Good Reason" or “Constructive Termination. Other Than for Cause, -------------------------------------------------------------- Death or Disability. If, during the Employment Period, the Company shall ------------------- terminate the Executive's employment other than for Cause or Disability or the Executive shall terminate employment for Good Reason or Constructive Termination, then the Company shall provide the following payments and benefits: (i) The Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts: A. the sum of (1) the Executive's Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the higher of (I) the Recent Annual Bonus and (II) the Executive's most recently established target Annual Bonus (annualized for any fiscal year consisting of less than twelve full months or during which the Executive was employed for less than twelve full months) (such higher amount being referred to as the "Highest Annual Bonus") and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) shall be hereinafter referred to as the "Accrued Obligations"); and B. the amount equal to the product of (1) three and (2) the sum of (x) the Executive's Annual Base Salary and (y) the Highest Annual Bonus; and C. an amount equal to the excess of (a) the actuarial equivalent of the benefit under the Company's qualified defined benefit retirement plan (the "Retirement Plan") (utilizing actuarial assumptions no less favorable to the Executive than those in effect under the Company's Retirement Plan immediately prior to the Effective Date), and any excess or supplemental retirement plan in which the Executive participates (together, the "SERP") which the Executive would receive if the Executive's employment continued for three years after the Date of Termination assuming for this purpose that all accrued benefits are fully vested, and, assuming that the Executive's compensation in each of the three years is that required by Section 4(b)(i) and Section 4(b)(ii), over (b) the actuarial equivalent of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP as of the Date of Termination; provided, that if the Executive shall have previously so elected in -------- accordance with any nonqualified deferred compensation plan of the Company in which the Executive is eligible to participate, some or all of such cash payments may be deferred under such plan. (ii) for three years after the Executive's Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement if the Executive's employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families; provided, however, that if the Executive becomes reemployed -------- ------- with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility; and provided, further, that the period during which the -------- ------- Executive and his family are eligible for health continuation coverage under Section 4980B of the Code by reason of the Executive's termination of employment shall be determined in accordance with the same principles as are applicable under the Company's general severance plan or policy. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. (iii) The Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in his sole discretion, but at a cost not in excess of $20,000. (iv) The provisions of this Section 6.a.(iv) shall apply with respect to each option to acquire stock of the Company and/or its affiliated companies, whether vested or unvested, that has been granted to the Executive before the Effective Date, remains outstanding immediately before the Date of Termination, and terminates, expires, or is forfeited without having been exercised (an "Unexercised Option"); provided, that this Section 6.a.(iv) shall not -------- be applicable if the Change of Control transaction referred to in Section 1.a. hereof is intended to be eligible for pooling-of- interests accounting under APB No. 16, and would, but for this Section 6.a.(iv), be eligible for such accounting treatment. The Company shall pay to the Executive, upon the termination, expiration or forfeiture of an Unexercised Option, a cash lump sum equal to the value of such Unexercised Option, determined as of the day before the Date of Termination, using the Black-Scholes method of valuation, determined based upon the terms and conditions that would have governed such Unexercised Option if the Executive's employment had not terminated. (v) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies, including earned but unpaid stock and similar compensation (such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
Appears in 1 contract
Sources: Employment Agreement (CSX Corp)
Good Reason" or “Constructive Termination. Other Than for Cause, -------------------------------------------------------------- Death or Disability. If, during the Employment Period, the Company shall ------------------- terminate the Executive's ’s employment other than for Cause or Disability or the Executive shall terminate employment for Good Reason or Constructive Termination, then the Company shall provide the following payments and benefits:
(i) The Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts(A), plus (B), plus (C) as follows:
A. the sum of (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the higher of (I) the Recent Annual Bonus and (II) the Executive's ’s most recently established target Annual Bonus (annualized for any fiscal calendar year consisting of less than twelve full months or during which the Executive was employed for less than twelve full months) (such higher amount being referred to as the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal calendar year through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) shall be hereinafter referred to as the "“Accrued Obligations"”); and
B. the an amount equal to the product of (1) three and (2) the sum of (x) the Executive's ’s Annual Base Salary in effect on the date of Executive’s termination of employment (or, if greater, the Executive’s Annual Base Salary in effect immediately before any salary reduction therein triggering the event leading to Executive’s termination) and (y) the Highest Annual Bonus; and
C. an amount equal to the excess of (a) the actuarial equivalent of the benefit under the Company's qualified defined benefit retirement plan (the "Retirement Plan") Pension Plan without regard to this provision (utilizing actuarial assumptions no less favorable to the Executive than those in effect under the Company's Retirement Pension Plan immediately prior to the Effective Date), and any excess or supplemental retirement plan in which the Executive participates (together, the "“SERP"”) which the Executive would receive if the Executive's ’s employment continued for three years after the Date of Termination assuming for this purpose that all accrued benefits are fully vested, and, assuming that the Executive's ’s compensation in each of the three years is that required by Section 4(b)(i) and Section 4(b)(ii), over (b) the actuarial equivalent of the Executive's ’s actual benefit (paid or payable), if any, under the Retirement Pension Plan and the SERP as of the Date of Termination; provided, that if the Executive shall have previously so elected in -------- accordance with any nonqualified deferred compensation plan of the Company in which the Executive is eligible to participate, some or all of such cash payments may be deferred under such plan.
(ii) for three years after the Executive's ’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement if the Executive's ’s employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families; provided, however, that if the Executive becomes reemployed -------- ------- with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility; and providedexcept as provided below, further, that the period during which the -------- ------- Executive and his family are eligible for health continuation coverage under Section 4980B of the Code by reason of the Executive's ’s termination of employment shall be determined in accordance with run from the same principles as are applicable under the Company's general severance plan or policyend of such three year period. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three years after the Date of Termination and to have retired on the last day of such period. With respect to any self-insured medical benefits, the Company and Executive agree to use their reasonable best efforts to replace such benefits with comparable fully insured benefits, the cost of which shall be shared in the same manner as the self-insured coverage. If the Company and Executive are unable to effect coverage acceptable to Executive, coverage will be made available under the applicable self-insured plan (but not through any plan or arrangement deemed to be a cafeteria plan under Section 125 of the Code) of the Company and Executive may elect to pay one hundred percent of the cost of such coverage on an after-tax basis. In the event medical coverage is provided under the existing plan, the initial eighteen months shall be deemed to be COBRA coverage and the additional three years of coverage provided thereafter.
(iii) The Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in his sole discretion, but at a cost not in excess of $20,000.
(iv) The provisions of this Section 6.a.(iv) shall apply with respect to each option to acquire stock of the Company and/or its affiliated companies, whether vested or unvested, that has been granted to the Executive before the Effective Date, remains outstanding immediately before the Date of Termination, and terminates, expires, or is forfeited without having been exercised (an "Unexercised Option"); provided, that this Section 6.a.(iv) shall not -------- be applicable if the Change of Control transaction referred to in Section 1.a. hereof is intended to be eligible for pooling-of- interests accounting under APB No. 16, and would, but for this Section 6.a.(iv), be eligible for such accounting treatment. The Company shall pay to the Executive, upon the termination, expiration or forfeiture of an Unexercised Option, a cash lump sum equal to the value of such Unexercised Option, determined as of the day before the Date of Termination, using the Black-Scholes method of valuation, determined based upon the terms and conditions that would have governed such Unexercised Option if the Executive's employment had not terminated.
(v) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies, including earned but unpaid stock and similar compensation (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”).
Appears in 1 contract
Sources: Employment Agreement (CSX Corp)
Good Reason" or “Constructive Termination. Other Than for Cause, -------------------------------------------------------------- Death or Disability. If, during the Employment Period, the Company shall ------------------- terminate the Executive's ’s employment other than for Cause or Disability or the Executive shall terminate employment for Good Reason or Constructive Termination, then the Company shall provide the following payments and benefits:
(i) The Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts(A) plus (B), as follows:
A. the sum of (1) the Executive's ’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, (2) the product of (x) the higher of (I) the Recent Annual Bonus and (II) the Executive's ’s most recently established target Annual Bonus (annualized for any fiscal calendar year consisting of less than twelve full months or during which the Executive was employed for less than twelve full months) (such higher amount being referred to as the "“Highest Annual Bonus"”) and (y) a fraction, the numerator of which is the number of days in the current fiscal calendar year through the Date of Termination, and the denominator of which is 365 and (3) any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not theretofore paid (the sum of the amounts described in clauses (1), (2), and (3) shall be hereinafter referred to as the "“Accrued Obligations"”); and
B. the an amount equal to the product of (1) three [two/three] and (2) the sum of (x) the Executive's ’s Annual Base Salary in effect on the date of Executive’s termination of employment (or, if greater, the Executive’s Annual Base Salary in effect immediately before any salary reduction therein triggering the event leading to Executive’s termination) and (y) the Highest Annual Bonus; and
C. an amount equal to the excess of (a) the actuarial equivalent of the benefit under the Company's qualified defined benefit retirement plan (the "Retirement Plan") (utilizing actuarial assumptions no less favorable to the Executive than those in effect under the Company's Retirement Plan immediately prior to the Effective Date), and any excess or supplemental retirement plan in which the Executive participates (together, the "SERP") which the Executive would receive if the Executive's employment continued for three years after the Date of Termination assuming for this purpose that all accrued benefits are fully vested, and, assuming that the Executive's compensation in each of the three years is that required by Section 4(b)(i) and Section 4(b)(ii), over (b) the actuarial equivalent of the Executive's actual benefit (paid or payable), if any, under the Retirement Plan and the SERP as of the Date of Termination; provided, that if the Executive shall have previously so elected in -------- accordance with any nonqualified deferred compensation plan of the Company in which the Executive is eligible to participate, some or all of such cash payments may be deferred under such plan.
(ii) for three [two/three] years after the Executive's ’s Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue benefits to the Executive and/or the Executive's ’s family at least equal to those which would have been provided to them in accordance with the plans, programs, practices and policies described in Section 4(b)(iv) of this Agreement if the Executive's ’s employment had not been terminated or, if more favorable to the Executive, as in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies and their families; provided, however, that if the Executive becomes reemployed -------- ------- with another employer and is eligible to receive medical or other welfare benefits under another employer provided plan, the medical and other welfare benefits described herein shall be secondary to those provided under such other plan during such applicable period of eligibility; and providedexcept as provided below, further, that the period during which the -------- ------- Executive and his family are eligible for health continuation coverage under Section 4980B of the Code by reason of the Executive's ’s termination of employment shall be determined in accordance with run from the same principles as are applicable under the Company's general severance plan or policyend of such [two/three] year period. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits pursuant to such plans, practices, programs and policies, the Executive shall be considered to have remained employed until three [two/three] years after the Date of Termination and to have retired on the last day of such period. With respect to any self-insured medical benefits, the Company and Executive agree to use their reasonable best efforts to replace such benefits with comparable fully insured benefits, the cost of which shall be shared in the same manner as the self-insured coverage. If the Company and Executive are unable to effect coverage acceptable to Executive, coverage will be made available under the applicable self-insured plan (but not through any plan or arrangement deemed to be a cafeteria plan under Section 125 of the Code) of the Company and Executive may elect to pay one hundred percent of the cost of such coverage on an after-tax basis. In the event medical coverage is provided under the existing plan, the initial eighteen months shall be deemed to be COBRA coverage and the additional [two/three] years of coverage provided thereafter.
(iii) The Company shall, at its sole expense as incurred, provide the Executive with outplacement services the scope and provider of which shall be selected by the Executive in his sole discretion, but at a cost not in excess of $20,000.
(iv) The provisions of this Section 6.a.(iv) shall apply with respect to each option to acquire stock of the Company and/or its affiliated companies, whether vested or unvested, that has been granted to the Executive before the Effective Date, remains outstanding immediately before the Date of Termination, and terminates, expires, or is forfeited without having been exercised (an "Unexercised Option"); provided, that this Section 6.a.(iv) shall not -------- be applicable if the Change of Control transaction referred to in Section 1.a. hereof is intended to be eligible for pooling-of- interests accounting under APB No. 16, and would, but for this Section 6.a.(iv), be eligible for such accounting treatment. The Company shall pay to the Executive, upon the termination, expiration or forfeiture of an Unexercised Option, a cash lump sum equal to the value of such Unexercised Option, determined as of the day before the Date of Termination, using the Black-Scholes method of valuation, determined based upon the terms and conditions that would have governed such Unexercised Option if the Executive's employment had not terminated.
(v) To the extent not theretofore paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive under any plan, program, policy or practice or contract or agreement of the Company and its affiliated companies, including earned but unpaid stock and similar compensation (such other amounts and benefits shall be hereinafter referred to as the "“Other Benefits"”).
Appears in 1 contract
Sources: Employment Agreement (CSX Corp)