Involuntary Termination Without Cause. NOT DUE TO A CHANGE OF CONTROL. In the event of the Executive’s Involuntary Termination not due to a Change of Control, the Executive shall be entitled to receive the compensation listed below, subject to his compliance with the terms and conditions of Section 5(f) (“Additional Terms”). (i) The Company shall pay or provide to the Executive the following payments and benefits: (A) Any Accrued Benefits payable as soon as practical after the Termination Date, or such other date as their terms require; (B) Continued payment of the Executive’s Base Salary for the applicable Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, beginning within sixty (60) days following the Termination Date (with the first payment to include amounts accrued between the Termination Date and the first payment date); provided that, if the sixtieth (60th) day following the Termination Date falls in the calendar year following the calendar year in which the Termination Date occurs, payments will not commence prior to the first day of the calendar year following the calendar year in which the Termination Date occurs; provided further that, in the event the Executive is a Specified Employee on the Termination Date, payment shall be made in accordance with the following provisions: a. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date does not exceed two (2) times the lesser of: (x) the Specified Employee’s base salary for the year prior to the year in which the Termination Date occurs; or (y) the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Code for the year in which the Termination Date occurs (such amount, the “Separation Pay Limit”), the Executive shall receive continuation of his Base Salary for the Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, as set forth above. b. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date exceeds the Separation Pay Limit, the Executive shall not receive any payments of continued Base Salary in excess of the Separation Pay Limit during such six (6) month period. Any amounts in excess of the Separation Pay Limit which would have otherwise been paid during the six (6) month period following the Executive’s Termination Date shall be paid in a lump sum on the first day following the six-month anniversary of the Executive’s Termination Date. Beginning with the first payroll cycle occurring on or after the first day following the six-month anniversary of the Executive’s Termination Date and continuing until the end of the Severance Period, the Executive shall receive continuation payments of the Executive’s Base Salary in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly. c. For purposes of Section 409A of the Code, each installment payment of Base Salary made pursuant to this Section 5(c)(i)(B) shall be treated as a separate payment of compensation. (C) A lump sum payment equal to the Executive’s Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is reasonably practicable, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs; (D) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the Benefits Continuation Period for the Executive and his family through the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, supplemented or substituted from time to time (“COBRA”), in accordance with the applicable plans, programs or policies of the Company, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any), provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(i)(D) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(i)(D), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or following a Change of Control, the Company or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(i)(D) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that no such offset shall be made in violation of Section 409A of the Code; (E) The Company shall provide the Executive with professional outplacement services as determined in the Company’s sole discretion until the earliest of: (w) six (6) months after the end of the Severance Period, (x) the date on which the Executive obtains another full-time job, (y) the date on which the Executive becomes self-employed, and (z) the date on which the Executive has received all services or benefits due under the applicable Company-sponsored outplacement program. The Company will not pay the Executive cash in lieu of professional outplacement services; (F) If the Executive is covered by any Company-sponsored executive life insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive will have thirty-one (31) days from the last day of the Severance Period to convert his life insurance coverage to an individual policy; (G) If the Executive is covered by any Company-sponsored supplemental long-term disability insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive shall be entitled to keep this policy if he continues to pay the annual premiums; and (H) Any benefits or rights to which the Executive is entitled under any of the Company’s stock or equity plans in accordance with the terms and conditions of those plans. (ii) If a Change of Control occurs and the Executive is then receiving, or is entitled to receive, payments and benefits under Section 5(c)(i) of this Agreement as a result of his Involuntary Termination without Cause not due to a Change of Control, the Company shall pay to the Executive in a lump sum, within seven (7) calendar days after the Change of Control, an amount (in lieu of future installment payments) equal to the present value of all future cash payments due to the Executive under Section 5(c)(i)(B) of this Agreement using the prime commercial lending rate published by the Trustee at the time the Change of Control occurs. The Company and the Executive shall continue to be liable to each other for all of their other respective obligations under this Agreement. In the event that the Executive was a Specified Employee on his Termination Date, if the sum of the payments which the Executive previously received in accordance with Section 5(c)(i)(B) and the payment set forth in this Section 5(c)(ii) exceeds the Separation Pay Limit, any amounts in excess of the Separation Pay Limit shall be paid on the later of (A) the first day following the six-month anniversary of the Termination Date and (B) within seven (7) calendar days after the Change of Control. For the avoidance of doubt, in the event that the provisions of this Section 5(c)(ii) become effective, they shall supersede the provisions of Section 5(c)(i)(B). (iii) If a Change of Control occurs and (A) the Executive experienced an Involuntary Termination within twelve (12) months prior to the date on which the Change of Control occurs and (B) it is reasonably demonstrated by the Executive that such termination of employment either (a) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then in addition to the payments and benefits set forth in Section 5(c)(i), the Executive shall be entitled to the following: (x) a lump sum payment equal to 50% of the Executive’s Base Salary, payable as soon as practicable but no later than sixty (60) days following the Change of Control; provided that if the Executive was a Specified Employee on his Termination Date, such payment shall be paid on the later of (1) as soon as practicable but no later than sixty (60) days following the Change of Control and (2) the first day following the six-month anniversary of the Executive’s Termination Date; (y) the difference between the Target Bonus payment which the Executive would have received if the Severance Multiple had been two (2) and the Target Bonus amount paid to the Executive pursuant to Section 5(c)(i)(C), which shall be paid as soon as practicable following the Change of Control but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and (z) for purposes of determining the Severance Period for benefits provided under Sections 5(c)(i)(D), (F), and (G), the Executive’s Severance Period shall be defined as the twenty-four (24) month period following the Termination Date. Notwithstanding the foregoing, in the event that (A) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iii); and (B) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations issued thereunder, the lump sum payment set forth in (x) above shall be paid on the first anniversary of the Executive’s Termination Date. (iv) If a Change of Control occurs and (A) the Executive’s employment was voluntarily terminated within twelve (12) months prior to the date on which the Change of Control occurs; (B) such termination would have constituted a termination for Good Reason if it had occurred within two (2) years following the Change of Control; and (C) it is reasonably demonstrated by the Executive that the circumstances which would have caused the occurrence of Good Reason either (a) were at the request of a third party who had taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then the Executive shall be entitled to the following (based on a Severance Multiple of two (2) and a Severance Period of twenty-four (24) months from the Termination Date): (A) A lump sum payment equal to the Executive’s Base Salary multiplied by the Severance Multiple payable within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Date, any amounts in excess of the Separation Pay Limit shall be paid to the Executive in a lump sum on the later of (x) the first day following the six-month anniversary of the Termination Date and (y) within sixty (60) days following the Change of Control. In the event that (i) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iv); and (ii) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations thereunder, the lump sum payment set forth herein shall be paid on the first anniversary of the Executive’s Termination Date; and (B) A lump sum payment equal to the Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is practicable, but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and (C) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the remainder of the Benefits Continuation Period for the Executive and his family through COBRA, in accordance with the applicable plans, programs or policies, if any, of the Company or its successor, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any); provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(iv)(C) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(iv)(C), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(iv)(C) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that, no such offset shall be made in violation of Section 409A of the Code; and (D) A lump sum payment equal to the value of the Company-sponsored outplacement program maintained by the Company immediately prior to the Change of Control, based on the Executive’s management level as of the Termination Date, which shall be paid within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination D
Appears in 2 contracts
Sources: Severance Agreement (Ryder System Inc), Severance Agreement (Ryder System Inc)
Involuntary Termination Without Cause. NOT DUE TO A CHANGE OF CONTROL. In the event of the Executive’s Involuntary Termination not due to a Change of Control, the Executive shall be entitled to receive the compensation listed below, subject to his compliance with the terms and conditions of Section 5(f) (“Additional Terms”).
(i) The Company shall pay or provide to the Executive the following payments and benefits:
(A) Any Accrued Benefits payable as soon as practical after the Termination Date, or such other date as their terms require;
(B) Continued payment of the Executive’s Base Salary for the applicable Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, beginning within sixty (60) days following the Termination Date (with the first payment to include amounts accrued between the Termination Date and the first payment date); provided that, if the sixtieth (60th) day following the Termination Date falls in the calendar year following the calendar year in which the Termination Date occurs, payments will not commence prior to the first day of the calendar year following the calendar year in which the Termination Date occurs; provided further that, in the event the Executive is a Specified Employee on the Termination Date, payment shall be made in accordance with the following provisions:
a. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date does not exceed two (2) times the lesser of: (x) the Specified Employee’s base salary for the year prior to the year in which the Termination Date occurs; or (y) the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Code for the year in which the Termination Date occurs (such amount, the “Separation Pay Limit”), the Executive shall receive continuation of his Base Salary for the Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, as set forth above.
b. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date exceeds the Separation Pay Limit, the Executive shall not receive any payments of continued Base Salary in excess of the Separation Pay Limit during such six (6) month period. Any amounts in excess of the Separation Pay Limit which would have otherwise been paid during the six (6) month period following the Executive’s Termination Date shall be paid in a lump sum on the first day following the six-six (6) month anniversary of the Executive’s Termination Date. Beginning with the first payroll cycle occurring on or after the first day following the six-six (6) month anniversary of the Executive’s Termination Date and continuing until the end of the Severance Period, the Executive shall receive continuation payments of the Executive’s Base Salary in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly.
c. For purposes of Section 409A of the Code, each installment payment of Base Salary made pursuant to this Section 5(c)(i)(B) shall be treated as a separate payment of compensation.
(C) A lump sum payment equal to (x) the Executive’s Target Three-Year Average Bonus multiplied by (y) the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is reasonably practicable, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs;
(D) Continuation A lump sum payment equal to the pro-rata cash bonus for the year in which the Termination Date occurs which shall be paid (x) when such annual bonuses are paid to non-terminated employees (or, if later, upon the satisfaction of all conditions for the payment of benefits hereunder, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs) and (y) based on the actual attainment of the performance goals under the annual bonus plan for the year in which the Termination Date occurs;
(E) If the Executive continues to receive health benefits (including, medical, prescription, dental, vision and health care reimbursement benefits for account benefits) pursuant to the Benefits Continuation Period for the Executive and his family through Company’s health plans under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, supplemented or substituted from time to time (“COBRA”) and pays the full COBRA premiums, the Company will reimburse the Executive for the COBRA premiums paid for such benefits for the Executive and his family through COBRA (with the exception of any COBRA premiums paid for health care reimbursement account benefits), through the Benefits Continuation Period, in accordance with the applicable plans, programs or policies of the Company, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any), ; provided that the Executive shall may continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive health benefits pursuant to this Section 5(c)(i)(D) the Company’s health plans during a period of time during which, in the absence of the benefits provided in this Section 5(c)(i)(D), Benefits Continuation Period during which the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the CodeCode if the Executive continues to pay premiums for such health benefits, and the Executive shall receive reimbursement for all medical expenses which are covered premiums paid by the applicable plans, programs or policies Executive for such continued health benefits on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or following a Change of Control, the Company or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage reimbursements under this Section 5(c)(i)(D5(c)(i)(E) shall immediately terminate and the Executive shall cease to be entitled to any such benefits reimbursements under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits reimbursements paid to the Executive after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that no such offset shall be made in violation of Section 409A of the Code;
(EF) The Company shall provide the Executive with professional outplacement services as determined in the Company’s sole discretion until the earliest of: (w) six twenty-four (624) months after the end of the Severance PeriodTermination Date, (x) the date on which the Executive obtains another full-time job, (y) the date on which the Executive becomes self-employed, and (z) the date on which the Executive has received all services or benefits due under the applicable Company-sponsored outplacement program. The Company will not pay the Executive cash in lieu of professional outplacement services;
(FG) If the Executive is covered by any Company-sponsored executive life insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive will have thirty-one (31) days from the last day of the Severance Period to convert his life insurance coverage to an individual policy;
(GH) If the Executive is covered by any Company-sponsored supplemental long-term disability insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive shall be entitled to keep this policy if he continues to pay the annual premiums; and
(HI) Any benefits or rights to which the Executive is entitled under any of the Company’s stock or equity plans in accordance with the terms and conditions of those plans.
(ii) If a Change of Control occurs and the Executive is then receiving, or is entitled to receive, payments and benefits under Section 5(c)(i) of this Agreement as a result of his Involuntary Termination without Cause not due to a Change of Control, the Company shall pay to the Executive in a lump sum, within seven (7) calendar days after the Change of Control, an amount (in lieu of future installment payments) equal to the present value of all future cash payments due to the Executive under Section 5(c)(i)(B) of this Agreement using the prime commercial lending rate published by the Trustee at the time the Change of Control occurs. The Company and the Executive shall continue to be liable to each other for all of their other respective obligations under this Agreement. In the event that the Executive was a Specified Employee on his Termination Date, if the sum of the payments which the Executive previously received in accordance with Section 5(c)(i)(B) and the payment set forth in this Section 5(c)(ii) exceeds the Separation Pay Limit, any amounts in excess of the Separation Pay Limit shall be paid on the later of (A) the first day following the six-six (6) month anniversary of the Termination Date and (B) within seven (7) calendar days after the Change of Control. For the avoidance of doubt, in the event that the provisions of this Section 5(c)(ii) become effective, they shall supersede the provisions of Section 5(c)(i)(B).
(iii) If a Change of Control occurs and (A) the Executive experienced an Involuntary Termination within twelve (12) months prior to the date on which the Change of Control occurs and (B) it is reasonably demonstrated by the Executive that such termination of employment either (a) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then in addition to the payments and benefits set forth in Section 5(c)(i), the Executive shall be entitled to the following: (x) a lump sum payment equal to 50% of the Executive’s Base Salary, payable as soon as practicable but no later than sixty (60) days following the Change of Control; provided that if the Executive was a Specified Employee on his Termination Date, such payment shall be paid on the later of (1) as soon as practicable but no later than sixty (60) days following the Change of Control and (2) the first day following the six-six (6) month anniversary of the Executive’s Termination Date; (y) the difference between the Target Bonus payment which the Executive would have received if the Severance Multiple had been two (2) and times the Target Bonus and one and one-half (1 1/2) times the Executive’s Three-Year Average Bonus amount paid to the Executive pursuant to Section 5(c)(i)(C), which shall be paid as soon as practicable following the Change of Control but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and (z) for purposes of determining the Severance Period for benefits provided under Sections 5(c)(i)(D5(c)(i)(E), (FG), and (GH), the Executive’s Severance Period shall be defined as the twenty-four (24) month period following the Termination Date. Notwithstanding the foregoing, in the event that (A) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iii); and (B) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations issued thereunder, the lump sum payment set forth in (x) above shall be paid on the first anniversary of the Executive’s Termination Date.
(iv) If a Change of Control occurs and (A) the Executive’s employment was voluntarily terminated within twelve (12) months prior to the date on which the Change of Control occurs; (B) such termination would have constituted a termination for Good Reason if it had occurred within two (2) years following the Change of Control; and (C) it is reasonably demonstrated by the Executive that the circumstances which would have caused the occurrence of Good Reason either (a) were at the request of a third party who had taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then the Executive shall be entitled to the following (based on a Severance Multiple of two (2) and a Severance Period of twenty-four (24) months from the Termination Date):
(A) A lump sum payment equal to the Executive’s Base Salary multiplied by the Severance Multiple payable within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Date, any amounts in excess of the Separation Pay Limit shall be paid to the Executive in a lump sum on the later of (x) the first day following the six-six (6) month anniversary of the Termination Date and (y) within sixty (60) days following the Change of Control. In the event that (i) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iv); and (ii) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations thereunder, the lump sum payment set forth herein shall be paid on the first anniversary of the Executive’s Termination Date; and;
(B) A lump sum payment equal to the Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is practicable, but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and;
(C) Continuation A lump sum payment equal to the pro-rata cash bonus for the year in which the Termination Date occurs which shall be paid (i) when such annual bonuses are paid to non-terminated employees (or, if later, upon the satisfaction of all conditions for the payment of benefits hereunder, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Change of Control occurs) and (ii) based on the actual attainment of the performance goals under the annual bonus plan for the year in which the Termination Date occurs;
(D) If the Executive continues to receive health benefits (including, medical, prescription, dental, vision and health care reimbursement account benefits) pursuant to the Company’s health plans under COBRA and pays the full COBRA premiums, the Company will reimburse the Executive for the COBRA premiums paid for such benefits for the Executive and his family through COBRA (with the exception of any COBRA premiums paid for health care reimbursement account benefits), for the remainder of the Benefits Continuation Period for the Executive and his family through COBRAPeriod, in accordance with the applicable plans, programs or policies, if any, of the Company or its successor, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any); provided that the Executive shall may continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive health benefits pursuant to this Section 5(c)(iv)(C) the Company’s health plans during a period of time during which, in the absence of the benefits provided in this Section 5(c)(iv)(C), Benefits Continuation Period during which the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the CodeCode if the Executive continues to pay premiums for such health benefits, and the Executive shall receive reimbursement for all medical expenses which are covered premiums paid by the applicable plans, programs or policies Executive for such continued health benefits on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(iv)(C) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that, no such offset shall be made in violation of Section 409A of the Code; and
(D) A lump sum payment equal to the value of the Company-sponsored outplacement program maintained by the Company immediately prior to the Change of Control, based on the Executive’s management level as of the Termination Date, which shall be paid within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination D
Appears in 2 contracts
Sources: Severance Agreement (Ryder System Inc), Severance Agreement (Ryder System Inc)
Involuntary Termination Without Cause. NOT DUE TO A CHANGE OF CONTROL. In the event that the Boards determine that this Agreement and the employment of Executive should be terminated before the Retirement Date for a reason other than death, Disability, voluntary separation from service by Executive, or for Cause (such reason is hereafter referred to as a “Termination Without Cause”):
(1) Executive, or his designated beneficiary, shall be entitled to continue to receive the Base Salary he otherwise would have been entitled to receive (including but not limited to amounts earned but not paid) had he remained employed for a period of two (2) years, or through the Retirement Date, whichever is less. Such amounts shall begin to be paid as soon as practicable after Executive’s Involuntary Termination not due to separation from service and shall continue for a Change period of Controltwo (2) years, the Executive or until December 31, 2015, whichever is less.
(2) Executive, or his designated beneficiary, shall be entitled to receive the compensation listed below, subject to his compliance with the terms and conditions of Section 5(f) (“Additional Terms”).
(i) The Company shall pay or provide a one-year bonus payment equal to the Executive the following payments and benefits:
(A) Any Accrued Benefits payable as soon as practical after the Termination Date, or such other date as their terms require;
(B) Continued payment average of the Executive’s Base Salary annual aggregate bonus under the QPB Plan (or its successor) earned by Executive for each of the applicable Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, beginning within sixty (60) days following the Termination Date (with the first payment to include amounts accrued between the Termination Date and the first payment date); provided that, if the sixtieth (60th) day following the Termination Date falls in the two calendar year following years immediately preceding the calendar year in which the Termination Date Without Cause occurs, payments will not commence prior to plus the first day average of the amount earned under the LBP and the LTIP in place for each of the two calendar year following years immediately preceding the calendar year in which the Termination Date Without Cause occurs; provided further that, payable in the event form and at the Executive is a Specified Employee on the Termination Date, payment shall be made time specified in accordance with the following provisions:
a. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date does not exceed two (2) times the lesser of: (x) the Specified Employee’s base salary for the year prior to the year in which the Termination Date occurs; or (y) the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Code for the year in which the Termination Date occurs (such amount, the “Separation Pay Limit”), the Executive shall receive continuation of his Base Salary for the Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, as set forth above.
b. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date exceeds the Separation Pay Limit, the Executive shall not receive any payments of continued Base Salary in excess of the Separation Pay Limit during such six (6) month period. Any amounts in excess of the Separation Pay Limit which would have otherwise been paid during the six (6) month period following the Executive’s Termination Date shall be paid in a lump sum on the first day following the six-month anniversary of the Executive’s Termination Date. Beginning with the first payroll cycle occurring on or after the first day following the six-month anniversary of the Executive’s Termination Date and continuing until the end of the Severance Period, the Executive shall receive continuation payments of the Executive’s Base Salary in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly.
c. For purposes of Section 409A of the Code, each installment payment of Base Salary made pursuant to this Section 5(c)(i)(B) shall be treated as a separate payment of compensationplans.
(C3) A lump sum payment equal Any stock options granted to the Executive’s Target Bonus multiplied by the Severance Multiple, payable Executive shall vest on the Release Effective Date or as soon thereafter as is reasonably practicabletermination date, but notwithstanding any vesting schedule set forth in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs;
(D) Continuation of medicalany outstanding option agreements with Executive, prescription, dental, vision and health care reimbursement benefits for the Benefits Continuation Period for the Executive and his family through the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, supplemented or substituted from time to time (“COBRA”), in accordance with the applicable plans, programs or policies of the Company, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any), provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(i)(D) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(i)(D), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or following a Change of Control, the Company or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(i)(D) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse exercisable under the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that no such offset shall be made in violation of Section 409A terms of the Code;plan.
(E4) The Company shall provide the Executive with professional outplacement services as determined in the Company’s sole discretion until the earliest of: (w) six (6) months after the end of the Severance Period, (x) the date on which the Executive obtains another full-time job, (y) the date on which the Executive becomes self-employed, and (z) the date on which the Executive has received all services or benefits due under the applicable Company-sponsored outplacement program. The Company will not pay the Executive cash in lieu of professional outplacement services;
(F) If the Executive is covered by any Company-sponsored executive life insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive will have thirty-one (31) days from the last day of the Severance Period to convert his life insurance coverage to an individual policy;
(G) If the Executive is covered by any Company-sponsored supplemental long-term disability insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive shall be entitled to keep this policy if he continues to pay the annual premiums; and
(H) Any benefits or rights to which the Executive is entitled under any of the Company’s stock or equity plans in accordance with the terms and conditions of those plans.
(ii) If a Change of Control occurs and the Executive is then receiving, or is entitled to receive, payments and benefits under Section 5(c)(i) of this Agreement as a result of his Involuntary Termination without Cause not due to a Change of Control, the Company shall pay to the Executive in a lump sum, within seven (7) calendar days after the Change of Control, receive from State Auto an amount (in lieu of future installment payments) equal to the present value then current monthly per employee cost of all future cash payments due to the Executive under Section 5(c)(i)(B) of this Agreement using the prime commercial lending rate published providing State Auto’s health insurance benefit multiplied by the Trustee at the time the Change of Control occurs. The Company and the Executive shall continue to be liable to each other for all of their other respective obligations under this Agreement. In the event that the Executive was a Specified Employee on his Termination Date, if the sum of the payments which the Executive previously received in accordance with Section 5(c)(i)(B) and the payment set forth in this Section 5(c)(ii) exceeds the Separation Pay Limit, any amounts in excess of the Separation Pay Limit shall be paid on the later of (A) the first day following the six-month anniversary of the Termination Date and (B) within seven (7) calendar days after the Change of Control. For the avoidance of doubt, in the event that the provisions of this Section 5(c)(ii) become effective, they shall supersede the provisions of Section 5(c)(i)(B).
(iii) If a Change of Control occurs and (A) the Executive experienced an Involuntary Termination within twelve (12) months prior to the date on which the Change of Control occurs and (B) it is reasonably demonstrated by the Executive that such termination of employment either (a) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then in addition to the payments and benefits set forth in Section 5(c)(i), the Executive shall be entitled to the following: (x) a lump sum payment equal to 50% of the Executive’s Base Salary, payable as soon as practicable but no later than sixty (60) days following the Change of Control; provided that if the Executive was a Specified Employee on his Termination Date, such payment shall be paid on the later of (1) as soon as practicable but no later than sixty (60) days following the Change of Control and (2) the first day following the six-month anniversary of the Executive’s Termination Date; (y) the difference between the Target Bonus payment which the Executive would have received if the Severance Multiple had been two (2) and the Target Bonus amount paid to the Executive pursuant to Section 5(c)(i)(C), which shall be paid as soon as practicable following the Change of Control but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and (z) for purposes of determining the Severance Period for benefits provided under Sections 5(c)(i)(D), (F), and (G), the Executive’s Severance Period shall be defined as the twenty-four (24) month period following months, or the Termination Datenumber of months from the date of termination until December 31, 2015, whichever is less, payable as a single lump sum payment as soon as practicable after separation from service, subject to the provisions of Section (H) below. Notwithstanding any provision to the foregoingcontrary, in the event that (A) a Change of Control occurs and payments and benefits become payable due to the Executive pursuant to under this Section 5(c)(iii); and (BE) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations issued thereunder, the lump sum payment set forth in (x) above Article IV shall be paid on the first anniversary of the commence no later than 90 days after Executive’s Termination Date.
(iv) If Without Cause, provided that Executive has executed a Change valid release of Control occurs State Auto Mutual, State Auto P & C, and (A) the their respective officers, directors and employees, from any and all actions, suits, proceedings, claims and demands relating to Executive’s employment was voluntarily terminated within twelve (12) months prior to the date on which the Change of Control occurs; (B) such termination would have constituted a termination for Good Reason if it had occurred within two (2) years following the Change of Control; and (C) it is reasonably demonstrated by the Executive that the circumstances which would have caused the occurrence of Good Reason either (a) were at the request of a third party who had taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of ControlInvoluntary Termination Without Cause, then the Executive shall be entitled to the following (based on a Severance Multiple of two (2) and a Severance Period of twenty-four (24) months from the Termination Date):
(A) A lump sum payment equal to the Executive’s Base Salary multiplied by the Severance Multiple payable within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Date, any amounts in excess of the Separation Pay Limit shall be paid to the Executive in a lump sum on the later of (x) the first day following the six-month anniversary of the Termination Date and (y) within sixty (60) days following the Change of Control. In the event that (i) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iv); and (ii) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations thereunder, the lump sum payment set forth herein shall be paid on the first anniversary of the Executive’s Termination Date; and
(B) A lump sum payment equal to the Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is practicable, but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and
(C) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the remainder of the Benefits Continuation Period for the Executive and his family through COBRA, in accordance with the applicable plans, programs or policies, if any, of the Company or its successor, and on such terms applicable to comparably situated active employees during such revocation period (which shall offset the Company’s COBRA obligation, if any); provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to has expired within this Section 5(c)(iv)(C) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(iv)(C), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(iv)(C) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that, no such offset shall be made in violation of Section 409A of the Code; and
(D) A lump sum payment equal to the value of the Company-sponsored outplacement program maintained by the Company immediately prior to the Change of Control, based on the Executive’s management level as of the Termination Date, which shall be paid within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Dperiod.
Appears in 1 contract
Involuntary Termination Without Cause. NOT DUE TO A CHANGE OF CONTROL. In the event of the Executive’s Involuntary Termination not due to a Change of Control, the Executive shall be entitled to receive the compensation listed below, subject to his compliance with the terms and conditions of Section 5(f) (“Additional Terms”).
(i) The Company shall pay or provide to the Executive the following payments and benefits:
(A) Any Accrued Benefits payable as soon as practical after the Termination Date, or such other date as their terms require;
(B) Continued payment of the Executive’s Base Salary for the applicable Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, beginning within sixty (60) days following the Termination Date (with the first payment to include amounts accrued between the Termination Date and the first payment date); provided that, if the sixtieth (60th) day following the Termination Date falls in the calendar year following the calendar year in which the Termination Date occurs, payments will not commence prior to the first day of the calendar year following the calendar year in which the Termination Date occurs; provided further that, in the event the Executive is a Specified Employee on the Termination Date, payment shall be made in accordance with the following provisions:
a. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date does not exceed two (2) times the lesser of: (x) the Specified Employee’s base salary for the year prior to the year in which the Termination Date occurs; or (y) the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Code for the year in which the Termination Date occurs (such amount, the “Separation Pay Limit”), the Executive shall receive continuation of his Base Salary for the Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, as set forth above.
b. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date exceeds the Separation Pay Limit, the Executive shall not receive any payments of continued Base Salary in excess of the Separation Pay Limit during such six (6) month period. Any amounts in excess of the Separation Pay Limit which would have otherwise been paid during the six (6) month period following the Executive’s Termination Date shall be paid in a lump sum on the first day following the six-six (6) month anniversary of the Executive’s Termination Date. Beginning with the first payroll cycle occurring on or after the first day following the six-six (6) month anniversary of the Executive’s Termination Date and continuing until the end of the Severance Period, the Executive shall receive continuation payments of the Executive’s Base Salary in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly.
c. For purposes of Section 409A of the Code, each installment payment of Base Salary made pursuant to this Section 5(c)(i)(B) shall be treated as a separate payment of compensation.
(C) A lump sum payment equal to (x) the Executive’s Target Three-Year Average Bonus multiplied by (y) the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is reasonably practicable, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs;
(D) Continuation A lump sum payment equal to the pro-rata cash bonus for the year in which the Termination Date occurs which shall be paid (x) when such annual bonuses are paid to non-terminated employees (or, if later, upon the satisfaction of all conditions for the payment of benefits hereunder, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs) and (y) based on the actual attainment of the performance goals under the annual bonus plan for the year in which the Termination Date occurs;
(E) If the Executive continues to receive health benefits (including, medical, prescription, dental, vision and health care reimbursement benefits for account benefits) pursuant to the Benefits Continuation Period for the Executive and his family through Company’s health plans under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, supplemented or substituted from time to time (“COBRA”) and pays the full COBRA premiums, the Company will reimburse the Executive for the COBRA premiums paid for such benefits for the Executive and his family through COBRA (with the exception of any COBRA premiums paid for health care reimbursement account benefits), through the Benefits Continuation Period, in accordance with the applicable plans, programs or policies of the Company, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any), ; provided that the Executive shall may continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive health benefits pursuant to this Section 5(c)(i)(D) the Company’s health plans during a period of time during which, in the absence of the benefits provided in this Section 5(c)(i)(D), Benefits Continuation Period during which the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the CodeCode if the Executive continues to pay premiums for such health benefits, and the Executive shall receive reimbursement for all medical expenses which are covered premiums paid by the applicable plans, programs or policies Executive for such continued health benefits on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or following a Change of Control, the Company or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage reimbursements under this Section 5(c)(i)(D5(c)(i)(E) shall immediately terminate and the Executive shall cease to be entitled to any such benefits reimbursements under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits reimbursements paid to the Executive after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that no such offset shall be made in violation of Section 409A of the Code;
(EF) The Company shall provide the Executive with professional outplacement services as determined in the Company’s sole discretion until the earliest of: (w) thirty-six (636) months after the end of the Severance PeriodTermination Date, (x) the date on which the Executive obtains another full-time job, and (y) the date on which the Executive becomes self-employed, and (z) the date on which . The amount of outplacement services provided to the Executive has received all during any calendar year will not affect the amount of outplacement services or benefits due under provided to the applicable Company-sponsored outplacement programExecutive in any subsequent calendar year. The Company will not pay the Executive cash or provide other benefits in lieu of professional outplacement services;
(FG) If the Executive is covered by any Company-sponsored executive life insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive will have thirty-one (31) days from the last day of the Severance Period to convert his life insurance coverage to an individual policy;
(GH) If the Executive is covered by any Company-sponsored supplemental long-term disability insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive shall be entitled to keep this policy if he continues to pay the annual premiums; and
(HI) Any benefits or rights to which the Executive is entitled under any of the Company’s stock or equity plans in accordance with the terms and conditions of those plans.
(ii) If a Change of Control occurs and the Executive is then receiving, or is entitled to receive, payments and benefits under Section 5(c)(i) of this Agreement as a result of his Involuntary Termination without Cause not due to a Change of Control, the Company shall pay to the Executive in a lump sum, within seven (7) calendar days after the Change of Control, an amount (in lieu of future installment payments) equal to the present value of all future cash payments due to the Executive under Section 5(c)(i)(B) of this Agreement using the prime commercial lending rate published by the Trustee at the time the Change of Control occurs. The Company and the Executive shall continue to be liable to each other for all of their other respective obligations under this Agreement. In the event that the Executive was a Specified Employee on his Termination Date, if the sum of the payments which the Executive previously received in accordance with Section 5(c)(i)(B) and the payment set forth in this Section 5(c)(ii) exceeds the Separation Pay Limit, any amounts in excess of the Separation Pay Limit shall be paid on the later of (A) the first day following the six-six (6) month anniversary of the Termination Date and (B) within seven (7) calendar days after the Change of Control. For the avoidance of doubt, in the event that the provisions of this Section 5(c)(ii) become effective, they shall supersede the provisions of Section 5(c)(i)(B).
(iii) If a Change of Control occurs and (A) the Executive experienced an Involuntary Termination within twelve (12) months prior to the date on which the Change of Control occurs and (B) it is reasonably demonstrated by the Executive that such termination of employment either (a) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then in addition to the payments and benefits set forth in Section 5(c)(i), the Executive shall be entitled to the following: (x) a lump sum payment equal to 50% of the Executive’s Base Salary, payable as soon as practicable but no later than sixty (60) days following the Change of Control; provided that if the Executive was a Specified Employee on his Termination Date, such payment shall be paid on the later of (1) as soon as practicable but no later than sixty (60) days following the Change of Control and (2) the first day following the six-six (6) month anniversary of the Executive’s Termination Date; (y) the difference between three (3) times the Target Bonus payment which and two and one-half (2.5) times the Executive would have received if the Severance Multiple had been two (2) and the Target Executive’s Three-Year Average Bonus amount paid to the Executive pursuant to Section 5(c)(i)(C), which shall be paid as soon as practicable following the Change of Control but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and (z) for purposes of determining the Severance Period for benefits provided under Sections 5(c)(i)(D5(c)(i)(E), (FG), and (GH), the Executive’s Severance Period shall be defined as the twentythirty-four six (2436) month period following the Termination Date. Notwithstanding the foregoing, in the event that (A) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iii); and (B) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations issued thereunder, the lump sum payment set forth in (x) above shall be paid on the first anniversary of the Executive’s Termination Date.
(iv) If a Change of Control occurs and (A) the Executive’s employment was voluntarily terminated within twelve (12) months prior to the date on which the Change of Control occurs; (B) such termination would have constituted a termination for Good Reason if it had occurred within two (2) years following the Change of Control; and (C) it is reasonably demonstrated by the Executive that the circumstances which would have caused the occurrence of Good Reason either (a) were at the request of a third party who had taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then the Executive shall be entitled to the following (based on a Severance Multiple of two three (23) and a Severance Period of twentythirty-four six (2436) months from the Termination Date):
(A) A lump sum payment equal to the Executive’s Base Salary multiplied by the Severance Multiple payable within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Date, any amounts in excess of the Separation Pay Limit shall be paid to the Executive in a lump sum on the later of (x) the first day following the six-six (6) month anniversary of the Termination Date and (y) within sixty (60) days following the Change of Control. In the event that (i) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iv); and (ii) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations thereunder, the lump sum payment set forth herein shall be paid on the first anniversary of the Executive’s Termination Date; and;
(B) A lump sum payment equal to the Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is practicable, but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and;
(C) Continuation A lump sum payment equal to the pro-rata cash bonus for the year in which the Termination Date occurs which shall be paid (i) when such annual bonuses are paid to non-terminated employees (or, if later, upon the satisfaction of all conditions for the payment of benefits hereunder, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Change of Control occurs) and (ii) based on the actual attainment of the performance goals under the annual bonus plan for the year in which the Termination Date occurs;
(D) If the Executive continues to receive health benefits (including, medical, prescription, dental, vision and health care reimbursement account benefits) pursuant to the Company’s health plans under COBRA and pays the full COBRA premiums, the Company will reimburse the Executive for the COBRA premiums paid for such benefits for the Executive and his family through COBRA (with the exception of any COBRA premiums paid for health care reimbursement account benefits), for the remainder of the Benefits Continuation Period for the Executive and his family through COBRAPeriod, in accordance with the applicable plans, programs or policies, if any, of the Company or its successor, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any); provided that the Executive shall may continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive health benefits pursuant to this Section 5(c)(iv)(C) the Company’s health plans during a period of time during which, in the absence of the benefits provided in this Section 5(c)(iv)(C), Benefits Continuation Period during which the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the CodeCode if the Executive continues to pay premiums for such health benefits, and the Executive shall receive reimbursement for all medical expenses which are covered premiums paid by the applicable plans, programs or policies Executive for such continued health benefits on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(iv)(C) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that, no such offset shall be made in violation of Section 409A of the Code; and
(D) A lump sum payment equal to the value of the Company-sponsored outplacement program maintained by the Company immediately prior to the Change of Control, based on the Executive’s management level as of the Termination Date, which shall be paid within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Dco
Appears in 1 contract
Involuntary Termination Without Cause. NOT DUE TO A CHANGE OF CONTROLThe Executive’s employment by the Employer shall be at will. Employer may, upon ten (10) days prior written notice to Executive, terminate Executive’s employment and the Employment Period, and Executive’s rights to compensation and benefits hereunder, for any reason in its sole discretion (including for no reason whatsoever). In the event of that Executive’s employment is terminated by Employer pursuant to an involuntary termination without Cause, and such termination not due to the Executive’s Involuntary Termination not due death or Disability, provided that Executive satisfies the requirements of Section 4.9 related to a Change timely delivery of Controlan effective Release, the then Executive shall be entitled to receive the compensation listed below, subject to his compliance with the terms and conditions of Section 5(f) (“Additional Terms”).
(i) The Company shall pay or provide to the Executive the following payments and severance benefits:
(Aa) Any Accrued Benefits payable as soon as practical after Employer will continue to pay to Executive his Base Salary, in accordance with Employer’s normal payroll practices, for a period of twelve (12) months following the Termination Date, or such other effective date as their terms requireof the Release (the “Severance Benefit Period”);
(Bb) Continued payment of the Executive’s Base Salary for the applicable Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, beginning within sixty (60) days following the Termination Date (with the first payment to include amounts accrued between the Termination Date and the first payment date); provided that, if the sixtieth (60th) day following the Termination Date falls in the calendar year following the calendar year in which the Termination Date occurs, payments will not commence prior to the first day of the calendar year following the calendar year in which the Termination Date occurs; provided further that, in the event Assuming the Executive is a Specified Employee on the Termination Date, payment shall be made in accordance with the following provisions:
a. If the aggregate value of the payments due timely and accurately elects to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following continue his Termination Date does not exceed two (2) times the lesser of: (x) the Specified Employee’s base salary for the year prior to the year in which the Termination Date occurs; or (y) the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Code for the year in which the Termination Date occurs (such amount, the “Separation Pay Limit”), the Executive shall receive continuation of his Base Salary for the Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, as set forth above.
b. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date exceeds the Separation Pay Limit, the Executive shall not receive any payments of continued Base Salary in excess of the Separation Pay Limit during such six (6) month period. Any amounts in excess of the Separation Pay Limit which would have otherwise been paid during the six (6) month period following the Executive’s Termination Date shall be paid in a lump sum on the first day following the six-month anniversary of the Executive’s Termination Date. Beginning with the first payroll cycle occurring on or after the first day following the six-month anniversary of the Executive’s Termination Date and continuing until the end of the Severance Period, the Executive shall receive continuation payments of the Executive’s Base Salary in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly.
c. For purposes of Section 409A of the Code, each installment payment of Base Salary made pursuant to this Section 5(c)(i)(B) shall be treated as a separate payment of compensation.
(C) A lump sum payment equal to the Executive’s Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is reasonably practicable, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs;
(D) Continuation of medical, prescription, dental, dental and vision and health care reimbursement insurance benefits for the Benefits Continuation Period for the Executive and his family through under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, supplemented or substituted from time to time 1985 (“COBRA”), in accordance with the applicable plans, programs or policies of the Company, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any), provided that the Executive Employer shall continue to pay to the Company any applicable contribution amounts that same percentage of the COBRA premiums for the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(i)(D) and his qualified beneficiaries as it paid during a period of time during which, in the absence of the benefits provided in this Section 5(c)(i)(D), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or following a Change of Control, the Company or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(i)(D) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that no such offset shall be made in violation of Section 409A of the Code;
(E) The Company shall provide the Executive with professional outplacement services as determined in the Company’s sole discretion employment until the earliest of: of (wi) six (6) months after the end of the Severance Benefit Period, (xii) the expiration of the Executive’s continuation coverage under COBRA and any applicable state COBRA-like statute that provides mandated continuation coverage or (iii) the date on which the Executive obtains another full-time job, (y) the date on which the Executive becomes self-employedeligible for health insurance benefits of a subsequent employer. Executive agrees to immediately notify the Company in writing of any such eligibility. For purposes of this Section 4.4(b), and (z) the date on which references to COBRA premiums shall not include any amounts payable by the Executive has received all services or benefits due under the applicable Company-sponsored outplacement program. The Company will not pay the Executive cash in lieu of professional outplacement services;
(F) If the Executive is covered by any Company-sponsored executive life insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive will have thirty-one (31) days from the last day of the Severance Period to convert his life insurance coverage to an individual policy;
(G) If the Executive is covered by any Company-sponsored supplemental long-term disability insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive shall be entitled to keep this policy if he continues to pay the annual premiumsInternal Revenue Code Section 125 health care reimbursement plan; and
(Hc) Any benefits or rights to which Employer will pay the Executive is entitled under any a single lump sum of a pro-rata amount of the Company’s stock or equity plans Bonus for the current fiscal year in accordance with the terms and conditions which such notice of those plans.
(ii) If a Change of Control occurs and the Executive is then receiving, or is entitled to receive, payments and benefits under Section 5(c)(i) of this Agreement as a result of his Involuntary Termination without Cause not due to a Change of Control, the Company shall pay to the Executive in a lump sum, within seven (7) calendar days after the Change of Control, an amount (in lieu of future installment payments) equal to the present value of all future cash payments due to the Executive under Section 5(c)(i)(B) of this Agreement using the prime commercial lending rate published termination was given by the Trustee at the time the Change of Control occurs. The Company and the Executive shall continue to be liable to each other for all of their other respective obligations under this Agreement. In the event that the Executive was a Specified Employee on his Termination Date, if the sum of the payments which the Executive previously received in accordance with Section 5(c)(i)(B) and the payment set forth in this Section 5(c)(ii) exceeds the Separation Pay Limit, any amounts in excess of the Separation Pay Limit shall be paid Employer based on the later number of (A) days that have elapsed from the first day following the six-month anniversary beginning of the Termination Date and (B) within seven (7) calendar days after the Change of Control. For the avoidance of doubt, in the event that the provisions of this Section 5(c)(ii) become effective, they shall supersede the provisions of Section 5(c)(i)(B).
(iii) If a Change of Control occurs and (A) the Executive experienced an Involuntary Termination within twelve (12) months prior such year to the date on which the Change of Control occurs and (B) it such notice is reasonably demonstrated by the Executive that such termination of employment either (a) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then in addition to the payments and benefits set forth in Section 5(c)(i), the Executive shall be entitled to the following: (x) a lump sum given. Such payment equal to 50% of the Executive’s Base Salary, payable as soon as practicable but no later than sixty (60) days following the Change of Control; provided that if the Executive was a Specified Employee on his Termination Date, such payment shall be paid on the later of (1) as soon as practicable but no later than sixty (60) days following the Change of Control and (2) the first day following the six-month anniversary of the Executive’s Termination Date; (y) the difference between the Target Bonus payment which the Executive would have received if the Severance Multiple had been two (2) and the Target Bonus amount paid to the Executive pursuant to Section 5(c)(i)(C), which shall be paid as soon as practicable following the Change of Control but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and (z) for purposes of determining the Severance Period for benefits provided under Sections 5(c)(i)(D), (F), and (G), the Executive’s Severance Period shall be defined as the twenty-four (24) month period following the Termination Date. Notwithstanding the foregoing, in the event that (A) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iii); and (B) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations issued thereunder, the lump sum payment set forth in (x) above shall be paid on the first anniversary of the Executive’s Termination Date.
(iv) If a Change of Control occurs and (A) the Executive’s employment was voluntarily terminated within twelve (12) months prior to the date on which the Change of Control occurs; (B) such termination would have constituted a termination for Good Reason if it had occurred within two (2) years following the Change of Control; and (C) it is reasonably demonstrated by the Executive that the circumstances which would have caused the occurrence of Good Reason either (a) were at the request of a third party who had taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then the Executive shall be entitled to the following (based on a Severance Multiple of two (2) and a Severance Period of twenty-four (24) months from the Termination Date):
(A) A lump sum payment equal to the Executive’s Base Salary multiplied by the Severance Multiple payable within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Date, any amounts in excess of the Separation Pay Limit shall be paid to the Executive in a lump sum on the later of (x) the first day following the six-month anniversary of the Termination Date and (y) within sixty (60) days following the Change of Control. In the event that (i) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iv); and (ii) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations thereunder, the lump sum payment set forth herein shall be paid on the first anniversary of the Executive’s Termination Date; and
(B) A lump sum payment equal to the Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is practicable, but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and
(C) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the remainder of the Benefits Continuation Period for the Executive and his family through COBRA, in accordance with the applicable plans, programs or policies, if any, of the Company or its successor, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any); provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(iv)(C) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(iv)(C), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(iv)(C) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that, no such offset shall be made in violation of Section 409A the first payroll period following the effective date of the Code; and
(D) A lump sum Release required by Section 4.9 of this Agreement. The foregoing severance benefit payments are subject to any delay in payment equal to the value required by Section 4.10 of the Company-sponsored outplacement program maintained by the Company immediately prior to the Change of Control, based on the Executive’s management level as of the Termination Date, which shall be paid within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Dthis Agreement.
Appears in 1 contract
Involuntary Termination Without Cause. NOT DUE TO A CHANGE OF CONTROL. In Subject to Executive's ------------------------------------- compliance with Section 5, if the event of the Company terminates Executive’s Involuntary Termination not due to a Change of Control's employment other than for Cause, and the Executive shall be entitled to receive the compensation listed below, subject to his compliance with the terms signs and conditions does not revoke a release of Section 5(f) (“Additional Terms”).
(i) The Company shall pay or provide to the Executive the following payments and benefits:
(A) Any Accrued Benefits payable as soon as practical after the Termination Date, or such other date as their terms require;
(B) Continued payment of the Executive’s Base Salary for the applicable Severance Period payable in installments in accordance claims with the Company’s standard payroll practices, but no less frequently than monthly, beginning within sixty (60) days following the Termination Date (with the first payment to include amounts accrued between the Termination Date and the first payment date); provided that, if the sixtieth (60th) day following the Termination Date falls in the calendar year following the calendar year in which the Termination Date occurs, payments will not commence prior to the first day of the calendar year following the calendar year in which the Termination Date occurs; provided further that, in the event the Executive is a Specified Employee on the Termination Date, payment shall be made in accordance with the following provisions:
a. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date does not exceed two (2) times the lesser of: (x) the Specified Employee’s base salary for the year prior to the year in which the Termination Date occurs; or (y) the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Code for the year in which the Termination Date occurs (such amount, the “Separation Pay Limit”), the Executive shall receive continuation of his Base Salary for the Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, as set forth above.
b. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date exceeds the Separation Pay Limit, the Executive shall not receive any payments of continued Base Salary in excess of the Separation Pay Limit during such six (6) month period. Any amounts in excess of the Separation Pay Limit which would have otherwise been paid during the six (6) month period following the Executive’s Termination Date shall be paid in a lump sum on the first day following the six-month anniversary of the Executive’s Termination Date. Beginning with the first payroll cycle occurring on or after the first day following the six-month anniversary of the Executive’s Termination Date and continuing until the end of the Severance Period, the Executive shall receive continuation payments of the Executive’s Base Salary in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly.
c. For purposes of Section 409A of the Code, each installment payment of Base Salary made pursuant to this Section 5(c)(i)(B) shall be treated as a separate payment of compensation.
(C) A lump sum payment equal to the Executive’s Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is reasonably practicable, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs;
(D) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the Benefits Continuation Period for the Executive and his family through the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, supplemented or substituted from time to time (“COBRA”), in accordance with the applicable plans, programs or policies of the Company, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any), provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(i)(D) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(i)(D), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or following a Change of Control, the Company or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(i)(D) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that no such offset shall be made in violation of Section 409A of the Code;
(E) The Company shall provide the Executive with professional outplacement services as determined in the Company’s sole discretion until the earliest of: (w) six (6) months after the end of the Severance Period, (x) the date on which the Executive obtains another full-time job, (y) the date on which the Executive becomes self-employed, and (z) the date on which the Executive has received all services or benefits due under the applicable Company-sponsored outplacement program. The Company will not pay the Executive cash in lieu of professional outplacement services;
(F) If the Executive is covered by any Company-sponsored executive life insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive will have thirty-one (31) days from the last day of the Severance Period to convert his life insurance coverage to an individual policy;
(G) If the Executive is covered by any Company-sponsored supplemental long-term disability insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive shall be entitled to keep this policy if he continues to pay the annual premiums; and
(H) Any benefits or rights to which the Executive is entitled under any of the Company’s stock or equity plans in accordance with the terms and conditions of those plans.
(ii) If a Change of Control occurs and the Executive is then receiving, or is entitled to receive, payments and benefits under Section 5(c)(i) of this Agreement as a result of his Involuntary Termination without Cause not due to a Change of Control, the Company shall pay to the Executive in a lump sum, within seven (7) calendar days after the Change of Control, an amount (in lieu of future installment payments) equal to the present value of all future cash payments due to the Executive under Section 5(c)(i)(B) of this Agreement using the prime commercial lending rate published by the Trustee at the time the Change of Control occurs. The Company and the Executive shall continue to be liable to each other for all of their other respective obligations under this Agreement. In the event that the Executive was a Specified Employee on his Termination Date, if the sum of the payments which the Executive previously received in accordance with Section 5(c)(i)(B) and the payment set forth in this Section 5(c)(ii) exceeds the Separation Pay Limit, any amounts in excess of the Separation Pay Limit shall be paid on the later of (A) the first day following the six-month anniversary of the Termination Date and (B) within seven (7) calendar days after the Change of Control. For the avoidance of doubt, in the event that the provisions of this Section 5(c)(ii) become effective, they shall supersede the provisions of Section 5(c)(i)(B).
(iii) If a Change of Control occurs and (A) the Executive experienced an Involuntary Termination within twelve (12) months prior to the date on which the Change of Control occurs and (B) it is reasonably demonstrated by the Executive that such termination of employment either (a) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then in addition to the payments and benefits set forth in Section 5(c)(i), the Executive shall be entitled to the following: (x) a lump sum payment equal to 50% of the Executive’s Base Salary, payable as soon as practicable but no later than sixty (60) days following the Change of Control; provided that if the Executive was a Specified Employee on his Termination Date, such payment shall be paid on the later of (1) as soon as practicable but no later than sixty (60) days following the Change of Control and (2) the first day following the six-month anniversary of the Executive’s Termination Date; (y) the difference between the Target Bonus payment which the Executive would have received if the Severance Multiple had been two (2) and the Target Bonus amount paid to the Executive pursuant to Section 5(c)(i)(C), which shall be paid as soon as practicable following the Change of Control but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and (z) for purposes of determining the Severance Period for benefits provided under Sections 5(c)(i)(D), (F), and (G), the Executive’s Severance Period shall be defined as the twenty-four (24) month period following the Termination Date. Notwithstanding the foregoing, in the event that (A) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iii); and (B) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations issued thereunder, the lump sum payment set forth in (x) above shall be paid on the first anniversary of the Executive’s Termination Date.
(iv) If a Change of Control occurs and (A) the Executive’s employment was voluntarily terminated within twelve (12) months prior to the date on which the Change of Control occurs; (B) such termination would have constituted a termination for Good Reason if it had occurred within two (2) years following the Change of Control; and (C) it is reasonably demonstrated by the Executive that the circumstances which would have caused the occurrence of Good Reason either (a) were at the request of a third party who had taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then the Executive shall be entitled to the following payments and benefits (the "Severance Benefits"):
(i) Continued payments of Base Salary for a period equal to the lesser of (i) the period ending December 31, 2002, or (ii) one and one-half years; provided, however, that in no event shall the period of such payments be less than one year (the applicable payment period is referred to herein as the "Severance Period");
(ii) Continued annual bonus payments over the Severance Period, payable bi-monthly and based on a Severance Multiple Executive's Annual Bonus for the prior year, or, if such payments are triggered prior to December 31, 2000, based on 100% of two Executive's "on-target" bonus (2) and a e.g., Executive's prior year Annual Bonus was $600,000, the Severance Period is one and one-half years - Executive receives the aggregate amount of twenty$900,000 in continued annual bonus payments bi-four monthly over the Severance Period);
(24iii) Accelerated vesting of Executive's Option(s) as to that number of shares that would have vested had Executive remained employed during the Severance Period;
(iv) Company-paid (to the same extent as for active executives) group health, dental and vision plan continuation coverage premiums for Executive and his covered dependents under Title X of the Consolidated Budget Reconciliation Act of 1985, as amended ("COBRA") through the lesser of (x) eighteen (18) months from the Termination Date):
(A) A lump sum payment equal to the date of Executive’s Base Salary multiplied by the Severance Multiple payable within sixty (60) days following the Change 's termination of Control; provided thatemployment, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Date, any amounts in excess of the Separation Pay Limit shall be paid to the Executive in a lump sum on the later of (x) the first day following the six-month anniversary of the Termination Date and or (y) within sixty (60) days following the Change of Control. In the event that (i) a Change of Control occurs and payments and benefits become payable to date upon which the Executive pursuant to this Section 5(c)(iv); and (ii) such Change his dependents become covered under another employer's group health, dental and vision insurance plans that provide Executive and his dependents with comparable benefits and levels of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations thereunder, the lump sum payment set forth herein shall be paid on the first anniversary of the Executive’s Termination Datecoverage; and
(Bv) A lump sum pro-rated bonus payment equal to the Target 100% of Executive's Annual Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is practicable, but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and
(C) Continuation of medical, prescription, dental, vision and health care reimbursement benefits effect for the remainder of the Benefits Continuation Period for the Executive and his family through COBRA, in accordance with the applicable plans, programs or policies, if any, of the Company or its successor, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any); provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(iv)(C) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(iv)(C), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar 's fiscal year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(iv)(C) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that, no such offset shall be made in violation of Section 409A of the Code; and
(D) A lump sum payment equal to the value of the Company-sponsored outplacement program maintained by the Company immediately prior to the Change date of Controltermination, based on pro-rated by multiplying such bonus amount by a fraction, the Executive’s management level as numerator of the Termination Date, which shall be paid within sixty (60) the number of days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day date of termination during such year, and the calendar year following the calendar year in denominator of which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Dshall be three-hundred and sixty- five.
Appears in 1 contract
Involuntary Termination Without Cause. NOT DUE TO A CHANGE OF CONTROL. In If the event of the Executive’s Involuntary Termination not due to a Change of ControlCompany terminates your employment for reasons other than Cause, the Executive and you fulfill your obligations as set forth in this Agreement, you shall be paid the greater of (i) the amounts you would have been entitled to receive under the compensation listed belowAlcoa USA Corp. Involuntary Separation Plan (or successor plan) if you had been an eligible participant under such plan or (ii) the amounts set forth below in this Section II.B, subject in either case on the Six-Month Delay Date (or if sooner, upon your death) or, with respect to his compliance with the amount payable under Section II.B(ii), if later and applicable, in the fiscal year following the fiscal year in which the Involuntary Termination Date occurs, provided that, on or after the Involuntary Termination Date, and at least 10 days prior to the Six-Month Delay Date, (i) you execute and return to the Company the Release Agreement and (ii) any period within which you may revoke the Release Agreement pursuant to the terms and conditions of Section 5(f) (“Additional Terms”).thereof has expired without you having revoked the Release Agreement:
(i) The Company shall pay or provide a lump sum amount equivalent to two times your annual base salary as of the Executive the following payments and benefits:
(A) Any Accrued Benefits payable as soon as practical after the Involuntary Termination Date, or such other date as their terms require;
(Bii) Continued payment of the Executive’s Base Salary a pro-rated annual bonus for the applicable Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, beginning within sixty (60) days following the Termination Date (with the first payment to include amounts accrued between the Termination Date and the first payment date); provided that, if the sixtieth (60th) day following the Termination Date falls in the calendar year following the calendar fiscal year in which the Involuntary Termination Date occurs, payments will not commence which lump sum amount shall be determined based on, for such fiscal year, the level of achievement of the applicable performance goals under the Company’s Incentive Plan(s), the bonus-eligible percentage of your annual base pay in effect and the amount of base pay actually paid to you prior to the first day of the calendar year following the calendar year in which the Termination Date occurs; provided further that, in the event the Executive is a Specified Employee on the Involuntary Termination Date, payment shall be made in accordance with the following provisions:
a. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date does not exceed two (2) times the lesser of: (x) the Specified Employee’s base salary for the year prior to the year in which the Termination Date occurs; or (y) the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Code for the year in which the Termination Date occurs (such amount, the “Separation Pay Limit”), the Executive shall receive continuation of his Base Salary for the Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, as set forth above.
b. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date exceeds the Separation Pay Limit, the Executive shall not receive any payments of continued Base Salary in excess of the Separation Pay Limit during such six (6) month period. Any amounts in excess of the Separation Pay Limit which would have otherwise been paid during the six (6) month period following the Executive’s Termination Date shall be paid in a lump sum on the first day following the six-month anniversary of the Executive’s Termination Date. Beginning with the first payroll cycle occurring on or after the first day following the six-month anniversary of the Executive’s Termination Date and continuing until the end of the Severance Period, the Executive shall receive continuation payments of the Executive’s Base Salary in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly.
c. For purposes of Section 409A of the Code, each installment payment of Base Salary made pursuant to this Section 5(c)(i)(B) shall be treated as a separate payment of compensation.;
(Ciii) A lump sum payment equal access to reasonable outplacement services suitable to the Executive’s Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is reasonably practicable, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs;
(D) Continuation of medical, prescription, dental, vision and health care reimbursement benefits position for the Benefits Continuation Period for the Executive and his family through the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, supplemented or substituted from time to time (“COBRA”), in accordance with the applicable plans, programs or policies of the Company, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any), provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(i)(D) during a period of time during which12 months or, in if earlier, until the absence of the benefits provided in this Section 5(c)(i)(D), first acceptance by the Executive would not otherwise be entitled of an offer of employment (to COBRA continuation coverage under Section 4980B the extent of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable planssuch outplacement services, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or following a Change of Control, the Company or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(i)(D) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due shall occur prior to the Executive in full or partial payment of such reimbursement; provided that no such offset shall be made in violation of Section 409A of the Code;
(E) The Company shall provide the Executive with professional outplacement services as determined in the Company’s sole discretion until the earliest of: (w) six (6) months after the end of the Severance Period, (x) the date on which the Executive obtains another full-time job, (y) the date on which the Executive becomes self-employed, and (z) the date on which the Executive has received all services or benefits due under the applicable Company-sponsored outplacement program. The Company will not pay the Executive cash in lieu of professional outplacement services;
(F) If the Executive is covered by any Company-sponsored executive life insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive will have thirty-one (31) days from the last day of the Severance Period to convert his life insurance coverage to an individual policy;
(G) If 15th month following the Executive is covered by any Company-sponsored supplemental long-term disability insurance program as of the Involuntary Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive shall be entitled to keep this policy if he continues to pay the annual premiums; and
(H) Any benefits or rights to which the Executive is entitled under any of the Company’s stock or equity plans in accordance with the terms and conditions of those plans.
(ii) If a Change of Control occurs and the Executive is then receiving, or is entitled to receive, payments and benefits under Section 5(c)(i) of this Agreement as a result of his Involuntary Termination without Cause not due to a Change of Control, the Company shall pay to the Executive in a lump sum, within seven (7) calendar days after the Change of Control, an amount (in lieu of future installment payments) equal to the present value of all future cash payments due to the Executive under Section 5(c)(i)(B) of this Agreement using the prime commercial lending rate published by the Trustee at the time the Change of Control occurs. The Company and the Executive shall continue to be liable to each other for all of their other respective obligations under this Agreement. In the event that the Executive was a Specified Employee on his Termination Date, if the sum of the payments which the Executive previously received in accordance with Section 5(c)(i)(B) and the payment set forth in this Section 5(c)(ii) exceeds the Separation Pay Limit, any amounts in excess of the Separation Pay Limit shall be paid on the later of (A) the first day following the six-month anniversary of the Termination Date and (B) within seven (7) calendar days after the Change of Control. For the avoidance of doubt, in the event that the provisions of this Section 5(c)(ii) become effective, they shall supersede the provisions of Section 5(c)(i)(B).
(iii) If a Change of Control occurs and (A) the Executive experienced an Involuntary Termination within twelve (12) months prior to the date on which the Change of Control occurs and (B) it is reasonably demonstrated by the Executive that such termination of employment either (a) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then in addition to the payments and benefits set forth in Section 5(c)(i), the Executive shall be entitled to the following: (x) a lump sum payment equal to 50% of the Executive’s Base Salary, payable as soon as practicable but no later than sixty (60) days following the Change of Control; provided that if the Executive was a Specified Employee on his Termination Date, such payment shall be paid on the later of (1) as soon as practicable but no later than sixty (60) days following the Change of Control and (2) the first day following the six-month anniversary of the Executive’s Termination Date; (y) the difference between the Target Bonus payment which the Executive would have received if the Severance Multiple had been two (2) and the Target Bonus amount paid to the Executive pursuant to Section 5(c)(i)(C), which shall be paid as soon as practicable following the Change of Control but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and (z) for purposes of determining the Severance Period for benefits provided under Sections 5(c)(i)(D), (F), and (G), the Executive’s Severance Period shall be defined as the twenty-four (24) month period following the Termination Date. Notwithstanding the foregoing, in the event that (A) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iii); and (B) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations issued thereunder, the lump sum payment set forth in (x) above shall be paid on the first anniversary of the Executive’s Termination Date.;
(iv) If a Change $50,000 in consideration of Control occurs execution and (A) the Executive’s employment was voluntarily terminated within twelve (12) months prior to the date on which the Change of Control occurs; (B) such termination would have constituted a termination for Good Reason if it had occurred within two (2) years following the Change of Control; and (C) it is reasonably demonstrated by the Executive that the circumstances which would have caused the occurrence of Good Reason either (a) were at the request of a third party who had taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then the Executive shall be entitled to the following (based on a Severance Multiple of two (2) and a Severance Period of twenty-four (24) months from the Termination Date):
(A) A lump sum payment equal to the Executive’s Base Salary multiplied by the Severance Multiple payable within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day delivery of the calendar year following the calendar year in which the Change of Control occurs; Release Agreement as provided further that, if the Executive is a Specified Employee on the Termination Date, any amounts in excess of the Separation Pay Limit shall be paid to the Executive in a lump sum on the later of (x) the first day following the six-month anniversary of the Termination Date and (y) within sixty (60) days following the Change of Control. In the event that (i) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iv); and (ii) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations thereunder, the lump sum payment set forth herein shall be paid on the first anniversary of the Executive’s Termination Dateabove; and
(B) A lump sum payment equal to the Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is practicable, but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and
(C) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the remainder of the Benefits Continuation Period for the Executive and his family through COBRA, in accordance with the applicable plans, programs or policies, if any, of the Company or its successor, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any); provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(iv)(C) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(iv)(C), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(iv)(C) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that, no such offset shall be made in violation of Section 409A of the Code; and
(D) A lump sum payment equal to the value of the Company-sponsored outplacement program maintained by the Company immediately prior to the Change of Control, based on the Executive’s management level as of the Termination Date, which shall be paid within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination D
Appears in 1 contract
Involuntary Termination Without Cause. NOT DUE TO A CHANGE OF CONTROL. In the event of the Executive’s Involuntary Termination not due to a Change of Control, the Executive shall be entitled to receive the compensation listed below, subject to his compliance with the terms and conditions of Section 5(f) (“Additional Terms”).
(i) The Company shall pay or provide to the Executive the following payments and benefits:
(A) Any Accrued Benefits Benefits, payable as soon as practical practicable after the Termination Date, or such other date as their terms require;
(B) Continued payment of the Executive’s Base Salary for the applicable Severance Period Period, payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, beginning within sixty (60) days following the Termination Date (with the first payment to include amounts accrued between the Termination Date and the first payment date); provided that, if the sixtieth (60th) day following the Termination Date falls in the calendar year following the calendar year in which the Termination Date occurs, payments will not commence prior to the first day of the calendar year following the calendar year in which the Termination Date occurs; provided further that, in the event the Executive is a Specified Employee on the Termination Date, payment shall be made in accordance with the following provisions:
a. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date does not exceed two (2) times the lesser of: (x) the Specified Employee’s base salary for the year prior to the year in which the Termination Date occurs; or (y) the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Code for the year in which the Termination Date occurs (such amount, the “Separation Pay Limit”), the Executive shall receive continuation of his Base Salary for the Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, as set forth above.
b. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date exceeds the Separation Pay Limit, the Executive shall not receive any payments of continued Base Salary in excess of the Separation Pay Limit during such six (6) month period. Any amounts in excess of the Separation Pay Limit which would have otherwise been paid during the six (6) month period following the Executive’s Termination Date shall be paid in a lump sum on the first day following the six-six (6) month anniversary of the Executive’s Termination Date. Beginning with the first payroll cycle occurring on or after the first day following the six-six (6) month anniversary of the Executive’s Termination Date and continuing until the end of the Severance Period, the Executive shall receive continuation payments of the Executive’s Base Salary in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly.
c. For purposes of Section 409A of the Code, each installment payment of Base Salary made pursuant to this Section 5(c)(i)(B) shall be treated as a separate payment of compensation.
(C) A lump sum payment equal to (x) the Executive’s Target Three-Year Average Bonus multiplied by (y) the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is reasonably practicable, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs;
(D) Continuation A lump sum payment equal to the pro-rata cash bonus for the year in which the Termination Date occurs which shall be paid (x) when such annual bonuses are paid to non-terminated employees (or, if later, upon the satisfaction of all conditions for the payment of benefits hereunder, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs) and (y) based on the actual attainment of the performance goals under the annual bonus plan for the year in which the Termination Date occurs;
(E) If the Executive continues to receive health benefits (including, medical, prescription, dental, vision and health care reimbursement benefits for account benefits) pursuant to the Benefits Continuation Period for the Executive and his family through Company’s health plans under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, supplemented or substituted from time to time (“COBRA”) and pays the full COBRA premiums, the Company will reimburse the Executive for the COBRA premiums paid for such benefits for the Executive and his family through COBRA (with the exception of any COBRA premiums paid for health care reimbursement account benefits), through the Benefits Continuation Period, in accordance with the applicable plans, programs or policies of the Company, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any), ; provided that the Executive shall may continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive health benefits pursuant to this Section 5(c)(i)(D) the Company’s health plans during a period of time during which, in the absence of the benefits provided in this Section 5(c)(i)(D), Benefits Continuation Period during which the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the CodeCode if the Executive continues to pay premiums for such health benefits, and the Executive shall receive reimbursement for all medical expenses which are covered premiums paid by the applicable plans, programs or policies Executive for such continued health benefits on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or following a Change of Control, the Company or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage reimbursements under this Section 5(c)(i)(D5(c)(i)(E) shall immediately terminate and the Executive shall cease to be entitled to any such benefits reimbursements under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits reimbursements paid to the Executive after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; , provided that no such offset shall be made in violation of Section 409A of the Code;
(EF) The Company shall provide the Executive with professional outplacement services as determined in the Company’s sole discretion until the earliest of: (w) thirty-six (636) months after the end of the Severance PeriodTermination Date, (x) the date on which the Executive obtains another full-time job, and (y) the date on which the Executive becomes self-employed, and (z) the date on which . The amount of outplacement services provided to the Executive has received all during any calendar year will not affect the amount of outplacement services or benefits due under provided to the applicable Company-sponsored outplacement programExecutive in any subsequent calendar year. The Company will not pay the Executive cash or provide other benefits in lieu of professional outplacement services;
(FG) If the Executive is covered by any Company-sponsored executive life insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive will have thirty-one (31) days from the last day of the Severance Period to convert his life insurance coverage to an individual policy;
(GH) If the Executive is covered by any Company-sponsored supplemental long-term disability insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive shall be entitled to keep this policy if he continues to pay the annual premiums; and
(HI) Any benefits or rights to which the Executive is entitled under any of the Company’s stock or equity plans in accordance with the terms and conditions of those plans.
(ii) If a Change of Control occurs and the Executive is then receiving, or is entitled to receive, payments and benefits under Section 5(c)(i) of this Agreement as a result of his Involuntary Termination without Cause not due to a Change of Control, the Company shall pay to the Executive in a lump sum, within seven (7) calendar days after the Change of Control, an amount (in lieu of future installment payments) equal to the present value of all future cash payments due to the Executive under Section 5(c)(i)(B) of this Agreement using the prime commercial lending rate published by the Trustee at the time the Change of Control occurs. The Company and the Executive shall continue to be liable to each other for all of their other respective obligations under this Agreement. In the event that the Executive was a Specified Employee on his Termination Date, if the sum of the payments which the Executive previously received in accordance with Section 5(c)(i)(B) and the payment set forth in this Section 5(c)(ii) exceeds the Separation Pay Limit, any amounts in excess of the Separation Pay Limit shall be paid on the later of (A) the first day following the six-six (6) month anniversary of the Termination Date and (B) within seven (7) calendar days after the Change of Control. For the avoidance of doubt, in the event that the provisions of this Section 5(c)(ii) become effective, they shall supersede the provisions of Section 5(c)(i)(B).
(iii) If a Change of Control occurs and (A) the Executive experienced an Involuntary Termination within twelve (12) months prior to the date on which the Change of Control occurs and (B) it is reasonably demonstrated by the Executive that such termination of employment either (a) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then in addition to the payments and benefits set forth in Section 5(c)(i), the Executive shall be entitled to the following: (x) a lump sum payment equal to 50% of the Executive’s Base Salary, payable as soon as practicable but no later than sixty (60) days following the Change of Control; provided that if the Executive was a Specified Employee on his Termination Date, such payment shall be paid on the later of (1) as soon as practicable but no later than sixty (60) days following the Change of Control and (2) the first day following the six-six (6) month anniversary of the Executive’s Termination Date; (y) the difference between three (3) times the Target Bonus payment which and two and one-half (2.5) times the Executive would have received if the Severance Multiple had been two (2) and the Target Executive’s Three-Year Average Bonus amount paid to the Executive pursuant to Section 5(c)(i)(C), which shall be paid as soon as practicable following the Change of Control but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and (z) for purposes of determining the Severance Period for benefits provided under Sections 5(c)(i)(D5(c)(i)(E), (FG), and (GH), the Executive’s Severance Period shall be defined as the twentythirty-four six (2436) month period following the Termination Date. Notwithstanding the foregoing, in the event that (A) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iii); and (B) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations issued thereunder, the lump sum payment set forth in (x) above shall be paid on the first anniversary of the Executive’s Termination Date.
(iv) If a Change of Control occurs and (A) the Executive’s employment was voluntarily terminated within twelve (12) months prior to the date on which the Change of Control occurs; (B) such termination would have constituted a termination for Good Reason if it had occurred within two (2) years following the Change of Control; and (C) it is reasonably demonstrated by the Executive that the circumstances which would have caused the occurrence of Good Reason either (a) were at the request of a third party who had taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then the Executive shall be entitled to the following (based on a Severance Multiple of two three (23) and a Severance Period of twentythirty-four six (2436) months from the Termination Date):
(A) A lump sum payment equal to the Executive’s Base Salary multiplied by the Severance Multiple Multiple, payable within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Date, any amounts in excess of the Separation Pay Limit shall be paid to the Executive in a lump sum on the later of (x) the first day following the six-six (6) month anniversary of the Termination Date and (y) within sixty (60) days following the Change of Control. In the event that (i) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iv); and (ii) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations thereunder, the lump sum payment set forth herein shall be paid on the first anniversary of the Executive’s Termination Date; and;
(B) A lump sum payment equal to the Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is practicable, but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and;
(C) Continuation A lump sum payment equal to the pro-rata Target Bonus, payable on the Release Effective Date, or as soon thereafter as is practicable, but in no event later than March 15 of the calendar year following the year in which the Termination Date occurs;
(D) If the Executive continues to receive health benefits (including, medical, prescription, dental, vision and health care reimbursement account benefits) pursuant to the Company’s health plans under COBRA and pays the full COBRA premiums, the Company will reimburse the Executive for the COBRA premiums paid for such benefits for the Executive and his family through COBRA (with the exception of any COBRA premiums paid for health care reimbursement account benefits), for the remainder of the Benefits Continuation Period for the Executive and his family through COBRAPeriod, in accordance with the applicable plans, programs or policies, if any, of the Company or its successor, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any); provided that the Executive shall may continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive health benefits pursuant to this Section 5(c)(iv)(C) the Company’s health plans during a period of time during which, in the absence of the benefits provided in this Section 5(c)(iv)(C), Benefits Continuation Period during which the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the CodeCode if the Executive continues to pay premiums for such health benefits, and the Executive shall receive reimbursement for all medical expenses which are covered premiums paid by the applicable plans, programs or policies Executive for such continued health benefits on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage reimbursements under this Section 5(c)(iv)(C5(c)(iv)(D) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that, no such offset shall be made in violation of Section 409A of the Code; and
(D) A lump sum payment equal to the value of the Company-sponsored outplacement program maintained by the Company immediately prior to the Change of Control, based on the Executive’s management level as of the Termination Date, which shall be paid within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Dent
Appears in 1 contract
Involuntary Termination Without Cause. NOT DUE TO A CHANGE OF CONTROL. In If the Company terminates your employment for reasons other than Cause, and you fulfill your obligations as set forth in this Agreement, you shall be paid the amounts set forth in this Section I.B. (which you acknowledge would not be due you in the absence of this Agreement) as soon as practicable after the Involuntary Termination Date but in no event later than 60 days after the Involuntary Termination Date; provided, that if you are, as of the Executive’s Involuntary Termination not due to Date, a Change “specified employee” within the meaning of Control409A as determined in accordance with the methodology duly adopted by the Company as in effect on the Involuntary Termination Date, then such amounts shall instead be paid on the Executive shall first business day following the date which is six months after the Involuntary Termination Date (the “Six-Month Delay Date”) (or if sooner, upon your death); and further provided that the amount payable under Section I.B(ii) will be entitled to receive paid in the compensation listed belowfiscal year following the fiscal year in which the Involuntary Termination Date occurs, if later than as otherwise specified herein. Payment of the amounts set forth in Section I.B are conditioned upon and subject to his compliance with the requirement that, on or after the Involuntary Termination Date, and at least 10 days prior to the Six-Month Delay Date or, if applicable, at least 10 days prior to the last day of the aforementioned 60 day period, (i) you execute and return to the Company the release agreement attached as Exhibit A (the “Release Agreement”) and (ii) any period within which you may revoke the Release Agreement pursuant to the terms and conditions of Section 5(f) (“Additional Terms”).thereof has expired without you having revoked the Release Agreement:
(i) The Company a lump sum amount equivalent to your annual base salary as of the Involuntary Termination Date;
(ii) a pro-rated annual bonus for the fiscal year in which the Involuntary Termination Date occurs, which lump sum amount shall be determined based on, for such fiscal year, the level of achievement of the applicable performance goals under the Company’s Incentive Plan(s), the bonus-eligible percentage of your annual base pay or provide in effect and the amount of base pay actually paid to you prior to the Executive the following payments and benefits:Involuntary Termination Date;
(Aiii) Any Accrued Benefits payable as soon as practical after if, on the Involuntary Termination Date, you are an active participant who is accruing benefits under any tax-qualified, supplemental or such other date as their terms require;excess defined benefit pension plan maintained by the Company or any of its affiliates (a “DB Pension Plan”), pursuant to the DB Pension Plan terms, you will receive up to one year additional pension service; or
(Biv) Continued payment if, on the Involuntary Termination Date, you are not an active participant who is accruing benefits under a DB Pension Plan, but are eligible to receive Employer Retirement Income Contributions (▇▇▇▇) under an Alcoa Savings Plan, a lump sum amount, in cash, equal to the ▇▇▇▇ contribution percent in effect on the Involuntary Termination Date multiplied by the sum of your annual base salary as of your Involuntary Termination Date plus your target annual variable compensation; or
(v) if, on the Executive’s Base Salary Involuntary Termination Date, you are not an active participant who is accruing benefits under a DB Pension Plan, but are eligible to participate in the Global Pension Plan, you will receive a lump sum amount, in cash, equal to the Global Pension Plan annual percentage contribution in effect on the Involuntary Termination Date, multiplied by the sum of your annual base salary as of your Involuntary Termination Date plus your target annual variable compensation. In addition, for a period of one year after the Involuntary Termination Date the Company shall arrange to provide you, and anyone entitled to claim through you, health (including medical, behavioral, prescription drug, dental and vision) benefits substantially similar to those provided to active employees as long as you pay the active employee contribution for the applicable Severance Period payable in installments in accordance coverage. In order to comply with 409A, the Company’s standard payroll practicesfollowing shall apply to the health care benefits provided pursuant to this paragraph, but the costs of which are not fully paid by you (the “Health Benefits”). Any and all reimbursements of eligible expenses made pursuant to the Health Benefits shall be made no less frequently later than monthly, beginning within sixty (60) days following the Termination Date (with the first payment to include amounts accrued between the Termination Date and the first payment date); provided that, if the sixtieth (60th) day following the Termination Date falls in end of the calendar year next following the calendar year in which the Termination Date occurs, payments will not commence prior expenses were incurred. The amount of expenses that are eligible for reimbursement or of in-kind benefits that are provided pursuant to the first day of the Health Benefits in any given calendar year following shall not affect the expenses that are eligible for reimbursement or benefits to be provided pursuant to the Health Benefits in any other calendar year in which year, except as specifically permitted by Treasury Regulation Section 1.409A-3(i)(iv)(B). Your right to the Termination Date occurs; provided further that, in the event the Executive is a Specified Employee on the Termination Date, payment shall Health Benefits may not be made in accordance liquidated or exchanged for any other benefit. If your employment with the following provisions:
a. If the aggregate value of the payments due to the Executive Company terminates pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date does not exceed two (2) times the lesser of: (x) the Specified Employee’s base salary for the year prior to the year in which the Termination Date occurs; or (y) the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Code for the year in which the Termination Date occurs (such amountI, the “Separation Pay Limit”), the Executive shall receive continuation of his Base Salary for the Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, as set forth above.
b. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date exceeds the Separation Pay Limit, the Executive shall not receive any payments of continued Base Salary in excess of the Separation Pay Limit during such six (6) month period. Any amounts in excess of the Separation Pay Limit which would have otherwise been paid during the six (6) month period upon and following the Executive’s Termination Date shall be paid in a lump sum on the first day following the six-month anniversary of the Executive’s Termination Date. Beginning with the first payroll cycle occurring on or after the first day following the six-month anniversary of the Executive’s Termination Date and continuing until the end of the Severance Period, the Executive shall receive continuation payments of the Executive’s Base Salary in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly.
c. For purposes of Section 409A of the Code, each installment payment of Base Salary made pursuant to this Section 5(c)(i)(B) shall be treated as a separate payment of compensation.
(C) A lump sum payment equal to the Executive’s Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is reasonably practicable, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs;
(D) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the Benefits Continuation Period for the Executive and his family through the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, supplemented or substituted from time to time (“COBRA”), in accordance with the applicable plans, programs or policies of the Company, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any), provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(i)(D) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(i)(D), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or following a Change of Control, the Company or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(i)(D) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that no such offset shall be made in violation of Section 409A of the Code;
(E) The Company shall provide the Executive with professional outplacement services as determined in the Company’s sole discretion until the earliest of: (w) six (6) months after the end of the Severance Period, (x) the date on which the Executive obtains another full-time job, (y) the date on which the Executive becomes self-employed, and (z) the date on which the Executive has received all services or benefits due under the applicable Company-sponsored outplacement program. The Company will not pay the Executive cash in lieu of professional outplacement services;
(F) If the Executive is covered by any Company-sponsored executive life insurance program as of the Involuntary Termination Date, the Company shall your other compensation and benefits continue to pay for be governed by the Executive’s coverage until the end terms of the Severance Period. At the end of the Severance Period, the Executive will have thirty-one (31) days from the last day of the Severance Period to convert his life insurance coverage to an individual policy;
(G) If the Executive is covered by any Company-sponsored supplemental long-term disability insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive shall be entitled to keep this policy if he continues to pay the annual premiums; and
(H) Any benefits or rights to which the Executive is entitled under any of the Company’s stock or equity plans in accordance with the terms and conditions of those plans.
(ii) If a Change of Control occurs and the Executive is then receivingwhich you participate; provided however, or is entitled to receive, that payments and benefits under this Section 5(c)(i) of this Agreement as a result of his Involuntary Termination without Cause not due to a Change of Control, the Company shall pay to the Executive in a lump sum, within seven (7) calendar days after the Change of Control, an amount (I are in lieu of future installment payments) equal any other involuntary separation benefits or severance payments which you may be eligible to receive from the present value of all future cash Company; and if you receive severance pay and benefits under the Company’s Change in Control Severance Plan, no payments due to the Executive under Section 5(c)(i)(B) of this Agreement using the prime commercial lending rate published by the Trustee at the time the Change of Control occurs. The Company and the Executive shall continue to will be liable to each other for all of their other respective obligations made, or benefits provided, under this Agreement. In the event that that, as of the Executive was a Specified Employee on his Involuntary Termination Date, if the sum of the payments which the Executive previously received in accordance with Section 5(c)(i)(B) and the payment set forth in this Section 5(c)(ii) exceeds the Separation Pay Limit, any amounts in excess of the Separation Pay Limit shall be paid on the later of you are not a “specified employee” (A) the first day following the six-month anniversary of the Termination Date and (B) within seven (7) calendar days after the Change of Control. For the avoidance of doubt, in the event that the provisions of this Section 5(c)(ii) become effective, they shall supersede the provisions of Section 5(c)(i)(B).
(iii) If a Change of Control occurs and (A) the Executive experienced an Involuntary Termination within twelve (12) months prior to the date on which the Change of Control occurs and (B) it is reasonably demonstrated by the Executive that such termination of employment either (a) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then in addition to the payments and benefits set forth in Section 5(c)(i), the Executive shall be entitled to the following: (x) a lump sum payment equal to 50% of the Executive’s Base Salary, payable as soon as practicable but no later than sixty (60) days following the Change of Control; provided that if the Executive was a Specified Employee on his Termination Date, such payment shall be paid on the later of (1) as soon as practicable but no later than sixty (60) days following the Change of Control and (2) the first day following the six-month anniversary of the Executive’s Termination Date; (y) the difference between the Target Bonus payment which the Executive would have received if the Severance Multiple had been two (2) and the Target Bonus amount paid to the Executive pursuant to Section 5(c)(i)(C), which shall be paid as soon as practicable following the Change of Control but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and (z) for purposes of determining the Severance Period for benefits provided under Sections 5(c)(i)(D), (Fdescribed above), and (G), the Executive’s Severance Period shall be defined as the twenty-four (24) month 60 day period following the your Involuntary Termination Date. Notwithstanding the foregoing, in the event that (A) a Change Date specified herein for payment of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iii); and (B) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A any of the Code and the rules and regulations issued thereunder, the lump sum payment set forth in (x) above shall be paid on the first anniversary of the Executive’s Termination Date.
(iv) If a Change of Control occurs and (A) the Executive’s employment was voluntarily terminated within twelve (12) months prior amounts due to the date on which the Change of Control occurs; (B) such termination would have constituted a termination for Good Reason if it had occurred within two (2) years following the Change of Control; and (C) it is reasonably demonstrated by the Executive that the circumstances which would have caused the occurrence of Good Reason either (a) were at the request of a third party who had taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then the Executive shall be entitled to the following (based on a Severance Multiple of two (2) and a Severance Period of twenty-four (24) months from the Termination Date):
(A) A lump sum payment equal to the Executive’s Base Salary multiplied by the Severance Multiple payable within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Date, any amounts in excess of the Separation Pay Limit shall be paid to the Executive in a lump sum on the later of (x) the first day following the six-month anniversary of the Termination Date and (y) within sixty (60) days following the Change of Control. In the event that (i) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iv); and (ii) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations thereunder, the lump sum payment set forth herein shall be paid on the first anniversary of the Executive’s Termination Date; and
(B) A lump sum payment equal to the Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is practicable, but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and
(C) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the remainder of the Benefits Continuation Period for the Executive and his family through COBRA, in accordance with the applicable plans, programs or policies, if any, of the Company or its successor, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any); provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(iv)(C) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(iv)(C), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage you under this Section 5(c)(iv)(C) shall immediately terminate and the Executive shall cease to be entitled to I.B. spans two calendar years, any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that, no such offset shall will be made in violation of Section 409A of the Code; and
(D) A lump sum payment equal to the value of the Company-sponsored outplacement program maintained by the Company immediately prior to the Change of Control, based on the Executive’s management level as of the Termination Date, which shall be paid within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the second calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Dyear.
Appears in 1 contract
Involuntary Termination Without Cause. NOT DUE TO A CHANGE OF CONTROL. In If the event Company terminates your employment for reasons other than Cause, and you fulfill your obligations as set forth in this Agreement, you shall be paid the following amounts (which you acknowledge would not be due you in the absence of this Agreement) on the Executive’s Six-Month Delay Date (or if sooner, upon your death) or, with respect to the amount payable under Section II.B(ii), if later, in the fiscal year following the fiscal year in which the Involuntary Termination not due Date occurs, provided that, on or after the Involuntary Termination Date, and at least 10 days prior to a Change of Controlthe Six-Month Delay Date, (i) you execute and return to the Executive shall be entitled Company the Release Agreement and (ii) any period within which you may revoke the Release Agreement pursuant to receive the compensation listed below, subject to his compliance with the terms and conditions of Section 5(f) (“Additional Terms”).thereof has expired without you having revoked the Release Agreement:
(i) The Company shall pay or provide a lump sum amount equivalent to two times your annual base salary as of the Executive the following payments and benefits:
(A) Any Accrued Benefits payable as soon as practical after the Involuntary Termination Date, or such other date as their terms require;
(Bii) Continued payment of the Executive’s Base Salary a pro-rated annual bonus for the applicable Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, beginning within sixty (60) days following the Termination Date (with the first payment to include amounts accrued between the Termination Date and the first payment date); provided that, if the sixtieth (60th) day following the Termination Date falls in the calendar year following the calendar fiscal year in which the Involuntary Termination Date occurs, payments will not commence which lump sum amount shall be determined based on, for such fiscal year, the level of achievement of the applicable performance goals under the Company’s Incentive Plan(s), the bonus-eligible percentage of your annual base pay in effect and the amount of base pay actually paid to you prior to the first day of the calendar year following the calendar year in which the Termination Date occurs; provided further that, in the event the Executive is a Specified Employee on the Involuntary Termination Date, payment shall be made in accordance with the following provisions:
a. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date does not exceed two (2) times the lesser of: (x) the Specified Employee’s base salary for the year prior to the year in which the Termination Date occurs; or (y) the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Code for the year in which the Termination Date occurs (such amount, the “Separation Pay Limit”), the Executive shall receive continuation of his Base Salary for the Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, as set forth above.
b. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date exceeds the Separation Pay Limit, the Executive shall not receive any payments of continued Base Salary in excess of the Separation Pay Limit during such six (6) month period. Any amounts in excess of the Separation Pay Limit which would have otherwise been paid during the six (6) month period following the Executive’s Termination Date shall be paid in a lump sum on the first day following the six-month anniversary of the Executive’s Termination Date. Beginning with the first payroll cycle occurring on or after the first day following the six-month anniversary of the Executive’s Termination Date and continuing until the end of the Severance Period, the Executive shall receive continuation payments of the Executive’s Base Salary in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly.
c. For purposes of Section 409A of the Code, each installment payment of Base Salary made pursuant to this Section 5(c)(i)(B) shall be treated as a separate payment of compensation.
(C) A lump sum payment equal to the Executive’s Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is reasonably practicable, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs;
(D) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the Benefits Continuation Period for the Executive and his family through the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, supplemented or substituted from time to time (“COBRA”), in accordance with the applicable plans, programs or policies of the Company, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any), provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(i)(D) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(i)(D), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or following a Change of Control, the Company or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(i)(D) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that no such offset shall be made in violation of Section 409A of the Code;
(E) The Company shall provide the Executive with professional outplacement services as determined in the Company’s sole discretion until the earliest of: (w) six (6) months after the end of the Severance Period, (x) the date on which the Executive obtains another full-time job, (y) the date on which the Executive becomes self-employed, and (z) the date on which the Executive has received all services or benefits due under the applicable Company-sponsored outplacement program. The Company will not pay the Executive cash in lieu of professional outplacement services;
(F) If the Executive is covered by any Company-sponsored executive life insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive will have thirty-one (31) days from the last day of the Severance Period to convert his life insurance coverage to an individual policy;
(G) If the Executive is covered by any Company-sponsored supplemental long-term disability insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive shall be entitled to keep this policy if he continues to pay the annual premiums; and
(H) Any benefits or rights to which the Executive is entitled under any of the Company’s stock or equity plans in accordance with the terms and conditions of those plans.
(ii) If a Change of Control occurs and the Executive is then receiving, or is entitled to receive, payments and benefits under Section 5(c)(i) of this Agreement as a result of his Involuntary Termination without Cause not due to a Change of Control, the Company shall pay to the Executive in a lump sum, within seven (7) calendar days after the Change of Control, an amount (in lieu of future installment payments) equal to the present value of all future cash payments due to the Executive under Section 5(c)(i)(B) of this Agreement using the prime commercial lending rate published by the Trustee at the time the Change of Control occurs. The Company and the Executive shall continue to be liable to each other for all of their other respective obligations under this Agreement. In the event that the Executive was a Specified Employee on his Termination Date, if the sum of the payments which the Executive previously received in accordance with Section 5(c)(i)(B) and the payment set forth in this Section 5(c)(ii) exceeds the Separation Pay Limit, any amounts in excess of the Separation Pay Limit shall be paid on the later of (A) the first day following the six-month anniversary of the Termination Date and (B) within seven (7) calendar days after the Change of Control. For the avoidance of doubt, in the event that the provisions of this Section 5(c)(ii) become effective, they shall supersede the provisions of Section 5(c)(i)(B).
(iii) If a Change $50,000 in consideration of Control occurs execution and (A) the Executive experienced an Involuntary Termination within twelve (12) months prior to the date on which the Change of Control occurs and (B) it is reasonably demonstrated by the Executive that such termination of employment either (a) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then in addition to the payments and benefits set forth in Section 5(c)(i), the Executive shall be entitled to the following: (x) a lump sum payment equal to 50% delivery of the Executive’s Base Salary, payable Release Agreement as soon as practicable but no later than sixty (60) days following the Change of Control; provided that if the Executive was a Specified Employee on his Termination Date, such payment shall be paid on the later of (1) as soon as practicable but no later than sixty (60) days following the Change of Control and (2) the first day following the six-month anniversary of the Executive’s Termination Date; (y) the difference between the Target Bonus payment which the Executive would have received if the Severance Multiple had been two (2) and the Target Bonus amount paid to the Executive pursuant to Section 5(c)(i)(C), which shall be paid as soon as practicable following the Change of Control but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and (z) for purposes of determining the Severance Period for benefits provided under Sections 5(c)(i)(D), (F), and (G), the Executive’s Severance Period shall be defined as the twenty-four (24) month period following the Termination Date. Notwithstanding the foregoing, in the event that (A) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iii); and (B) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations issued thereunder, the lump sum payment set forth in (x) above shall be paid on the first anniversary of the Executive’s Termination Date.above;
(iv) If a Change of Control occurs and (A) the Executive’s employment was voluntarily terminated within twelve (12) months prior to the date on which the Change of Control occurs; (B) such termination would have constituted a termination for Good Reason if it had occurred within two (2) years following the Change of Control; and (C) it is reasonably demonstrated by the Executive that the circumstances which would have caused the occurrence of Good Reason either (a) were at the request of a third party who had taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Controlif, then the Executive shall be entitled to the following (based on a Severance Multiple of two (2) and a Severance Period of twenty-four (24) months from the Termination Date):
(A) A lump sum payment equal to the Executive’s Base Salary multiplied by the Severance Multiple payable within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Involuntary Termination Date, any amounts in excess of the Separation Pay Limit shall be paid to the Executive in a lump sum on the later of (x) the first day following the six-month anniversary of the Termination Date and (y) within sixty (60) days following the Change of Control. In the event that (i) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iv); and (ii) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations thereunder, the lump sum payment set forth herein shall be paid on the first anniversary of the Executive’s Termination Date; and
(B) A lump sum payment equal to the Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as you are an active participant who is practicable, but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and
(C) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the remainder of the Benefits Continuation Period for the Executive and his family through COBRA, in accordance with the applicable plans, programs or policies, if any, of the Company or its successor, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any); provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(iv)(C) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(iv)(C), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(iv)(C) shall immediately terminate and the Executive shall cease to be entitled to any such accruing benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums tax-qualified, supplemental or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that, no such offset shall be made in violation of Section 409A of the Code; and
(D) A lump sum payment equal to the value of the Company-sponsored outplacement program excess defined benefit pension plan maintained by the Company immediately prior or any of its affiliates or any other defined benefit plan or agreement entered into between you and the Company or any of its affiliates which is designed to provide you with supplemental defined benefit retirement benefits (a “DB Pension Plan”), a lump sum amount equal to the Change excess of Control, based on (I) the Executive’s management level as actuarial equivalent of the aggregate retirement pension as if you had been credited with an additional 24 months of service following the Involuntary Termination Date, which shall be paid within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Dover
Appears in 1 contract
Involuntary Termination Without Cause. NOT DUE TO A CHANGE OF CONTROL. In If the event of the Executive’s Involuntary Termination not due to a Change of ControlCompany terminates your employment for reasons other than Cause, the Executive and you fulfill your obligations as set forth in this Agreement, you shall be paid the greater of (i) the amounts you would have been entitled to receive under the compensation listed belowAlcoa USA Corp. Involuntary Separation Plan (or successor plan) if you had been an eligible participant under such plan or (ii) the amounts set forth below in this Section I.B, subject to his compliance with the terms and conditions of Section 5(f) (“Additional Terms”).
(i) The Company shall pay or provide to the Executive the following payments and benefits:
(A) Any Accrued Benefits payable in either case as soon as practical practicable after the Involuntary Termination Date but in no event later than 60 days after the Involuntary Termination Date; provided, that if you are, as of the Involuntary Termination Date, or such other date a “specified employee” within the meaning of 409A as their terms require;
(B) Continued payment of the Executive’s Base Salary for the applicable Severance Period payable in installments determined in accordance with the Company’s standard payroll practicesmethodology duly adopted by the Company as in effect on the Involuntary Termination Date, but no less frequently than monthly, beginning within sixty (60) days then such amounts shall instead be paid on the first business day following the date which is six months after the Involuntary Termination Date (with the first payment to include amounts accrued between the Termination Date and the first payment date“Six-Month Delay Date”) (or if sooner, upon your death); and further provided thatthat the amount payable under Section I.B(ii), if the sixtieth (60th) day following the Termination Date falls applicable, will be paid in the calendar fiscal year following the calendar fiscal year in which the Involuntary Termination Date occurs, payments will not commence prior if later than as otherwise specified herein. Payment of the amounts set forth in Section I.B are conditioned upon and subject to the first day of the calendar year following the calendar year in which the Termination Date occurs; provided further requirement that, in the event the Executive is a Specified Employee on the Termination Date, payment shall be made in accordance with the following provisions:
a. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date does not exceed two (2) times the lesser of: (x) the Specified Employee’s base salary for the year prior to the year in which the Termination Date occurs; or (y) the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Code for the year in which the Termination Date occurs (such amount, the “Separation Pay Limit”), the Executive shall receive continuation of his Base Salary for the Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, as set forth above.
b. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date exceeds the Separation Pay Limit, the Executive shall not receive any payments of continued Base Salary in excess of the Separation Pay Limit during such six (6) month period. Any amounts in excess of the Separation Pay Limit which would have otherwise been paid during the six (6) month period following the Executive’s Termination Date shall be paid in a lump sum on the first day following the six-month anniversary of the Executive’s Termination Date. Beginning with the first payroll cycle occurring on or after the first day following the six-month anniversary of the Executive’s Termination Date and continuing until the end of the Severance Period, the Executive shall receive continuation payments of the Executive’s Base Salary in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly.
c. For purposes of Section 409A of the Code, each installment payment of Base Salary made pursuant to this Section 5(c)(i)(B) shall be treated as a separate payment of compensation.
(C) A lump sum payment equal to the Executive’s Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is reasonably practicable, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs;
(D) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the Benefits Continuation Period for the Executive and his family through the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, supplemented or substituted from time to time (“COBRA”), in accordance with the applicable plans, programs or policies of the Company, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any), provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(i)(D) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(i)(D), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or following a Change of Control, the Company or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(i)(D) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that no such offset shall be made in violation of Section 409A of the Code;
(E) The Company shall provide the Executive with professional outplacement services as determined in the Company’s sole discretion until the earliest of: (w) six (6) months after the end of the Severance Period, (x) the date on which the Executive obtains another full-time job, (y) the date on which the Executive becomes self-employed, and (z) the date on which the Executive has received all services or benefits due under the applicable Company-sponsored outplacement program. The Company will not pay the Executive cash in lieu of professional outplacement services;
(F) If the Executive is covered by any Company-sponsored executive life insurance program as of the Involuntary Termination Date, and at least 10 days prior to the Company shall continue Six-Month Delay Date or, if applicable, at least 10 days prior to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive will have thirty-one (31) days from the last day of the Severance Period aforementioned 60 day period, (i) you execute and return to convert his life insurance coverage to an individual policy;
(G) If the Executive is covered by any Company-sponsored supplemental long-term disability insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until release agreement attached as Exhibit A (the end of the Severance Period. At the end of the Severance Period, the Executive shall be entitled to keep this policy if he continues to pay the annual premiums; and
(H“Release Agreement”) Any benefits or rights to which the Executive is entitled under any of the Company’s stock or equity plans in accordance with the terms and conditions of those plans.
(ii) If a Change of Control occurs and any period within which you may revoke the Executive is then receiving, or is entitled to receive, payments and benefits under Section 5(c)(i) of this Release Agreement as a result of his Involuntary Termination without Cause not due to a Change of Control, the Company shall pay pursuant to the Executive in a lump sum, within seven (7) calendar days after terms thereof has expired without you having revoked the Change of Control, an amount (in lieu of future installment payments) equal to the present value of all future cash payments due to the Executive under Section 5(c)(i)(B) of this Agreement using the prime commercial lending rate published by the Trustee at the time the Change of Control occurs. The Company and the Executive shall continue to be liable to each other for all of their other respective obligations under this Release Agreement. In the event that the Executive was a Specified Employee on his Termination Date, if the sum of the payments which the Executive previously received in accordance with Section 5(c)(i)(B) and the payment set forth in this Section 5(c)(ii) exceeds the Separation Pay Limit, any amounts in excess of the Separation Pay Limit shall be paid on the later of (A) the first day following the six-month anniversary of the Termination Date and (B) within seven (7) calendar days after the Change of Control. For the avoidance of doubt, in the event that the provisions of this Section 5(c)(ii) become effective, they shall supersede the provisions of Section 5(c)(i)(B).:
(iii) If a Change of Control occurs and (A) the Executive experienced an Involuntary Termination within twelve (12) months prior to the date on which the Change of Control occurs and (B) it is reasonably demonstrated by the Executive that such termination of employment either (a) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then in addition to the payments and benefits set forth in Section 5(c)(i), the Executive shall be entitled to the following: (xi) a lump sum payment equal amount equivalent to 50% your annual base salary as of the Executive’s Base Salary, payable as soon as practicable but no later than sixty (60) days following the Change of Control; provided that if the Executive was a Specified Employee on his Termination Date, such payment shall be paid on the later of (1) as soon as practicable but no later than sixty (60) days following the Change of Control and (2) the first day following the six-month anniversary of the Executive’s Termination Date; (y) the difference between the Target Bonus payment which the Executive would have received if the Severance Multiple had been two (2) and the Target Bonus amount paid to the Executive pursuant to Section 5(c)(i)(C), which shall be paid as soon as practicable following the Change of Control but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and (z) for purposes of determining the Severance Period for benefits provided under Sections 5(c)(i)(D), (F), and (G), the Executive’s Severance Period shall be defined as the twenty-four (24) month period following the Termination Date. Notwithstanding the foregoing, in the event that (A) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iii); and (B) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations issued thereunder, the lump sum payment set forth in (x) above shall be paid on the first anniversary of the Executive’s Termination Date.
(iv) If a Change of Control occurs and (A) the Executive’s employment was voluntarily terminated within twelve (12) months prior to the date on which the Change of Control occurs; (B) such termination would have constituted a termination for Good Reason if it had occurred within two (2) years following the Change of Control; and (C) it is reasonably demonstrated by the Executive that the circumstances which would have caused the occurrence of Good Reason either (a) were at the request of a third party who had taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then the Executive shall be entitled to the following (based on a Severance Multiple of two (2) and a Severance Period of twenty-four (24) months from the Termination Date):
(A) A lump sum payment equal to the Executive’s Base Salary multiplied by the Severance Multiple payable within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Date, any amounts in excess of the Separation Pay Limit shall be paid to the Executive in a lump sum on the later of (x) the first day following the six-month anniversary of the Termination Date and (y) within sixty (60) days following the Change of Control. In the event that (i) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iv); and (ii) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations thereunder, the lump sum payment set forth herein shall be paid on the first anniversary of the Executive’s Involuntary Termination Date; and
(Bii) A lump sum payment equal to a pro-rated annual bonus for the Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is practicable, but no later than March 15 of the calendar year following the calendar fiscal year in which the Change Involuntary Termination Date occurs, which lump sum amount shall be determined based on, for such fiscal year, the level of Control occursachievement of the applicable performance goals under the Company’s Incentive Plan(s), the bonus-eligible percentage of your annual base pay in effect and the amount of base pay actually paid to you prior to the Involuntary Termination Date; and
(Ciii) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the remainder of the Benefits Continuation Period for the Executive and his family through COBRA, in accordance with the applicable plans, programs or policies, if any, of the Company or its successor, and on such terms applicable access to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any); provided that the Executive shall continue to pay reasonable outplacement services suitable to the Company any applicable contribution amounts that the Executive would otherwise have to pay Executive’s position for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(iv)(C) during a period of time during which12 months or, in if earlier, until the absence first acceptance by the Executive of an offer of employment (to the extent of reimbursement for such outplacement services, such reimbursement shall occur prior to the last day of the benefits provided in this Section 5(c)(iv)(C), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately 15th month following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(iv)(C) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that, no such offset shall be made in violation of Section 409A of the CodeInvoluntary Termination Date); and
(Div) A lump sum payment equal to (A) if, on the value of the CompanyInvoluntary Termination Date, you are an active participant who is accruing benefits under any tax-sponsored outplacement program qualified, supplemental or excess defined benefit pension plan maintained by the Company immediately prior or any of its affiliates (a “DB Pension Plan”), pursuant to the Change DB Pension Plan terms, you will receive additional pension service through the earlier of Control, based on (i) the Executive’s management level as one year anniversary of the your Involuntary Termination Date, and (ii) the date upon which shall be paid within sixty (60) days following benefit accruals for active employees cease under the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day terms of the calendar year following the calendar year in which the Change of Control occursDB Pension Plan; provided further that, if the Executive is a Specified Employee on the Termination Dor
Appears in 1 contract
Involuntary Termination Without Cause. NOT DUE TO A CHANGE OF CONTROL. In If the event of the Executive’s Involuntary Termination not due to a Change of ControlCompany terminates your employment for reasons other than Cause, the Executive and you fulfill your obligations as set forth in this Agreement, you shall be paid the greater of (i) the amounts you would have been entitled to receive under the compensation listed belowLayoff, subject Job Elimination, and Dismissal of Salaried Employee Plan applicable to his compliance with your Canadian location (or successor plan) if you had been an eligible participant under such plan or (ii) the terms and conditions of amounts set forth below in this Section 5(f) (“Additional Terms”).
(i) The Company shall pay or provide to the Executive the following payments and benefits:
(A) Any Accrued Benefits payable I.B, in either case as soon as practical practicable after the Involuntary Termination Date but in no event later than 60 days after the Involuntary Termination Date; provided, that if you are, as of the Involuntary Termination Date, or such other date a “specified employee” within the meaning of 409A as their terms require;
(B) Continued payment of the Executive’s Base Salary for the applicable Severance Period payable in installments determined in accordance with the Company’s standard payroll practicesmethodology duly adopted by the Company as in effect on the Involuntary Termination Date, but no less frequently than monthly, beginning within sixty (60) days then such amounts shall instead be paid on the first business day following the date which is six months after the Involuntary Termination Date (with the first payment to include amounts accrued between the Termination Date and the first payment date“Six-Month Delay Date”) (or if sooner, upon your death); and further provided thatthat the amount payable under Section I.B(ii), if the sixtieth (60th) day following the Termination Date falls applicable, will be paid in the calendar fiscal year following the calendar fiscal year in which the Involuntary Termination Date occurs, payments will not commence prior if later than as otherwise specified herein. Payment of the amounts set forth in Section I.B are conditioned upon and subject to the first day of the calendar year following the calendar year in which the Termination Date occurs; provided further requirement that, in the event the Executive is a Specified Employee on the Termination Date, payment shall be made in accordance with the following provisions:
a. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date does not exceed two (2) times the lesser of: (x) the Specified Employee’s base salary for the year prior to the year in which the Termination Date occurs; or (y) the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Code for the year in which the Termination Date occurs (such amount, the “Separation Pay Limit”), the Executive shall receive continuation of his Base Salary for the Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, as set forth above.
b. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date exceeds the Separation Pay Limit, the Executive shall not receive any payments of continued Base Salary in excess of the Separation Pay Limit during such six (6) month period. Any amounts in excess of the Separation Pay Limit which would have otherwise been paid during the six (6) month period following the Executive’s Termination Date shall be paid in a lump sum on the first day following the six-month anniversary of the Executive’s Termination Date. Beginning with the first payroll cycle occurring on or after the first day following the six-month anniversary of the Executive’s Termination Date and continuing until the end of the Severance Period, the Executive shall receive continuation payments of the Executive’s Base Salary in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly.
c. For purposes of Section 409A of the Code, each installment payment of Base Salary made pursuant to this Section 5(c)(i)(B) shall be treated as a separate payment of compensation.
(C) A lump sum payment equal to the Executive’s Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is reasonably practicable, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs;
(D) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the Benefits Continuation Period for the Executive and his family through the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, supplemented or substituted from time to time (“COBRA”), in accordance with the applicable plans, programs or policies of the Company, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any), provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(i)(D) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(i)(D), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or following a Change of Control, the Company or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(i)(D) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that no such offset shall be made in violation of Section 409A of the Code;
(E) The Company shall provide the Executive with professional outplacement services as determined in the Company’s sole discretion until the earliest of: (w) six (6) months after the end of the Severance Period, (x) the date on which the Executive obtains another full-time job, (y) the date on which the Executive becomes self-employed, and (z) the date on which the Executive has received all services or benefits due under the applicable Company-sponsored outplacement program. The Company will not pay the Executive cash in lieu of professional outplacement services;
(F) If the Executive is covered by any Company-sponsored executive life insurance program as of the Involuntary Termination Date, and at least 10 days prior to the Company shall continue Six-Month Delay Date or, if applicable, at least 10 days prior to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive will have thirty-one (31) days from the last day of the Severance Period aforementioned 60 day period, (i) you execute and return to convert his life insurance coverage the Company, to an individual policy;
(G) If the Executive is covered extent permitted by any Company-sponsored supplemental long-term disability insurance program as of the Termination Datelaw, the Company shall continue to pay for release agreement attached as Exhibit A (the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive shall be entitled to keep this policy if he continues to pay the annual premiums; and
“Release Agreement”) (H) Any benefits or rights to which the Executive is entitled under any of the Company’s stock or equity plans equivalent form in accordance with the terms local law of your location), and conditions of those plans.
(ii) If a Change of Control occurs and the Executive is then receiving, or is entitled to receive, payments and benefits under Section 5(c)(i) of this Agreement as a result of his Involuntary Termination without Cause not due to a Change of Control, the Company shall pay only to the Executive in a lump sumextent required by applicable law, any period within seven which you may revoke the Release Agreement (7) calendar days after the Change of Control, an amount (in lieu of future installment payments) equal to the present value of all future cash payments due to the Executive under Section 5(c)(i)(B) of this Agreement using the prime commercial lending rate published by the Trustee at the time the Change of Control occurs. The Company and the Executive shall continue to be liable to each other for all of their other respective obligations under this Agreement. In the event that the Executive was a Specified Employee on his Termination Date, if the sum of the payments which the Executive previously received or any equivalent form in accordance with Section 5(c)(i)(Blocal law of your location) and pursuant to the payment set forth in this Section 5(c)(ii) exceeds terms thereof has expired without you having revoked the Separation Pay Limit, any amounts in excess of the Separation Pay Limit shall be paid on the later of (A) the first day following the six-month anniversary of the Termination Date and (B) within seven (7) calendar days after the Change of Control. For the avoidance of doubt, in the event that the provisions of this Section 5(c)(ii) become effective, they shall supersede the provisions of Section 5(c)(i)(B).Release Agreement:
(iii) If a Change of Control occurs and (A) the Executive experienced an Involuntary Termination within twelve (12) months prior to the date on which the Change of Control occurs and (B) it is reasonably demonstrated by the Executive that such termination of employment either (a) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then in addition to the payments and benefits set forth in Section 5(c)(i), the Executive shall be entitled to the following: (xi) a lump sum payment equal amount equivalent to 50% your annual base salary as of the Executive’s Base Salary, payable as soon as practicable but no later than sixty (60) days following the Change of Control; provided that if the Executive was a Specified Employee on his Termination Date, such payment shall be paid on the later of (1) as soon as practicable but no later than sixty (60) days following the Change of Control and (2) the first day following the six-month anniversary of the Executive’s Termination Date; (y) the difference between the Target Bonus payment which the Executive would have received if the Severance Multiple had been two (2) and the Target Bonus amount paid to the Executive pursuant to Section 5(c)(i)(C), which shall be paid as soon as practicable following the Change of Control but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and (z) for purposes of determining the Severance Period for benefits provided under Sections 5(c)(i)(D), (F), and (G), the Executive’s Severance Period shall be defined as the twenty-four (24) month period following the Termination Date. Notwithstanding the foregoing, in the event that (A) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iii); and (B) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations issued thereunder, the lump sum payment set forth in (x) above shall be paid on the first anniversary of the Executive’s Termination Date.
(iv) If a Change of Control occurs and (A) the Executive’s employment was voluntarily terminated within twelve (12) months prior to the date on which the Change of Control occurs; (B) such termination would have constituted a termination for Good Reason if it had occurred within two (2) years following the Change of Control; and (C) it is reasonably demonstrated by the Executive that the circumstances which would have caused the occurrence of Good Reason either (a) were at the request of a third party who had taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then the Executive shall be entitled to the following (based on a Severance Multiple of two (2) and a Severance Period of twenty-four (24) months from the Termination Date):
(A) A lump sum payment equal to the Executive’s Base Salary multiplied by the Severance Multiple payable within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Date, any amounts in excess of the Separation Pay Limit shall be paid to the Executive in a lump sum on the later of (x) the first day following the six-month anniversary of the Termination Date and (y) within sixty (60) days following the Change of Control. In the event that (i) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iv); and (ii) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations thereunder, the lump sum payment set forth herein shall be paid on the first anniversary of the Executive’s Involuntary Termination Date; and
(Bii) A lump sum payment equal to a pro-rated annual bonus for the Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is practicable, but no later than March 15 of the calendar year following the calendar fiscal year in which the Change Involuntary Termination Date occurs, which lump sum amount shall be determined based on, for such fiscal year, the level of Control occursachievement of the applicable performance goals under the Company’s Incentive Plan(s), the bonus-eligible percentage of your annual base pay in effect and the amount of base pay actually paid to you prior to the Involuntary Termination Date; and
(Ciii) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the remainder of the Benefits Continuation Period for the Executive and his family through COBRA, in accordance with the applicable plans, programs or policies, if any, of the Company or its successor, and on such terms applicable access to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any); provided that the Executive shall continue to pay reasonable outplacement services suitable to the Company any applicable contribution amounts that the Executive would otherwise have to pay Executive’s position for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(iv)(C) during a period of time during which12 months or, in if earlier, until the absence first acceptance by the Executive of an offer of employment (to the extent of reimbursement for such outplacement services, such reimbursement shall occur prior to the last day of the benefits provided in this Section 5(c)(iv)(C), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately 15th month following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(iv)(C) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that, no such offset shall be made in violation of Section 409A of the CodeInvoluntary Termination Date); and
(Div) A lump sum payment equal to (A) if, on the value of the CompanyInvoluntary Termination Date, you are an active participant who is accruing benefits under any tax-sponsored outplacement program qualified, supplemental or excess defined benefit pension plan maintained by the Company immediately prior or any of its affiliates (a “DB Pension Plan”), pursuant to the Change DB Pension Plan terms, you will receive additional pension service through the earlier of Control, based on (i) the Executive’s management level as one year anniversary of the your Involuntary Termination Date, and (ii) the date upon which shall be paid within sixty (60) days following benefit accruals for active employees cease under the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day terms of the calendar year following the calendar year in which the Change of Control occursDB Pension Plan; provided further that, if the Executive is a Specified Employee on the Termination Dor
Appears in 1 contract
Involuntary Termination Without Cause. NOT DUE TO A CHANGE OF CONTROL. In the event of the Executive’s Involuntary Termination not due to a Change of Control, the Executive shall be entitled to receive the compensation listed below, subject to his compliance with the terms and conditions of Section 5(f) (“Additional Terms”).
(i) The Company shall pay or provide to the Executive the following payments and benefits:
(A) Any Accrued Benefits payable as soon as practical after the Termination Date, or such other date as their terms require;
(B) Continued payment of the Executive’s Base Salary for the applicable Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, beginning within sixty (60) days following the Termination Date (with the first payment to include amounts accrued between the Termination Date and the first payment date); provided that, if the sixtieth (60th) day following the Termination Date falls in the calendar year following the calendar year in which the Termination Date occurs, payments will not commence prior to the first day of the calendar year following the calendar year in which the Termination Date occurs; provided further that, in the event the Executive is a Specified Employee on the Termination Date, payment shall be made in accordance with the following provisions:
a. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date does not exceed two (2) times the lesser of: (x) the Specified Employee’s base salary for the year prior to the year in which the Termination Date occurs; or (y) the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Code for the year in which the Termination Date occurs (such amount, the “Separation Pay Limit”), the Executive shall receive continuation of his Base Salary for the Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, as set forth above.
b. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date exceeds the Separation Pay Limit, the Executive shall not receive any payments of continued Base Salary in excess of the Separation Pay Limit during such six (6) month period. Any amounts in excess of the Separation Pay Limit which would have otherwise been paid during the six (6) month period following the Executive’s Termination Date shall be paid in a lump sum on the first day following the six-month anniversary of the Executive’s Termination Date. Beginning with the first payroll cycle occurring on or after the first day following the six-month anniversary of the Executive’s Termination Date and continuing until the end of the Severance Period, the Executive shall receive continuation payments of the Executive’s Base Salary in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly.
c. For purposes of Section 409A of the Code, each installment payment of Base Salary made pursuant to this Section 5(c)(i)(B) shall be treated as a separate payment of compensation.
(C) A lump sum payment equal to the Executive’s Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is reasonably practicable, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs;
(D) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the Benefits Continuation Period for the Executive and his family through the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, supplemented or substituted from time to time (“COBRA”), in accordance with the applicable plans, programs or policies of the Company, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any), provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(i)(D) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(i)(D), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or following a Change of Control, the Company or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(i)(D) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that no such offset shall be made in violation of Section 409A of the Code;
(E) The Company shall provide the Executive with professional outplacement services as determined in the Company’s sole discretion until the earliest of: of (w) six (6) months after the end of the Severance Period, (x) the date on which the Executive obtains another full-time job, and (y) the date on which the Executive becomes self-employed, and (z) the date on which . The amount of outplacement services provided to the Executive has received all during any calendar year will not affect the amount of outplacement services or benefits due under provided to the applicable Company-sponsored outplacement programExecutive in any subsequent calendar year. The Company will not pay the Executive cash or provide other benefits in lieu of professional outplacement services;
(F) If the Executive is covered by any Company-sponsored executive life insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive will have thirty-one (31) days from the last day of the Severance Period to convert his life insurance coverage to an individual policy;
(G) If the Executive is covered by any Company-sponsored supplemental long-term disability insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive shall be entitled to keep this policy if he continues to pay the annual premiums; and
(H) Any benefits or rights to which the Executive is entitled under any of the Company’s stock or equity plans in accordance with the terms and conditions of those plans.
(ii) If a Change of Control occurs and the Executive is then receiving, or is entitled to receive, payments and benefits under Section 5(c)(i) of this Agreement as a result of his Involuntary Termination without Cause not due to a Change of Control, the Company shall pay to the Executive in a lump sum, within seven (7) calendar days after the Change of Control, an amount (in lieu of future installment payments) equal to the present value of all future cash payments due to the Executive under Section 5(c)(i)(B) of this Agreement using the prime commercial lending rate published by the Trustee at the time the Change of Control occurs. The Company and the Executive shall continue to be liable to each other for all of their other respective obligations under this Agreement. In the event that the Executive was a Specified Employee on his Termination Date, if the sum of the payments which the Executive previously received in accordance with Section 5(c)(i)(B) and the payment set forth in this Section 5(c)(ii) exceeds the Separation Pay Limit, any amounts in excess of the Separation Pay Limit shall be paid on the later of (A) the first day following the six-month anniversary of the Termination Date and (B) within seven (7) calendar days after the Change of Control. For the avoidance of doubt, in the event that the provisions of this Section 5(c)(ii) become effective, they shall supersede the provisions of Section 5(c)(i)(B).
(iii) If a Change of Control occurs and (A) the Executive experienced an Involuntary Termination within twelve (12) months prior to the date on which the Change of Control occurs and (B) it is reasonably demonstrated by the Executive that such termination of employment either (a) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then in addition to the payments and benefits set forth in Section 5(c)(i), the Executive shall be entitled to the following: (x) a lump sum payment equal to 50% of the Executive’s Base Salary, payable as soon as practicable but no later than sixty (60) days following the Change of Control; provided that if the Executive was a Specified Employee on his Termination Date, such payment shall be paid on the later of (1) as soon as practicable but no later than sixty (60) days following the Change of Control and (2) the first day following the six-month anniversary of the Executive’s Termination Date; (y) the difference between the Target Bonus payment which the Executive would have received if the Severance Multiple had been two three (23) and the Target Bonus amount paid to the Executive pursuant to Section 5(c)(i)(C), which shall be paid as soon as practicable following the Change of Control but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and (z) for purposes of determining the Severance Period for benefits provided under Sections 5(c)(i)(D), (F), and (G), the Executive’s Severance Period shall be defined as the twentythirty-four six (2436) month period following the Termination Date. Notwithstanding the foregoing, in the event that (A) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iii); and (B) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations issued thereunder, the lump sum payment set forth in (x) above shall be paid on the first anniversary of the Executive’s Termination Date.
(iv) If a Change of Control occurs and (A) the Executive’s employment was voluntarily terminated within twelve (12) months prior to the date on which the Change of Control occurs; (B) such termination would have constituted a termination for Good Reason if it had occurred within two (2) years following the Change of Control; and (C) it is reasonably demonstrated by the Executive that the circumstances which would have caused the occurrence of Good Reason either (a) were at the request of a third party who had taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then the Executive shall be entitled to the following (based on a Severance Multiple of two three (23) and a Severance Period of twentythirty-four six (2436) months from the Termination Date):
(A) A lump sum payment equal to the Executive’s Base Salary multiplied by the Severance Multiple payable within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Date, any amounts in excess of the Separation Pay Limit shall be paid to the Executive in a lump sum on the later of (x) the first day following the six-month anniversary of the Termination Date and (y) within sixty (60) days following the Change of Control. In the event that (i) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iv); and (ii) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations thereunder, the lump sum payment set forth herein shall be paid on the first anniversary of the Executive’s Termination Date; and
(B) A lump sum payment equal to the Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is practicable, but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and
(C) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the remainder of the Benefits Continuation Period for the Executive and his family through COBRA, in accordance with the applicable plans, programs or policies, if any, of the Company or its successor, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any); provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(iv)(C) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(iv)(C), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(iv)(C) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that, no such offset shall be made in violation of Section 409A of the Code; and
(D) A lump sum payment equal to the value of the Company-sponsored outplacement program maintained by the Company immediately prior to the Change of Control, based on the Executive’s management level as of the Termination Date, which shall be paid within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Dprov
Appears in 1 contract
Involuntary Termination Without Cause. NOT DUE TO A CHANGE OF CONTROL. In the event that the Boards determine that this Agreement and the employment of Executive should be terminated before the end of the Employment Term for a reason other than death, Disability, voluntary separation from service by Executive, or for Cause (such reason is hereafter referred to as a “Termination Without Cause”), subject to the provisions of Section (I) below:
(1) Executive, or the Beneficiary, shall be entitled to continue to receive the Base Salary Executive otherwise would have been entitled to receive (including but not limited to amounts earned but not paid) had he remained employed for a period of twenty-four (24) months. Such amounts shall begin to be paid as soon as practicable after Executive’s Involuntary separation from service and shall continue for a period of twenty-four (24) months. Notwithstanding the preceding provisions of this paragraph (1), in the event that Executive’s Termination not due Without Cause occurs less than twenty-four (24) months prior to a Change the end of Controlthe calendar year in which Executive attains age 65, the payments required hereunder will end on the last day of the calendar year in which Executive attains age 65.
(2) Executive, or the Beneficiary, shall be entitled to receive the compensation listed below, subject to his compliance with the terms and conditions of Section 5(f) (“Additional Terms”).
(i) The Company shall pay or provide a one-year bonus payment equal to the Executive the following payments and benefits:
(A) Any Accrued Benefits payable as soon as practical after the Termination Date, or such other date as their terms require;
(B) Continued payment average of the Executive’s Base Salary for amount earned under the applicable Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, beginning within sixty (60) days following the Termination Date (with the first payment to include amounts accrued between the Termination Date LBP and the first payment date); provided that, if LTIP in place for each of the sixtieth (60th) day following the Termination Date falls in the two calendar year following years immediately preceding the calendar year in which the Termination Date Without Cause occurs, payments will not commence prior to the first day of the calendar year following the calendar year in which the Termination Date occurs; provided further that, payable in the event form and at the Executive is a Specified Employee on the Termination Date, payment shall be made time specified in accordance with the following provisions:
a. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date does not exceed two (2) times the lesser of: (x) the Specified Employee’s base salary for the year prior to the year in which the Termination Date occurs; or (y) the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Code for the year in which the Termination Date occurs (such amount, the “Separation Pay Limit”), the Executive shall receive continuation of his Base Salary for the Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, as set forth above.
b. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date exceeds the Separation Pay Limit, the Executive shall not receive any payments of continued Base Salary in excess of the Separation Pay Limit during such six (6) month period. Any amounts in excess of the Separation Pay Limit which would have otherwise been paid during the six (6) month period following the Executive’s Termination Date shall be paid in a lump sum on the first day following the six-month anniversary of the Executive’s Termination Date. Beginning with the first payroll cycle occurring on or after the first day following the six-month anniversary of the Executive’s Termination Date and continuing until the end of the Severance Period, the Executive shall receive continuation payments of the Executive’s Base Salary in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly.
c. For purposes of Section 409A of the Code, each installment payment of Base Salary made pursuant to this Section 5(c)(i)(B) shall be treated as a separate payment of compensationplans.
(C3) A lump sum payment equal Any stock options granted to the Executive’s Target Bonus multiplied by the Severance Multiple, payable Executive shall vest on the Release Effective Date or as soon thereafter as is reasonably practicabletermination date, but notwithstanding any vesting schedule set forth in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs;
(D) Continuation of medicalany outstanding option agreements with Executive, prescription, dental, vision and health care reimbursement benefits for the Benefits Continuation Period for the Executive and his family through the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, supplemented or substituted from time to time (“COBRA”), in accordance with the applicable plans, programs or policies of the Company, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any), provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(i)(D) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(i)(D), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or following a Change of Control, the Company or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(i)(D) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse exercisable under the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that no such offset shall be made in violation of Section 409A terms of the Code;plan.
(E4) The Company shall provide the Executive with professional outplacement services as determined in the Company’s sole discretion until the earliest of: (w) six (6) months after the end of the Severance Period, (x) the date on which the Executive obtains another full-time job, (y) the date on which the Executive becomes self-employed, and (z) the date on which the Executive has received all services or benefits due under the applicable Company-sponsored outplacement program. The Company will not pay the Executive cash in lieu of professional outplacement services;
(F) If the Executive is covered by any Company-sponsored executive life insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive will have thirty-one (31) days from the last day of the Severance Period to convert his life insurance coverage to an individual policy;
(G) If the Executive is covered by any Company-sponsored supplemental long-term disability insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive shall be entitled to keep this policy if he continues receive from State Auto an amount equal to pay the annual premiums; and
then current monthly per employee cost of providing State Auto’s health insurance benefit multiplied by twenty-four (H24) Any benefits or rights months, payable as a single lump sum payment as soon as practicable after separation from service. Notwithstanding any provision to which the Executive is entitled under any of contrary, the Company’s stock or equity plans in accordance with the terms and conditions of those plans.
(ii) If a Change of Control occurs and the Executive is then receiving, or is entitled to receive, payments and benefits due to Executive under this Section 5(c)(i(E) of this Agreement as Article V shall be contingent upon Executive’s execution of a result valid release of his Involuntary State Auto and their respective officers, directors, agents and employees, from any and all actions, suits, proceedings, claims and demands relating to Executive’s employment and Termination without Cause Without Cause. Provided such release is executed and not due to a Change of Controlrevoked within any revocation period provided by applicable law, the Company payment and benefits due under this Section (E) of Article V shall pay to the Executive in a lump sum, within seven (7) calendar commence no later than 90 days after the Change of Control, an amount (in lieu of future installment payments) equal to the present value of all future cash payments due to the Executive under Section 5(c)(i)(B) of this Agreement using the prime commercial lending rate published by the Trustee at the time the Change of Control occurs. The Company and the Executive shall continue to be liable to each other for all of their other respective obligations under this AgreementExecutive’s Termination Without Cause. In the event that the Executive was time period required by applicable law to obtain a Specified Employee on his Termination Datevalid release (including the expiration of any revocation period) begins in one calendar year and ends in another calendar year, if the sum of the payments which the Executive previously received in accordance with Section 5(c)(i)(B) and the payment set forth in this Section 5(c)(ii) exceeds the Separation Pay Limit, any amounts in excess of the Separation Pay Limit shall be paid on the later of (A) the first day following the six-month anniversary of the Termination Date and (B) within seven (7) calendar days after the Change of Control. For the avoidance of doubt, in the event that notwithstanding the provisions of this Section 5(c)(ii) become effectivethe previous sentence, they shall supersede the provisions of Section 5(c)(i)(B).
(iii) If a Change of Control occurs and (A) the Executive experienced an Involuntary Termination within twelve (12) months prior to the date on which the Change of Control occurs and (B) it is reasonably demonstrated by the Executive that such termination of employment either (a) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then in addition to the payments and benefits set forth in Section 5(c)(i), the due to Executive shall be entitled to the following: (x) a lump sum payment equal to 50% of the Executive’s Base Salary, payable as soon as practicable but no later than sixty (60) days following the Change of Control; provided that if the Executive was a Specified Employee on his Termination Date, such payment shall be paid on the later of (1) as soon as practicable but no later than sixty (60) days following the Change of Control and (2) the first day following the six-month anniversary of the Executive’s Termination Date; (y) the difference between the Target Bonus payment which the Executive would have received if the Severance Multiple had been two (2) and the Target Bonus amount paid to the Executive pursuant to Section 5(c)(i)(C), which shall be paid as soon as practicable following the Change of Control but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and (z) for purposes of determining the Severance Period for benefits provided under Sections 5(c)(i)(D), (F), and (G), the Executive’s Severance Period shall be defined as the twenty-four (24) month period following the Termination Date. Notwithstanding the foregoing, in the event that (A) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iii); and (B) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations issued thereunder, the lump sum payment set forth in (x) above shall be paid on the first anniversary of the Executive’s Termination Date.
(iv) If a Change of Control occurs and (A) the Executive’s employment was voluntarily terminated within twelve (12) months prior to the date on which the Change of Control occurs; (B) such termination would have constituted a termination for Good Reason if it had occurred within two (2) years following the Change of Control; and (C) it is reasonably demonstrated by the Executive that the circumstances which would have caused the occurrence of Good Reason either (a) were at the request of a third party who had taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then the Executive shall be entitled to the following (based on a Severance Multiple of two (2) and a Severance Period of twenty-four (24) months from the Termination Date):
(A) A lump sum payment equal to the Executive’s Base Salary multiplied by the Severance Multiple payable within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Date, any amounts in excess of the Separation Pay Limit shall be paid to the Executive in a lump sum on the later of (x) the first day following the six-month anniversary of the Termination Date and (y) within sixty (60) days following the Change of Control. In the event that (i) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iv); and (ii) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations thereunder, the lump sum payment set forth herein shall be paid on the first anniversary of the Executive’s Termination Date; and
(B) A lump sum payment equal to the Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is practicable, but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and
(C) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the remainder of the Benefits Continuation Period for the Executive and his family through COBRA, in accordance with the applicable plans, programs or policies, if any, of the Company or its successor, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any); provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(iv)(C) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(iv)(C), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(iv)(C(E) of Article V shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that, no such offset shall be made in violation of Section 409A of the Code; and
(D) A lump sum payment equal to the value of the Company-sponsored outplacement program maintained by the Company immediately prior to the Change of Control, based on the Executive’s management level as of the Termination Date, which shall be paid within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls commence in the second calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Dyear.
Appears in 1 contract
Involuntary Termination Without Cause. NOT DUE TO A CHANGE OF CONTROL. In the event of the Executive’s Involuntary Termination not due to a Change of Control, the Executive shall be entitled to receive the compensation listed below, subject to his compliance with the terms and conditions of Section 5(f) (“Additional Terms”).):
(i) The Company shall pay or provide to the Executive the following payments and benefits:
(A) Any Accrued Benefits Benefits, payable as soon as practical practicable after the Termination Date, or such other date as their terms require;
(B) Continued payment of the Executive’s Base Salary for the applicable Severance Period Period, payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, beginning within sixty (60) days following the Termination Date (with the first payment to include amounts accrued between the Termination Date and the first payment date); provided that, if the sixtieth (60th) day following the Termination Date falls in the calendar year following the calendar year in which the Termination Date occurs, payments will not commence prior to the first day of the calendar year following the calendar year in which the Termination Date occurs; provided further that, in the event the Executive is a Specified Employee on the Termination Date, payment shall be made in accordance with the following provisions:
a. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date does not exceed two (2) times the lesser of: (x) the Specified Employee’s base salary for the year prior to the year in which the Termination Date occurs; or (y) the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Code for the year in which the Termination Date occurs (such amount, the “Separation Pay Limit”), the Executive shall receive continuation of his Base Salary for the Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, as set forth above.
b. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date exceeds the Separation Pay Limit, the Executive shall not receive any payments of continued Base Salary in excess of the Separation Pay Limit during such six (6) month period. Any amounts in excess of the Separation Pay Limit which would have otherwise been paid during the six (6) month period following the Executive’s Termination Date shall be paid in a lump sum on the first day following the six-six (6) month anniversary of the Executive’s Termination Date. Beginning with the first payroll cycle occurring on or after the first day following the six-six (6) month anniversary of the Executive’s Termination Date and continuing until the end of the Severance Period, the Executive shall receive continuation payments of the Executive’s Base Salary in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly.
c. For purposes of Section 409A of the Code, each installment payment of Base Salary made pursuant to this Section 5(c)(i)(B) shall be treated as a separate payment of compensation.
(C) A lump sum payment equal to (x) the Executive’s Target Three-Year Average Bonus multiplied by (y) the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is reasonably practicable, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs;
(D) Continuation A lump sum payment equal to the pro-rata cash bonus for the year in which the Termination Date occurs which shall be paid (x) when such annual bonuses are paid to non-terminated employees (or, if later, upon the satisfaction of all conditions for the payment of benefits hereunder, but in no event shall such payment occur later than March 15 of the calendar year following the year in which the Termination Date occurs) and (y) based on the actual attainment of the performance goals under the annual bonus plan for the year in which the Termination Date occurs;
(E) If the Executive continues to receive health benefits (including, medical, prescription, dental, vision and health care reimbursement benefits for account benefits) pursuant to the Benefits Continuation Period for the Executive and his family through Company’s health plans under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, supplemented or substituted from time to time (“COBRA”) and pays the full COBRA premiums, the Company will reimburse the Executive for the COBRA premiums paid for such benefits for the Executive and his family through COBRA (with the exception of any COBRA premiums paid for health care reimbursement account benefits), through the Benefits Continuation Period, in accordance with the applicable plans, programs or policies of the Company, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any), ; provided that the Executive shall may continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive health benefits pursuant to this Section 5(c)(i)(D) the Company’s health plans during a period of time during which, in the absence of the benefits provided in this Section 5(c)(i)(D), Benefits Continuation Period during which the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the CodeCode if the Executive continues to pay premiums for such health benefits, and the Executive shall receive reimbursement for all medical expenses which are covered premiums paid by the applicable plans, programs or policies Executive for such continued health benefits on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or following a Change of Control, the Company or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage reimbursements under this Section 5(c)(i)(D5(c)(i)(E) shall immediately terminate and the Executive shall cease to be entitled to any such benefits reimbursements under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits reimbursements paid to the Executive after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; , provided that no such offset shall be made in violation of Section 409A of the Code;
(EF) The Company shall provide the Executive with professional outplacement services as determined in the Company’s sole discretion until the earliest of: (w) six twenty-four (624) months after the end of the Severance PeriodTermination Date, (x) the date on which the Executive obtains another full-time job, (y) the date on which the Executive becomes self-employed, and (z) the date on which the Executive has received all services or benefits due under the applicable Company-sponsored outplacement program. The Company will not pay the Executive cash in lieu of professional outplacement services;
(FG) If the Executive is covered by any Company-sponsored executive life insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive will have thirty-one (31) days from the last day of the Severance Period to convert his life insurance coverage to an individual policy;
(GH) If the Executive is covered by any Company-sponsored supplemental long-term disability insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive shall be entitled to keep this policy if he continues to pay the annual premiums; and
(HI) Any benefits or rights to which the Executive is entitled under any of the Company’s stock or equity plans in accordance with the terms and conditions of those plans.
(ii) If a Change of Control occurs and the Executive is then receiving, or is entitled to receive, payments and benefits under Section 5(c)(i) of this Agreement as a result of his Involuntary Termination without Cause not due to a Change of Control, the Company shall pay to the Executive in a lump sum, within seven (7) calendar days after the Change of Control, an amount (in lieu of future installment payments) equal to the present value of all future cash payments due to the Executive under Section 5(c)(i)(B) of this Agreement using the prime commercial lending rate published by the Trustee at the time the Change of Control occurs. The Company and the Executive shall continue to be liable to each other for all of their other respective obligations under this Agreement. In the event that the Executive was a Specified Employee on his Termination Date, if the sum of the payments which the Executive previously received in accordance with Section 5(c)(i)(B) and the payment set forth in this Section 5(c)(ii) exceeds the Separation Pay Limit, any amounts in excess of the Separation Pay Limit shall be paid on the later of (A) the first day following the six-six (6) month anniversary of the Termination Date and (B) within seven (7) calendar days after the Change of Control. For the avoidance of doubt, in the event that the provisions of this Section 5(c)(ii) become effective, they shall supersede the provisions of Section 5(c)(i)(B).
(iii) If a Change of Control occurs and (A) the Executive experienced an Involuntary Termination within twelve (12) months prior to the date on which the Change of Control occurs and (B) it is reasonably demonstrated by the Executive that such termination of employment either (a) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then in addition to the payments and benefits set forth in Section 5(c)(i), the Executive shall be entitled to the following: (x) a lump sum payment equal to 50% of the Executive’s Base Salary, payable as soon as practicable but no later than sixty (60) days following the Change of Control; provided that if the Executive was a Specified Employee on his Termination Date, such payment shall be paid on the later of (1) as soon as practicable but no later than sixty (60) days following the Change of Control and (2) the first day following the six-six (6) month anniversary of the Executive’s Termination Date; (y) the difference between the Target Bonus payment which the Executive would have received if the Severance Multiple had been two (2) and times the Target Bonus and one and one-half (1 1/2) times the Executive’s Three-Year Average Bonus amount paid to the Executive pursuant to Section 5(c)(i)(C), which shall be paid as soon as practicable following the Change of Control but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and (z) for purposes of determining the Severance Period for benefits provided under Sections 5(c)(i)(D5(c)(i)(E), (FG), and (GH), the Executive’s Severance Period shall be defined as the twenty-four (24) month period following the Termination Date. Notwithstanding the foregoing, in the event that (A) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iii); and (B) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations issued thereunder, the lump sum payment set forth in (x) above shall be paid on the first anniversary of the Executive’s Termination Date.
(iv) If a Change of Control occurs and (A) the Executive’s employment was voluntarily terminated within twelve (12) months prior to the date on which the Change of Control occurs; (B) such termination would have constituted a termination for Good Reason if it had occurred within two (2) years following the Change of Control; and (C) it is reasonably demonstrated by the Executive that the circumstances which would have caused the occurrence of Good Reason either (a) were at the request of a third party who had taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then the Executive shall be entitled to the following (based on a Severance Multiple of two (2) and a Severance Period of twenty-four (24) months from the Termination Date):
(A) A lump sum payment equal to the Executive’s Base Salary multiplied by the Severance Multiple Multiple, payable within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Date, any amounts in excess of the Separation Pay Limit shall be paid to the Executive in a lump sum on the later of (x) the first day following the six-six (6) month anniversary of the Termination Date and (y) within sixty (60) days following the Change of Control. In the event that (i) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iv); and (ii) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations thereunder, the lump sum payment set forth herein shall be paid on the first anniversary of the Executive’s Termination Date; and;
(B) A lump sum payment equal to the Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is practicable, but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and;
(C) Continuation A lump sum payment equal to the pro-rata Target Bonus, payable on the Release Effective Date or as soon thereafter as is practicable, but in no event later than March 15 of the calendar year following the year in which the Termination Date occurs;
(D) If the Executive continues to receive health benefits (including, medical, prescription, dental, vision and health care reimbursement account benefits) pursuant to the Company’s health plans under COBRA and pays the full COBRA premiums, the Company will reimburse the Executive for the COBRA premiums paid for such benefits for the Executive and his family through COBRA (with the exception of any COBRA premiums paid for health care reimbursement account benefits), for the remainder of the Benefits Continuation Period for the Executive and his family through COBRAPeriod, in accordance with the applicable plans, programs or policies, if any, of the Company or its successor, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any); provided that the Executive shall may continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive health benefits pursuant to this Section 5(c)(iv)(C) the Company’s health plans during a period of time during which, in the absence of the benefits provided in this Section 5(c)(iv)(C), Benefits Continuation Period during which the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the CodeCode if the Executive continues to pay premiums for such health benefits, and the Executive shall receive reimbursement for all medical expenses which are covered premiums paid by the applicable plans, programs or policies Executive for such continued health benefits on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage reimbursements under this Section 5(c)(iv)(C5(c)(iv)(D) shall immediately terminate and the Executive shall cease to be entitled to any such benefits reimbursements under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that, no such offset shall be made in violation of Section 409A of the Code; and
(D) A lump sum payment equal to the value of the Company-sponsored outplacement program maintained by the Company immediately prior to the Change of Control, based on the Executive’s management level as of the Termination Date, which shall be paid within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Dth
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Involuntary Termination Without Cause. NOT DUE TO A CHANGE OF CONTROL. In the event that the Boards determine that this Agreement and the employment of Executive should be terminated for a reason other than death, Disability, voluntary separation from service by Executive, or for Cause (such reason is hereafter referred to as a “Termination Without Cause”), Executive, or his designated beneficiary, shall be entitled to his then current Base Salary and benefits under Section (E) of Article III for the Executive’s Involuntary Termination not due to a Change lesser of Control24 months after separation from service or until Executive attains age 65. In addition, the Executive shall be entitled to receive the compensation listed below, subject to his compliance with the terms and conditions of Section 5(f) (“Additional Terms”).
(i) The Company shall pay or provide a one-year bonus payment equal to the Executive the following payments and benefits:
(A) Any Accrued Benefits payable as soon as practical after the Termination Date, or such other date as their terms require;
(B) Continued payment average of the Executive’s Base Salary annual aggregate bonus under the QPB Plan (or its successor) earned by the Executive for each of the applicable Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, beginning within sixty (60) days following the Termination Date (with the first payment to include amounts accrued between the Termination Date and the first payment date); provided that, if the sixtieth (60th) day following the Termination Date falls in the two calendar year following years immediately preceding the calendar year in which the Termination Date Without Cause occurs, payments will not commence prior to plus the first day average of the amount earned under the LBP and the LTIP in place for each of the two calendar year following years immediately preceding the calendar year in which the Termination Date Without Cause occurs; provided further that, in the event the . If Executive is a Specified Employee on shall attain age 65 within less than 12 months of the Termination DateWithout Cause, such bonus payment shall be prorated for the number of months until Executive attains age 65. Subject to the provisions of Section (I) of Article IV of the Agreement below, such payment shall be made in accordance with the following provisions:
a. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date does not exceed two (2) times the lesser of: (x) the Specified Employee’s base salary for the year prior to the year in which the Termination Date occurs; or (y) the maximum amount that may be taken into account under a qualified retirement plan pursuant to Section 401(a)(17) of the Code for the year in which the Termination Date occurs (such amount, the “Separation Pay Limit”), the Executive shall receive continuation of his Base Salary for the Severance Period payable in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly, as set forth above.
b. If the aggregate value of the payments due to the Executive pursuant to this Section 5(c)(i)(B) during the six (6) month period following his Termination Date exceeds the Separation Pay Limit, the Executive shall not receive any payments of continued Base Salary in excess of the Separation Pay Limit during such six (6) month period. Any amounts in excess of the Separation Pay Limit which would have otherwise been paid during the six (6) month period following the soon as practicable after Executive’s Termination Date shall be paid in a lump sum on the first day following the six-month anniversary of the Executive’s Termination Date. Beginning with the first payroll cycle occurring on or after the first day following the six-month anniversary of the Executive’s Termination Date and continuing until the end of the Severance Period, the Executive shall receive continuation payments of the Executive’s Base Salary in installments in accordance with the Company’s standard payroll practices, but no less frequently than monthly.
c. For purposes of Section 409A of the Code, each installment payment of Base Salary made pursuant to this Section 5(c)(i)(B) shall be treated as a separate payment of compensation.
(C) A lump sum payment equal to the Executive’s Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is reasonably practicableseparation from service, but in no event shall such payment occur later than March 15 of the calendar year 210 days following the year in which the Termination Date occurs;
(D) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the Benefits Continuation Period for the Executive and his family through the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, supplemented or substituted Executive’s separation from time to time (“COBRA”)service. Furthermore, in accordance with the applicable plansthis event, programs or policies of the Company, and on such terms applicable any stock options granted to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any), provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(i)(D) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(i)(D), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies vest on the date no later than December 31 of the calendar year immediately following the calendar year termination date, notwithstanding any vesting schedule set forth in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or following a Change of Control, the Company or the Trustee) within thirty (30) days of the any outstanding option agreements with Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(i)(D) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that no such offset shall be made in violation of Section 409A of the Code;
(E) The Company shall provide the Executive with professional outplacement services as determined in the Company’s sole discretion until the earliest of: (w) six (6) months after the end of the Severance Periodthis event, (x) the date on which the Executive obtains another full-time job, (y) the date on which the Executive becomes self-employed, and (z) the date on which the Executive has received all services or benefits due under the applicable Company-sponsored outplacement program. The Company will not pay the Executive cash in lieu of professional outplacement services;
(F) If the Executive is covered by any Company-sponsored executive life insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive will have thirty-one (31) days from the last day of the Severance Period to convert his life insurance coverage to an individual policy;
(G) If the Executive is covered by any Company-sponsored supplemental long-term disability insurance program as of the Termination Date, the Company shall continue to pay for the Executive’s coverage until the end of the Severance Period. At the end of the Severance Period, the Executive shall be entitled to keep this policy if he continues to pay the annual premiums; and
(H) Any benefits or rights to which the Executive is entitled under any of the Company’s stock or equity plans in accordance with the terms and conditions of those plans.
(ii) If a Change of Control occurs and the Executive is then receiving, or is entitled to receive, payments and benefits under Section 5(c)(i) of this Agreement as a result of his Involuntary Termination without Cause not due to a Change of Control, the Company shall pay to the Executive in a lump sum, within seven (7) calendar days after the Change of Control, an amount (in lieu of future installment payments) equal to the present value of all future cash payments due to the Executive under Section 5(c)(i)(B) of this Agreement using the prime commercial lending rate published by the Trustee at the time the Change of Control occurs. The Company and the Executive shall continue to be liable to each other for all of their other respective obligations under this Agreement. In the event that the Executive was a Specified Employee on his Termination Date, if the sum of the payments which the Executive previously received in accordance with Section 5(c)(i)(B) and the payment set forth in this Section 5(c)(ii) exceeds the Separation Pay Limit, any amounts in excess of the Separation Pay Limit shall be paid on the later of (A) the first day following the six-month anniversary of the Termination Date and (B) within seven (7) calendar days after the Change of Control. For the avoidance of doubt, in the event that the provisions of this Section 5(c)(ii) become effective, they shall supersede the provisions of Section 5(c)(i)(B).
(iii) If a Change of Control occurs and (A) the Executive experienced an Involuntary Termination within twelve (12) months prior to the date on which the Change of Control occurs and (B) it is reasonably demonstrated by the Executive that such termination of employment either entitled: (a) was at to receive payment of any Base Salary accrued through the request of a third party who has taken steps reasonably calculated to effect a Change of Control or separation from service date and (b) otherwise arose in connection with or in anticipation to receive a pro-rated amount of a Change compensation to which he may be entitled pursuant to the LBP, the QPB Plan, and the LTIP, per the terms of Control, each plan as then in effect, based on the effective date of the separation from service described in this section (E). In addition to the payments and benefits set forth in Section 5(c)(i), the Executive shall be entitled to the following: (x) a lump sum payment equal to 50% of the Executive’s Base Salary, payable as soon as practicable but no later than sixty (60) days following the Change of Control; provided that if the Executive was a Specified Employee on his Termination Date, such payment shall be paid on the later of (1) as soon as practicable but no later than sixty (60) days following the Change of Control and (2) the first day following the six-month anniversary of the Executive’s Termination Date; (y) the difference between the Target Bonus payment which the Executive would have received if the Severance Multiple had been two (2) and the Target Bonus amount paid to the Executive pursuant to Section 5(c)(i)(C), which shall be paid as soon as practicable following the Change of Control but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and (z) for purposes of determining the Severance Period for benefits provided under Sections 5(c)(i)(D), (F), and (G), the Executive’s Severance Period shall be defined as the twenty-four (24) month period following the Termination Date. Notwithstanding the foregoing, in the event that (A) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iii); and (B) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations issued thereunderTermination Without Cause, the lump sum payment set forth in (x) above shall be paid on the first anniversary of the Executive’s Termination Date.
(iv) If a Change of Control occurs and (A) the Executive’s employment was voluntarily terminated within twelve (12) months prior to the date on which the Change of Control occurs; (B) such termination would have constituted a termination for Good Reason if it had occurred within two (2) years following the Change of Control; and (C) it is reasonably demonstrated by the Executive that the circumstances which would have caused the occurrence of Good Reason either (a) were at the request of a third party who had taken steps reasonably calculated to effect a Change of Control or (b) otherwise arose in connection with or in anticipation of a Change of Control, then the Executive shall be entitled to the following (based on a Severance Multiple of two (2) and a Severance Period of twenty-four (24) months receive from the Termination Date):
(A) A lump sum payment State Auto an amount equal to the Executivethen current monthly per employee cost of providing State Auto’s Base Salary health insurance benefit multiplied by the Severance Multiple payable within sixty (60) days following lesser of 24 or the Change number of Control; provided thatmonths until Executive attains age 65, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day plus such additional amount that represents a gross-up of the calendar year following the calendar year in which the Change taxes due for that particular amount of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Date, any income. Such amounts in excess of the Separation Pay Limit shall be paid pursuant to the Executive in a lump sum on the later provisions of Section (xI) the first day following the six-month anniversary of Article IV of the Termination Date and (y) within sixty (60) days following the Change of Control. In the event that (i) a Change of Control occurs and payments and benefits become payable to the Executive pursuant to this Section 5(c)(iv); and (ii) such Change of Control does not constitute a “change in ownership or effective control” or a change in the “ownership of a substantial portion of assets” under Section 409A of the Code and the rules and regulations thereunder, the lump sum payment set forth herein shall be paid on the first anniversary of the Executive’s Termination Date; and
(B) A lump sum payment equal to the Target Bonus multiplied by the Severance Multiple, payable on the Release Effective Date or as soon thereafter as is practicable, but no later than March 15 of the calendar year following the calendar year in which the Change of Control occurs; and
(C) Continuation of medical, prescription, dental, vision and health care reimbursement benefits for the remainder of the Benefits Continuation Period for the Executive and his family through COBRA, in accordance with the applicable plans, programs or policies, if any, of the Company or its successor, and on such terms applicable to comparably situated active employees during such period (which shall offset the Company’s COBRA obligation, if any); provided that the Executive shall continue to pay to the Company any applicable contribution amounts that the Executive would otherwise have to pay for such benefits if the Executive was still employed by the Company; provided further that if the Executive continues to receive benefits pursuant to this Section 5(c)(iv)(C) during a period of time during which, in the absence of the benefits provided in this Section 5(c)(iv)(C), the Executive would not otherwise be entitled to COBRA continuation coverage under Section 4980B of the Code, the Executive shall receive reimbursement for all medical expenses which are covered by the applicable plans, programs or policies on the date no later than December 31 of the calendar year immediately following the calendar year in which the applicable expenses have been incurred. If the Executive fails to accept available coverage from another employer or fails to notify the Company (or the Trustee) within thirty (30) days of the Executive’s eligibility to receive coverage under another employer’s plan, the Executive’s coverage under this Section 5(c)(iv)(C) shall immediately terminate and the Executive shall cease to be entitled to any such benefits under this Agreement and shall be required within three (3) months after such failure to reimburse the Company for the greater of any premiums or any benefits paid after such failure. In addition, the Executive agrees that the Company may offset against such reimbursement or deduct such reimbursement from any payments due to the Executive in full or partial payment of such reimbursement; provided that, no such offset shall be made in violation of Section 409A of the Code; and
(D) A lump sum payment equal to the value of the Company-sponsored outplacement program maintained by the Company immediately prior to the Change of Control, based on the Executive’s management level as of the Termination Date, which shall be paid within sixty (60) days following the Change of Control; provided that, if the sixtieth (60th) day following the Change of Control falls in the calendar year following the calendar year in which the Change of Control occurs, payment will not be made prior to the first day of the calendar year following the calendar year in which the Change of Control occurs; provided further that, if the Executive is a Specified Employee on the Termination Dbelow.
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