Benefits otherwise receivable by the Executive pursuant to this paragraph (iii) shall be reduced to the extent comparable benefits are actually received by the Executive from another employer or other third party during such 36 month period, and any such benefits actually received by the Executive shall be reported to Company. Notwithstanding the foregoing provisions of this Section 4(d)(iii), if a Change in Control occurs on or before the first anniversary of the commencement of Executive's employment with Company and Executive would otherwise be entitled as to insurance benefits hereunder, then Company shall arrange to provide Executive with life, disability, accident and health insurance benefits hereunder for a matter 12 month period after the Date of law or equity as result of Termination.
(iv) Company shall also pay to the termination of his employment under this Agreement, including Executive all costs and expense legal fees and expenses incurred by him the Executive as a result of such termination (including attorneys fees) all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement).
(v) Notwithstanding any provision to the contrary contained herein except the last sentence of this Section 4(d)(v), if the lump sum cash payment due and the other benefits to which the Executive shall become entitled under this Section 4 hereof, either alone or together with other payments in the nature of compensation to the Executive which are contingent on a change in the ownership or effective control of Company or in the ownership of a substantial portion of the assets of Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 4(d)(v) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 subsequent to the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 4(d)(v) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded subsequent to the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 4(d)(v).
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee Executive shall not be required to mitigate the amount of any payment provided for in this Section 9 4 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 9 4 be reduced by any compensation earned by the Employee Executive as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and retirement benefits after the Date of Termination, or otherwise except as specifically provided in this Section 4.
(f) In addition to all other amounts payable to the Executive under this Section 4, the Executive shall be entitled to receive all benefits payable to the Executive under any other plan or agreement relating to retirement benefits except as specifically provided in this Section 4.
(g) The Employer will require If Company fails to make any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of payment at the business and/or assets of the Employer, by agreement in form times and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and amounts specified herein, or with respect to the same extent that the Employer would be required any fringe benefits, fails to perform it if no provide such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation benefit as specified herein, within 10 days from the Employer in date of written notice from the same amount and on the same terms as he would be entitled Executive to under Section 9(d)(ii)(B) if he terminated his employment for Good ReasonCompany of such failure, except for purposes of implementing the foregoing, the date on which any such succession becomes effective Company shall be deemed to have waived any right to enforce any restriction on employment or non-competition provision contained in any agreement between Company and the Date Executive then in existence which limits the ability of Terminationthe Executive to accept other employment and, thereafter, the Executive may work or consult for any person or business organization which is engaged in the design, development, assembly, manufacture, marketing or sale of any product which competes with any product of Company, or for any person or business organization which is in competition with Company, without liability to Company for such acts. As used A waiver of such restrictive covenant or non-competition provision shall not in any way restrict or limit the Executive's right to enforce the provisions of this Agreement, "Employer" shall mean including any legal or equitable action to enforce any and all payments, rights or benefits under this Agreement, it being the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions intention of this Agreement by operation subsection that such waiver shall be in addition to, not in substitution of, any other rights to which the Executive is entitled hereunder. Once waived, any such restrictive covenant or non-competition provision shall not thereafter be enforceable even though the Executive may later receive the payment, right or benefit which was the basis of lawthe waiver of such restrictive covenant or non-competition provision.
Appears in 1 contract
Sources: Management Agreement (Minntech Corp)
Compensation Upon Termination or During Disability. (a) If Upon termination of the EmployeeExecutive's employment shall be terminated by reason of his death(or, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 4(a), during a period of this AgreementDisability) following a Change in Control, but all other obligations as defined in Section 2(a), of Company or if there shall be a termination by Company of the Employer under this AgreementExecutive's employment prior to a Change in Control, including or the obligations Executive shall terminate employment with Company for Good Reason prior to indemnifya Change in Control (for which purpose the references in Section 3(c) to changes from circumstances existing immediately prior to or at the time of a Change in Control that constitute Good Reason for termination shall instead be deemed to be references to circumstances existing immediately prior to or at the time that the Change in Control is first anticipated), defend and hold harmless the EmployeeExecutive reasonably demonstrates that such termination by Company or event constituting Good Reason for termination by the Executive (x) was requested by a third party that had previously taken other steps reasonably calculated to result in a Change in Control described in Section 2(a)(i), 2(a)(ii), 2(a)(iii) or 2(a)(iv) and ultimately resulting in such a Change in Control following termination of the Executive's employment or (y) otherwise arose in connection with or in anticipation of a Change in Control described in Section 2(a)(i), 2(a)(ii), 2(a)(iii) or 2(a)(iv) that ultimately occurs following termination of the Executive's employment, the Executive shall remain be entitled to the following benefits:
(a) Except as provided in Section 4(b), during any period that the Executive fails to perform full-time duties with Company as a result of Disability, Company shall pay the Executive the base salary of the Executive at the rate in effect at the commencement of any such period, until such time as the Executive is determined to be eligible for long term disability benefits in accordance with Company's insurance programs then in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the EmployeeExecutive's employment shall be terminated by Company for Cause or terminated Disability or by the Employee without Good Reason prior to or more than twelve months afterExecutive, following a Change of in Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer Company shall pay to the Employee:
(i) Executive his or her full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given and Company shall have no further obligation to the Executive under this Agreement.
(c) If the Executive's employment shall be terminated by Company for Cause or Disability, or is terminated by reason of death, Company shall immediately cause to be commenced payment to the Executive (or the Executive's designated beneficiaries or estate, if no beneficiary is designated) of any and all benefits to which the Executive is entitled, if any, under Company's insurance programs then in effect.
(d) Except for termination of the Executive's employment with Company by reason of death, if the Executive's employment with Company shall be terminated (A) by Company other than for Cause or Disability or (B) by the Executive for Good Reason, then the Executive shall be entitled to the benefits provided below:
(i) Company shall pay the Executive the Executive's full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given;.
(ii) In lieu of any further salary payments for periods subsequent to the Date of Termination Termination, Company shall pay as a severance payment (in lieu of any further payments the "Severance Payment") an amount equal to (A) one and one-half (1.5) times (subject to reduction pursuant to Section 3 3(d) in the event of this Agreementa termination of employment by the Executive pursuant to Section 3(d)) the average of the annual compensation which was paid to the Executive by Company (or any corporation affiliated with Company within the meaning of Section 1504 of the Internal Revenue Code of 1986, as amended (the "Code")) and includible in the Executive's gross income for federal income tax purposes for the shorter of the period consisting of (1) the five most recently completed taxable years of the Executive ending before the earlier of the first Change in Control (for which purpose the first Change in Control shall not be deemed to be a Change in Control pursuant to Section 2(a)(v) unless the Executive's termination of employment with Company occurs prior to the first Change in Control pursuant to Section 2(a)(i), Severance Pay (as hereinafter defined2(a)(ii), payable on 2(a)(iii) or 2(a)(iv)) or (2) that portion of such five-year period during which the first day following Executive was employed by Company (for which purpose compensation for a partial year shall be annualized before determining average annual compensation for the period in accordance with temporary or final regulations promulgated under Section 280G(d) of the Code or any successor provision thereto), less (B) $1.00. Such average shall be determined in accordance with temporary or final regulations promulgated under Section 280G(d) of the Code or any successor provision thereto. The Severance Payment shall be made in full within 60 days after termination of employment. Such Severance Payment shall be reduced by any severance pay that the Executive receives from Company, any subsidiary of Company or any successor thereof under any other policy or agreement of Company in the event of involuntary termination of the Executive's employment.
(iii) For a 36 month period after the Date of Termination, as follows:
(A) if (i) Company shall arrange to provide the EmployeeExecutive with life, with disability, accident and health insurance benefits substantially similar to those which the Executive is receiving or without Good Reason, terminates his employment at any time within twelve months after a Change entitled to receive immediately prior to the Notice of Control; or (ii) the Employee's employment is terminated either Termination. Benefits otherwise receivable by the Employee for Good Reason or by the Employer other than Executive pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and this paragraph (iii) shall be reduced to the extent comparable benefits are actually received by the Executive from another employer or other third party during such 36 month period, and any such benefits actually received by the Executive shall be reported to Company.
(iv) Company shall also pay to the Executive all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense legal fees and expenses incurred by him the Executive as a result of such termination (including attorneys fees) all such fees and expenses, if any, incurred in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement).
(v) Notwithstanding any provision to the contrary contained herein except the last sentence of this Section 4(d)(v), if the lump sum cash payment due and the other benefits to which the Executive shall become entitled under this Section 4 hereof, either alone or together with other payments in the nature of compensation to the Executive which are contingent on a change in the ownership or effective control of Company or in the ownership of a substantial portion of the assets of Company or otherwise, would constitute a "parachute payment" as defined in Section 280G of the Code or any successor provision thereto, such lump sum payment and/or such other benefits and payments shall be reduced (but not below zero) to the largest aggregate amount as will result in no portion thereof being subject to the excise tax imposed under Section 4999 of the Code (or any successor provision thereto) or being non-deductible to Company for federal income tax purposes pursuant to Section 280G of the Code (or any successor provision thereto). The Executive in good faith shall determine the amount of any reduction to be made pursuant to this Section 4(d)(v) and shall select from among the foregoing benefits and payments those which shall be reduced. No modification of, or successor provision to, Section 280G or Section 4999 subsequent to the date of this Agreement shall, however, reduce the benefits to which the Executive would be entitled under this Agreement in the absence of this Section 4(d)(v) to a greater extent than they would have been reduced if Section 280G and Section 4999 had not been modified or superseded subsequent to the date of this Agreement, notwithstanding anything to the contrary provided in the first sentence of this Section 4(d)(v).
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee Executive shall not be required to mitigate the amount of any payment provided for in this Section 9 4 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 9 4 be reduced by any compensation earned by the Employee Executive as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and retirement benefits after the Date of Termination, or otherwise except as specifically provided in this Section 4.
(f) In addition to all other amounts payable to the Executive under this Section 4, the Executive shall be entitled to receive all benefits payable to the Executive under any other plan or agreement relating to retirement benefits except as specifically provided in this Section 4.
(g) The Employer will require If Company fails to make any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of payment at the business and/or assets of the Employer, by agreement in form times and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and amounts specified herein, or with respect to the same extent that the Employer would be required any fringe benefits, fails to perform it if no provide such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation benefit as specified herein, within 10 days from the Employer in date of written notice from the same amount and on the same terms as he would be entitled Executive to under Section 9(d)(ii)(B) if he terminated his employment for Good ReasonCompany of such failure, except for purposes of implementing the foregoing, the date on which any such succession becomes effective Company shall be deemed to have waived any right to enforce any restriction on employment or non-competition provision contained in any agreement between Company and the Date Executive then in existence which limits the ability of Terminationthe Executive to accept other employment and, thereafter, the Executive may work or consult for any person or business organization which is engaged in the design, development, assembly, manufacture, marketing or sale of any product which competes with any product of Company, or for any person or business organization which is in competition with Company, without liability to Company for such acts. As used A waiver of such restrictive covenant or non-competition provision shall not in any way restrict or limit the Executive's right to enforce the provisions of this Agreement, "Employer" shall mean including any legal or equitable action to enforce any and all payments, rights or benefits under this Agreement, it being the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions intention of this Agreement by operation subsection that such waiver shall be in addition to, not in substitution of, any other rights to which the Executive is entitled hereunder. Once waived, any such restrictive covenant or non-competition provision shall not thereafter be enforceable even though the Executive may later receive the payment, right or benefit which was the basis of lawthe waiver of such restrictive covenant or non-competition provision.
Appears in 1 contract
Sources: Management Agreement (Minntech Corp)
Compensation Upon Termination or During Disability. (a) If the Employee's employment The Employee shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension the following benefits during a period of disability, or employee benefit plan upon termination of her employment, as the case may be, provided that such period or life insurance policy or similar plan or policy then maintained by termination occurs during the Employer, and such payments shall, assuming the Employer is in compliance with the provisions Term of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.:
(ba) During any period that the Employee fails to perform his her full-time duties hereunder with the Company as a result of incapacity due to physical or mental illness, the Employee she shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, her base salary at the rate in effect at the time Notice commencement of Termination any such period, together with all compensation payable to her under the Company's disability plan or program or other similar plan during such period, until her employment is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or terminated pursuant to plans provided by Section 11 hereof. Thereafter, or in the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If event the Employee's employment shall be terminated by reason of her death, her benefits shall be determined under the Company's retirement, insurance and other compensation programs then in effect in accordance with the terms of such programs.
(b) If at any time the Employee's employment shall be terminated: (i) by the Company for Cause or terminated Disability or (ii) by the Employee without her for any reason (other than in a Voluntary Termination or for Good Reason prior to or more than twelve months after, following the occurrence of a Change of in Control), the Employer Company shall pay the Employee his her full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent , plus all other amounts to which she is entitled through the Date of Termination (in lieu of under any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value plan of the stock options granted during Company at the time such period) earned by payments are due, and the Employee during the twelve month period prior Company shall have no further obligations to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment her under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(ec) In If the event Employee's employment should be terminated: (1) by reason of a termination of this Agreement her death, (2) by the Company other than for Cause or Disability or (3) by the Employee as in a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d)Voluntary Termination, the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee she shall be entitled to initially receive the entire amount benefits provided for in Section 9(dbelow:
(i) and the Company shall not be required to repay pay to the Employer any amount which is ultimately and finally Employee or the appropriate payee (as determined by the Internal Revenue Service in accordance with Section 13(c)) (or an appropriate courtA) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after her full base salary through the Date of Termination.
Termination at the rate in effect at the time Notice of Termination is given; plus (gB)(x) The Employer will require any successor in the case of death or a Voluntary Termination all salary and bonus payments that would have been payable to the Employee pursuant to this Agreement for the remaining Term of this Agreement, or (whether direct or indirecty) in all other cases, by purchaseall salary and bonus payments that would have been payable to the Employee had the Employee continued to be employed for a period of 12 months, merger, consolidation or otherwise) assuming for the purpose of such payments that her salary for such remaining period is equal to all or substantially all her salary at the Date of Termination and that her annual bonus for such remaining Term is equal to the average of the business and/or assets of annual bonuses paid to her by the Employer, by agreement in form and substance satisfactory Company with respect to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement three fiscal years ended immediately prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer fiscal year in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.termination occurs; plus
Appears in 1 contract
Sources: Employment Agreement (Ihop Corp)
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that in which the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Base Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement4(a) hereof, or until the Employee terminates his employment pursuant to Section 6.4(a4(d)(i) of this Agreementhereof, whichever first occurs. After termination, The Company shall then have no further obligations to the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(cb) If the Employee's employment shall be terminated for Cause or terminated by if the Employee without Good Reason prior dies or if the Employee terminates his employment for any reason other than pursuant to or more than twelve months after, a Change of ControlSection 4(d)(i), the Employer Company shall pay the Employee his full Base Salary and shall maintain in effect all of Employee's benefits set forth in Section 3(c) of this Agreement, through the Date of Termination, date on which his employment is terminated at the rate in effect at the time Notice notice of Termination termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, . The Company shall then have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Employee under this AgreementAgreement except that in the event of termination by death, including the obligations to indemnify, defend and hold harmless the Employee's estate or beneficiaries, as the case may be, shall remain be paid such amounts as may be payable under the Company's life insurance policies, if any, then in effecteffect for the Company's employees.
(dc) If (A) in breach of this Agreementprior to August 27, 1998, the Employer shall terminate Company terminates the Employee's employment for any reason, other than for Cause or pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to 4(a) and 4(b) above, the Company shall pay the Employee his Base Salary and maintain in effect all of the Employee's benefits set forth in Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach 3(c) of this Agreement), including as a result of a Change of Control, and/or (B) Agreement from the Employee shall terminate date on which his employment for Good Reason or at any time within twelve months after a Change of Controlis terminated until August 27, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination 1998 at the rate in effect at the time Notice notice of Termination termination is given;
(ii) for periods subsequent . The Company shall then have no further obligations to the Date of Termination (in lieu of any further payments pursuant to Section 3 of Employee under this Agreement). If following August 27, Severance Pay (as hereinafter defined)1998, payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, Company terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer any reason, other than for Cause or pursuant to Sections 6.2 or 6.3 hereof4(a) and 4(b) above, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value Company shall pay the Employee his Base Salary and maintain in effect all of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as Employee's benefits set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d3(c) of this Agreement unless agreed to by the Employee). In the event for a period of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee six months from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed his employment is terminated at the Date of Termination. As used rate in this Agreement, "Employer" shall mean effect at the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.time notice
Appears in 1 contract
Sources: Employment Agreement (Corporatefamily Solutions Inc)
Compensation Upon Termination or During Disability. (a) If Upon the EmployeeExecutive's employment shall be terminated by reason of his death, the Employer Company shall pay to such the person as he shall designate designated by the Executive in writing a notice filed with the EmployerCompany or, or if no such person shall be is designated, to his estate as a lump sum death benefit, his full Base Salary to for a period of six months after the date of his death in addition to any payments to the EmployeeExecutive's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension pension, stock option or employee Executive benefit plan or life insurance policy or similar plan or policy then maintained by the EmployerCompany. Upon full payment of all amounts required to be paid under this subsection, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Company shall have no further obligation under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee Executive fails to perform his duties hereunder under this Agreement as a result of incapacity due to physical or mental illness, the Employee Executive shall continue to receive his Salary full base salary until the EmployeeExecutive's employment is terminated pursuant to Section 6.2 6 (b) of this Agreement, or until the Employee Executive terminates his employment pursuant to Section 6.4(a6 (d) (ii) of this Agreement, whichever first occurscomes first. After termination, the Employee Executive shall be paid, receive in equal monthly installments, installments 100% of his Salary, base salary at the rate in effect at the time Notice of Termination is given, delivered for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, plus any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(bCompany ( "Disability Payments" ).
(c) If the EmployeeExecutive's employment shall be is terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer Company shall pay the Employee Executive his full Salary base salary through the Date date of Termination, termination at the rate in effect at the time Notice of Termination is given, delivered and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, Company shall have no further obligations with respect obligation to Section 3 of this Agreement, but all other obligations of the Employer Executive under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer Company shall terminate the EmployeeExecutive's employment other than pursuant to Sections 6.2 6 (b) or 6.3 hereof 6 (c) ( it being understood that a purported termination pursuant to Section 6.2 Sections 6 (b) or 6.3 hereof 6 (c) which is disputed and finally determined not to have been proper shall be a termination by the Employer Company in breach of this AgreementAgreement ), including as a result of a Change of Control, and/or or (B) the Employee Executive shall terminate his employment for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer shall pay to the Employee:then
(i) The Company shall pay the Executive his full Salary base salary through the Date date of Termination termination at the rate then in effect at the time Notice of Termination is given;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination (and in lieu consideration of any further payments pursuant to the rights of the Company under Section 3 5 of this Agreement), Severance Pay (as hereinafter defined), payable the Company shall pay severance pay to the Executive on the first fifth day following the Date date of Terminationtermination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, in a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value entire salary due until the end of the stock options granted during such period) earned by term of this Agreement based on an annual base salary at the Employee highest rate in effect during the twelve month period prior to such Date (12) months immediately preceding the date of Termination ("Severance Pay"); and Termination.
(iii) all other damages to which In the Employee may be entitled as event of a matter of law or equity as result change in control of the termination Company as defined in Section 6 (d), the Company shall pay in a lump sum payment ( or in monthly installments at the option of his employment the Executive ) the greater of twice the amount of severance pay required in Section 7 (d) (ii) above, or three times the annual base salary at the highest rate in effect during the twelve (12) months immediately preceding the date of the termination.
(iv) In the event of a change in control of the Company as defined in Section 6 (d) above, the total number of outstanding unexercised options (warrants) granted to the Executive under this AgreementAgreement or any previous employment or other agreements, including shall be doubled in quantity while retaining the original exercise price.
(v) The Company shall pay all costs and expense reasonable legal fees and expenses incurred by him (including attorneys fees) the Executive in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by in this Agreement.
(e) In Unless the event Executive is terminated for Cause, the Company shall maintain in full force and effect, for the continued benefit of a the Executive for the greater of the remaining term of this Agreement or eighteen ( 18 ) months after termination of this Agreement by the Employee as a result of a Change of Control pursuant to Agreement, all Executive health and hospitalization plans and programs in which the Severance Pay Executive was entitled to participate in immediately prior to the Date of Termination, provided that the Executive's continued participation is as set forth above possible under the general terms and provisions of the plans and programs. If the Executive's participation in Section 9(d)any plan or program is barred, the Severance Pay Company shall be arrange to provide the average taxable compensation of Executive with benefits substantially similar to those which the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be Executive would otherwise have been entitled to initially receive under the entire amount provided for in Section 9(d) plan and shall not be required to repay to the Employer any amount program from which his continued participation is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsbarred.
(f) The Employee Executive shall not be required to mitigate the amount of any payment provided for in this Section 9 7 by seeking other employment or otherwise, nor shall however, the amount of any payment provided for in this Section 9 7 shall not be reduced by any compensation earned by the Employee Executive as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all In the event of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions termination of this Agreement by operation the Executive for Good Reason as a result of lawa change in control, the amount to be utilized in Section 7 (d) (ii) shall be changed to the average compensation of the Executive during this Agreement for the taxable years prior to such termination ( all as determined to compute the base amount for purposes of Section 280G of the Internal Revenue Code of 1984, as amended ).
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness (“disability period”), the Employee Executive shall continue to receive his Salary full salary at the rate then in effect for such period until the Employee's his employment is terminated pursuant to Section 6.2 7(b) hereof, provided that payments so made to the Executive during the first 180 days of this Agreementthe disability period shall be reduced by the sum of the amounts, if any, payable to the Executive at or until prior to the Employee terminates his employment time of any such payment under disability benefit plans of the Company or under the Social Security disability insurance program, and which amounts were not previously applied to reduce any such payment. In addition, upon termination pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination7(b), the Employee Company shall be pay the Executive the Accrued Obligations (as defined in Section 8(b)) through the date of Termination and the Sign-On Equity Grants shall not terminate and shall continue to vest in accordance with Section 5(c)(i) hereof.
(b) If the Executive’s employment is terminated by his death, the Company shall pay to the Executive’s estate his (w) annual base salary through the Date of Termination, to the extent not previously paid, in equal monthly installmentsand if not yet paid, 100% of his Salary, at any annual bonus earned for the rate in effect at calendar year that preceded the time Notice Date of Termination is given(x) reimbursement for any unreimbursed business expenses incurred by the Executive prior to the Date of Termination that are subject to reimbursement pursuant to Section 5(d), (y) payment for one year, and thereafter for one additional year at an annual rate equal to 50% vacation time accrued as of the Salary which would have been in effect Date of Termination but unused and (z) any other amount or benefit due under this Agreement, plus, in each case, any disability payments otherwise payable by an employee benefit plan or pursuant to plans arrangement maintained or provided by the Employer to its executive officersCompany; including the benefits and payments described in the Section 5(e) (such amounts under clauses (w), (x), (y) and (z), collectively the “Accrued Obligations”) in accordance with Section 12(c). To the extent physically and mentally capable of so doing without potentially impairing or damaging his healthIn addition, the Employee shall provide consulting services to the Employer during the period that he is receiving payments upon termination pursuant to this Section 9(b)7(a) the Sign-On Equity Grants shall not terminate and shall continue to vest in accordance with Section 5(c)(i) hereof.
(c) If the Employee's Executive’s employment shall be terminated by the Company for Cause or terminated by the Employee without Executive for other than Good Reason prior to or more than twelve months after, a Change of ControlReason, the Employer Company shall pay the Employee his full Salary Executive the Accrued Obligations (excluding any earned but unpaid bonus for a prior calendar year if the event or events giving rise to the termination for Cause occurred in whole or in part during such prior calendar year) through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, Company shall have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Executive under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer Company shall terminate the Employee's Executive’s employment other than pursuant to Sections 6.2 without Cause or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee Executive shall terminate his employment for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer shall pay to the Employee:then
(i) his full Salary the Company shall pay the Executive the Accrued Obligations through the Date of Termination at the rate in effect at the time Notice of Termination is given;; and
(ii) for periods subsequent to the Date of Termination Company shall, not later than fifteen (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day 15) business days following the Date of Termination, as follows:
(A) if (i) pay to the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, Executive in a lump sum an amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and his then current annual base salary.
(iii) all other damages to which unvested Sign On Equity Grants that would have become vested in accordance with Section 5(c)(i) hereof on the Employee may be entitled as a matter of law or equity as result anniversary of the termination Effective Date next following the Date of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any Termination had the Executive remained employed with the Company through such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation anniversary of the Employee for the five taxable years prior to such termination or such higher amount Effective Date shall become vested as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code Date of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by Termination on a prorated basis determined on the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess basis of the permitted amount and number of months elapsed from the Employer agrees to use its best efforts to support most recent anniversary of the Employee's position that such payments are not subject to excise tax in any dealings with Effective Date preceding the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount Date of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after Termination through the Date of Termination.
(ge) The Employer will require If, on or prior to October 6, 2005, the Company shall terminate the Executive in connection with any successor (whether direct or indirect, material adverse finding by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of independent investigative firm retained by the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement Company prior to the effectiveness Effective Date to perform a background check on the Executive involving the Executive’s conviction of, or plea of guilty or no contest to, any such succession felony or crime of moral turpitude, liability for any securities law violation, sanctions by the Securities & Exchange Commission or similar regulatory body or bankruptcy or insolvency or any other finding which would reasonably be expected to be materially injurious to the business or reputation of the Company or its affiliates if the Executive were to continue to serve in the position and with the duties designated in Section 3 hereof, then the Executive’s employment may be terminated without any obligation owing to the Executive with respect to compensation (other than any accrued but unpaid salary) or benefits (including Sign-On Equity Grants).
(f) All amounts under this Section 8 shall be a breach of this Agreement and shall entitle conditioned upon the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound execution by the terms Executive of a standard release of the Company and conditions of this Agreement its affiliates then being generally used by operation of lawthe Company.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the EmployeeExecutive's employment shall be terminated by reason of his death, the Employer Company shall pay to such person Person as he shall designate in writing a notice filed with the EmployerCompany, or or, if no such person shall be designated, to his estate as a lump sum death benefit, his full Base Salary to the date of his death in addition to any payments to the EmployeeExecutive's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then presently maintained by the EmployerCompany, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, shall fully discharge the EmployerCompany's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effecthereunder.
(b) During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness (such condition having been confirmed by a qualified doctor in a written statement to the Company and that at the Company's request and expense the Executive shall submit to an examination by a doctor selected by the Company and such doctor shall have concurred in the conclusion of the Executive's doctor), the Employee Executive shall continue to receive his full Base Salary and bonus payments until the EmployeeExecutive's employment is terminated pursuant to Section 6.2 of this Agreement9(b) hereof, or until the Employee Executive terminates his employment pursuant to Section 6.4(a9(d) of this Agreementhereof, whichever first occurs. After termination, the Employee Executive shall be paid, in equal monthly installments, paid 100% of his SalaryBase Salary at the rate in effect at the time Notice of
(c) If the Executive's employment shall be terminated for Cause, the Company shall pay the Executive his full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, given and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, Company shall have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Executive under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer Company shall terminate the EmployeeExecutive's employment other than pursuant to Sections 6.2 9(b) or 6.3 9(c) hereof (it being understood that a purported termination pursuant to Section 6.2 9(b) or 6.3 9(c) hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer Company in breach of this Agreement), including as a result of a Change of Control, and/or ) or (B) the Employee Executive shall terminate his employment for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer shall pay to the Employee:then
(i) the Company shall pay the Executive his full Base Salary through the Date last day of Termination the Term at the rate in effect at the time Notice of Termination is givengiven and the amount, if any, with respect to any year then ended, such bonus which would have accrued to the Executive on the basis of the Company's performance but which has not yet been paid to him;
(ii) for periods subsequent in addition to the Date of Termination (in lieu of any further salary payments pursuant to Section 3 of this Agreement10(d)(i), Severance Pay (the Company shall pay as hereinafter defined), payable severance pay to the Executive on the first fifth day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the annual Base Salary at the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee rate in effect during the twelve month period prior to such (12) months immediately preceding the Date of Termination ("Severance Pay")Termination; and and
(iii) the Company shall pay all other damages to which the Employee Executive may be entitled as a matter of law or equity as result of the Company's termination of his employment under this Agreement, including damages for any and all costs loss of benefits to the Executive under the Company's employee benefit plans which he would have received if the Company had not breached this Agreement and expense had his employment confirmed for the full term provided in Section 1 hereof, and including all legal fees and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In Unless the event Executive is terminated for Cause, the Company shall maintain in full force and effect, for the continued benefit of a termination the Executive to the last day of this Agreement by the Employee as a result of a Change of Control pursuant to Term all employee benefit plans and programs in which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years Executive was entitled to participate immediately prior to the Date of Termination provided that the Executive's continued participation is possible under the general terms and provisions of such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee)plans and programs. In the event of a termination of this Agreement by that the Employee as a result of a Change of Control Executive's participation in any such plan or program is barred, the amount payable pursuant Company shall arrange to Section 9(d) shall be increased so that after payment of any excise tax provide the Employee shall receive Executive with benefits substantially similar to those which the amount specified in Section 9(d). The Employee shall be Executive would otherwise have been entitled to initially receive the entire amount provided for in Section 9(d) under such plans and shall not be required to repay to the Employer any amount programs from which his continued participation is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsbarred.
(f) The Employee Executive shall not be required to mitigate the amount of any payment provided for in this Section 9 10 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 10 be reduced by any compensation earned by the Employee Executive as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and Company after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Sources: Employment Agreement (Dynacs Inc)
Compensation Upon Termination or During Disability. (a) If 4.1 Provisions of this Article 4 shall apply only if the EmployeeDate of Termination of the Executive's employment shall be terminated by reason of his death, occurs during the Employer shall pay to such person as he shall designate periods specified in writing filed with the Employer, Sections 3.1(ii) or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect(iii).
(b) 4.2 During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee he shall continue to receive his Salary full base salary at the rate then in effect and any awards under the Executive Compensation Plan paid during such period until the Employee's his employment is terminated pursuant to Section 6.2 of this Agreement3.2. Thereafter, his benefits shall be determined in accordance with the Corporation's Disability Income Insurance Plan, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain substitute plan then in effect.
(d) 4.3 If (A) in breach of this Agreementthe Executive's employment is terminated for Cause, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer Corporation shall pay to him the Employee:
(i) unpaid portion of his full Salary base salary through the Date of Termination at the rate then in effect and shall have no further obligations to him under this Agreement. Payment shall be made at the time Notice provided in Section 4.4.
4.4 If the Executive's employment is terminated during either of the periods specified in Section 3.1(ii) or 3.1(iii) by the Corporation other than pursuant to Section 3.2 or 3.3 or by the Executive pursuant to Section 3.4, or is terminated by the Executive during the period specified in Section 3.1(i) (in no event including termination because of death), the Corporation shall pay him (i) any unpaid portion of his base salary through the Date of Termination is given;
at the highest annual rate in effect during the preceding twenty-four (24) months, and (ii) shall, in addition to any severance benefits payable to the Executive under the Corporation's normal severance policies, pay to him no later than the fifth business day following the occurrence of both a Change in Control and the Executive's Date of Termination an amount equal to two (2) times the highest annual total compensation (including base salary and incentive compensation) paid or payable by the Corporation to him for any one of the three (3) calendar years ending with the year prior to the year in which the Date of Termination occurs. One-half of the amount under (ii) above shall be severance pay and the other half a payment contingent on the Executive's not competing with the Corporation for a period of one year from the occurrence of both a Change in Control and the Executive's Date of Termination. If the Corporation determines that the Executive has competed against the Corporation in violation of this covenant, the Executive shall repay, within 10 business days, the full amount paid to the Executive for the covenant not to compete. For purposes of this Agreement, competing with the Corporation means to engage in any activity or render any service, directly or indirectly (whether as principal, director, officer, investor, employee, consultant or otherwise), for or on behalf of any person or entity if said activity or service directly or indirectly consists of any product or service the Corporation offers for sale to its customers. It is understood that nothing in this Agreement shall prevent the Executive from discussing any business arrangements to become effective after the expiration of this covenant not to compete.
4.5 If the Executive's employment is terminated during either of the periods subsequent specified in Section 3.1(ii) or 3.1(iii) by the Corporation other than pursuant to Section 3.2 or 3.3 or by the Executive pursuant to Section 3.4, or is terminated by the Executive during the period specified in Section 3.1(i) (in no event including termination because of death), the Corporation shall also pay at the time specified in Section 4.4 an additional $40,000 which is hereby deemed to be an amount equal to two (2) times the annual cost to the Executive to continue from the Date of Termination all employee benefit plans, programs or arrangements (such as, medical, dental, long-term disability insurance, life insurance, perquisites, and the like but not including retirement or stock option plans) in which Executive was entitled to participate immediately prior to the Date of Termination (Termination. The Corporation shall, in lieu addition to the foregoing, continue to provide the Executive with health and dental benefits until the third anniversary of any further the date severance payments are made pursuant to Section 3 4.4(ii). Such benefits shall be substantially the same as the benefits offered to the Company's executives generally, including family coverage, during this three year period but at no cost to the Executive. In addition, the Corporation shall provide financial planning services to the Executive following a termination under Section 3.1 (ii) or (iii) through the third anniversary of this Agreementthe date severance payments are made pursuant to Section 4.4(ii) at the reimbursement rates in effect immediately preceding the Change in Control.
4.6 If the Executive's employment is terminated during either of the periods specified in Section 3.1(ii) or 3.1(iii) by the Corporation other than pursuant to Section 3.2 or 3.3 or by the Executive pursuant to Section 3.4, or is terminated by the Executive during the period specified in Section 3.1(i) (in no event including termination because of death), Severance Pay (as hereinafter defined), payable then in addition to the benefits to which he is entitled under the qualified defined benefit retirement plans or programs in which he participates or any successor plans or programs in effect on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment Corporation shall pay him in one sum in cash at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by date specified in 4.4 the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value actuarial equivalent of the stock options granted during retirement pension to which he would have been entitled under the terms of such periodretirement plans or programs without regard to "vesting" thereunder, had he accumulated two (2) earned by additional years, or the Employee during period from the twelve month period prior to such Date of Termination ("Severance Pay"); to his normal retirement date, whichever is less, of continuous service and (iii) all other damages age after the Date of Termination at the compensation level in effect on the Date of Termination under such retirement plans or programs reduced by the single sum actuarial equivalent of any amounts to which he is entitled pursuant to the Employee may provisions of said retirement plans and programs. For purposes of this Section, "actuarial equivalent" shall be entitled as a matter determined using the same methods and assumptions utilized under the Corporation's retirement plans and programs immediately prior to commencement to the Corporation's knowledge of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event active pendency of a termination of this Agreement proposed transaction, whether favored or opposed by the Employee as a result of a Corporation, which resulted in the Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee)Control. In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee Executive shall be entitled to initially receive an additional amount from the entire amount provided for in Section 9(d) and Corporation's Supplement Retirement Plan which shall not be required considered to repay duplicate the payment called for in this section. In the case of any defined contribution plan, in lieu of the amount determined above, the Corporation shall pay to the Employer any Executive the amount which is ultimately and finally determined by it would have contributed during the Internal Revenue Service (two- year period following the Executive's Date of Termination or an appropriate court) to have been age 65 if less than two years, assuming the plan provisions remain in excess effect as they were on Date of the permitted amount Termination and the Employer agrees Executive's annual compensation were the highest annual compensation actually received in the two years preceding his Date of Termination and the Executive were to use its best efforts continue, where relevant, to support contribute at the Employee's position that such payments are not subject to excise tax highest rate he had contributed in any dealings with the Internal Revenue Service any in any appropriate legal proceedingstwo years preceding his Date of Termination.
(f) 4.7 The Employee Executive shall not be required to mitigate the amount of any payment provided for in this Section 9 Article by seeking other employment employment. In the case of a Change in Control, in addition to the payment pursuant to Section 4.4 on account of a termination pursuant to Section 3.1 or otherwise3.4, nor the Executive shall also receive severance payments pursuant to general Corporation termination policies.
4.8 In the event payments to Executive under this Agreement and any other plan or agreement would be (except for this provision) subject to the excise tax imposed by sections 280G and 4999 of the Internal Revenue Code, the amount payable pursuant to this Agreement shall be reduced to the extent necessary to avoid the imposition of such tax.
4.9 The Corporation shall be entitled to withhold from any amounts payable hereunder such amount or amounts, if any, as are required by law.
4.10 In the event of any delay in payment provided for of the amounts due Executive, the Corporation shall pay interest on the amounts delayed at the rate of prime (as reported in this Section 9 be reduced by any compensation earned by the Employee as Wall Street Journal during the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Terminationrelevant period) plus one percent.
(g) 4.11 The Employer will require any successor (whether direct Corporation may fund some or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets payments called for by this Agreement by establishing an irrevocable trust under the direction and control of an independent trustee. The amounts potentially due shall be separately stated (and updated for changes) as shown on Appendix A attached to this Agreement to enable the Executive, Corporation and trustee to know the amount due Executive. The agreement with such trustee shall provide that upon receipt of a statement by the Executive that a Termination has occurred, such trustee (to the extent possible in terms of the Employer, by agreement in form and substance satisfactory trust's funding) shall make payment to Executive on the 5th business day following receipt of such notice pursuant to the Employee, to expressly assume and agree to perform terms of this Agreement Agreement. Any funds set aside in the same manner and such trust shall at all times remain subject to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure claims of the Employer to obtain creditors of the Corporation. The creation of such Agreement prior to trust shall not lessen the effectiveness contractual obligation of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to Corporation under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" except that no payments shall mean be duplicated. Any funds attributable to Executive remaining in such trust after all payments have been made to Executive (or the Employer and any successor possibility of payments shall have been extinguished) shall revert to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of lawCorporation.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment The Employee shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension the following benefits during a period of disability, or employee benefit plan upon termination of his employment, as the case may be, provided that such period or life insurance policy or similar plan or policy then maintained by termination occurs during the Employer, and such payments shall, assuming the Employer is in compliance with the provisions Term of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.:
(ba) During any period that the Employee fails to perform his full-time duties hereunder with the Company as a result of incapacity due to physical or mental illness, the Employee he shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, base salary at the rate in effect at the time Notice commencement of Termination any such period, together with all compensation payable to him under the Company’s disability plan or program or other similar plan during such period, until his employment is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or terminated pursuant to plans provided by Section 10(a) hereof. Thereafter, or in the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If event the Employee's ’s employment shall be terminated by reason of his death, his benefits shall be determined under the Company’s retirement, insurance and other compensation programs then in effect in accordance with the terms of such programs.
(b) If at any time the Employee’s employment shall be terminated: (i) by the Company for Cause or terminated Disability or (ii) by the Employee without him for any reason (other than in a Voluntary Termination or for Good Reason prior to or more than twelve months after, a Change of Control, following the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result occurrence of a Change of in Control), and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer Company shall pay to the Employee:
(i) him his full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which he is entitled through the Date of Termination under any compensation plan of the Company at the time such payments are due, and the Company shall have no further obligations to him under this Agreement.
(c) If the Employee’s employment should be terminated: (1) by reason of his death, (2) by the Company other than for Cause or Disability or (3) by the Employee in a Voluntary Termination, he shall be entitled to the benefits provided below:
(i) the Company shall pay to the Employee or the appropriate payee (as determined in accordance with Section 12(c)) (A) his full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; plus (B)(x) in the case of death or a Voluntary Termination all salary and bonus payments that would have been payable to the Employee pursuant to this Agreement for the remaining Term of this Agreement, or (y) in all other cases, all salary and bonus payments that would have been payable to the Employee had the Employee continued to be employed for a period of 12 months, assuming for the purpose of such payments that his salary for such remaining period is equal to his salary at the Date of Termination and that his annual bonus for such remaining Term is equal to the average of the annual bonuses paid to him by the Company with respect to the three fiscal years ended immediately prior to the fiscal year in which the Date of termination occurs; plus (C) all other amounts to which he is entitled under any compensation plan of the Company, in cash in a lump sum no later than the 15th day following the Date of Termination;
(ii) for periods a 12-month period after the Date of Termination, the Company shall arrange to provide the Employee with life, disability, accident and health insurance benefits substantially similar to those which the Employee and his covered family members are receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control); provided, however, that such continued benefits shall be reduced to the extent comparable benefits are actually received by or made available to the Employee without cost during the 12-month period following the Employee’s termination of employment (and the Employee agrees that he shall promptly report any such benefits actually received to the Company); and
(iii) the Company shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Company which are in effect on the date the Notice of Termination is sent to the Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against actions which may be applicable to such acts or omissions.
(d) If the Employee’s employment should be terminated by the Employee for Good Reason following a Change in Control, he shall be entitled to the benefits provided below:
(i) the Company shall pay to the Employee or the appropriate payee (as determined in accordance with Section 12(c)) (A) his full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; plus (B) all salary and bonus payments that would have been payable to the Employee had the Employee continued to be employed for a period of 24 months, assuming for the purpose of such payments that his salary for such remaining period is equal to his salary at the Date of Termination and that his annual bonus for such remaining Term is equal to the average of the annual bonuses paid to him by the Company with respect to the three fiscal years ended immediately prior to the fiscal year in lieu which the Date of termination occurs; plus (C) all other amounts to which he is entitled under any further payments pursuant to Section 3 compensation plan of this Agreement)the Company, Severance Pay (as hereinafter defined), payable on in cash in a lump sum no later than the first 15th day following the Date of Termination, as follows:;
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) for a 24-month period after the Employee's employment is terminated either by Date of Termination, the Company shall arrange to provide the Employee for Good Reason or by with life, disability, accident and health insurance benefits substantially similar to those which the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal Employee and his covered family members are receiving immediately prior to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date Notice of Termination ("Severance Pay"without giving effect to any reduction in such benefits subsequent to a Change in Control); provided, however, that such continued benefits shall be reduced to the extent comparable benefits are actually received by or made available to the Employee without cost during the 24-month period following the Employee’s termination of employment (and the Employee agrees that he shall promptly report any such benefits actually received to the Company); and
(iii) all other damages to which the Company shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Company which are in effect on the date the Notice of Termination is sent to the Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against actions which may be entitled as a matter of law applicable to such acts or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementomissions.
(e) In Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Employee in connection with the termination of a termination the Employee’s employment (whether such benefit is pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, and all such payments and benefits being hereinafter called “Total Payments”) would not be deductible (in whole or part), by the Employee Company as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes application of Section 280G of the Internal Revenue Code of 1986 1986, as amended (as amended“Code”), then, to the extent necessary to make the nondeductible portion of the Total Payments deductible, (i) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of the cash payments under this Agreement unless agreed shall first be reduced (if necessary, to by the Employeezero). In the event of a termination of , and (ii) all other non-cash payments under this Agreement by the Employee as a result of a Change of Control the amount payable pursuant shall next be reduced (if necessary, to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(dzero). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) If it is established as described in the preceding subsection (e) that the aggregate benefits paid to or for the Employee’s benefit are in an amount that would result in any portion of such “parachute payments” not being deductible by reason of Section 280G of the Code, then the Employee shall have an obligation to pay the Company upon demand an amount equal to the sum of: (i) the excess of the aggregate “parachute payments” paid to or for the Employee’s benefit over the aggregate “parachute payments” that could have been paid to or for the Employee’s benefit without any portion of such “parachute payments” not being deductible by reason of Section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at the rate provided in Section 1274(b)(2)(B) of the Code from the date of the Employee’s receipt of such excess until the date of such payment.
(g) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 Agreement by seeking other employment or otherwise, nor shall .
(h) If the amount employment of any payment provided for in this Section 9 be reduced the Employee is terminated by any compensation earned the Company without Cause or the Employee’s employment is terminated by the Employee as under conditions entitling him to payment hereunder and the result Company fails to make timely payment of employment by another employer or business or by profits earned by the amounts then owed to the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirectunder this Agreement, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would shall be entitled to under Section 9(d)(ii)(B) if he terminated his employment interest on such amounts at the rate of 3% above the prime rate (defined as the base rate on corporate loans at large U.S. money center commercial banks as published by the Wall Street Journal), compounded monthly, for Good Reason, except for purposes of implementing the foregoing, period from the date on such amounts were otherwise due until payment is made to the Employee (which any such succession becomes effective interest shall be deemed in addition to all rights which the Date of Termination. As used in Employee is otherwise entitled to under this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law).
Appears in 1 contract
Sources: Employment Agreement (Ihop Corp)
Compensation Upon Termination or During Disability. (a) If the Employee's employment The Executive shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension the following benefits during a period of disability, or employee benefit plan upon termination of his employment, as the case may be, if such period or life insurance policy or similar plan or policy then maintained by termination occurs during the Employer, and such payments shall, assuming the Employer is in compliance with the provisions Term of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.:
(ba) During any period that the Employee Executive fails to perform his full-time duties hereunder with the Company as a result of incapacity due to physical or mental illness, the Employee injury or similar incapacity, he shall continue to receive his Salary compensation and other benefits payable to him under this Agreement at the rate in effect at the commencement of any such period, less amounts payable to him under the Company’s disability plan or program or other similar plan during such period, or under any governmental program, until the Employee's his employment is terminated pursuant to Section 6.2 8(a) hereof. If, during any period of disability, the Executive’s employment shall be terminated by reason of his death, disability or the expiration of this Agreement, notwithstanding the provisions of this section, his pay shall cease and his benefits, if any, shall be determined solely under the Company’s retirement, insurance and other compensation programs then in effect in accordance with the terms of such programs, and the Company shall have no further obligations to him under this Agreement.
(b) If at any time the Executive’s employment shall be terminated (i) by reason of his death, (ii) by the Company for Cause or until the Employee terminates his employment Disability, or (iii) by him (other than by reason of a constructive termination pursuant to Section 6.4(a8(c) of this Agreement, whichever first occurs. After terminationhereof), the Employee Company shall be paidpay him (or his appropriate payee, as determined in equal monthly installments, 100% accordance with Section 11(c) hereof) his full base salary through the Date of his Salary, Termination at the rate in effect at the time Notice of Termination is given, for one yearplus all other amounts to which he is entitled from the Company through the Date of Termination under any compensation plan in each case at the time such payments are due, and thereafter for one additional year at an annual rate equal the Company shall have no further obligations to 50% of the Salary which would have been in effect him under this Agreement, plus. In addition, in each case, any disability payments otherwise payable the event the Executive’s employment is terminated by reason of the Executive’s death or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his healthDisability, the Employee Executive (or his appropriate payee) shall provide consulting services be entitled to receive a pro rata portion of any bonus that would otherwise have been payable to the Employer during Executive with respect to the period that he year in which the Executive’s employment is receiving payments pursuant terminated. For purposes of this provision, if the Executive’s bonus for such year has not been determined, the Executive shall be deemed to this Section 9(b)have been entitled to a bonus equal to the bonus paid or payable to the Executive with respect to the immediately preceding year.
(c) If the Employee's Executive’s employment shall should be terminated by the Company other than for Cause or terminated Disability or by the Employee without Good Reason prior Executive by reason of a constructive termination pursuant to Section 8(c) hereof, he shall receive the payments and benefits provided below (“Severance Payments”); provided, however, in order to be entitled to any payments or more benefits other than twelve months afterthose specified in subparagraph (i) below Executive must execute a release, in a Change form acceptable to the Company, of Controlthe Company and any subsidiaries and affiliates of the Company and their respective officers, the Employer directors, stockholders, employees and agents:
(i) The Company shall pay to the Employee Executive his full Salary base salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and plus all other amounts to which he is entitled under any compensation plan of the Employer shallCompany, assuming in each case at the Employer is time such payments are due;
(ii) In addition:
(A) in compliance with the provisions event of either (1) a termination by the Company other than for Cause or Disability or (2) a constructive termination pursuant to Section 8(c) pursuant to any subsection other than (iii) (Change in Control), the Company shall pay the Executive, at the time such payments would have been made had the Executive’s employment not been terminated hereunder, all salary payments that would have been payable to the Executive pursuant to this Agreement had the Executive continued to be employed for the greater of (x) the remaining Term of this AgreementAgreement or (y) six months (the “Severance Period”) (assuming for the purpose of such continuing payments that the Executive’s salary for such period is to be based on his rate of salary at the Date of Termination), plus any bonus that would otherwise have no further obligations been payable to the Executive with respect to the Severance Period; provided, however, that to the extent the Executive’s bonus for any portion of such Severance Period had not been determined, the Executive shall be deemed to have been entitled to a bonus equal to the bonus paid or payable to the Executive with respect to the calendar year ended immediately prior to the Date of Termination OR
(B) in the event of a constructive termination pursuant to Section 3 8(c)(iii) (Change in Control) the Company shall pay the Executive in a lump sum, all salary payments that would have been payable to the Executive pursuant to this Agreement had the Executive continued to be employed for the greater of (x) the remaining Term of this AgreementAgreement or (y) two years (the “Severance Period”) (assuming for the purpose of such continuing payments that the Executive’s salary for such period is to be based on his rate of salary at the Date of Termination), plus any bonus that would otherwise have been payable to the Executive with respect to the Severance Period; provided, however, that to the extent the Executive’s bonus for any portion of such Severance Period had not been determined, the Executive shall be deemed to have been entitled to a bonus equal to the bonus paid or payable to the Executive with respect to the calendar year ended immediately prior to the Date of Termination;
(iii) Notwithstanding any provisions in the applicable plans governing them, all stock option rights, stock appreciation rights and any and all other similar rights theretofore granted to the Executive, including, but not limited to, the Executive’s right to receive cash in lieu of exercising stock options, as may be provided in his stock option agreements, shall vest and shall then be exercisable in full, and the Executive shall have 90 days following his termination within which to exercise any and all other obligations such rights and the restrictions on any and all shares of restricted stock granted to the Executive that are outstanding on the Date of Termination shall lapse as of the Employer Date of Termination;
(iv) The Company’s group health plans allow for benefits to extend beyond employment, under this Agreementcertain circumstances and for a specified length of time, including as defined by the obligations federal law called the Consolidated Omnibus Budget Reconciliation Act of 1985 (commonly known as “COBRA”). During the Severance Period, if the Executive and his family are eligible for COBRA coverage, the Company shall, at its cost, pay the Executive’s COBRA premium for his and his family’s coverage, as applicable, under the medical, dental, vision and the employee assistance plan, up until the Executive is no longer eligible for COBRA, or the end of the Severance Period, whichever occurs first. If upon completion of federal COBRA, the Executive and his family are then eligible for the corresponding California COBRA law, AB 1401 (“Cal-COBRA”), which applies to indemnifymedical coverage only, defend the Company shall, at its cost, pay the Executive’s Cal-COBRA premium for his and hold harmless his family’s coverage, as applicable, up until the EmployeeExecutive is no longer eligible for Cal-COBRA, shall remain or the end of the Severance Period, whichever occurs first. During the Severance Period, the Company shall, at its cost, arrange to provide the Executive with life insurance (excluding accidental death and dismemberment). The amount of life insurance coverage will be equal to that in effecteffect for the Executive on the Date of Termination under the Company’s group life insurance program (subject to the age reduction schedule). The Company agrees to pay an additional amount necessary to reimburse the Executive for any taxes imposed solely by reason of his receipt of such benefits following termination of his employment as stated herein.
(d) If (A) in breach of this Agreement, the Employer The Company shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate continue in effect at for the time benefit of the Executive all insurance or other provisions for the indemnification, defense or hold-harmless of officers or directors of the Company that are in effect on the date the Notice of Termination is given;
(ii) for periods subsequent sent to the Date Executive or the Company with respect to all of Termination (in lieu his acts and omissions while an officer as fully and completely as if such termination had not occurred, and until the final expiration or running of any further payments pursuant to Section 3 all periods of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior limitation against actions that may be applicable to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law acts or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementomissions.
(e) In Notwithstanding anything to the contrary in this Agreement, in the event of a termination of this Agreement by that the Employee as a result of a Change of Control pursuant Executive becomes entitled to which the Severance Pay is as set forth above in Section 9(d)Payments, if any of the Severance Pay shall Payments will be subject to the average taxable compensation of tax (the Employee for the five taxable years prior to such termination or such higher amount as may be permitted “Excise Tax”) imposed by the Internal Revenue Service to compute "base amount" for purposes of Section 280G section 4999 of the Internal Revenue Code of 1986 1986, as amended (the “Code”), the Company shall pay to the Executive an additional amount (the “Gross-Up Payment”) such that the net amount retained by the Executive, after payment of any Excise Tax on the Total Payments (as amendedhereinafter defined) multiplied and any federal, state and local income and other tax and Excise Tax upon the Gross-Up Payment provided for by three this Section 9(e), shall be equal to the Total Payments. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (but i) any other payments or benefits received or to be received by the Executive in no event may this amount exceed Severance Pay as provided by Section 9(d) connection with a Change in Control or the Executive’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (which, together with Severance Payments, shall constitute “Total Payments”)), shall be treated as “parachute payments” within the meaning of section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of section 280G(b)(1) shall be treated as subject to the Excise Tax, unless agreed to in the opinion of tax counsel selected by the EmployeeCompany and acceptable to the Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of section 280G(b)(4) of the Code, within the meaning of section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(1) (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by the Company’s independent auditors in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of the Executive’s residence on the date of termination of employment, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of a termination of this Agreement by the Employee as a result of a Change of Control Executive’s employment, the amount payable pursuant to Section 9(d) Executive shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by Company, at the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position time that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for such reduction in this Section 9 by seeking other employment or otherwiseExcise Tax is finally determined, nor shall the portion of the Gross-Up Payment attributable to such reduction plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of the Executive’s employment (including by reason of any payment provided for the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in this Section 9 be reduced by respect of such excess (plus any compensation earned interest, penalties or additions payable by the Employee as Executive with respect to such excess) at the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no amount of such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of lawexcess is finally determined.
Appears in 1 contract
Sources: Employment Agreement (Zenith National Insurance Corp)
Compensation Upon Termination or During Disability. The Employee shall be entitled to the following benefits during a period of disability, or upon termination of his employment, as the case may be, provided that such period or termination occurs prior to the expiration of this Agreement:
(a) If During any period that the Employee fails to perform his full-time duties with the Employer as a result of incapacity due to physical or mental illness, he shall continue to receive his base salary at the rate in effect at the commencement of any such period together with all compensation payable to him under the Employer's disability plan or program or other similar plan during such period, until his employment is terminated pursuant to Section 7(a) hereof. Thereafter, or in the event the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person his benefits shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge determined under the Employer's obligations retirement, insurance and other compensation programs then in effect in accordance with respect to Section 3 the terms of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effectsuch programs.
(b) During If at any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated (i) by reason of his death (ii) by the Employer for Cause or terminated Disability or (iii) by him for any reason (other than, following the Employee without Good Reason prior to or more than twelve months after, occurrence of a Change of in Control, for Good Reason), the Employer shall pay him or the Employee his full Salary through appropriate payee, as the Date of Termination, at the rate case may be (as determined in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance accordance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d9(b) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(ihereof) his full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;, plus all other amounts to which he is entitled under any compensation plan of the Employer at the time such payments are due, and the Employer shall have no further obligations to him under this Agreement.
(iic) If, prior to a Change in Control, the Employee's employment shall be terminated by the Employer other than for periods subsequent Cause or Disability, he shall be entitled to the benefits provided below:
(i) the Employer shall pay to the Employee his full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given, no later than the fifth (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first 5th) day following the Date of Termination, as follows:plus all other amounts to which he is entitled under any compensation plan of the Employer, at the time such payments are due;
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employer shall pay the Employee, at the time such payments would have been made had the Employee's employment not been terminated hereunder, all salary, bonus payments and vested portions of retirement and employee benefit plans that would have been payable to the Employee pursuant to this Agreement had the Employee continued to be employed for the remaining duration of this Agreement, assuming for the purpose of such continuing payments that the Employee's salary for each year of such remaining duration is equal to his salary at the Date of Termination and that his annual bonus for each year of such remaining duration is equal to the average of the annual bonuses paid to him by the Employer with respect to the three (or, if less, the number of years the Employee has been employed by the Employer) fiscal years ended immediately prior to the fiscal year in which the Date of Termination occurs; and
(iii) the Employer shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Employer which are in effect on the date the Notice of Termination is sent to the Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against actions which may be applicable to such acts or omissions.
(d) If, following a Change in Control, the Employee's employment should be terminated either by the Employer other than for Cause or Disability or by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereofReason, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee he shall be entitled to initially receive the entire amount provided for in Section 9(dbenefits below:
(i) and the Employer shall not be required to repay pay to the Employer any amount which Employee his full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is ultimately given; plus all salary and finally determined bonus payments that would have been payable to the Employee pursuant to this Agreement had the Employee continued to be employed for the duration of this Agreement, assuming for the purpose of such payments that his salary for each year of such duration is equal to his salary at the Date of Termination and that his annual bonus for each year of such duration is equal to the average of the annual bonuses paid to him by the Internal Revenue Service Employer (or an appropriate courtits predecessors) with respect to have the three (or, if less, the number of years the Employee has been employed with the Employer and its predecessors) fiscal years ended immediately prior to the fiscal year in excess which the Date of Termination occurs; plus all other amounts to which he is entitled under any compensation plan of the permitted amount Employer, including but not limited to vested portions of retirement and employee benefit plans in cash in a lump sum no later than the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
fifteenth (f15th) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after day following the Date of Termination.; and
(gii) The the Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all shall continue in effect for the benefit of the business and/or assets Employee all insurance or other provisions for indemnification and defense of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure officers or directors of the Employer to obtain such Agreement prior which are in effect on the date the Notice of Termination is sent to the effectiveness Employee with respect to all of any his acts and omissions while an officer or director as fully and completely as if such succession shall be a breach of this Agreement termination had not occurred, and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.until the
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness ("disability period"), the Employee Executive shall continue to receive his Salary full salary at the rate then in effect for such period (and shall not be eligible for payments under the disability plans, programs and polices maintained by Company or in connection with employment by Company ("Disability Plans")) until the Employee's his employment is terminated pursuant to Section 6.2 1(d) hereof, and upon such termination, Executive shall, within ten (10) days of this Agreementsuch termination, or until the Employee terminates his employment be entitled to all amounts to which Executive is entitled pursuant to Section 6.4(a) of this Agreement, whichever first occursshort-term Disability Plans. After termination, the Employee Executive's rights under any long-term Disability Plan shall be paid, determined in equal monthly installments, 100% accordance with the provisions of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)such plans.
(cb) If the EmployeeExecutive's employment shall be terminated by Company for Cause or terminated by the Employee without Good Reason prior to or more than twelve months afterExecutive, a Change of Control, the Employer Company shall pay the Employee Executive his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;given and Company shall have no further obligations to Executive under this Agreement or otherwise.
(iic) If Executive's employment shall be terminated by the Company for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement)reason other than Cause, Severance Pay (as hereinafter defined)death, payable on the first day following the Date of Terminationor Disability, as follows:
(A) if Company shall: (i) continue to pay Executive's salary at the Employee, with or without Good Reason, terminates his employment at any time within twelve rate then in effect for two (2) months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during following such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment termination. The payments under this Agreement, including all costs and expense and expenses incurred by him (including attorneys feesSection 6(c) shall cease in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementthe event of Executive's death.
(ed) In the event of a termination of this Agreement by the Employee as a result of Employment Termination in Connection with a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee)----------------------------------------------------- Control. In the event of a termination of this Agreement by Qualifying Termination (as defined below) within ------- twelve (12) months following the Employee as a result effective date of a Change in Control (as defined below), then in lieu of Control all other benefits provided to the amount payable pursuant to Section 9(d) shall be increased so that after payment Executive under the provisions of any excise tax the Employee this Agreement, Executive shall receive the following severance benefits:
(i) Company shall pay Executive an amount specified equal to two (2) months of salary at the rate in Section 9(d). The Employee shall be entitled to initially receive effect at the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess time of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingseffective date of termination.
(fii) The Employee Company shall not be required agree to mitigate the amount acceleration of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall vesting equal to fifty percent (50%) of the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee then unvested Shares from any other source stock grant or stock option grant made to Executive at any time before and after the Date of Terminationdate hereof.
(giii) The Employer will require Company shall pay Executive an amount equal to the Executive's unpaid salary and accrued vacation pay through the effective date of termination. For purposes of this Section 6(d), a Qualifying Termination shall mean any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all termination of the business and/or assets Executive's employment other than: (1) by the Company for Cause (as provided in Section 1(c) herein); (2) by reason of death or Disability (as provided in Section 1(d) herein); or (3) by the Employer, by agreement Executive without Good Reason (as provided in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement Section 1(e)).
(e) Definition of "Change in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer Control." "Change in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "EmployerControl" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.-------------------------------- mean:
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment The Employee shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension the following benefits during a period of disability, or employee benefit plan upon termination of her employment, as the case may be, provided that such period or life insurance policy or similar plan or policy then maintained by termination occurs during the Employer, and such payments shall, assuming the Employer is in compliance with the provisions Term of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.:
(ba) During any period that the Employee fails to perform his her full-time duties hereunder with the Company as a result of incapacity due to physical or mental illness, the Employee she shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, her base salary at the rate in effect at the time Notice commencement of Termination any such period, together with all compensation payable to her under the Company’s disability plan or program or other similar plan during such period, until her employment is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or terminated pursuant to plans provided by Section 11 hereof. Thereafter, or in the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If event the Employee's ’s employment shall be terminated by reason of her death, her benefits shall be determined under the Company’s retirement, insurance and other compensation programs then in effect in accordance with the terms of such programs.
(b) If at any time the Employee’s employment shall be terminated: (i) by the Company for Cause or terminated Disability or (ii) by the Employee without her for any reason (other than in a Voluntary Termination or for Good Reason prior to or more than twelve months after, following the occurrence of a Change of in Control), the Employer Company shall pay the Employee his her full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which she is entitled through the Date of Termination under any compensation plan of the Company at the time such payments are due, and the Company shall have no further obligations to her under this Agreement.
(c) If the Employee’s employment should be terminated: (1) by reason of her death, (2) by the Company other than for Cause or Disability, (3) by the Company giving notice to Employee of its election not to extend this Agreement pursuant to paragraph 2 hereof, or (4) by the Employee in a Voluntary Termination, she shall be entitled to the benefits provided below:
(i) the Company shall pay to the Employee or the appropriate payee (as determined in accordance with Section 13(c)) (A) her full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; plus (B)(x) in the case of death or a Voluntary Termination all salary and bonus payments that would have been payable to the Employee pursuant to this Agreement for the remaining Term of this Agreement, or (y) in all other cases, all salary and bonus payments that would have been payable to the Employee had the Employee continued to be employed for a period of 12 months, assuming for the purpose of such payments that her salary for such remaining period is equal to her salary at the Date of Termination and that her annual bonus for such remaining Term is equal to the average of the annual bonuses paid to her by the Company with respect to the three fiscal years ended immediately prior to the fiscal year in which the Date of termination occurs; plus (C) all other amounts to which she is entitled under any compensation plan of the Company, in cash in a lump sum no later than the 15th day following the Date of Termination;
(ii) for periods a 12-month period after the Date of Termination, the Company shall arrange to provide the Employee with life, disability, accident and health insurance benefits substantially similar to those which the Employee and her covered family members are receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control); provided, however, that such continued benefits shall be reduced to the extent comparable benefits are actually received by or made available to the Employee without cost during the 12-month period following the Employee’s termination of employment (and the Employee agrees that she shall promptly report any such benefits actually received to the Company); and
(iii) the Company shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Company which are in effect on the date the Notice of Termination is sent to the Employee with respect to all of her acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against actions which may be applicable to such acts or omissions.
(iv) the stock options referred to in shall automatically become fully-vested and exercisable.
(d) If the Employee’s employment should be terminated by the Employee for Good Reason following a Change in Control, she shall be entitled to the benefits provided below:
(i) the Company shall pay to the Employee or the appropriate payee (as determined in accordance with Section 13(c)) (A) her full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; plus (B)(x) in lieu the case of any further death or a Voluntary Termination all salary and bonus payments that would have been payable to the Employee pursuant to Section 3 this Agreement for the remaining Term of this Agreement), Severance Pay or (as hereinafter defined)y) in all other cases, all salary and bonus payments that would have been payable on to the first Employee had the Employee continued to be employed for a period of 24 months, assuming for the purpose of such payments that her salary for such remaining period is equal to her salary at the Date of Termination and that her annual bonus for such remaining Term is equal to the average of the annual bonuses paid to her by the Company with respect to the three fiscal years ended immediately prior to the fiscal year in which the Date of termination occurs; plus (C) all other amounts to which she is entitled under any compensation plan of the Company, in cash in a lump sum no later than the 15th day following the Date of Termination, as follows:;
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) for a 24-month period after the Employee's employment is terminated either by Date of Termination, the Company shall arrange to provide the Employee for Good Reason or by with life, disability, accident and health insurance benefits substantially similar to those which the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal Employee and her covered family members are receiving immediately prior to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date Notice of Termination ("Severance Pay"without giving effect to any reduction in such benefits subsequent to a Change in Control); provided, however, that such continued benefits shall be reduced to the extent comparable benefits are actually received by or made available to the Employee without cost during the 24-month period following the Employee’s termination of employment (and the Employee agrees that she shall promptly report any such benefits actually received to the Company); and
(iii) all other damages to which the Company shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Company which are in effect on the date the Notice of Termination is sent to the Employee with respect to all of her acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against actions which may be entitled as a matter of law applicable to such acts or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementomissions.
(e) In Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Employee in connection with the termination of a termination the Employee’s employment (whether such benefit is pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, and all such payments and benefits being hereinafter called “Total Payments”) would not be deductible (in whole or part), by the Employee Company as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes application of Section 280G of the Internal Revenue Code of 1986 1986, as amended (as amended“Code”), then, to the extent necessary to make the nondeductible portion of the Total Payments deductible, (i) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of the cash payments under this Agreement unless agreed shall first be reduced (if necessary, to by the Employeezero). In the event of a termination of , and (ii) all other non-cash payments under this Agreement by the Employee as a result of a Change of Control the amount payable pursuant shall next be reduced (if necessary, to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(dzero). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) If it is established as described in the preceding subsection (d) that the aggregate benefits paid to or for the Employee’s benefit are in an amount that would result in any portion of such “parachute payments” not being deductible by reason of Section 280G of the Code, then the Employee shall have an obligation to pay the Company upon demand an amount equal to the sum of: (i) the excess of the aggregate “parachute payments” paid to or for the Employee’s benefit over the aggregate “parachute payments” that could have been paid to or for the Employee’s benefit without any portion of such “parachute payments” not being deductible by reason of Section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at the rate provided in Section 1274(b)(2)(B) of the Code from the date of the Employee’s receipt of such excess until the date of such payment.
(g) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 Agreement by seeking other employment or otherwise, nor shall .
(h) If the amount employment of any payment provided for in this Section 9 be reduced the Employee is terminated by any compensation earned the Company without Cause or the Employee’s employment is terminated by the Employee as under conditions entitling her to payment hereunder and the result Company fails to make timely payment of employment by another employer or business or by profits earned by the amounts then owed to the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirectunder this Agreement, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would shall be entitled to under Section 9(d)(ii)(B) if he terminated his employment interest on such amounts at the rate of 1% above the prime rate (defined as the base rate on corporate loans at large U.S. money center commercial banks as published by the Wall Street Journal), compounded monthly, for Good Reason, except for purposes of implementing the foregoing, period from the date on such amounts were otherwise due until payment is made to the Employee (which any such succession becomes effective interest shall be deemed in addition to all rights which the Date of Termination. As used in Employee is otherwise entitled to under this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law).
Appears in 1 contract
Sources: Employment Agreement (Ihop Corp)
Compensation Upon Termination or During Disability. (a) If the EmployeeExecutive's employment shall be terminated by reason of his death, the Employer Company shall pay to such person as he shall designate in writing a notice filed with the EmployerCompany, or or, if no such person shall be designated, to his estate as a lump sum death benefit, his full Base Salary to the date of his death in addition to any payments to the EmployeeExecutive's spouse, beneficiaries beneficiaries, or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the EmployerCompany, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, shall fully discharge the EmployerCompany's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effecthereunder.
(b) During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee Executive shall continue to receive his full Base Salary and bonus payments unless and until the EmployeeExecutive's employment is terminated pursuant to Section 6.2 of this AgreementSubsection 6(b) hereof, or until the Employee Executive terminates his employment pursuant to Section 6.4(aSubsection 6(d)(iii) of this Agreementhereof, whichever first occurs. After termination, the Employee Executive shall be paid, in equal monthly installments, 100paid 50% of his Base Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional the one-year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)thereafter.
(c) If the EmployeeExecutive's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer Company shall pay the Employee his full Salary Executive through the Date of TerminationTermination his full Base Salary, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, Company shall have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Executive under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer Company shall terminate the EmployeeExecutive's employment for any reason other than pursuant to Sections 6.2 Subsections 6(a), 6(b), or 6.3 6(c) hereof (it being understood that a purported termination pursuant to Section 6.2 Subsection 6(b) or 6.3 6(c) hereof which that is disputed and finally determined not to have been proper shall be a termination by the Employer Company in breach of this Agreement), including as a result or if, within 90 days of a Change the occurrence of Controlan event specified in Subsection 6(d)(i) or 6(d)(ii) hereof, and/or (B) the Employee Executive terminates his employment hereunder, or, if within such 90-day time period, the Company, or any successor-in-interest thereof, shall terminate his the Executive's employment hereunder for Good Reason or at any time within twelve months after a Change of Controlreason, then the Employer Company shall pay to the Employee:
(i) his full Salary Executive, through the Date of Termination Termination, his full Base Salary at the rate in effect at the time Notice of Termination is given;
(ii) given and in lieu of any further Base Salary payments to the Executive for periods subsequent to the Date of Termination (in lieu of any further payments pursuant Termination, the Company shall pay as severance pay to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable the Executive on the first fifth day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to 100% of the annual Base Salary at the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee rate in effect during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after 12 months immediately preceding the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employeei. Upon Purches's employment shall be terminated by reason of his death, the Employer Corporation shall pay to such the person as he shall designate designated by Consultant in writing a notice filed with the EmployerCorporation or, or if no such person shall be is designated, to his Purches's estate as a lump sum death benefit, his Consultant's full Salary to compensation for a period of three months after the date of his death in addition Purches's death. Upon full payment of amounts required to any payments to be paid under this subsection, the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Corporation shall have no further obligation under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) ii. During any period that the Employee Purches fails to perform his duties hereunder under this Agreement as a result of incapacity due to physical or mental illness, the Employee Consultant shall continue to receive his Salary its full compensation until the EmployeeConsultant's employment relationship is terminated pursuant to Section 6.2 7(ii) of this Agreement, or until Consultant shall receive a lump sum of six months' compensation.
iii. If the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After terminationConsultant's retention is terminated for Cause as defined in subsection 7(iii), the Employee Corporation shall be paid, in equal monthly installments, 100% pay the Consultant its compensation through the date of his Salary, termination at the rate in effect at the time Notice of Termination is given, for one year, delivered and thereafter for one additional year at an annual rate equal the Corporation shall have no further obligation to 50% of the Salary which would have been in effect Consultant under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) iv. If (Aa) in breach of this Agreement, the Employer Corporation shall terminate the Employee's employment Consulting relationship other than pursuant to Sections 6.2 7(iii)(b) or 6.3 hereof 7(iii)(c) (it being understood that a purported termination pursuant to Section 6.2 Sections 7(iii)(b) or 6.3 hereof 7(iii)(c) which is disputed and finally determined not to have been proper shall be a termination by the Employer Corporation in breach of this Agreement), including as a result of a Change of Control, and/or or (Bb) the Employee Consultant shall terminate his employment the relationship for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer then
(1) The Corporation shall pay to the Employee:
(i) his Consultant its full Salary compensation through the Date date of Termination termination at the rate then in effect at the time Notice of Termination is givengiven through the end of the Term;
(ii2) for periods subsequent to In the Date event of Termination (a Change in lieu of any further payments pursuant to Control as defined in Section 3 of this Agreement7(iv), Severance Pay (as hereinafter defined)the Corporation shall pay Consultant, payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, in a lump sum sum, an amount equal to the highest greater of (xa) $300,000 twice the amount then due through the end of the Term; or (yb) three two times the annual compensation paid to Consultant.
(3) times total compensation (including value In the event of a Change in Control of the stock Corporation as defined in Section 7(iv) above, the total number of outstanding unexercised options (warrants) granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment Consultant under this AgreementAgreement as well as any previous employment, including consultant or other agreements, shall be doubled in quantity while retaining the original exercise price.
(4) The Corporation shall pay all costs and expense reasonable legal fees and expenses incurred by him (including attorneys fees) Consultant in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by in this Agreement.
v. Unless the Consultant is terminated for Cause, the Corporation shall maintain in full force and effect, for the continued benefit of Consultant for the greater of the remaining term of this Agreement or eighteen (e18) In the event of a months after termination of this Agreement by the Employee as a result of a Change of Control pursuant Agreement, all health and hospitalization plans and programs in which Consultant was entitled to which the Severance Pay is as set forth above participate in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years immediately prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all Termination as defined in Section 4 of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean provided that Consultant's continued participation is possible under the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the general terms and conditions provisions of this Agreement by operation of lawthe plans and programs. If Consultant's participation in any plan or program is barred, the Corporation shall arrange to provide the Consultant with benefits substantially similar to those which Consultant would otherwise have been entitled to receive under the plan and program from which his continued participation is barred.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment The Executive shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension the following benefits during a period of disability, or employee benefit plan upon termination of her employment, as the case may be, if such period or life insurance policy or similar plan or policy then maintained by termination occurs during the Employer, and such payments shall, assuming the Employer is in compliance with the provisions Term of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.:
(ba) During any period that the Employee Executive fails to perform his her full-time duties hereunder with the Company as a result of incapacity due to physical or mental illness, the Employee injury or similar incapacity, she shall continue to receive his Salary her compensation and other benefits payable to her under this Agreement at the rate in effect at the commencement of any such period, less amounts payable to her under the Company’s disability plan or program or other similar plan during such period, or under any governmental program, until the Employee's her employment is terminated pursuant to Section 6.2 8(a) hereof. If, during any period of disability, the Executive’s employment shall be terminated by reason of her death, disability or the expiration of this Agreement, notwithstanding the provisions of this section, her pay shall cease and her benefits, if any, shall be determined solely under the Company’s retirement, insurance and other compensation programs then in effect in accordance with the terms of such programs, and the Company shall have no further obligations to her under this Agreement.
(b) If at any time the Executive’s employment shall be terminated (i) by reason of her death, (ii) by the Company for Cause or until the Employee terminates his employment Disability, or (iii) by her (other than by reason of a constructive termination pursuant to Section 6.4(a8(c) of this Agreement, whichever first occurs. After terminationhereof), the Employee Company shall be paidpay her (or her appropriate payee, as determined in equal monthly installments, 100% accordance with Section 11(c) hereof) her full base salary through the Date of his Salary, Termination at the rate in effect at the time Notice of Termination is given, for one yearplus all other amounts to which she is entitled from the Company through the Date of Termination under any compensation plan in each case at the time such payments are due, and thereafter for one additional year at an annual rate equal the Company shall have no further obligations to 50% of the Salary which would have been in effect her under this Agreement, plus. In addition, in each case, any disability payments otherwise payable the event the Executive’s employment is terminated by reason of the Executive’s death or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his healthDisability, the Employee Executive (or her appropriate payee) shall provide consulting services be entitled to receive a pro rata portion of any bonus that would otherwise have been payable to the Employer during Executive with respect to the period that he year in which the Executive’s employment is receiving payments pursuant terminated. For purposes of this provision, if the Executive’s bonus for such year has not been determined, the Executive shall be deemed to this Section 9(b)have been entitled to a bonus equal to the bonus paid or payable to the Executive with respect to the immediately preceding year.
(c) If the Employee's Executive’s employment shall should be terminated by the Company other than for Cause or terminated Disability or by the Employee without Good Reason prior Executive by reason of a constructive termination pursuant to Section 8(c) hereof, she shall receive the payments and benefits provided below (“Severance Payments”); provided, however, in order to be entitled to any payments or more benefits other than twelve months afterthose specified in subparagraph (i) below Executive must execute a release, in a Change form acceptable to the Company, of Controlthe Company and any subsidiaries and affiliates of the Company and their respective officers, the Employer directors, stockholders, employees and agents:
(i) The Company shall pay to the Employee his Executive her full Salary base salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and plus all other amounts to which she is entitled under any compensation plan of the Employer shallCompany, assuming in each case at the Employer is time such payments are due;
(ii) In addition:
(A) in compliance with the provisions event of either (1) a termination by the Company other than for Cause or Disability or (2) a constructive termination pursuant to Section 8(c) pursuant to any subsection other than (iii) (Change in Control), the Company shall pay the Executive, at the time such payments would have been made had the Executive’s employment not been terminated hereunder, all salary payments that would have been payable to the Executive pursuant to this Agreement had the Executive continued to be employed for the greater of (x) the remaining Term of this AgreementAgreement or (y) six months (the “Severance Period”) (assuming for the purpose of such continuing payments that the Executive’s salary for such period is to be based on her rate of salary at the Date of Termination), plus any bonus that would otherwise have no further obligations been payable to the Executive with respect to the Severance Period; provided, however, that to the extent the Executive’s bonus for any portion of such Severance Period had not been determined, the Executive shall be deemed to have been entitled to a bonus equal to the bonus paid or payable to the Executive with respect to the calendar year ended immediately prior to the Date of Termination OR
(B) in the event of a constructive termination pursuant to Section 3 8(c)(iii) (Change in Control), the Company shall pay the Executive in a lump sum, all salary payments that would have been payable to the Executive pursuant to this Agreement had the Executive continued to be employed for the greater of (x) the remaining Term of this AgreementAgreement or (y) two years (the “Severance Period”) (assuming for the purpose of such continuing payments that the Executive’s salary for such period is to be based on her rate of salary at the Date of Termination), plus any bonus that would otherwise have been payable to the Executive with respect to the Severance Period; provided, however, that to the extent the Executive’s bonus for any portion of such Severance Period had not been determined, the Executive shall be deemed to have been entitled to a bonus equal to the bonus paid or payable to the Executive with respect to the calendar year ended immediately prior to the Date of Termination;
(iii) Notwithstanding any provisions in the applicable plans governing them, all stock option rights, stock appreciation rights and any and all other similar rights theretofore granted to the Executive, including, but not limited to, the Executive’s right to receive cash in lieu of exercising stock options, as may be provided in her stock option agreements, shall vest and shall then be exercisable in full, and the Executive shall have 90 days following her termination within which to exercise any and all other obligations such rights and the restrictions on any and all shares of restricted stock granted to the Executive that are outstanding on the Date of Termination shall lapse as of the Employer Date of Termination;
(iv) The Company’s group health plans allow for benefits to extend beyond employment, under this Agreementcertain circumstances and for a specified length of time, including as defined by the obligations federal law called the Consolidated Omnibus Budget Reconciliation Act of 1985 (commonly known as “COBRA”). During the Severance Period, if the Executive and her family are eligible for COBRA coverage, the Company shall, at its cost, pay the Executive’s COBRA premium for her and her family’s coverage, as applicable, under the medical, dental, vision and the employee assistance plan, up until the Executive is no longer eligible for COBRA, or the end of the Severance Period, whichever occurs first. If upon completion of federal COBRA, the Executive and her family are then eligible for the corresponding California COBRA law, AB 1401 (“Cal-COBRA”), which applies to indemnifymedical coverage only, defend the Company shall, at its cost, pay the Executive’s Cal-COBRA premium for her and hold harmless her family’s coverage, as applicable, up until the EmployeeExecutive is no longer eligible for Cal-COBRA, shall remain or the end of the Severance Period, whichever occurs first. During the Severance Period, the Company shall, at its cost, arrange to provide the Executive with life insurance (excluding accidental death and dismemberment). The amount of life insurance coverage will be equal to that in effecteffect for the Executive on the Date of Termination under the Company’s group life insurance program (subject to the age reduction schedule). The Company agrees to pay an additional amount necessary to reimburse the Executive for any taxes imposed solely by reason of her receipt of such benefits following termination of her employment as stated herein.
(d) If (A) in breach of this Agreement, the Employer The Company shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate continue in effect at for the time benefit of the Executive all insurance or other provisions for the indemnification, defense or hold-harmless of officers or directors of the Company that are in effect on the date the Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either given by the Employee for Good Reason Executive or by the Employer other than pursuant Company with respect to Sections 6.2 all of her acts and omissions while an officer as fully and completely as if such termination had not occurred, and until the final expiration or 6.3 hereof, a lump sum amount equal to the highest running of (x) $300,000 or (y) three (3) times total compensation (including value all periods of the stock options granted during such period) earned by the Employee during the twelve month period prior limitation against actions that may be applicable to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law acts or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementomissions.
(e) In Notwithstanding anything to the contrary in this Agreement, in the event of a termination of this Agreement by that the Employee as a result of a Change of Control pursuant Executive becomes entitled to which the Severance Pay is as set forth above in Section 9(d)Payments, if any of the Severance Pay shall Payments will be subject to the average taxable compensation of tax (the Employee for the five taxable years prior to such termination or such higher amount as may be permitted “Excise Tax”) imposed by the Internal Revenue Service to compute "base amount" for purposes of Section 280G section 4999 of the Internal Revenue Code of 1986 1986, as amended (as amendedthe “Code”), the Company shall pay to the Executive an additional amount (the “Gross-Up Payment”) multiplied by three (but in no event may this such that the net amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to retained by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that Executive, after payment of any excise Excise Tax on the Total Payments (as hereinafter defined) and any federal, state and local income and other tax and Excise Tax upon the Employee Gross-Up Payment provided for by this Section 9(e), shall receive be equal to the Total Payments. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount specified of such Excise Tax, (i) any other payments or benefits received or to be received by the Executive in Section 9(dconnection with a Change in Control or the Executive’s termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, any person whose actions result in a Change in Control or any person affiliated with the Company or such person (which, together with Severance Payments, shall constitute “Total Payments”). The Employee ), shall be entitled to initially receive treated as “parachute payments” within the entire amount provided for in Section 9(dmeaning of section 280G(b)(2) of the Code, and all “excess parachute payments” within the meaning of section 280G(b)(1) shall not be required to repay treated as subject to the Employer any amount which is ultimately and finally determined Excise Tax, unless in the opinion of tax counsel selected by the Internal Revenue Service Company and acceptable to the Executive, such other payments or benefits (in whole or an appropriate courtin part) to have been do not constitute parachute payments, or such excess parachute payments (in excess whole or in part) represent reasonable compensation for services actually rendered within the meaning of section 280G(b)(4) of the permitted amount and Code, within the Employer agrees to use its best efforts to support meaning of section 280G(b)(3) of the Employee's position that such payments Code, or are otherwise not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
Excise Tax, (fii) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.Total Payments or
Appears in 1 contract
Sources: Employment Agreement (Zenith National Insurance Corp)
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness ("disability period"), the Employee shall continue to receive his Salary full salary at the rate then in effect for such period until the Employee's his employment is terminated pursuant to Section 6.2 10(b), provided that payments so made to Employee during the disability period shall be reduced by the sum of this Agreementthe amounts, if any, payable to Employee at or prior to the time of any such payment under disability benefit plans of the Company and which were not previously applied to reduce any such payment.
(b) If Employee's employment is terminated by his death, the Company shall pay to Employee's spouse, or until if he leaves no spouse, to his estate, an amount equal to his full salary at the Employee terminates his rate then in effect for a period of three months after the date of death.
(c) If Employee's employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After terminationshall be terminated for Cause, the Company shall pay Employee shall be paid, in equal monthly installments, 100% his full salary through the Date of his Salary, Termination at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (Ai) in breach of this Agreement, the Employer Company shall terminate the Employee's employment other than pursuant to Sections 6.2 Section 10(b) or 6.3 hereof 10(c) (it being understood that a purported termination pursuant to Section 6.2 10(b) or 6.3 hereof 10(c) which is disputed and finally determined not to have been proper shall be a termination by the Employer Company in breach of this Agreement), including as a result of a Change of Control, and/or ) or (Bii) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of ControlReason, then then
(A) the Employer Company shall pay to the Employee:
(i) Employee his full Salary salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(iiB) in lieu of any further salary or bonus payments to Employee for periods subsequent to the Date of Termination Termination, the Company shall pay as severance pay to Employee an amount equal to (1) Employee's average annual cash compensation received from the Company or National Patent Development Corporation during the three full calendar years immediately preceding the Date of Termination, multiplied by (2) the greater of (w)the number of years (including partial years) that would have been remaining in lieu the Employment Period if Employee's employment by the Company had not so terminated and (x) three, such payment to be made (y) if Employee's termination is based on a change of any further payments pursuant to Section 3 control of this Agreement)the Company, Severance Pay (as hereinafter defined), payable in a lump sum on or before the first fifth day following the Date of Termination, or (z) if Employee's termination results from any other cause, in substantially equal semimonthly installments on the fifteenth and last days of each month commencing with the month in which the Date of Termination occurs and continuing for the number of consecutive semimonthly payment dates (including the first such date as follows:aforesaid) equal to the product obtained by multiplying the number of years (including partial years) applicable under clause (w) above by 24;
(AC) all options to purchase the Company's common stock granted to Employee under the Company's option plan or otherwise shall immediately become fully vested and shall terminate on such date as they would have terminated if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Company had not terminated and, if Employee's termination is based on a change of control of the Company and Employee for Good Reason elects, not more than 30 days after the Date of Termination, to surrender any or by all of such options to the Employer other than pursuant to Sections 6.2 Company, the Company shall pay Employee on or 6.3 hereof, before the fifth day following such surrender a lump sum amount cash payment equal to the highest excess of (x1) $300,000 or (y) three (3) times total compensation (including the fair market value of on the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination of the securities issuable upon exercise of the options surrendered over ("Severance Pay")2) the aggregate exercise price of the options surrendered; and and
(iiiD) if termination of Employee's employment arises out of a breach by the Company of this Agreement, the Company shall pay all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreementsuch breach, including damages for any and all costs loss of benefits to Employee under the Company's employee benefit plans which Employee would have received if the Company had not breached this Agreement and expense had Employee's employment continued for the then remaining term of the Employment Period, and including all reasonable legal fees and expenses incurred by him (including attorneys fees) in contesting or disputing any as a result of such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementtermination.
(e) In the event of a termination of this Agreement by the If Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in shall terminate his employment under Section 9(d10(d)(ii), the Severance Pay Company shall be pay Employee his full salary through the average taxable compensation Date of Termination at the Employee for rate in effect at the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes time Notice of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which Termination is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsgiven.
(f) The Unless Employee is terminated for Cause, the Company shall maintain in full force and effect, for the continued benefit of Employee, for a number of years equal to the greater of (i) the number of years (including partial years) that would have been remaining in the Employment Period if Employee's employment by the Company had not so terminated and (ii) three, all employee benefit plans and programs in which Employee was entitled to participate immediately prior to the Date of Termination provided that Employee's continued participation is possible under the general terms and provisions of such plans and programs. In the event that Employee's participation in any such plan or program is barred, the Company shall arrange to provide Employee with benefits substantially similar to those which Employee would otherwise have been entitled to receive under such plans and programs from which his continued participation is barred.
(g) Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 11 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(gh) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of Notwithstanding anything in the business and/or assets of the Employer, by agreement in form and substance satisfactory foregoing to the Employeecontrary, the Company shall not be obligated to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness pay any portion of any amount otherwise payable to Employee pursuant to this Section 11 if the Company could not reasonably deduct such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement portion solely by operation of lawSection 280G of the Internal Revenue Code of 1986, as amended.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(bi) During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee he shall continue to receive his Salary full base salary at the rate then in effect and all compensation, including under the Annual Incentive Plan or any other bonus or compensation plan or policy, paid during the period until the Employee's employment this Agreement is terminated pursuant to Section 6.2 of this AgreementSubsection 3(I) hereof. Thereafter, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee benefits shall be paid, determined in equal monthly installments, 100% of his Salary, at accordance with the rate Company's disability program then in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)effect.
(cii) If the Employee's Executive retires pursuant to Subsection 3(i) hereof, this agreement is terminated.
(iii) If employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer Company shall pay the Employee his full Salary base salary through the Date of Termination, Termination at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, Company shall have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(div) If employment by the Company shall be terminated (a) by the Company other than for Cause, Retirement or Disability or (b) for Good Reason, then the Executive shall be entitled to the benefits provided below:
(A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer Company shall pay to the Employee:
(i) his full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(iiB) in lieu of any further salary payments for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement)Termination, Severance Pay (the Company shall pay as hereinafter defined)severance pay, payable on not later than the first fifth day following the Date of Termination, as follows:
a lump sum severance payment equal to one times the sum of (AI) if (i) annual UNITED BANCORP, INC. FORM 10-K base salary in effect immediately prior to the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change occurrence of Control; or the circumstance giving rise to the Notice of Termination given in respect thereof and (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than amount of any bonus paid pursuant to Sections 6.2 the Annual Incentive Plan in the year preceding that in which the Date of Termination occurs. Such payment shall be reduced as appropriate, to not exceed the amount equal to a fraction of this payment, the numerator of which is the number of full months remaining to the Executive's normal retirement date and the denominator of which is (12, 24 or 6.3 hereof36).
(C) notwithstanding any provision of the Annual Incentive Plan, the Company shall pay, not later than the fifth day following the Date of Termination, a lump sum amount equal to the highest sum of (xI) $300,000 or (y) three (3) times total any incentive compensation (including value of which has been allocated for the stock options granted during such period) earned by fiscal year preceding that in which the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); occurs but which has not yet been paid, and (iiiii) any award under the Annual Incentive Plan which has not yet been paid for any period which has closed prior to the Date of Termination.
(D) The Company shall also pay all other damages to which the Employee may be entitled legal fees and expenses incurred as a matter of law or equity as result of the termination of his employment under this Agreement, (including all costs such fees and expense and expenses expenses, if any, incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement).
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(fv) The Employee Executive shall not be required to mitigate the amount of any payment provided for in this Section 9 4 by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 9 4 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and retirement benefits after the Date of Termination, or otherwise, and in Subsection 4(vi) below.
(gvi) The Employer will require In the event that any successor payment or benefit (whether direct or indirect, by purchase, merger, consolidation payable pursuant to the terms of this Agreement or otherwise) to all or substantially all would not be deductible because of Section 280G of the business and/or assets Internal Revenue Code of 1954, as amended (the Employer"Code"), by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession aggregate amount payable hereunder shall be a breach reduced, so that after giving effect to such reduction, no payment made or benefit under the terms of this Agreement and shall entitle will not be deductible because of Section 280G of the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to Code. In determining whether any payment under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement would not be deductible under Section 280G of the Code, all present and future payments and benefits shall be included (and, in the case of stock option, other non-cash benefits or deferred cash payments, shall be valued by operation a national independent accounting firm (at the Company's expense) acceptable to the Executive in accordance with the principles of lawSections 280G(d) (3) and (4) of the Code and any regulations promulgated thereunder) except payments and benefits which, in the written opinion of independent tax counsel selected by a national independent accounting UNITED BANCORP, INC. FORM 10-K firm and acceptable to the Executive, do not constitute "parachute payments" within the meaning of Section 280G(b) (2) of the Code.
Appears in 1 contract
Sources: Special Severance Agreement (United Bancorp Inc /Oh/)
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) a. During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee Executive shall continue to receive his Salary full salary at the rate then in effect for such period until the Employee's his employment is terminated pursuant to subsection 6(b) hereof (a "Disability Termination"); and, after such Disability Termination, the Company shall pay the Executive one hundred percent (100%) of the salary he would have otherwise received under Section 6.2 5 hereof for the partial term remaining in the then current term of this Agreement, or until the Employee terminates his employment Agreement plus an additional amount calculated pursuant to Section 6.4(a) of this Agreementsubsection 7(d)(B), whichever first occurs. After termination, and payment so made to the Employee Executive shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one yearaddition to, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been not in effect under this Agreement, plus, in each caselieu of, any disability payments benefits payable under policies or programs maintained by the Company.
b. If the Executive's employment is terminated by his death, the Company shall pay any amounts due to the Executive under Section 5 through the date of his death, and the Company shall thereafter pay his legal representative or any beneficiary designated by him in writing one hundred percent (100%) of the salary he would have otherwise payable by or received under Section 5 hereof for the partial term remaining in the current term of this Agreement plus an additional amount calculated pursuant to plans provided subsection 7(d)(B). Any payment under this subsection 7(b) shall be in addition to, and not in lieu of, any periodic payments of death benefits payable under policies or programs maintained by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)Company.
(c) c. If the EmployeeExecutive's employment shall be terminated by the Company for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment Executive other than pursuant to Sections 6.2 or 6.3 hereof subsection 6(d) the Company shall pay the amounts due under Section 5 through Date of Termination.
d. If (it being understood that a purported termination i) the Executive's employment is terminated by the Company for any reason other than for Cause, (ii) the Company elects not to renew this Agreement pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach 2, hereof, of this Agreement), including as a result of a Change of Control, and/or (Biii) the Employee Executive shall terminate his employment for Good Reason or at any time within twelve months after a Change of Controlpursuant to subsection 6(d), then the Employer Company shall pay to the EmployeeExecutive the following:
(iA. any and all amounts due under Section 5(a) his full Salary through the Date date of Termination Termination; and
B. the greater of the amount of salary the Executive would otherwise have received under Section 5 hereof for the partial term remaining in the then current term remaining in the then current term of this Agreement or six (6) months salary at the rate then in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (such period. This amount shall be paid as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of Executive within Thirty (x30) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result days of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementemployment.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Sources: Employment Agreement (National Bancshares Corp of Texas)
Compensation Upon Termination or During Disability. Upon termination of Employee’s employment hereunder or during any period of Employee’s physical or mental disability, Employee shall be paid as follows:
(a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness (the “Disability Period’), the Employee shall continue to receive his Salary annual base salary at the rate then in effect, until the Employee's employment is terminated pursuant to Section 6.2 earlier of this Agreement(i) the end of the Term, or until (ii) the Employee terminates his employment pursuant 90th day following the commencement of the Disability Period, provided that payments so made to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paidreduced by the sum of the amounts, if any, payable to Employee under disability benefit plans of the Company and which were not previously applied to reduce any such payment. In addition the Company shall reimburse Employee for any theretofore unreimbursed expenses incurred prior to the commencement of the Disability Period.
(b) If Employee’s employment is terminated by his death, the Company shall pay to Employee’s designated beneficiaries, or if he leaves no designated beneficiaries, to his estate, his annual base salary through the date of Employee’s death at the rate then in equal monthly installmentseffect and any theretofore unreimbursed expenses, 100% and the Company shall have no further obligations to Employee under this Agreement.
(c) If Employee’s employment shall be terminated for Cause, the Company shall pay Employee his annual base salary (but not the compensation described in Sections 4(b) and (c)) through the Date of his Salary, Termination at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, given and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, Company shall have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Employee under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A1) in breach of this Agreement, the Employer Company shall terminate the Employee's ’s employment other than pursuant to Sections 6.2 Section 8(b) or 6.3 8(c) hereof (it being understood that a purported termination pursuant to Section 6.2 8(b) or 6.3 8(c) hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer Company in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer Company shall pay Employee, with no offset, an amount equal to the Employee:
three (i3) months of his full Salary through the Date of Termination annual base salary at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent , such payments to be made in substantially equal semimonthly installments on the first and sixteenth of each month commencing with the month in which the Date of Termination (in lieu occurs and continuing until the end of the Term. During the term of this Agreement Employee shall give the Company immediate notice of any further payments change of address. If Employee shall terminate his employment pursuant to Section 3 of this Agreement8(d), Severance Pay (as hereinafter defined), payable on the first day following Company shall pay Employee his full salary through the Date of Termination, as follows:
(A) if (i) Termination at the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change rate in effect on the date that Notice of Control; or (ii) the Employee's employment Termination is terminated either received by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this AgreementCompany.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period following a change in control that the Employee fails you fail to perform his your duties hereunder as a result of incapacity due to physical or mental illness, the Employee you shall continue to receive his Salary your full base salary at the rate then in effect and any benefits or awards under any Plans shall continue to accrue during such period, to the extent not inconsistent with such Plans, until the Employee's your employment is terminated pursuant to Section 6.2 of this Agreementand in accordance with paragraphs 5(i) and 5(vi) hereof. Thereafter, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee your benefits shall be paid, determined in equal monthly installments, 100% of his Salary, at accordance with the rate Plans then in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officerseffect. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's your employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of Retirement or Death following a Change change in control of Controlthe Company, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer Company shall pay to the Employee:
(i) his you your full Salary base salary through the Date of Termination at the rate in effect at just prior to the time a Notice of Termination is given;
given plus any benefits or awards (iiincluding both the cash and stock components) which pursuant to the terms of any Plans have been earned or become payable, but which have not yet been paid to you. Thereupon the Company shall have no further obligations to you under this Agreement. If, within twenty-four (24) months after a change in control of the Company shall have occurred, as defined in Section 4 above, your employment by the Company shall be terminated (a) by the Company other than for periods Cause, Disability or Retirement or (b) by you for Good Reason based on an event occurring concurrent with or subsequent to a change in control, then, by no later than the fifth day following the Date of Termination (in lieu except as otherwise provided), you shall be entitled, without regard to any contrary provisions of any further payments pursuant Plan, to Section 3 of this Agreement), a severance benefit (the “Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(ABenefit”) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest lesser of (x) $300,000 the Specified Benefits (as defined in subsection (A) below), or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 Capped Benefit (as amendeddefined in subsection (B) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employeebelow). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d)33 ▇▇. The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise▇▇▇▇ ▇▇▇▇▇▇ June 11, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.2003 Page – 34
Appears in 1 contract
Sources: Change in Control Agreement (Electro Scientific Industries Inc)
Compensation Upon Termination or During Disability. (a) If The Employee shall be entitled to the following benefits during a period of disability, or upon termination of the Employee's employment shall be terminated by reason of his deathemployment, as the Employer shall pay to case may be, provided that such person as he shall designate in writing filed with period or termination occurs during the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions Term of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.;
(ba) During any period that the Employee fails to perform his full-time duties hereunder with the Company as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary the Employee's base salary at the rate in effect at the commencement of any such period, together with all compensation payable to the Employee under the Company's disability plan or program or other plan during such period, until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement9(a) hereof. Thereafter, or until in the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If event the Employee's employment shall be terminated for Cause or terminated by reason of the Employee without Good Reason prior to or more than twelve months after, a Change of ControlEmployee's death, the Employer Employee's benefits shall pay be determined under the Employee his full Salary through the Date of TerminationCompany's retirement, at the rate insurance and other compensation programs then in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance accordance with the provisions terms of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effectsuch programs.
(db) If (A) in breach of this Agreement, the Employer shall terminate at any time the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination terminated (i) by reason of the Employee's death, (ii) by the, Company for Cause or Disability or (iii) by the Employer in breach of this Agreement)Employee for any reason (other than, including as a result following the occurrence of a Change of in Control, and/or for Good Reason), the Company shall pay him or the appropriate payee, as the case may be (Bas determined in accordance with Section 11(b) hereof) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his 's full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;, plus all other amounts to which the Employee is entitled under any compensation plan of the Company At the time such payments are due, and the Company shall have no further obligations to the Employee under this Agreement.
(iic) If, prior to a Change in Control, the Employee's employment should be terminated by the Company other than for periods subsequent Cause or Disability, the Employee shall be entitled to the benefits provided below:
(i) The Company shall pay to the Employee his full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given, no later than the fifth (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first Sth) day following the Date of Termination, as follows:plus all other amounts to which he is entitled under any compensation plan of the Company, at the time such payments are due;
(Aii) if (i) The Company shall pay the Employee, in a lump sum payment, no later than the fifth (Sth) day following the Date of Termination, all salary, annual bonus payments and two percent (2%) bonus payments that would have been payable to the Employee pursuant to this Agreement had the Employee continued to be employed for the remaining Term of this Agreement, assuming for the purpose of such continuing payments that the Employee's salary for each year of such remaining Term is equal to his salary at the Date of Termination and that his annual bonus and two percent (2%) bonus for each year of such remaining Term is equal to the average of the annual bonuses and two percent (2%) bonuses paid to him by the Company with respect to the three (3) fiscal years ended immediately prior to the fiscal year in which the Date of Termination occurs; and
(iii) The Company shall continue in effect for the benefit of the Employee all insurance or without Good Reasonother provisions for indemnification and defense of officers or directors of the Company which are in effect on the date the Notice of Termination is sent to the Employee with respect to all of his acts an omissions while an officer or director as fully and completely as if such termination had not occurred, terminates his employment at any time within twelve months after and until the final expiration or running of all periods of limitation against actions which may be applicable to such acts or omissions.
(d) If, following a Change of in Control; or (ii) , the Employee's employment is should be terminated either by the Company other than for Cause or Disability, of the Employee's employment should be terminated by the Employee for Good Reason or by Reason, he shall be entitled to the Employer other than pursuant benefits provided below:
(i) The Company shall pay to Sections 6.2 or 6.3 hereof, the Employee in a lump sum amount payment no later than the fifth (5th) day following the Date of Termination all salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given, plus all salary, annual bonus payments and two percent (2%) bonus payments that would have been payable to the Employee pursuant to this Agreement had the Employee continued to be employed for the remaining Term of this Agreement, assuming for the purpose of such payments that his salary for each year of such remaining Term is equal to his salary at the Date of Termination and that his annual bonus and two percent (2%) bonus for each year of such remaining Term is equal to the highest average of the annual bonuses and two percent (x2%) $300,000 or (y) bonuses paid to him by the Company with respect to the three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period fiscal years ended immediately prior to such the fiscal year in which the Date of Termination occurs; plus all other amounts to which he is entitled under any compensation plan of the Company, and
("Severance Pay"ii) An amount equal to 2.98 times the total compensation paid and payable to the employee under this agreement during and f or the year in which the change of control occurs in a total lump sum to be paid to Employee under Section 10(d)(i); and , above.
(iii) all other damages to which The Company shall continue in effect for the benefit o the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Company which are in effect on the date the Notice of Termination is sent to the Employee with respect to all of his acts and omissions while an officer or director as fully and completely Ai3 if such termination had not occurred, and until the final expiration or running of all periods of limitation against actions which may be entitled as a matter of law applicable to such acts or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementomissions.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of amountof any payment provided for in this Section 9 10 by seeking other employment or otherwise, nor shall .
(f) In the amount event the employment of any payment provided for in this Section 9 be reduced the Employee is terminated by any compensation earned the Company without Cause or the Employee's employment is terminated by the Employee as under conditions entitling him to payment hereunder and the result Company f ails to make timely payment of employment by another employer or business or by profits earned by the amounts then owed to the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirectunder this Agreement, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would shall be entitled to under Section 9(d)(ii)(Binterest on such amounts at the rate of five percent (5%) if he terminated his employment above the prime rate (defined as the base rate on corporate loans at large U.S. money center commercial banks as published by the Wall Street Journal), compounded monthly, for Good Reason, except for purposes of implementing the foregoing, period from the date on such amounts were otherwise due until payment is made to the Employee (which any such succession becomes effective interest shall be deemed in addition to all rights which the Date of Termination. As used in Employee is otherwise entitled to under this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.)
Appears in 1 contract
Compensation Upon Termination or During Disability. Upon termination of Employee’s employment hereunder or during any period of Employee’s physical or mental disability, Employee shall be paid as follows:
(a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness (the “Disability Period’), the Employee shall continue to receive his Salary annual base salary at the rate then in effect, until the Employee's employment is terminated pursuant to Section 6.2 earlier of this Agreement(i) the end of the Term, or until (ii) the Employee terminates his employment pursuant 90th day following the commencement of the Disability Period, provided that payments so made to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paidreduced by the sum of the amounts, if any, payable to Employee under disability benefit plans of the Company and which were not previously applied to reduce any such payment. In addition the Company shall reimburse Employee for any theretofore unreimbursed expenses incurred prior to the commencement of the Disability Period.
(b) If Employee’s employment is terminated by his death, the Company shall pay to Employee’s designated beneficiaries, or if he leaves no designated beneficiaries, to his estate, his annual base salary through the date of Employee’s death at the rate then in equal monthly installmentseffect and any theretofore unreimbursed expenses, 100% and the Company shall have no further obligations to Employee under this Agreement.
(c) If Employee’s employment shall be terminated for Cause, the Company shall pay Employee his annual base salary (but not the bonus compensation described in Section 4(b)) through the Date of his Salary, Termination at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, given and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, Company shall have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Employee under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A1) in breach of this Agreement, the Employer Company shall terminate the Employee's ’s employment other than pursuant to Sections 6.2 Section 8(b) or 6.3 8(c) hereof (it being understood that a purported termination pursuant to Section 6.2 8(b) or 6.3 8(c) hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer Company in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer Company shall pay Employee, with no offset, an amount equal to the Employee:
three (i3) months of his full Salary through the Date of Termination annual base salary at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent , such payments to be made in substantially equal semimonthly installments on the fifteenth and last days of each month commencing with the month in which the Date of Termination (in lieu occurs and continuing until the end of the Term. During the term of this Agreement Employee shall give the Company immediate notice of any further payments change of address. If Employee shall terminate his employment pursuant to Section 3 of this Agreement8(d), Severance Pay (as hereinafter defined), payable on the first day following Company shall pay Employee his full salary through the Date of Termination, as follows:
(A) if (i) Termination at the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change rate in effect on the date that Notice of Control; or (ii) the Employee's employment Termination is terminated either received by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this AgreementCompany.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails Finl▇▇ ▇▇▇ls to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness ("disability period"), the Employee shall Finl▇▇ ▇▇▇ll continue to receive his Salary until full salary at the Employee's rate then in effect for such period and all employment benefits due to Finl▇▇ ▇▇▇il his employment is terminated pursuant to Section 6.2 7 above, provided that payments so made to Finl▇▇ ▇▇▇ing the disability period shall be reduced by the sum of this Agreementthe amounts, if any, payable to Finl▇▇ ▇▇ or prior to the time of any such payment under disability benefit plans of the Corporation and which were not previously applied to reduce any such payment.
(b) If Finl▇▇'▇ ▇▇▇loyment is terminated by his death, the Corporation shall pay to Finl▇▇'▇ ▇▇▇use, or until if he leaves no spouse, to his estate, within thirty (30) days of Finl▇▇'▇ ▇▇▇th, all salary and employment benefits due to Finl▇▇ ▇▇▇rued through the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% date of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)death.
(c) If the Employee's employment Finl▇▇'▇ ▇▇▇loyment shall be properly terminated for Cause or terminated by cause pursuant to all of the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the applicable provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreementagreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer Corporation shall pay to the Employee:
(i) his Finl▇▇ ▇▇▇ full Salary salary only through the Date of Termination at the rate in effect at the time Notice of Termination is given;given and the Corporation shall have no further obligations to Finl▇▇ ▇▇▇er or pursuant to this Agreement.
(d) If (i) in breach of this agreement, the Corporation shall terminate Finl▇▇'▇ ▇▇▇loyment other than pursuant to subsection 7 (a) above (termination for cause) or Section 14 below (termination by reason of death or disability)(it being understood that a purported termination by the Corporation pursuant to subsection 7 (a) above or Section 14 below which is disputed and finally determined not to have been proper shall be deemed a termination by the Corporation in breach of this agreement) or (ii) Finl▇▇ ▇▇▇ll terminate his employment for Good Reason, then
(I) the Corporation shall pay Finl▇▇ ▇▇▇ full salary and all employment benefits due to Finl▇▇ ▇▇▇ough the Date of Termination at the rate in effect at the time the Notice of Termination is given; 5
(II) in lieu of any further salary payments to Finl▇▇ ▇▇▇ periods subsequent to the Date of Termination Termination, the Corporation shall pay to Finl▇▇, ▇▇ severance pay (in lieu of any further payments pursuant and not as a penalty to Section 3 of this Agreementthe Corporation), Severance Pay an amount equal to the product of (A) Finl▇▇'▇ ▇▇▇ual base salary rate in effect as hereinafter definedof the Date of Termination, multiplied by (B) the number two (2), payable such payment to be made (X) if resulting from a termination based on a Change of Control of the first Corporation or of MKP, in a lump sum on or before the thirtieth (30th) day following the Date of Termination, or (Y) if resulting from any other cause, in substantially equal semimonthly installments on the fifteenth and last days of each month commencing with the month in which the Date of Termination occurs and continuing for forty-eight (48) consecutive semimonthly payment dates (including the first such date as follows:aforesaid), without interest;
(AIII) if in addition to all other salary, employment benefits and other payments due to Finl▇▇ ▇▇▇suant to the provisions of this subsection 8(d), the Corporation shall issue to Finl▇▇, ▇▇thin ten (i10) days after the EmployeeDate of Termination, with or without Good Reason, terminates his employment at any time within twelve months after a Change such number of Control; or shares of the Corporation's common stock (iisuch shares of common stock are hereinafter referred to as the "Termination Stock") as shall have an aggregate fair market value as of the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount Date of Termination equal to one million ($1,000,000.00) dollars less the highest aggregate fair market value of all of the shares of the Corporation's common stock and all of the warrants, options and other derivative securities to purchase shares of the Corporation's common stock which are owned of record by Finl▇▇ ▇▇ the Date of Termination. For purposes of this clause (III), (x) $300,000 or (y) three (3) times total compensation (including the fair market value of each share of the Corporation's common stock options granted during such period) earned by as of the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee bid and ask prices for the five taxable years prior Corporation's common stock for the ten (10) trading days immediately preceding the Date of Termination and (y) the fair market value of each warrant, option or other derivative security to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G purchase one (1) share of the Internal Revenue Code Corporation's common stock as of 1986 the Date of Termination shall be equal to the fair market value of one (1) share of the Company's common stock as amended) multiplied by three of the Date of Termination less the per share exercise price of such warrant, option or other derivative security (but in no event may shall such fair market value of any warrant, option or other derivative security be less than zero). If the Corporation's common stock shall not be publicly traded on the Date of Termination, then the fair market value of the Corporation's common stock shall be mutually determined by two investment banking firms with experience related to the business of the Corporation and its subsidiaries. In such event, one such firm shall be designated by Finl▇▇ ▇▇▇ the other firm shall be designated by the Corporation. The fair market value of the Corporation's common stock and the fair market value of the warrants, options and other derivative securities to purchase shares of the Corporation's common stock as determined pursuant to this amount exceed Severance Pay as provided by Section 9(dclause (III) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(dsubsection 8(d) shall be increased so that after payment of any excise tax final, conclusive and binding upon the Employee shall receive the amount specified in Section 9(d)parties hereto. The Employee Corporation shall be entitled obligated to initially receive register the entire amount provided for in Section 9(dTermination Stock, at the Corporation's sole cost and expense, pursuant to a registration statement filed within sixty (60) days after the Date of Termination and declared effective as soon thereafter as is reasonably practicable. Further, if from and after the Date of Termination, the shares of the Corporation's common stock underlying the warrants, options and other derivative securities owned of record by Finl▇▇ ▇▇ the Date of Termination (such underlying shares of common stock hereinafter referred to as "Underlying Shares") shall not be required freely tradeable by Finl▇▇ ▇▇▇suant to repay an effective registration statement, then the Corporation shall also be obligated to register all of the Underlying Shares together with the Termination Stock, at the Corporation's sole cost and expense, pursuant to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees aforementioned registration statement. The Corporation shall be obligated to use its best efforts to support cause such registration statement to be declared effective as soon as possible after filing and to maintain such effectiveness until all of the EmployeeTermination Stock and all of the Underlying Shares shall have been sold by Finl▇▇; ▇▇d 6
(IV) in addition to the payments referred to in clauses (I), (II) and (III) above, if termination of Finl▇▇'▇ ▇▇▇loyment arises out of a breach by the Corporation of this agreement, the Corporation shall pay all other damages to which Finl▇▇ ▇▇▇ be entitled as a result of such breach, including damages for any and all loss of benefits to Finl▇▇ ▇▇▇er the Corporation's position employee benefit plans which Finl▇▇ ▇▇▇ld have received if the Corporation had not breached this agreement and had Finl▇▇'▇ ▇▇▇loyment continued for the full term provided in Section 2 hereof. In addition to the occurrences specified in clauses (i) and (ii) of the preamble to this subsection 8(d), the Termination Stock shall also be issued to Finl▇▇ ▇▇ provided in subsection 2(b) above.
(e) Unless Finl▇▇'▇ ▇▇▇loyment is properly terminated by the Corporation for cause, the Corporation shall maintain in full force and effect, for the continued benefit of Finl▇▇ ▇▇▇ the greater of the number of years (including partial years) remaining in the term of employment hereunder or the number two (2), all employee benefit plans and programs in which Finl▇▇ ▇▇▇ entitled to participate immediately prior to the Date of Termination, provided that Finl▇▇ ▇▇▇tinued participation is possible under the general terms and provisions of such payments are not subject to excise tax plans and programs. In the event that Finl▇▇'▇ ▇▇▇ticipation in any dealings with such plan or program is barred, the Internal Revenue Service any in any appropriate legal proceedingsCorporation shall arrange to provide Finl▇▇ ▇▇▇h benefits substantially similar to those which Finl▇▇ ▇▇▇ld otherwise have been entitled to receive under such plans and programs from which his continued participation is barred.
(f) The Employee Corporation may withhold from any payments or other benefits payable to Finl▇▇ ▇▇▇suant to this Section 8 or any other provision of this agreement all federal, state, city or other taxes as shall not be required pursuant to mitigate any law, government regulation or ruling."
6. Section 14 of the amount Executive Employment Agreement is hereby amended by the addition of any payment provided for the following words at the end thereof: "except as otherwise specifically set forth in Section 8 above".
7. The following provisions are hereby added as Section 23 of the Executive Employment Agreement: "Restated Agreement. This agreement has been restated and amended effective as of October 1, 1998 to incorporate the provisions of the First Amendment to the Executive Employment Agreement dated as of October 1, 1998 by and between the Corporation and Finl▇▇."
8. Any capitalized term not specifically defined herein shall have the meaning ascribed to such term in the Executive Employment Agreement.
9. Except as otherwise set forth in this Section 9 by seeking other employment or otherwiseagreement, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets terms and provisions of the EmployerExecutive Employment Agreement, by shall remain unmodified and in full force and effect.
10. The covenants, agreements, terms, provisions and conditions contained in this agreement in form shall bind and substance satisfactory inure to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure benefit of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement parties hereto and shall entitle the Employee to compensation from the Employer in the same amount their respective heirs, successors, legal representatives and on the same terms as he would be entitled to under Section 9(d)(ii)(B) permitted assigns, if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of lawany.
Appears in 1 contract
Sources: Executive Employment Agreement (Financial Performance Corp)
Compensation Upon Termination or During Disability. (a) If Upon the EmployeeExecutive's employment shall be terminated by reason of his death, the Employer Company shall pay to such the person as he shall designate designated by the Executive in writing a notice filed with the EmployerCompany or, or if no such person shall be is designated, to his estate as a lump sum death benefit, his full Base Salary to the date for a period of six months after his death in addition to any payments to the EmployeeExecutive's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension pension, stock option or employee Executive benefit plan or life insurance policy or similar plan or policy then maintained by the EmployerCompany. Upon full payment of all amounts required to be paid under this subsection, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Company shall have no further obligation under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee Executive fails to perform his duties hereunder under this Agreement as a result of incapacity due to physical or mental illness, the Employee Executive shall continue to receive his Salary full base salary until the EmployeeExecutive's employment is terminated pursuant to Section 6.2 6 (b) of this Agreement, or until the Employee Executive terminates his employment pursuant to Section 6.4(a6 (d) (ii) of this Agreement, whichever first occurscomes first. After termination, the Employee Executive shall be paid, receive in equal monthly installments, installments 100% of his Salary, base salary at the rate in effect at the time Notice of Termination is given, delivered for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, plus any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(bCompany ("Disability Payments").
(c) If the EmployeeExecutive's employment shall be is terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer Company shall pay the Employee Executive his full Salary base salary through the Date date of Termination, termination at the rate in effect at the time Notice of Termination is given, delivered and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, Company shall have no further obligations with respect obligation to Section 3 of this Agreement, but all other obligations of the Employer Executive under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer Company shall terminate the EmployeeExecutive's employment other than pursuant to Sections 6.2 6 (b) or 6.3 hereof 6 (c) (it being understood that a purported termination pursuant to Section 6.2 Sections 6 (b) or 6.3 hereof 6 (c) which is disputed and finally determined not to have been proper shall be a termination by the Employer Company in breach of this Agreement), including as a result of a Change of Control, and/or or (B) the Employee Executive shall terminate his employment for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer shall pay to the Employee:then
(i) The Company shall pay the Executive his full Salary base salary through the Date date of Termination termination at the rate then in effect at the time Notice of Termination is given;
(ii) in lieu of any further salary payments to the Executive for periods subsequent to the Date of Termination (and in lieu consideration of any further payments pursuant to the rights of the Company under Section 3 5 of this Agreement), Severance Pay (as hereinafter defined), payable the Company shall pay severance pay to the Executive on the first fifth day following the Date date of Terminationtermination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, in a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value entire salary due until the end of the stock options granted during such period) earned by term of this Agreement based on an annual base salary at the Employee highest rate in effect during the twelve month period prior to such Date (12) months immediately preceding the date of Termination ("Severance Pay"); and Termination.
(iii) all other damages to which In the Employee may be entitled as event of a matter of law or equity as result change in control of the termination Company as defined in Section 6 (d), the Company shall pay in a lump sum payment (or in monthly installments at the option of his employment the Executive) the greater of twice the amount of severance pay required in Section 7 (d) (ii) above, or three times the annual base salary at the highest rate in effect during the twelve (12) months immediately preceding the date of termination.
(iv) In the event of a change in control of the Company as defined in Section 6 (d), the total number of outstanding unexercised options (warrants) granted to the Executive under this AgreementAgreement or any previous employment or other agreements, including shall be doubled in quantity while retaining the original exercise price.
(v) The Company shall pay all costs and expense reasonable legal fees and expenses incurred by him (including attorneys fees) the Executive in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by in this Agreement.
(e) In Unless the event Executive is terminated for Cause, the Company shall maintain in full force and effect, for the continued benefit of a the Executive for the greater of the remaining term of this Agreement or eighteen (18) months after termination of this Agreement by the Employee as a result of a Change of Control pursuant to Agreement, all Executive health and hospitalization plans and programs in which the Severance Pay Executive was entitled to participate in immediately prior to the Date of Termination, provided that the Executive's continued participation is as set forth above possible under the general terms and provisions of the plans and programs. If the Executive's participation in Section 9(d)any plan or program is barred, the Severance Pay Company shall be arrange to provide the average taxable compensation of Executive with benefits substantially similar to those which the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be Executive would otherwise have been entitled to initially receive under the entire amount provided for in Section 9(d) plan and shall not be required to repay to the Employer any amount program from which his continued participation is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsbarred.
(f) The Employee Executive shall not be required to mitigate the amount of any payment provided for in this Section 9 7 by seeking other employment or otherwise, nor shall however, the amount of any payment provided for in this Section 9 7 shall not be reduced by any compensation earned by the Employee Executive as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all In the event of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions termination of this Agreement by operation the Executive for Good Reason as a result of lawa change in control, the amount to be utilized in Section 7 (d)(ii) shall be changed to the average compensation of the Executive during this Agreement for the taxable years prior to such termination (all as determined to compute the base amount for purposes of Section 280G of the Internal Revenue Code of 1984, as amended).
Appears in 1 contract
Compensation Upon Termination or During Disability. Upon termination of Employee’s employment hereunder or during any period of Employee’s physical or mental disability, Employee shall be paid as follows:
(a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness (the “Disability Period’), the Employee shall continue to receive his Salary annual base salary at the rate then in effect, until the Employee's employment is terminated pursuant to Section 6.2 earlier of this Agreement(i) the end of the Term, or until (ii) the Employee terminates his employment pursuant 90th day following the commencement of the Disability Period, provided that payments so made to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paidreduced by the sum of the amounts, if any, payable to Employee under disability benefit plans of the Company and which were not previously applied to reduce any such payment. In addition the Company shall reimburse Employee for any theretofore unreimbursed expenses incurred prior to the commencement of the Disability Period.
(b) If Employee’s employment is terminated by his death, the Company shall pay to Employee’s designated beneficiaries, or if he leaves no designated beneficiaries, to his estate, his annual base salary through the date of Employee’s death at the rate then in equal monthly installmentseffect and any theretofore unreimbursed expenses, 100% and the Company shall have no further obligations to Employee under this Agreement.
(c) If Employee’s employment shall be terminated for Cause, the Company shall pay Employee his annual base salary (but not the bonus compensation described in Section 4(b)) through the Date of his Salary, Termination at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, given and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, Company shall have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer Employee under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A1) in breach of this Agreement, the Employer Company shall terminate the Employee's ’s employment other than pursuant to Sections 6.2 Section 8(b) or 6.3 8(c) hereof (it being understood that a purported termination pursuant to Section 6.2 8(b) or 6.3 8(c) hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer Company in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer Company shall pay to the Employee:
(i) his full Salary through Employee on the Date of Termination Termination, with no offset, an amount equal to three (3) months of his annual base salary at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent . During the term of this Agreement Employee shall give the Company immediate notice of any change of address. If Employee shall terminate his employment pursuant to Section 8(d), the Company shall pay Employee his full salary through the Date of Termination (at the rate in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable effect on the first day following the Date date that Notice of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment Termination is terminated either received by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this AgreementCompany.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness ("Disability Period"), the Employee Executive shall continue to receive his Base Salary at the rate and frequency then in effect for such period and all other compensation and benefits provided herein until the Employee's his employment is terminated pursuant to Section 6.2 6(b) hereof, provided that payments so made to the Executive shall be reduced by the sum of this Agreementthe amounts, if any, payable to the Executive at or prior to the time of any such payment under 18 disability benefit plans of the Company or under the Social Security disability insurance program, and which amounts were not previously applied to reduce any such payment.
(b) If the Executive's employment is terminated (i) by his death, (ii) for Disability under Section 6(b) hereof, (iii) by the Company for Cause under Section 6(c) hereof, or until (iv) by the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After terminationExecutive without Good Reason, the Employee Company shall be paid, promptly pay the Executive (or the Executive's legal representative in equal monthly installments, 100% accordance with Section 15(b) hereof) his (A) Base Salary through the Date of his Salary, Termination at the rate in effect at on the time Notice Date of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, (plus, in each casethe case of termination due to death, Base Salary at that rate through the ninetieth (90th) day after the date of death); (B) any disability payments otherwise payable by or amounts due the Executive through the Date of Termination pursuant to plans Section 4 hereof, provided by that the Employer Company's post-termination obligations with respect to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee CARs shall provide consulting services to the Employer during the period that he is receiving payments be as provided pursuant to this Section 9(b)4(d) hereof; and (C) any other or additional benefits to be provided in accordance with pertinent plans, programs, or obligations of the Company.
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer Company shall terminate the EmployeeExecutive's employment (other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreementfor Cause), including as a result of a Change of Control, and/or (B) the Employee Executive shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control(C) the Executive's employment shall be terminated for Disability, then the Employer shall pay then, subject to the Employee:Executive's continuing compliance with Section 12 hereof (provided that the Company's post-termination obligations with respect to CARs, which are provided for in Section 4(d) hereof, shall not be subject to such compliance),
(i) the Company shall promptly pay the Executive his full Base Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, any previously awarded but unpaid bonus for any fiscal year completed prior to the Date of Termination, all other unpaid amounts, if any, to which the Executive is entitled as of the Date of Termination under this Agreement or any compensation plan or program of the Company, at the time such payments are due, and a pro-rata bonus for the year of termination based on his prior year's bonus award (or, if the Date of Termination shall occur prior to the end of the first full fiscal year of the Company during the Term of Employment, based on an annual bonus of five-hundred thousand dollars ($500,000));
(ii) in lieu of any further salary or bonus payments to the Executive for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, the Company shall pay as follows:
severance to the Executive an amount (the "Severance Amount") equal to two (2) times the sum of (A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the EmployeeExecutive's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value annual Base Salary rate in effect as of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of or, if the termination of his employment under this Agreementis for Good Reason based on a reduction in Base Salary, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In then the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay rate shall be the average taxable compensation of the Employee for the five taxable years rate in effect immediately prior to such termination reduction), plus (B) if the Date 19 of Termination occurs on or such higher amount as may be permitted by before December 31, 1999, a deemed annual bonus of five-hundred-thousand dollars ($500,000); the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) Amount shall be increased so that after payment of any excise tax the Employee shall receive the amount specified paid in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) substantially equal installments and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to over the same extent period of time as the Executive's salary payments would have been made, except that if the Employer would Date of Termination occurs within the two-year period immediately following a "Change in Control" (as defined in Section 8 hereof) the Severance Amount shall be required to perform it if no paid in a single lump sum payment within the ten-day period immediately following such succession had taken place. Failure Date of Termination;
(iii) the Company shall maintain in full force and effect, for the continued benefit of the Employer Executive for two years, each "employee welfare benefit plan" (as defined in section 3(1) of ERISA) in which the Executive was entitled to obtain such Agreement participate immediately prior to the effectiveness Date of Termination (with no reduction in benefits), provided that the Executive's continued participation is possible under the general terms and provisions of such plans. In the event that the Executive's participation in any such succession plan is barred, the Company shall be a breach arrange to provide the Executive with benefits substantially similar to those which the Executive would otherwise have been entitled to receive under the plan from which his continued participation is barred (with no reduction in benefits); and
(iv) the Company shall promptly pay to the Executive (A) any other amounts due and owing to the Executive under Section 4 of this Agreement and (B) any other or additional benefits to be provided in accordance with pertinent plans, programs and obligations of the Company.
(d) After completing the payments and providing the benefits required by this Section 7 and Section 4 hereof, the Company shall entitle have no further obligations to the Employee to compensation from the Employer Executive under this Agreement except as expressly set forth in Sections 9, 10, 14 and 15 hereof. Any amounts due under this Section 7 and Section 4 hereof are in the same amount and on the same terms as he would nature of compensation or severance payments considered to be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound reasonable by the terms Company and conditions are not in the nature of this Agreement by operation of lawa penalty.
Appears in 1 contract
Compensation Upon Termination or During Disability. The Employee shall be entitled to the following benefits during a period of disability, or upon termination of his employment, as the case may be, if such period or termination occurs during the Term of this Agreement:
(a) If During any period that the Employee fails to perform his full-time duties with the Company as a result of incapacity due to physical or mental illness, injury or similar incapacity, he shall continue to receive his compensation and other benefits payable to him under this Agreement at the rate in effect at the commencement of any such period, together with all compensation payable to him under the Company's disability plan or program or other similar plan during such period, until his employment is terminated pursuant to Section 8(a) hereof. Thereafter, or in the event the Employee's employment shall be terminated by reason of his death, his benefits shall be determined under the Employer shall pay to such person as he shall designate Company's retirement, insurance and other compensation programs then in writing filed effect in accordance with the Employer, or if no terms of such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employerprograms, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's Company shall have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer him under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During If at any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until time the Employee's employment is shall be terminated (i) by reason of his death, (ii) by the Company for Cause or Disability, or (iii) by him (other than by reason of a constructive termination pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a8(c) of this Agreement, whichever first occurs. After terminationhereof), the Employee Company shall be paidpay him (or his appropriate payee, as determined in equal monthly installments, 100% accordance with Section 11(c) hereof) his full base salary through the Date of his Salary, Termination at the rate in effect at the time Notice of Termination is given, for one yearplus all other amounts to which he is entitled under any compensation plan of the Company at the time such payments are due, and thereafter for one additional year at an annual rate equal the Company shall have no further obligations to 50% of the Salary which would have been in effect him under this Agreement, plus. In addition, in each casethe event the Employee's employment is terminated by reason of the Employee's death or Disability, the Employee (or his appropriate payee) shall be entitled to receive a pro rata portion of any disability payments bonus that would otherwise have been payable by or pursuant to plans provided by the Employer Employee with respect to its executive officersthe year in which the Employee's employment is terminated. To For purposes of this provision, if the extent physically and mentally capable of so doing without potentially impairing or damaging his healthEmployee's bonus for such year has not been determined, the Employee shall provide consulting services be deemed to have been entitled to a bonus equal to the Employer during bonus paid or payable to the period that he is receiving payments pursuant Employee with respect to this Section 9(b)the immediately preceding year.
(c) If the Employee's employment shall should be terminated by the Company other than for Cause or terminated Disability or by the Employee without Good Reason prior by reason of a constructive termination pursuant to or more than twelve months afterSection 8(c) hereof, a Change of Control, he shall be entitled to the Employer benefits provided below:
(i) The Company shall pay to the Employee his full Salary base salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and plus all other amounts to which he is entitled under any compensation plan of the Employer shallCompany, assuming in each case at the Employer is in compliance with time such payments are due;
(ii) The Company shall pay the provisions Employee, at the time such payments would have been made had the Employee's employment not been terminated hereunder, all salary payments that would have been payable to the Employee pursuant to this Agreement had the Employee continued to be employed for the greater of (x) the remaining Term of this Agreement, or (y) one year (the "Severance Period") (assuming for the purpose of such continuing payments that the Employee's salary for each year of such period is equal to his salary at the Date of Termination), plus a pro rata portion of any bonus that would otherwise have no further obligations been payable to the Employee with respect to Section 3 of this Agreementthe year in which the Employee's employment is terminated; provided, but however, that if the Employee's bonus for such year has not been determined, the Employee shall be deemed to have been entitled to a bonus equal to the bonus paid or payable to the Employee with respect to the immediately preceding year;
(iii) All stock option rights, stock appreciation rights, and any and all other obligations of the Employer under this Agreement, including the obligations similar rights theretofore granted to indemnify, defend and hold harmless the Employee, including, but not limited to, the Employee's right to receive cash in lieu of exercising stock options, as may be provided in his stock option agreements, shall remain vest and shall then be exercisable in effectfull, and the Employee shall have 90 days following his termination within which to exercise any and all such rights and the restrictions on any and all shares of restricted stock granted to the Employee that are outstanding on the Date of Termination shall lapse as of the Date of Termination;
(iv) During the Severance Period the Company shall, at its cost, arrange to provide the Employee with life, disability, dental, accident and group health insurance benefits substantially similar to those that he was receiving immediately prior to the Notice of Termination plus an additional amount necessary to reimburse the Employee for any taxes imposed solely by reason of his receipt of such benefits following his termination of employment. Notwithstanding the foregoing, the Company shall not provide any benefit otherwise receivable by the Employee pursuant to this subparagraph if an equivalent benefits is actually received by him at any time during the Severance Period and any such benefit actually received by him shall be reported to the Company.
(d) If (A) in breach of this Agreement, the Employer The Company shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate continue in effect at for the time benefit of the employee all insurance or other provisions for the indemnification, defense of hold-harmless of officers or directors of the Company that are in effect on the date the Notice of Termination is given;
(ii) for periods subsequent sent to the Date Employee or the Company with respect to all of Termination (in lieu his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of any further payments pursuant to Section 3 all periods of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior limitation against actions that may be applicable to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law acts or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementomissions.
(e) In The Employee shall have the right to terminate his employment under this Agreement upon thirty (30) days notice to the Company without liability to the Company for damages incurred solely by reason of such termination.
(f) Notwithstanding anything to the contrary in this Agreement, in the event that, in the opinion of a termination of counsel for the Company, it is more likely than not that any payment or benefit under this Agreement by or under any other plan or agreement would not be deemed to be deductible in whole or in part in the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation calculation of the Employee for federal income tax of the five taxable years prior to Company, or of any other person making such termination payment or providing such higher amount as may be permitted benefit, by the Internal Revenue Service to compute "base amount" for purposes reason of Section 280G of the Internal Revenue Code of 1986 1986, including the rules and regulations promulgated thereunder, as amended from time to time and including any successor legislation thereto (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as the "Code"), the aggregate payments and benefits provided by Section 9(d) of this Agreement unless agreed shall be reduced (if necessary, to zero) (with the cash payments provided by this Agreement being the first reduced) to the minimum extent necessary so that no portion of such aggregate payments and benefits is not deductible for federal income tax purposes by reason of Section 280G of the Code. The Company shall hold such portions not paid to the Employee in escrow. At the end of each calendar quarter during the term of such escrow, the Company shall deposit into escrow an amount equal to interest accrued during such calendar quarter on the amount held in escrow during such calendar quarter at a rate equal to the rate than payable on judgments in California. If it shall be determined at any point in time, by counsel selected by the Company and the Employee), that it is more likely than not that the payment to the Employee of any or all of such amount held in escrow would be deductible for tax purposes, such amount shall be paid out of escrow to the Employee. In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined final determination by the Internal Revenue Service (or of an appropriate court) arbitration aware pursuant to have been Section 16 hereof, that any such amount held in excess escrow would not be deductible for tax purposes under the then applicable provisions of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory Code if paid to the Employee, to expressly assume or if it shall be determined at any point in time, by counsel selected by the company and agree to perform this Agreement in the same manner and Employee, that it is more likely than not that the payment to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness Employee of any such succession amount held in escrow would not be deductible for tax purposes under the then applicable provisions of the Code, such amount shall be a breach paid out of escrow to the Company. For purposes of this Agreement Subsection 9(f),(i) the value of any non-cash benefits or any deferred or contingent payment or benefit shall be determined by the company's independent public accountants in accordance with the principles of Section 280G of the Code, (ii) no payment or benefit not constituting, in the opinion of such accountants, a "parachute payment" within the meaning of Section 280G of the code shall be included in determining the aggregate amount of such payments and shall entitle benefits, and (iii) no payment or benefit the receipt or enjoyment of which has been waived in writing by the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed included in determining the Date aggregate amount of Termination. As used in this Agreement, "Employer" shall mean the Employer such payments and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of lawbenefits.
Appears in 1 contract
Sources: Employment Agreement (Zenith National Insurance Corp)
Compensation Upon Termination or During Disability. (a) If the EmployeeExecutive's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing a notice filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the EmployeeExecutive's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the EmployeeExecutive, shall remain in effect.
(b) During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee Executive shall continue to receive his Salary and other compensation until the EmployeeExecutive's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the EmployeeExecutive's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer shall pay the Employee Executive his full Salary and other compensation through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the EmployeeExecutive, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the EmployeeExecutive's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee Executive shall terminate his employment for Good Reason or at any time within twelve months after a Change of ControlReason, then the Employer shall pay to the EmployeeExecutive:
(i) his full Salary and other compensation through the Date last day of Termination the Initial Term or Renewal Term, as the case may be, at the rate in effect at the time Notice of Termination is given;; and
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee Executive may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense legal fees and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement agreement, in form and reasonably substance satisfactory to the EmployeeExecutive, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment The Employee shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension the following benefits during a period of disability, or employee benefit plan upon termination of his employment, as the case may be, provided that such period or life insurance policy or similar plan or policy then maintained by termination occurs during the Employer, and such payments shall, assuming the Employer is in compliance with the provisions Term of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.:
(ba) During any period that the Employee fails to perform his full-time duties hereunder with the Company as a result of incapacity due to physical or mental illness, the Employee he shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, base salary at the rate in effect at the time Notice commencement of Termination any such period, together with all compensation payable to him under the Company’s disability plan or program or other similar plan during such period, until his employment is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or terminated pursuant to plans provided by Section 10(a) hereof. Thereafter, or in the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If event the Employee's ’s employment shall be terminated by reason of his death, his benefits shall be determined under the Company’s retirement, insurance and other compensation programs then in effect in accordance with the terms of such programs.
(b) If at any time the Employee’s employment shall be terminated: (i) by the Company for Cause or terminated Disability or (ii) by the Employee without him for any reason (other than in a Voluntary Termination or for Good Reason prior to or more than twelve months after, a Change of Control, following the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result occurrence of a Change of in Control), and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer Company shall pay to the Employee:
(i) him his full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which he is entitled through the Date of Termination under any compensation plan of the Company at the time such payments are due, and the Company shall have no further obligations to him under this Agreement.
(c) If the Employee’s employment should be terminated: (1) by reason of his death, (2) by the Company other than for Cause or Disability or (3) by the Employee in a Voluntary Termination, he shall be entitled to the benefits provided below:
(i) the Company shall pay to the Employee or the appropriate payee (as determined in accordance with Section 12(c)) (A) his full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; plus (B)(x) in the case of death or a Voluntary Termination all salary and bonus payments that would have been payable to the Employee pursuant to this Agreement for the remaining Term of this Agreement, or (y) in all other cases, all salary and bonus payments that would have been payable to the Employee had the Employee continued to be employed for a period of 12 months, assuming for the purpose of such payments that his salary for such remaining period is equal to his salary at the Date of Termination and that his annual bonus for such remaining Term is equal to the average of the annual bonuses paid to him by the Company with respect to the three fiscal years ended immediately prior to the fiscal year in which the Date of termination occurs; plus (C) all other amounts to which he is entitled under any compensation plan of the Company, in cash in a lump sum no later than the 15th day following the Date of Termination;
(ii) for periods a 12-month period after the Date of Termination, the Company shall arrange to provide the Employee with life, disability, accident and health insurance benefits substantially similar to those which the Employee and his covered family members are receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control); provided, however, that such continued benefits shall be reduced to the extent comparable benefits are actually received by or made available to the Employee without cost during the 12-month period following the Employee’s termination of employment (and the Employee agrees that he shall promptly report any such benefits actually received to the Company); and
(iii) the Company shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Company which are in effect on the date the Notice of Termination is sent to the Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against actions which may be applicable to such acts or omissions.
(d) If the Employee’s employment should be terminated by the Employee for Good Reason following a Change in Control, he shall be entitled to the benefits provided below:
(i) the Company shall pay to the Employee or the appropriate payee (as determined in accordance with Section 12(c)) (A) his full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; plus (B) all salary and bonus payments that would have been payable to the Employee had the Employee continued to be employed for a period of 24 months, assuming for the purpose of such payments that his salary for such remaining period is equal to his salary at the Date of Termination and that his annual bonus for such remaining Term is equal to the average of the annual bonuses paid to him by the Company with respect to the three fiscal years ended immediately prior to the fiscal year in lieu which the Date of termination occurs; plus (C) all other amounts to which he is entitled under any further payments pursuant to Section 3 compensation plan of this Agreement)the Company, Severance Pay (as hereinafter defined), payable on in cash in a lump sum no later than the first 15th day following the Date of Termination, as follows:;
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) for a 24-month period after the Employee's employment is terminated either by Date of Termination, the Company shall arrange to provide the Employee for Good Reason or by with life, disability, accident and health insurance benefits substantially similar to those which the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal Employee and his covered family members are receiving immediately prior to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date Notice of Termination ("Severance Pay"without giving effect to any reduction in such benefits subsequent to a Change in Control); provided, however, that such continued benefits shall be reduced to the extent comparable benefits are actually received by or made available to the Employee without cost during the 24-month period following the Employee’s termination of employment (and the Employee agrees that he shall promptly report any such benefits actually received to the Company); and
(iii) all other damages to which the Company shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Company which are in effect on the date the Notice of Termination is sent to the Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against actions which may be entitled as a matter of law applicable to such acts or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementomissions.
(e) In Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Employee in connection with the termination of a termination the Employee’s employment (whether such benefit is pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, and all such payments and benefits being hereinafter called “Total Payments”) would not be deductible (in whole or part), by the Employee Company as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes application of Section 280G of the Internal Revenue Code of 1986 1986, as amended (as amended“Code”), then, to the extent necessary to make the nondeductible portion of the Total Payments deductible, (i) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of the cash payments under this Agreement unless agreed shall first be reduced (if necessary, to by the Employeezero). In the event of a termination of , and (ii) all other non-cash payments under this Agreement by the Employee as a result of a Change of Control the amount payable pursuant shall next be reduced (if necessary, to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(dzero). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) If it is established as described in the preceding subsection (e) that the aggregate benefits paid to or for the Employee’s benefit are in an amount that would result in any portion of such ”parachute payments” not being deductible by reason of Section 280G of the Code, then the Employee shall have an obligation to pay the Company upon demand an amount equal to the sum of: (i) the excess of the aggregate “parachute payments” paid to or for the Employee’s benefit over the aggregate “parachute payments” that could have been paid to or for the Employee’s benefit without any portion of such ”parachute payments” not being deductible by reason of Section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at the rate provided in Section 1274(b)(2)(B) of the Code from the date of the Employee’s receipt of such excess until the date of such payment.
(g) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 Agreement by seeking other employment or otherwise, nor shall .
(h) If the amount employment of any payment provided for in this Section 9 be reduced the Employee is terminated by any compensation earned the Company without Cause or the Employee’s employment is terminated by the Employee as under conditions entitling him to payment hereunder and the result Company fails to make timely payment of employment by another employer or business or by profits earned by the amounts then owed to the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirectunder this Agreement, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would shall be entitled to under Section 9(d)(ii)(B) if he terminated his employment interest on such amounts at the rate of 3% above the prime rate (defined as the base rate on corporate loans at large U.S. money center commercial banks as published by the Wall Street Journal), compounded monthly, for Good Reason, except for purposes of implementing the foregoing, period from the date on such amounts were otherwise due until payment is made to the Employee (which any such succession becomes effective interest shall be deemed in addition to all rights which the Date of Termination. As used in Employee is otherwise entitled to under this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law).
Appears in 1 contract
Sources: Employment Agreement (Ihop Corp)
Compensation Upon Termination or During Disability. (a) If the Employee's employment The Employee shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension the following benefits during a period of disability, or employee benefit plan upon termination of his employment, as the case may be, provided that such period or life insurance policy or similar plan or policy then maintained by termination occurs during the Employer, and such payments shall, assuming the Employer is in compliance with the provisions Term of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.:
(ba) During any period that the Employee fails to perform his full-time duties hereunder with the Company as a result of incapacity due to physical or mental illness, the Employee he shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, base salary at the rate in effect at the time Notice commencement of Termination any such period, together with all compensation payable to him under the Company’s disability plan or program or other similar plan during such period, until his employment is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or terminated pursuant to plans provided by Section 11 hereof. Thereafter, or in the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If event the Employee's ’s employment shall be terminated by reason of his death, his benefits shall be determined under the Company’s retirement, insurance and other compensation programs then in effect in accordance with the terms of such programs.
(b) If at any time the Employee’s employment shall be terminated: (i) by the Company for Cause or terminated Disability or (ii) by the Employee without him for any reason (other than in a Voluntary Termination or for Good Reason prior to or more than twelve months after, a Change of Control, following the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result occurrence of a Change of in Control), and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer Company shall pay to the Employee:
(i) him his full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given, plus all other amounts to which he is entitled through the Date of Termination under any compensation plan of the Company at the time such payments are due, and the Company shall have no further obligations to him under this Agreement.
(c) If the Employee’s employment should be terminated: (1) by reason of his death, (2) by the Company other than for Cause or Disability or (3) by the Employee in a Voluntary Termination, he shall be entitled to the benefits provided below:
(i) the Company shall pay to the Employee or the appropriate payee (as determined in accordance with Section 13(c)) (A) his full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; plus (B)(x) in the case of death or a Voluntary Termination all salary and bonus payments that would have been payable to the Employee pursuant to this Agreement for the remaining Term of this Agreement, or (y) in all other cases, all salary and bonus payments that would have been payable to the Employee had the Employee continued to be employed for a period of 12 months, assuming for the purpose of such payments that his salary for such remaining period is equal to his salary at the Date of Termination and that his annual bonus for such remaining Term is equal to the average of the annual bonuses paid to him by the Company with respect to the three fiscal years ended immediately prior to the fiscal year in which the Date of termination occurs; plus (C) all other amounts to which he is entitled under any compensation plan of the Company, in cash in a lump sum no later than the 15th day following the Date of Termination;
(ii) for periods a 12-month period after the Date of Termination, the Company shall arrange to provide the Employee with life, disability, accident and health insurance benefits substantially similar to those which the Employee and his covered family members are receiving immediately prior to the Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control); provided, however, that such continued benefits shall be reduced to the extent comparable benefits are actually received by or made available to the Employee without cost during the 12-month period following the Employee’s termination of employment (and the Employee agrees that he shall promptly report any such benefits actually received to the Company); and
(iii) the Company shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Company which are in effect on the date the Notice of Termination is sent to the Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against actions which may be applicable to such acts or omissions.
(d) If the Employee’s employment should be terminated by the Employee for Good Reason following a Change in Control, he shall be entitled to the benefits provided below:
(i) the Company shall pay to the Employee or the appropriate payee (as determined in accordance with Section 13(c)) (A) his full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; plus (B)(x) in lieu the case of any further death or a Voluntary Termination all salary and bonus payments that would have been payable to the Employee pursuant to Section 3 this Agreement for the remaining Term of this Agreement), Severance Pay or (as hereinafter defined)y) in all other cases, all salary and bonus payments that would have been payable on to the first Employee had the Employee continued to be employed for a period of 24 months, assuming for the purpose of such payments that his salary for such remaining period is equal to his salary at the Date of Termination and that his annual bonus for such remaining Term is equal to the average of the annual bonuses paid to him by the Company with respect to the three fiscal years ended immediately prior to the fiscal year in which the Date of termination occurs; plus (C) all other amounts to which he is entitled under any compensation plan of the Company, in cash in a lump sum no later than the 15th day following the Date of Termination, as follows:;
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) for a 24-month period after the Employee's employment is terminated either by Date of Termination, the Company shall arrange to provide the Employee for Good Reason or by with life, disability, accident and health insurance benefits substantially similar to those which the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal Employee and his covered family members are receiving immediately prior to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date Notice of Termination ("Severance Pay"without giving effect to any reduction in such benefits subsequent to a Change in Control); provided, however, that such continued benefits shall be reduced to the extent comparable benefits are actually received by or made available to the Employee without cost during the 24-month period following the Employee’s termination of employment (and the Employee agrees that he shall promptly report any such benefits actually received to the Company); and
(iii) all other damages to which the Company shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Company which are in effect on the date the Notice of Termination is sent to the Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against actions which may be entitled as a matter of law applicable to such acts or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementomissions.
(e) In Notwithstanding any other provisions of this Agreement, in the event that any payment or benefit received or to be received by the Employee in connection with the termination of a termination the Employee’s employment (whether such benefit is pursuant to the terms of this Agreement or any other plan, arrangement or agreement with the Company, and all such payments and benefits being hereinafter called “Total Payments”) would not be deductible (in whole or part), by the Employee Company as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes application of Section 280G of the Internal Revenue Code of 1986 1986, as amended (as amended“Code”), then, to the extent necessary to make the nondeductible portion of the Total Payments deductible, (i) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of the cash payments under this Agreement unless agreed shall first be reduced (if necessary, to by the Employeezero). In the event of a termination of , and (ii) all other non-cash payments under this Agreement by the Employee as a result of a Change of Control the amount payable pursuant shall next be reduced (if necessary, to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(dzero). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) If it is established as described in the preceding subsection (d) that the aggregate benefits paid to or for the Employee’s benefit are in an amount that would result in any portion of such “parachute payments” not being deductible by reason of Section 280G of the Code, then the Employee shall have an obligation to pay the Company upon demand an amount equal to the sum of: (i) the excess of the aggregate “parachute payments” paid to or for the Employee’s benefit over the aggregate “parachute payments” that could have been paid to or for the Employee’s benefit without any portion of such “parachute payments” not being deductible by reason of Section 280G of the Code; and (ii) interest on the amount set forth in clause (i) of this sentence at the rate provided in Section 1274(b)(2)(B) of the Code from the date of the Employee’s receipt of such excess until the date of such payment.
(g) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 Agreement by seeking other employment or otherwise, nor shall .
(h) If the amount employment of any payment provided for in this Section 9 be reduced the Employee is terminated by any compensation earned the Company without Cause or the Employee’s employment is terminated by the Employee as under conditions entitling him to payment hereunder and the result Company fails to make timely payment of employment by another employer or business or by profits earned by the amounts then owed to the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirectunder this Agreement, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would shall be entitled to under Section 9(d)(ii)(B) if he terminated his employment interest on such amounts at the rate of 1% above the prime rate (defined as the base rate on corporate loans at large U.S. money center commercial banks as published by the Wall Street Journal), compounded monthly, for Good Reason, except for purposes of implementing the foregoing, period from the date on such amounts were otherwise due until payment is made to the Employee (which any such succession becomes effective interest shall be deemed in addition to all rights which the Date of Termination. As used in Employee is otherwise entitled to under this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law).
Appears in 1 contract
Sources: Employment Agreement (Ihop Corp)
Compensation Upon Termination or During Disability. (a) If the EmployeeExecutive's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.the
(b) During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee Executive shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, full salary at the rate then in effect at for the time Notice greater of Termination one (1) year or such period until his permanent disability status is givenestablished pursuant to subsection 7(b) hereof. Thereafter, for one year, and thereafter for one additional year at an annual rate equal to 50% Executive's compensation shall be in accordance with such long-term disability plans of the Salary which would have been Company as may then be in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)effect.
(c) If the Employee's employment shall be Executive is terminated for Cause or terminated by the Employee without Good Reason prior he shall receive only his salary to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) If, in breach of this Agreement, the Employer Company shall terminate the EmployeeExecutive's employment other than pursuant to Sections 6.2 subsections 8(a), (b) or 6.3 hereof (it being understood that a purported termination c) hereof, or if Executive terminates his employment pursuant to Section 6.2 or 6.3 7(g), then such termination shall nevertheless be effective, but the Company shall continue to pay Executive his full salary pursuant to subsection 4(a) hereof which is disputed and finally determined not to have been proper shall be a termination by through the Employer in breach end of the term of this Agreement)Agreement and, including as a result of a Change of Controlto the extent permitted by applicable law, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary executive all benefits under the Company's employee benefit plans that have accrued to executive, but were unpaid, through the Date effective date of Termination at termination and cause all stock options (if any) issued to Executive by the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable Company that are outstanding on the first day following the Date effective date of Termination, termination to vest in full as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by effective date of termination, and Executive shall have the Employee during right to full health benefit coverage under the twelve month period prior to such Date Consolidated Omnibus Budget Reconciliation Act of Termination 1985 ("Severance PayCOBRA"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment provided, however, that if Executive is ineligible for coverage under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d)COBRA, the Severance Pay Company shall be the average taxable compensation of the Employee for the five taxable years prior provide equivalent coverage to such termination or such higher amount as may be permitted by the Internal Revenue Service Executive at a cost to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (Executive no greater than that under COBRA, but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay only to the Employer any amount which extent that Executive is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from covered under any other source at any time before and after the Date of Terminationhealth benefit plan.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Sources: Employment Agreement (Bull Run Corp)
Compensation Upon Termination or During Disability. (a) 5.1 If during the Employee's employment Service Period Roberts' service▇ ▇▇ an executive or a consultant shall be terminated by reason of his death, the Employer Company shall continue to pay to such person as he Roberts' survivi▇▇ ▇▇▇use, if any, Roberts' then Bas▇ ▇▇▇▇▇nt, on a monthly basis for a period of five (5) years, provided that the payments to Roberts' survivi▇▇ ▇▇▇▇se shall designate in writing filed cease with the Employer, or if no such person payment due immediately following her death. This death benefit shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments (x) the Company's obligation to provide to Roberts' spouse ▇▇▇▇▇▇ her lifetime all health plan benefits which are available from time to time to the EmployeeCompany's highest paid employee, and (y) any other payments Roberts' spouse, beneficiaries ▇▇▇▇▇▇▇iaries or estate may be entitled to receive pursuant to this Agreement (including, but not limited to, Roberts' Cash Bon▇▇ ▇▇▇▇ respect to any period then ended which would have accrued to him on the basis of the Company's performance but which has not yet been paid (the "Accrued Cash Bonus")), as well as under any Deferred Compensation Arrangements, Split-Dollar Arrangements or any other pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by plans (collectively these arrangements and plans shall be referred to herein as the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect"Benefit Plans").
(b) 5.2 During any period that the Employee Roberts fails to perform ▇▇▇▇▇▇m his duties hereunder as a result of incapacity due to physical or mental illness, the Employee Roberts shall continue co▇▇▇▇▇▇ to receive his Salary Base Payment until the Employee's employment is his services are terminated pursuant to Section 6.2 of this Agreement, 4.2 hereof or until the Employee terminates end of the Service Period, whichever occurs first, as well as any other payments he may be entitled to receive pursuant to this Agreement (including, but not limited to, his employment Accrued Cash Bonus) or any Benefit Plans. After termination pursuant to Section 6.4(a) of this Agreement4.2 hereof, whichever first occurs. After termination, the Employee Roberts shall be paid▇▇▇▇ ▇▇r five (5) years, in on a monthly basis, an annual amount equal monthly installments, 100% of to his Salary, Base Payment at the rate in effect at the time the Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal as well as any other amounts he may be entitled to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments receive pursuant to this Agreement or any Benefit Plans. In the event Roberts dies befo▇▇ ▇▇▇ end of the five (5) year payment period, his surviving spouse, if any, shall be entitled to receive (i) the remaining payments for the period as a death benefit, provided that these payments shall cease with the payment due immediately following her death; and (ii) all benefits described in the last sentence of Section 9(b)5.1 hereof, as if Roberts' service▇ ▇▇▇ ▇een terminated by reason of his death.
(c) 5.3 If the Employee's employment shall Roberts' service▇ ▇▇▇▇l be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer Company shall pay the Employee Roberts his full Salary Base ▇▇▇▇▇▇▇ due through the Date of Termination, Termination at the rate in effect at the time the Notice of Termination is given, given and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, Company shall have no further obligations with respect obligation to Section 3 of this AgreementRoberts under th▇▇ ▇▇▇eement, including, but all other obligations of not limited to, the Employer under this Agreement, including obligation to make the obligations to indemnify, defend payments provided for in Sections 3 and hold harmless the Employee, shall remain in effect7 hereof.
(d) If (A) 5.4 If, in breach of this Agreement, the Employer Company shall terminate the Employee's employment other Roberts' service▇ ▇▇▇▇r than pursuant to Sections 6.2 Section 4.2 or 6.3 4.3 hereof (it being understood that a purported termination pursuant to Section 6.2 4.2 or 6.3 4.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer Company in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:then,
(i) the Company shall pay Roberts his full Salary Base ▇▇▇▇▇▇▇ through the Date of Termination at the rate in effect at the time the Notice of Termination is givengiven as well as any other amount, including his Cash Bonus, with respect to any period then ended which would have accrued to Roberts on the ba▇▇▇ ▇▇ the Company's performance but which has not yet been paid to him;
(ii) for periods subsequent to the Date of Termination Termination, the Company shall pay as severance pay to Roberts on a mont▇▇▇ ▇▇▇is (or, in lieu the case of any further payments pursuant to Section 3 of this Agreement)his Cash Bonus, Severance Pay (as hereinafter defined), payable on the first day following basis provided in the Cash Bonus Plan) for the remaining Service Period an annual amount equal to Roberts' Base P▇▇▇▇▇▇ at the highest annual rate in effect at any time during the portion of the Service Period immediately preceding the Date of Termination and his Cash Bonus; provided that should Roberts die befo▇▇ ▇▇▇ end of the Service Period, Roberts' survivin▇ ▇▇▇▇▇e shall be entitled to the death benefit provided in Section 5.1 hereof, and all benefits described in the last sentence of Section 5.1 hereof, as if Roberts' services ▇▇▇ ▇▇en terminated by reason of his death; and
(iii) the Company shall maintain in full force and effect for the continued benefit of Roberts (and for ▇▇▇ ▇▇▇viving spouse, as provided in paragraph (ii) above) for the remaining Service Period all (x) health plan benefits available from time to time to the Company's highest paid employee, and (y) employee benefit plans and programs in which Roberts was ent▇▇▇▇▇ ▇o participate immediately prior to the Date of Termination, as follows:
(A) if (i) including, without limitation, the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this AgreementBenefit Plans.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay 5.5 Roberts shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required no▇ ▇▇ ▇▇quired to mitigate the amount of any payment provided for in this Section 9 5 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 5 be reduced by any compensation earned by the Employee Roberts as the result of employment a resu▇▇ ▇▇ ▇mployment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination, or otherwise.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory 5.6 Notwithstanding anything herein to the Employeecontrary, to expressly assume and agree to perform in the event Roberts' service▇ ▇▇▇ terminated on or after the occurrence of a Change of Control, as defined in Section 3.10, such termination shall in no circumstances be treated under the terms of this Agreement in the same manner as a termination for Cause, and Roberts shall be ▇▇▇▇▇▇ed to the same extent that the Employer would be required benefits as are payable with respect to perform it if no such succession had taken place. Failure a termination of the Employer to obtain such Agreement prior Roberts' services ▇▇▇▇▇▇t to the effectiveness provisions of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law5.4.
Appears in 1 contract
Sources: Compensation and Deferred Compensation Agreement (Comcast Corp)
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his her duties hereunder as a result of incapacity due to physical or mental illnessillness ("disability period"), the Employee shall continue to receive his Salary her full salary at the rate then in effect for such period until the Employee's her employment is terminated pursuant to Section 6.2 10(b), provided that payments so made to Employee during the disability period shall be reduced by the sum of this Agreementthe amounts, if any, payable to Employee at or prior to the time of any such payment under disability benefit plans of the Company and which were not previously applied to reduce any such payment.
(b) If Employee's employment is terminated by her death, the Company shall pay to Employee's spouse, or until the Employee terminates his employment pursuant if she leaves no spouse to Section 6.4(a) of this Agreementher estate, whichever first occurs. After termination, the Employee shall be paid, in an amount equal monthly installments, 100% of his Salary, to her full salary at the rate then in effect at for a period of one year after the time Notice date of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b)death.
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of ControlCause, the Employer Company shall pay the Employee his her full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary salary through the Date of Termination at the rate in effect at the time Notice of Termination is given.
(d) If (i) in breach of this Agreement, the Company shall terminate Employee's employment other than pursuant to Section 10(b) or 10(c) (it being understood that a purported termination pursuant to Section 10(b) or 10(c) which is disputed and finally determined not to have been proper shall be a termination by the Company in breach of this Agreement) or (ii) Employee shall terminate her employment for Good Reason (other than as a result of a management change of control), then
(A) the Company shall (I) pay Employee her full salary and provide Employee her benefits through the Date of Termination at the rate or level in effect at the time Notice of Termination is given and (II) pay Employee her full Bonus for the calendar year in which the Date of Termination occurs, at such time as such Bonus would have been paid if Employee's employment by the Company had not so terminated;
(iiB) in lieu of any further salary or bonus payments to Employee for periods subsequent to the Date of Termination Termination, the Company shall pay as severance pay to Employee an amount equal to (1) Employee's average annual cash compensation received from the Company during the three full calendar years immediately preceding the Date of Termination, multiplied by (2) the greater of (w) the number of years (including partial years) that would have been remaining in lieu of any further payments the Employment Period if Employee's employment by the Company had not so terminated but the Employment Period were not thereafter extended pursuant to the proviso of Section 3 and (x) three, such payment to be made (y) if Employee's termination is based on a change of this Agreement)control of the Company, Severance Pay (as hereinafter defined), payable in a lump sum on or before the first fifth day following the Date of Termination, or (z) if Employee's termination results from any other cause, in substantially equal semimonthly installments on the fifteenth and last days of each month commencing with the month in which the Date of Termination occurs and continuing for the number of consecutive semimonthly payment dates (including the first such date as follows:aforesaid) equal to the product obtained by multiplying the number of years (including partial years) applicable under clause (w) above by 24;
(AC) all options to purchase the Company's common stock granted to Employee under the Company's option plan or otherwise shall immediately become fully vested and shall terminate on such date as they would have terminated if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Company had not terminated and, if Employee's termination is based on a change of control of the Company and Employee for Good Reason elects, not more than 30 days after the Date of Termination, to surrender any or by all of such options to the Employer other than pursuant to Sections 6.2 Company, the Company shall pay Employee on or 6.3 hereof, before the fifth day following such surrender a lump sum amount cash payment equal to the highest excess of (x1) $300,000 or (y) three (3) times total compensation (including the fair market value of on the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination of the securities issuable upon exercise of the options surrendered over ("Severance Pay"); 2) the aggregate exercise price of the options surrendered;
(D) the Company shall maintain in full force and effect, for the continued benefit of Employee, for a number of years equal to the greater of (1) the number of years (including partial years) that would have been remaining in the Employment Period if Employee's employment by the Company had not so terminated but the Employment Period were not thereafter extended pursuant to the proviso of Section 3 and (iii2) three, all employee benefit plans and programs in which Employee was entitled to participate immediately prior to the Date of Termination provided that Employee's continued participation is possible under the general terms and provisions of such plans and programs. In the event that Employee's participation in any such plan or program is barred, the Company shall arrange to provide Employee with benefits substantially similar to those which Employee would otherwise have been entitled to receive under such plans and programs from which her continued participation is barred; and
(E) if termination of Employee's employment arises out of a breach by the Company of this Agreement, the Company shall pay all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreementsuch breach, including damages for any and all costs loss of benefits to Employee under the Company's employee benefit plans which Employee would have received if the Company had not breached this Agreement and expense had Employee's employment continued for the then remaining term of the Employment Period but the Employment Period were not thereafter extended pursuant to the proviso of Section 3, and including all reasonable legal fees and expenses incurred by him (including attorneys fees) in contesting or disputing any her as a result of such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementtermination.
(e) In the event of a termination of this Agreement by the If Employee shall terminate her employment for Good Reason as a result of a Change management change of Control pursuant to control, then
(A) the Company shall (I) pay Employee her full salary and provide Employee her benefits through the Date of Termination at the rate or level in effect at the time Notice of Termination is given and (II) pay Employee her full Bonus for the calendar year in which the Severance Pay is Date of Termination occurs, at such time as set forth above such Bonus would have been paid if Employee's employment by the Company had not so terminated;
(B) in Section 9(d)lieu of any further salary or bonus payments to Employee for periods subsequent to the Date of Termination, the Severance Pay Company shall pay as severance pay to Employee an amount equal to twice Employee's average annual cash compensation received from the Company during the three full calendar years immediately preceding the Date of Termination, such payment to be made in a lump sum on or before the average taxable compensation fifth day following the Date of Termination;
(C) all options to purchase the Company's common stock granted to Employee under the Company's option plan or otherwise shall immediately become fully vested and shall terminate on such date as they would have terminated if Employee's employment by the Company had not terminated and, if Employee elects, not more than 30 days after the Date of Termination, to surrender any or all of such options to the Company, the Company shall pay Employee on or before the fifth day following such surrender a lump sum cash payment equal to the excess of (1) the fair market value on the Date of Termination of the Employee securities issuable upon exercise of the options surrendered over (2) the aggregate exercise price of the options surrendered; and
(D) the Company shall maintain in full force and effect, for the five taxable years continued benefit of Employee, for two years, all employee benefit plans and programs in which Employee was entitled to participate immediately prior to the Date of Termination provided that Employee's continued participation is possible under the general terms and provisions of such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee)plans and programs. In the event of a termination of this Agreement by that Employee's participation in any such plan or program is barred, the Company shall arrange to provide Employee as a result of a Change of Control the amount payable pursuant with benefits substantially similar to Section 9(d) shall be increased so that after payment of any excise tax the those which Employee shall receive the amount specified in Section 9(d). The Employee shall be would otherwise have been entitled to initially receive the entire amount provided for in Section 9(d) under such plans and shall not be required to repay to the Employer any amount programs from which his continued participation is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsbarred.
(f) The If Employee shall terminate her employment under Section 10(d)(ii), the Company shall pay Employee her full salary through the Date of Termination at the rate in effect at the time Notice of Termination is given.
(g) Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 11 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(gh) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement Notwithstanding anything in form and substance satisfactory this Agreement to the Employeecontrary, the Company shall not be obligated to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness pay any portion of any amount otherwise payable to Employee pursuant to this Section 11 if the Company could not reasonably deduct such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement portion solely by operation of lawSection 280G of the Internal Revenue Code of 1986, as amended.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's Executive’s employment shall be is terminated by reason his death pursuant to Section 4.2(a), the Company shall pay to the Executive’s spouse, or if he leaves no spouse, to his estate, commencing on the next succeeding day which is the fifteenth day or last day of the month, as the case may be, and bimonthly thereafter on the fifteenth and last days of each month, until a total of six payments has been made, an amount on each payment date equal to the bimonthly salary payment payable to the Executive pursuant to Section 2.1 hereof at the time of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) If the Executive’s employment shall be terminated for cause pursuant to Section 4.2(b), the Company shall pay the Executive his full salary through the date of the termination, at the rate in effect at the time Notice of Termination is given, plus all outstanding expenses payable pursuant to section 3.1 hereof through the date of termination. The Company shall have no further obligations to the Executive under this Agreement.
(c) If the Executive’s employment shall be terminated without cause, the Company shall pay the Executive his full salary through January 31, 2012, at the rate in effect at the time Notice of Termination is given, plus all outstanding expenses payable pursuant to section 3.1 hereof through the date of termination. The Company shall have no further obligations to the Executive under this Agreement.
(d) If the Executive’s employment shall terminate as a result of disability pursuant to Section 4.2(c) hereof, the Company shall pay the Executive his full salary through January 31, 2012 at the rate in effect at the date of termination, plus all outstanding expenses payable pursuant to section 3.1 hereof. During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illnessillness ("disability period"), the Employee Executive shall continue to receive his Salary full salary at the rate then in effect for such period until the Employee's his employment is terminated pursuant to Section 6.2 section 4.2(c) hereof, provided that payments so made to the Executive shall be reduced by the sum of this Agreementthe amounts, if any, payable to the Executive at or until prior to the Employee terminates time of any such payment under disability benefit plans of the Company and which were not previously applied to reduce any such payment.
(e) If the Executive shall terminate his employment for Good Reason pursuant to Section 6.4(a) of this Agreement4.2(d), whichever first occurs. After terminationfor any reason other than death or disability, then the Employee Company shall be paidpay to the Executive his full salary through January 31, in equal monthly installments, 100% of his Salary2012, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but plus all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and outstanding expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, section 3.1 hereof through the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of lawtermination.
Appears in 1 contract
Sources: Employment Agreement (Pay88)
Compensation Upon Termination or During Disability. (a) If Upon termination of the EmployeeExecutive's employment or during a period of disability the Executive shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, following compensation and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.benefits:
(ba) During any period that the Employee Executive fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee Executive shall continue to receive his Salary base salary at the annual rate in effect at the commencement of any such period until the Employee's his employment is terminated pursuant to subsection 6(a) hereof. The Employers shall also be jointly and severally obligated to pay Executive for the year in which he is terminated as a result of his disability any bonus that the Board determines to pay to Executive pursuant to subsection 3(c) hereof for the year in which Executive's employment is terminated. Any such bonus shall be paid as soon as practicable practicable following the first date such amounts can be paid without incurring additional tax under Section 6.2 409A of the Code.
(b) If the Executive's employment shall be terminated, at any time prior to a change in control, by the Employers for proper cause or by him other than for Good Reason, the Executive shall be paid the Executive's base salary payable pursuant to subsection 3(a) hereof through the Date of Termination.
(c) If the Executive's employment shall be terminated by reason of the Executive's death, the base salary at the annual rate then in effect shall be paid to the person designated from time to time in writing by the Executive and, if not so designated, to the Executive's estate for the period up to and including the date of Executive's death. The Employers shall also be jointly and severally obligated to pay such person or the estate, as the case may be, any bonus that the Board determines to pay to Executive pursuant to subsection 3(c) hereof for the year in which Executive's employment is terminated. Any such bonus shall be paid within 30 days of the Date of Termination.
(d) If (i) the Executive's employment is terminated at any time (A) by the Employers other than for proper cause or (B) by the Executive for any Good Reason other than a change in control, or (ii) either Employer is liquidated or the assets of either Employer are distributed to a liquidating trust, the Employers shall be jointly and severally obligated to pay the Executive no later than thirty days after the Date of Termination an amount equal to the greater of (x) the aggregate amount of base salary that would have become payable to the Executive pursuant to Section 3(a) from the Date of Termination through the expiration of the Employment Period and (y) $375,000, plus in each of clause (x) or (y) above, a pro rata portion (based on the number of days that Executive was employed by the Employers during the Contract Year in which employment terminated), of any annual bonus paid or payable for the immediately preceding Contract Year (or calendar year if there has not been a previous Contract Year). Notwithstanding the foregoing, such amounts shall be paid as soon as practicable following the first date such amounts can be paid without incurring additional tax under Section 409A of the Code.
(e) If the Executive's employment shall be terminated by the Executive for Good Reason solely as a result of a change in control, the Employers shall be jointly and severally obligated to pay to Executive, within 30 days from the Date of the Termination an amount equal to, (1) 2.5 times the annual base salary payable to Executive pursuant to Section
3(a) hereof, plus (2) a pro rata portion (based on the number of days that Executive was employed by the Employers during the Contract Year in which employment terminated) of any annual bonus paid or payable for the immediately preceding Contract Year (or calendar year if there has not been a previous Contract Year). Notwithstanding the foregoing, such amounts shall be paid as soon as practicable following the first date such amounts can be paid without incurring additional tax under Section 409A of the Code.
(f) Notwithstanding the foregoing, to the extent any of the payments payable under Section 9(d) and/or Section 9(e), as the case may be, would constitute an "excess" parachute payment under Section 280G of the Code and by reason of such excess parachute payment Executive would be subject to an excise tax under Section 4999(a) of the Code (as determined by Executive's tax advisor), then the payments shall be reduced to the largest amount that can be received by Executive without incurring an excise tax under Section 4999(a) of the Code (as determined by Executive's tax advisor); provided, however, that such reduction shall occur only if the after-tax value of the benefits to Executive calculated with the foregoing reduction exceed those calculated without the foregoing reduction. It is the Executive's preference that all amounts not paid to Executive by reason of a reduction hereunder shall be paid by the Employers in equal amounts to Princeton University'sWoodrow ▇▇▇▇▇▇ School of Public, International Affairs and the National Trust for Historic Preservation; and the Weill Medical College of Cornell University (to be applied for student scholarships for international study), provided that the Executive is not a director or trustee of such charities; further, provided, that the Employers shall not be under any obligation to make any such payments to such charities.
(g) Notwithstanding anything contained in the Agreement, Executive hereby waives the right to receive any payments under the Second Restatement or this Agreement solely as a result of a change in control of the Company arising out of the Merger.
(h) Executive shall have the right to defer receipt of all payments to be made pursuant to this Agreement, or until including, without limitation, Section 9(d) and/or Section 9(e) hereof, as the Employee terminates his case may be, provided such deferrals do not subject the Executive to additional tax under Section 409A of the Code.
(i) If the Executive's employment pursuant to Section 6.4(a) is terminated for any reason whatsoever (other than by the Employers for proper cause), including by reason of this Agreement, whichever first occurs. After terminationexpiration of its term, the Employee Company shall assign to Executive, without the payment of any consideration by the Executive, all of the Company's right, title and interest in and to that certain Split Dollar Life Insurance Agreement dated November 18, 1993 between Wellsford Residential Property Trust and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as modified by the Split Dollar Life Insurance Agreement dated December 11, 1995 and the related insurance policies referred to therein, and in connection therewith the Company shall be paiddeemed to have automatically waived repayment of any paid or accrued premiums with respect to such policy. These benefits shall be administered in a manner that does not subject the Executive to additional tax under Section 409A of the Code.
(j) If the Executive's employment is terminated for any reason whatsoever (other than by the Employers for proper cause), all theretofore unvested stock options, restricted options, restricted stock, restricted stock units and other awards issued to Executive shall vest immediately prior to such termination.
(k) If the Executive's employment is terminated at any time following a change in equal monthly installmentscontrol, 100% for proper cause, the Employers shall be jointly and severally obligated to pay the Executive his full base salary through the Date of his Salary, Termination at the higher of the rate in effect at the time Notice of Termination is given, for one year, given and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at immediately prior to the time Notice of Termination is given, and the Employer shall, assuming the Employer is change in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effectcontrol.
(dl) If (A) in breach of In addition to all other amounts payable to the Executive under this AgreementSection 9, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee Executive shall be entitled to initially receive all benefits payable to him under the entire amount provided Employers' pension plans applicable to him and any other plan or agreement relating to retirement benefits including, without limitation, any deferred compensation arrangements (but subject to any then existing deferral elections of Executive), as in effect upon the occurrence of a change in control or the Executive's employment with either Employer being terminated for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined reason whatsoever (other than by the Internal Revenue Service (or an appropriate court) to have been in excess Employers for proper cause), including by reason of the permitted amount and the Employer agrees to use expiration of its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingsterm.
(fm) The Employee Executive shall not be required to mitigate the amount of any payment provided for in this Section 9 or elsewhere in this Agreement by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in this Section 9 or elsewhere in this Agreement be reduced by any compensation earned by the Employee him as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and retirement benefits after the Date of Termination, or as a result of services performed by him as permitted under subsection 1(b) hereof, or otherwise, except as specifically provided in this Section 9.
(gn) The Employer will require In the event the Executive's employment hereunder is terminated for any successor reason whatsoever (whether direct or indirectexcept by the Employers for proper cause), by purchasethe Employers agree to continue, mergerat their own cost and expense, consolidation or otherwisethe medical, hospitalization, dental and life insurance benefits available to the Executive (and any of his dependents who as on such date of termination were covered thereunder) at the time his employment is terminated from such date of termination through the later of (i) the Termination Date and (ii) 18 months from such date of termination; provided, however, that if such continued participation would result in additional tax to all or substantially all the Executive under Section 409A of the business and/or assets of Code, the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would Executive will be required to perform it if no pay his own premiums for such succession had taken place. Failure benefits coverage and then, as soon as practicable following the first date such payment can be made without incurring additional tax under Section 409A of the Employer Code, the Executive will be paid an amount such that, after payment of income taxes, the Executive is fully reimbursed for the cost of such premiums. If the terms of the Employers' health, dental and life insurance plans do not permit the Executive (and any of his dependents who as on such date of termination were covered thereunder) to obtain such Agreement prior be insured thereunder when he is no longer an employee, then the Employers will be jointly and severally obligated to pay to the effectiveness Executive, as soon as practicable, following the first date such payment can be made without incurring additional tax under Section 409A of the Code, an amount such that after payment of income taxes, the Executive is fully reimbursed for his cost of providing such benefits. In addition, to the extent he remains eligible (provided the Executive may at any such succession shall be a breach time supplement any cost necessary to allow for continued eligibility as provided under the terms of this Agreement and shall entitle the Employee to compensation from applicable policy), the Employer Executive may continue participation in the same amount and Employers' long-term disability plan on the same terms basis as he would be entitled provided prior to under Section 9(d)(ii)(B) if he terminated his employment for Good Reasontermination of employment, except for purposes of implementing at his own cost and expense, through the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of lawTermination Date.
Appears in 1 contract
Sources: Employment Agreement (Wellsford Real Properties Inc)
Compensation Upon Termination or During Disability. (a) If the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(b) During any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a6.4(c) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 10060% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, unless and thereafter except for one additional year at an annual rate equal to 50% of any such amounts actually received by the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or Employee pursuant to plans provided by the Employer to its executive officersCompany's long-term disability insurance program. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated for Cause or terminated by the Employee without Good Reason prior to or more than twelve months after, a Change of Control, the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent to the Date of Termination (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first tenth day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) : If the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, at any time during the Initial Term or any Renewal Term or within twelve months after a Change of Control (provided that if the Change of Control is pursuant to Section 6.4.2(b) of this Agreement, it is ascertainable on the date of such Termination that such Change of Control has occurred), a lump sum amount equal to (A) Salary and bonus received by Employee (including the highest value of all perquisites, such as health and life insurance and car allowance, etc.) received or earned by the Employee from the Employer during the twelve months prior to the Termination Date, multiplied by (x) $300,000 or (yB) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which Provided however, in no event shall the Employee may be entitled as a matter of law or equity as result of the termination of his employment amount payable under this AgreementSection 9(d) from the execution hereof until April 22, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement2003 be less than $1,000,000.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which any excise tax is due on the Severance Pay is as set forth above in Section 9(d)Pay, then the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any the excise tax on the Employee shall receive the amount specified in Section 9(d). The Employee Severance Pay shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer paid as well as any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that income tax payable on such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedingstax.
(f) The Employee shall not be required as a condition to mitigate the amount of receiving any payment provided for in amounts under this Section 9 by seeking other employment or otherwiseIX(d), nor shall provide the amount Employer with an acceptable form of any payment provided for in this Section 9 be reduced by any compensation earned by release agreement, whereby the Employee as the result of employment by another employer or business or by profits earned by the Employee Employer is released from any other source at any time before and after the Date of Terminationits obligations hereunder.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.
Appears in 1 contract
Compensation Upon Termination or During Disability. (a) If the Employee's employment The Executive shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant the following benefits during a period of disability, or upon termination of his employment, as the case may be, if such period or termination occurs prior to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the EmployerExecutive's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.termination:
(ba) During any period that the Employee Executive fails to perform his full-time duties hereunder with the Company as a result of incapacity due to physical or mental illness, the Employee injury or similar incapacity, he shall continue to receive his Salary compensation and other benefits payable to him under this Agreement at the rate in effect at the commencement of any such period, less any amounts payable to him under the Company's disability plan or program or other similar plan during such period, or under any governmental program, until the Employee's his employment is terminated pursuant to Section 6.2 9(a) hereof. If, during any period of disability, the Executive's employment shall be terminated by reason of his death, disability or the expiration of this Agreement, not withstanding the provisions of Section 20, his pay shall cease and his benefits, if any, shall, be determined solely under the Company's retirement, insurance and other compensation programs then in effect in accordance with the terms of such programs, and the Company shall have no further obligations to him under this Agreement.
(b) If at any time the Executive's employment shall be terminated (i) by reason of his death, (ii) by the Company for Cause or until the Employee terminates his employment Disability or (iii) by him (other than by reason of a constructive termination pursuant to Section 6.4(a9(c) of this Agreement, whichever first occurs. After terminationhereof), the Employee Company shall be paidpay him (or his appropriate payee, as determined in equal monthly installments, 100% accordance with Section 12 (c) hereof) his full base salary through the Date of his Salary, Termination at the rate in effect at the time Notice of Termination is given, for one yearplus all other amounts, if any, to which he is entitled from the Company through the Date of Termination under any compensation plan in each case at the time such payments are due, and thereafter for one additional year at an annual rate equal the Company shall have no further obligations to 50% of the Salary which would have been in effect him under this Agreement, plus. In addition, in each case, any disability payments otherwise payable the event the Executive's employment is terminated by reason of the Executive's death or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his healthDisability, the Employee Executive (or his appropriate payee) shall provide consulting services be entitled to receive a pro rata portion of any bonus that would otherwise have been payable to the Employer during Executive with respect to the period that he year in which the Executive's employment is receiving payments pursuant terminated. For purposes of this provision, if the Executive's bonus for such year has not been determined, the Executive shall be deemed to this Section 9(b)have been entitled to a bonus equal to the bonus paid or payable to the Executive with respect to the immediately preceding year.
(c) If the EmployeeExecutive's employment shall should be terminated by the Company other than for Cause or terminated Disability or by the Employee without Good Reason prior Executive by reason of a constructive termination pursuant to or more than twelve months afterSection 9(c) hereof, he shall be entitled, in exchange for a Change release of Controlthe Company, Zenith and any subsidiaries and affiliates of the Employer Company and their respective officers, directors, shareholders employees and agents, to the benefits provided below ("Severance Payments"):
(i) The Company shall pay to the Employee Executive his full Salary base salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and plus all other amounts to which he is entitled under any compensation plan of the Employer shallCompany, assuming in each case at the Employer is in compliance with time such payments are due;
(ii) The Company shall pay the provisions Executive, at the time such payments would have been made had the Executive's employment not been terminated hereunder, all salary payments that would have been payable to the Executive pursuant to this Agreement had the Executive continued to be employed for the greater of (x) the remaining Term of this AgreementAgreement or (y) two years (the "Severance Period") (assuming for the purpose of such continuing payments that the Executive's salary for each year of such period is equal to his salary at the Date of Termination), plus any bonus that would otherwise have no further obligations been payable to the Executive with respect to Section 3 the Severance Period; provided, however, that to the extent the Executive's bonus for any portion of this Agreementsuch Severance Period had not been determined, the Executive shall be deemed to have been entitled to a bonus equal to the bonus paid or payable to the Executive with respect to the immediately preceding year;
(iii) All stock option rights, stock appreciation rights, and any and all other similar rights theretofore granted to the Executive, including, but not limited to, the Executive's right to receive cash in lieu of exercising stock options, as may be provided in his stock option agreements, shall vest and shall then be exercisable in full, and the Executive shall have 90 days following his termination within which to exercise any and all other obligations such rights and the restrictions on any and all shares of restricted stock granted to the Executive that are outstanding on the Date of Termination shall lapse as of the Employer under Date of Termination;
(iv) During the Severance Period the Company shall, at its cost, arrange to provide the Executive with life, disability, dental, accident and group health insurance benefits substantially similar to those that he was receiving immediately prior to the Notice of Termination plus an additional amount necessary to reimburse the Executive for any taxes imposed solely by reason of his receipt of such benefits following his termination of employment. Notwithstanding the foregoing, the Company shall not provide any benefit otherwise receivable by the Executive pursuant to this Agreement, including subparagraph if an equivalent benefit is actually received by him from another employer or source at any time during the obligations Severance Period. Executive agrees to indemnify, defend and hold harmless the Employee, shall remain in effectreport any such benefit actually received by him.
(d) If (A) in breach of this Agreement, the Employer The Company shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(i) his full Salary through the Date of Termination at the rate continue in effect at for the time benefit of the Executive all insurance or other provisions for indemnification, defense or hold-harmless of officers or directors of the Company that are in effect on the date the Notice of Termination is given;
(ii) for periods subsequent sent to the Date Executive or the Company with respect to all of Termination his acts and omissions while an officer or director (in lieu if applicable) as fully and completely as if such termination had not occurred, and until the final expiration or running of any further payments pursuant to Section 3 all periods of this Agreement), Severance Pay (as hereinafter defined), payable on the first day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve month period prior limitation against actions that may be applicable to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law acts or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementomissions.
(e) In Notwithstanding anything to the contrary in this Agreement, in the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant that Executive becomes entitled to which the Severance Pay is as set forth above in Section 9(d)Payments, if any of the Severance Pay shall Payments will be subject to the average taxable compensation of tax (the Employee for the five taxable years prior to such termination or such higher amount as may be permitted "Excise Tax") imposed by the Internal Revenue Service to compute "base amount" for purposes of Section 280G section 4999 of the Internal Revenue Code of 1986 1986, as amended (the "Code"), Company shall pay to Executive an additional amount (the "Gross-Up Payment") such that the net amount retained by Executive, after deduction of any Excise Tax on the Total Payments (as amendedhereinafter defined) multiplied and any federal, state and local income and other tax and Excise Tax upon the payment provided for by three this Paragraph 10(f), shall be equal to the Total Payments. For purposes of determining whether any of the Total Payments will be subject to the Excise Tax and the amount of such Excise Tax, (but i) any other payments or benefits received or to be received by Executive in no event may this amount exceed Severance Pay as provided by Section 9(d) connection with a Change in Control or Executive's termination of employment (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement with Company, any person whose actions result in a change in control or any person affiliated with Company or such person (which, together with Severance Payments, shall constitute "Total Payments"), shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of section 280G(b)(1) shall be treated as subject to the Excise Tax, unless agreed in the opinion of tax counsel selected by Company's independent auditors and acceptable to Executive, such other payments or benefits (in whole or in part) do not constitute parachute payments, or such excess parachute payments (in whole or in part) represent reasonable compensation for services actually rendered within the meaning of section 280G(b)(4) of the Code in excess of the base amount, within the meaning of section 280G(b)(3) of the Code, or are otherwise not subject to the Excise Tax, (ii) the amount of the Total Payments which shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Total Payments or (B) the amount of excess parachute payments within the meaning of section 280G(b)(1) (after applying clause (i), above), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by Company's independent auditors in accordance with the Employee)principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rate of federal income taxation in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of taxation in the state and locality of Executive's residence on the date of termination of employment, net of the maximum reduction in federal income taxes which could be obtained from deduction of such state and local taxes. In the event that the Excise Tax is subsequently determined to be less than the amount taken into account hereunder at the time of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) Executive's employment, Executive shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to Company, at the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position time that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for such reduction in this Section 9 Excise Tax is finally determined, the portion of the Gross-Up Payment attributable to such reduction (plus that portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by seeking other employment the Executive to the extent that such repayment results in a reduction in Excise Tax and/or a federal, state or otherwise, nor shall local income tax deduction) plus interest on the amount of such repayment at the rate provided in section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is determined to exceed the amount taken into account hereunder at the time of the termination of Executive's employment (including by reason of any payment provided for the existence or amount of which cannot be determined at the time of the Gross-Up Payment), Company shall make an additional Gross-Up Payment in this Section 9 be reduced by respect of such excess (plus any compensation earned interest, penalties or additions payable by the Employee as Executive with respect to such excess) at the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no amount of such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of lawexcess is finally determined.
Appears in 1 contract
Sources: Employment Agreement (Zenith National Insurance Corp)
Compensation Upon Termination or During Disability. The Employee shall be entitled to the following benefits during a period of disability, or upon termination of his employment, as the case may be, provided that such period or termination occurs during the Term of this Agreement: (a) If During any period that the Employee fails to perform his full- time duties with the Company as a result of incapacity due to physical or mental illness, he shall continue to receive his base salary at the rate in effect at the commencement of any such period, together with all compensation payable to him under the Company's disability plan or program or other similar plan during such period, until his employment is terminated pursuant to Section 11 hereof. Thereafter, or in the event the Employee's employment shall be terminated by reason of his death, his benefits shall be determined under the Employer shall pay to such person as he shall designate Company's retirement, insurance and other compensation programs then in writing filed effect in accordance with the Employer, or if no terms of such person shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge the Employer's obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effectprograms.
(b) During If at any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated terminated: (i) by the Company for Cause or terminated Disability or (ii) by the Employee without him for any reason (other than in a Voluntary Termination or for Good Reason prior to or more than twelve months after, a Change of Control, following the Employer shall pay the Employee his full Salary through the Date of Termination, at the rate in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result occurrence of a Change of in Control), and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer Company shall pay to the Employee:
(i) him his full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;
(ii) for periods subsequent , plus all other amounts to which he is entitled through the Date of Termination under any compensation plan of the Company at the time such payments are due, and the Company shall have no further obligations to him under this Agreement.
(c) If the Employee's employment should be terminated: (1) by reason of his death, (2) by the Company other than for Cause or Disability or (3) by the Employee in lieu a Voluntary Termination, he shall be entitled to the benefits provided below: (i) the Company shall pay to the Employee or the appropriate payee (as determined in accordance with Section 13(c)) (A) his full base salary through the Date of any further Termination at the rate in effect at the time Notice of Termination is given; plus (B)(x) in the case of death or a Voluntary Termination all salary and bonus payments that would have been payable to the Employee pursuant to Section 3 this Agreement for the remaining Term of this Agreement), Severance Pay or (as hereinafter defined)y) in all other cases, all salary and bonus payments that would have been payable on to the first Employee had the Employee continued to be employed for a period of 12 months, assuming for the purpose of such payments that his salary for such remaining period is equal to his salary at the Date of Termination and that his annual bonus for such remaining Term is equal to the average of the annual bonuses paid to him by the Company with respect to the three fiscal years ended immediately prior to the fiscal year in which the Date of termination occurs; plus (C) all other amounts to which he is entitled under any compensation plan of the Company, in cash in a lump sum no later than the 15th day following the Date of Termination, as follows:
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employee's employment is terminated either by the Employee for Good Reason or by the Employer other than pursuant to Sections 6.2 or 6.3 hereof, a lump sum amount equal to the highest of (x) $300,000 or (y) three (3) times total compensation (including value of the stock options granted during such period) earned by the Employee during the twelve 12-month period prior to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreement.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 9 be reduced by any compensation earned by the Employee as the result of employment by another employer or business or by profits earned by the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirect, by purchasethe Company shall arrange to provide the Employee with life, mergerdisability, consolidation or otherwise) accident and health insurance benefits substantially similar to all or substantially all of those which the business and/or assets of the Employer, by agreement in form Employee and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement his covered family members are receiving immediately prior to the effectiveness Notice of Termination (without giving effect to any reduction in such benefits subsequent to a Change in Control); provided, however, that such continued benefits shall be reduced to the extent comparable benefits are actually received by or made available to the Employee without cost during the 12-month period following the Employee's termination of employment (and the Employee agrees that he shall promptly report any such succession shall be a breach of this Agreement and shall entitle benefits actually received to the Employee to compensation from the Employer in the same amount and on the same terms as he would be entitled to under Section 9(d)(ii)(B) if he terminated his employment for Good Reason, except for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law.Company); and
Appears in 1 contract
Sources: Employment Agreement (Ihop Corp)
Compensation Upon Termination or During Disability. The Employee shall be entitled to the following benefits during a period of disability, or upon termination of his employment, as the case may be, provided that such period or termination occurs prior to the expiration of this Agreement:
(a) If During any period that the Employee fails to perform his full-time duties with the Employer as a result of incapacity due to physical or mental illness, he shall continue to receive his base salary at the rate in effect at the commencement of any such period together with all compensation payable to him under the Employer's disability plan or program or other similar plan during such period, until his employment is terminated pursuant to Section 7(a) hereof. Thereafter, or in the event the Employee's employment shall be terminated by reason of his death, the Employer shall pay to such person as he shall designate in writing filed with the Employer, or if no such person his benefits shall be designated, to his estate as a lump sum benefit, his full Salary to the date of his death in addition to any payments to the Employee's spouse, beneficiaries or estate may be entitled to receive pursuant to any pension or employee benefit plan or life insurance policy or similar plan or policy then maintained by the Employer, and such payments shall, assuming the Employer is in compliance with the provisions of this Agreement, fully discharge determined under the Employer's obligations retirement, insurance and other compensation programs then in effect in accordance with respect to Section 3 the terms of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effectsuch programs.
(b) During If at any period that the Employee fails to perform his duties hereunder as a result of incapacity due to physical or mental illness, the Employee shall continue to receive his Salary until the Employee's employment is terminated pursuant to Section 6.2 of this Agreement, or until the Employee terminates his employment pursuant to Section 6.4(a) of this Agreement, whichever first occurs. After termination, the Employee shall be paid, in equal monthly installments, 100% of his Salary, at the rate in effect at the time Notice of Termination is given, for one year, and thereafter for one additional year at an annual rate equal to 50% of the Salary which would have been in effect under this Agreement, plus, in each case, any disability payments otherwise payable by or pursuant to plans provided by the Employer to its executive officers. To the extent physically and mentally capable of so doing without potentially impairing or damaging his health, the Employee shall provide consulting services to the Employer during the period that he is receiving payments pursuant to this Section 9(b).
(c) If the Employee's employment shall be terminated (i) by reason of his death (ii) by the Employer for Cause or terminated Disability or (iii) by him for any reason (other than, following the Employee without Good Reason prior to or more than twelve months after, occurrence of a Change of in Control, for Good Reason), the Employer shall pay him or the Employee his full Salary through appropriate payee, as the Date of Termination, at the rate case may be (as determined in effect at the time Notice of Termination is given, and the Employer shall, assuming the Employer is in compliance accordance with the provisions of this Agreement, have no further obligations with respect to Section 3 of this Agreement, but all other obligations of the Employer under this Agreement, including the obligations to indemnify, defend and hold harmless the Employee, shall remain in effect.
(d9(b) If (A) in breach of this Agreement, the Employer shall terminate the Employee's employment other than pursuant to Sections 6.2 or 6.3 hereof (it being understood that a purported termination pursuant to Section 6.2 or 6.3 hereof which is disputed and finally determined not to have been proper shall be a termination by the Employer in breach of this Agreement), including as a result of a Change of Control, and/or (B) the Employee shall terminate his employment for Good Reason or at any time within twelve months after a Change of Control, then the Employer shall pay to the Employee:
(ihereof) his full Salary base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given;, plus all other amounts to which he is entitled under any compensation plan of the Employer at the time such payments are due, and the Employer shall have no further obligations to him under this Agreement.
(iic) If, prior to a Change in Control, the Employee's employment shall be terminated by the Employer other than for periods subsequent Cause or Disability, he shall be entitled to the benefits provided below:
(i) the Employer shall pay to the Employee his full base salary through the Date of Termination at the rate in effect at the time the Notice of Termination is given, no later than the fifth (in lieu of any further payments pursuant to Section 3 of this Agreement), Severance Pay (as hereinafter defined), payable on the first 5th) day following the Date of Termination, as follows:plus all other amounts to which he is entitled under any compensation plan of the Employer, at the time such payments are due;
(A) if (i) the Employee, with or without Good Reason, terminates his employment at any time within twelve months after a Change of Control; or (ii) the Employer shall pay the Employee, at the time such payments would have been made had the Employee's employment not been terminated hereunder, all salary, bonus payments and vested portions of retirement and employee benefit plans that would have been payable to the Employee pursuant to this Agreement had the Employee continued to be employed for the remaining duration of this Agreement, assuming for the purpose of such continuing payments that the Employee's salary for each year of such remaining duration is equal to his salary at the Date of Termination and that his annual bonus for each year of such remaining duration is equal to the average of the annual bonuses paid to him by the Employer with respect to the three (or, if less, the number of years the Employee has been employed by the Employer) fiscal years ended immediately prior to the fiscal year in which the Date of Termination occurs; and
(iii) the Employer shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Employer which are in effect on the date the Notice of Termination is sent to the Employee with respect to all of his acts and omissions while an officer or director as fully and completely as if such termination had not occurred, and until the final expiration or running of all periods of limitation against actions which may be applicable to such acts or omissions.
(d) If, following a Change in Control, the Employee's employment should be terminated either by the Employer other than for Cause or Disability or by the Employee for Good Reason or Reason, he shall be entitled to the benefits below:
(i) the Employer shall pay to the Employee his full base salary through the Date of Termination at the rate in effect at the time Notice of Termination is given; plus all salary and bonus payments that would have been payable to the Employee pursuant to this Agreement had the Employee continued to be employed for the duration of this Agreement, assuming for the purpose of such payments that his salary for each year of such duration is equal to his salary at the Date of Termination and that his annual bonus for each year of such duration is equal to the average of the annual bonuses paid to him by the Employer (or its predecessors) with respect to the three (or, if less, the number of years the Employee has been employed with the Employer and its predecessors) fiscal years ended immediately prior to the fiscal year in which the Date of Termination occurs; plus all other than pursuant amounts to Sections 6.2 or 6.3 hereofwhich he is entitled under any compensation plan of the Employer, including but not limited to vested portions of retirement and employee benefit plans in cash in a lump sum amount equal no later than the fifteenth (15th) day following the Date of Termination; and
(ii) the Employer shall continue in effect for the benefit of the Employee all insurance or other provisions for indemnification and defense of officers or directors of the Employer which are in effect on the date the Notice of Termination is sent to the highest Employee with respect to all of (x) $300,000 his acts and omissions while an officer or (y) three (3) times total compensation (including value director as fully and completely as if such termination had not occurred, and until the final expiration or running of the stock options granted during such period) earned by the Employee during the twelve month period prior all periods of limitation against actions which may be applicable to such Date of Termination ("Severance Pay"); and (iii) all other damages to which the Employee may be entitled as a matter of law acts or equity as result of the termination of his employment under this Agreement, including all costs and expense and expenses incurred by him (including attorneys fees) in contesting or disputing any such termination or in seeking to obtain or enforce any right or benefit provided by this Agreementomissions.
(e) In the event of a termination of this Agreement by the Employee as a result of a Change of Control pursuant to which the Severance Pay is as set forth above in Section 9(d), the Severance Pay shall be the average taxable compensation of the Employee for the five taxable years prior to such termination or such higher amount as may be permitted by the Internal Revenue Service to compute "base amount" for purposes of Section 280G of the Internal Revenue Code of 1986 (as amended) multiplied by three (but in no event may this amount exceed Severance Pay as provided by Section 9(d) of this Agreement unless agreed to by the Employee). In the event of a termination of this Agreement by the Employee as a result of a Change of Control the amount payable pursuant to Section 9(d) shall be increased so that after payment of any excise tax the Employee shall receive the amount specified in Section 9(d). The Employee shall be entitled to initially receive the entire amount provided for in Section 9(d) and shall not be required to repay to the Employer any amount which is ultimately and finally determined by the Internal Revenue Service (or an appropriate court) to have been in excess of the permitted amount and the Employer agrees to use its best efforts to support the Employee's position that such payments are not subject to excise tax in any dealings with the Internal Revenue Service any in any appropriate legal proceedings.
(f) The Employee shall not be required to mitigate the amount of any payment provided for in this Section 9 8 by seeking other employment or otherwise, nor shall .
(f) In the amount event the employment of any payment provided for in this Section 9 be reduced the Employee is terminated by any compensation earned the Employer without Cause or the Employee's employment is terminated by the Employee as under conditions entitling him to payment hereunder and the result Employer fails to make timely payment of employment by another employer or business or by profits earned by the amounts then owed to the Employee from any other source at any time before and after the Date of Termination.
(g) The Employer will require any successor (whether direct or indirectunder this Agreement, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Employer, by agreement in form and substance satisfactory to the Employee, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Employer would be required to perform it if no such succession had taken place. Failure of the Employer to obtain such Agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle the Employee to compensation from the Employer in the same amount and on the same terms as he would shall be entitled to under Section 9(d)(ii)(Binterest on such amounts at the rate of one percent (1%) if he terminated his employment above the prime rate (defined as the base rate on corporate loans at large U.S. money center commercial banks as published by the Wall Street Journal), compounded monthly, for Good Reason, except for purposes of implementing the foregoing, period from the date on such amounts were otherwise due until payment is made to the Employee (which any such succession becomes effective interest shall be deemed in addition to all rights which the Date of Termination. As used in Employee is otherwise entitled to under this Agreement, "Employer" shall mean the Employer and any successor to its business and/or assets which executes the Agreement or which otherwise becomes bound by the terms and conditions of this Agreement by operation of law).
Appears in 1 contract