Retention Bonuses Provided Executive becomes and remains an active employee of Mercantile, Mercantile will pay Executive retention bonuses in accordance with the following schedule:
(i) $60,937.50 [25% of salary and target incentive compensation], to be paid on the first payroll period following the Effective Time,
(ii) $60,937.50 [25% of salary and target incentive compensation], to be paid on the first payroll period following six (6) months of Executive’s employment with Mercantile,
(iii) $60,937.50 [25% of salary and target incentive compensation], to be paid on the first payroll period following twelve (12) months of Executive’s employment with Mercantile. After twelve (12) months of Executive’s employment with Mercantile, Executive will not be entitled to any further Severance or Retention benefits. The above-listed payments and benefits are in lieu of any and all payments and benefits to which Executive may otherwise have been entitled under the CIC Agreement or any other agreement or practice.
Retention Bonus (a) Subject to Sections 2(b), 2(c) and 2(d) below and your continued employment through the Determination Date (as defined below), you will be eligible to receive a Retention Bonus equal to the annual bonus you would have been eligible to receive under the Company’s Annual Incentive Plan based on the Company’s actual performance for 2023, as determined by the Compensation Committee of the Board of Directors (the “Committee”) following the completion of 2023, had you been a participant in the Annual Incentive Plan with a target bonus opportunity of up to 40% of your base salary (such amount as determined by the Committee, the “Retention Bonus”), which determination shall occur between January 1, 2024 and March 15, 2024 (the date of such determination, the “Determination Date”). The Retention Bonus, if any, will be paid in cash in a lump sum between January 1, 2025 and March 15, 2025. You will continue to be considered an employee of the Company for purposes of this letter agreement if you are on a Company- approved leave of absence.
(b) In the event of a Change in Control during 2024, subject to your continued employment through the earlier of: (1) the Determination Date; or (2) the date of the Change in Control, you will be eligible to receive your Retention Bonus in cash in a lump sum within 10 days following the date of the Change in Control.
(c) In the event of your Involuntary Termination (as defined in the Employment Agreement) on or after the Determination Date but on or prior to the date you have received the Retention Bonus, you will be eligible to receive your Retention Bonus in cash in a lump sum within 10 days following the effective date of your Release (as defined below). As a condition to your receipt of the Retention Bonus pursuant to this Section 2(c), you shall execute and not revoke a general release of all claims in favor of the Company and its affiliates (the “Release”) in the form attached to the Employment Agreement as Exhibit A. In the event the Release does not become effective within the 55-day period following the date of your Involuntary Termination, you shall not be entitled to the Retention Bonus.
(d) If your employment terminates prior to the Determination Date for any reason, then this letter agreement will terminate, and you will forfeit any right you may have to receive the Retention Bonus.
Minimum Benefits If the Termination Date occurs during the Employment Period for any reason, the Executive shall be entitled to the Minimum Benefits, in addition to any other benefits to which the Executive may be entitled under the following provisions of this Section 4 or the express terms of any employee benefit plan or as required by law. Any benefits to be provided to the Executive pursuant to this Section 4(a) shall be provided within thirty (30) days after the Termination Date; provided, however, that any benefits, incentives or awards payable as described in Section 4(f) shall be made in accordance with the provisions of the applicable plan, program or arrangement. Except as may otherwise be provided expressly to the contrary in this Agreement or as otherwise provided by law, nothing in this Agreement shall be construed as requiring the Executive to be treated as employed by the Company following the Termination Date for purposes of any employee benefit plan or arrangement in which the Executive may participate at such time.
Change in Control Severance Benefits If there is a Change in Control, and within one (1) year of such Change in Control, the Executive’s employment is terminated under the circumstances described in Sections 4(a) through 4(f) above, the Executive shall be entitled to the following: (I) if such termination is a termination by the Company without Cause pursuant to Section 4(a) or the Executive resigns for Good Reason pursuant to Section 4(b), the Company shall pay the Executive the Accrued Obligations and, in addition, subject to the provisions of Section 19, (A) an amount equal to twenty-four (24) months of the Executive’s Base Salary at the rate in effect on the date of termination or resignation, payable in a lump sum within sixty (60) calendar days of the date of termination or resignation; and (B) provided the Executive timely elects continuation coverage under COBRA, the Company shall also pay, on the Executive’s behalf, the portion of monthly premiums for the Executive’s group health insurance, including coverage for the Executive’s dependents, that the Company paid immediately prior to the date of termination or resignation, during the eighteen (18) month period following the date of termination or resignation, subject to the Executive’s continued eligibility for COBRA coverage. The Company will pay for such COBRA coverage for eligible dependents only for those dependents who were enrolled immediately prior to the date of termination or resignation. The Executive will continue to be required to pay that portion of the premium for the Executive’s health coverage, including coverage for the Executive’s eligible dependents, that the Executive was required to pay as an active employee immediately prior to the date of termination or resignation. Notwithstanding the foregoing, in the event that under applicable guidance the reimbursement of COBRA premiums causes the Company’s group health plan to violate any applicable nondiscrimination rule, the parties agree to negotiate in good faith a mutually agreeable alternative arrangement; and (II) if such termination is a termination or resignation under the circumstances described in Sections 4(c), 4(d), 4(e) or 4(f), the Executive shall be entitled to the compensation and benefits for which the Executive is eligible under such sections.
Termination Benefits (a) Upon the occurrence of a Change in Control, followed at any time during the term of this Agreement by the involuntary termination of the Executive’s employment (other than for Termination for Cause or death), or by the Executive for Good Reason, the Employers shall:
(i) pay the Executive, or in the event of his subsequent death, his beneficiary or beneficiaries, or his estate, as the case may be, a lump sum payment within thirty (30) days of the Date of Termination an amount equal to three (3) times the Executive’s average annual compensation for the five most recent taxable years that the Executive has been employed by the Employers or such lesser number of years in the event that the Executive shall have been employed by the Employers for less than five years. For this purpose, annual compensation shall include base salary and any other taxable income, including, but not limited to, amounts related to the granting, vesting or exercise of restricted stock or stock option awards, commissions, bonuses, pension and profit sharing plan contributions or benefits (whether or not taxable), severance payments, retirement benefits, and fringe benefits paid or to be paid to the Executive or paid for the Executive’s benefit during any such year; and
(ii) cause to be continued life insurance and non-taxable medical, dental and disability coverage substantially identical to the coverage maintained by the Employers for the Executive prior to his Date of Termination, except to the extent such coverage may be changed in its application to all employees on a nondiscriminatory basis. Such coverage and payments shall cease upon the expiration of thirty-six (36) full calendar months from the Date of Termination.
(b) Notwithstanding the foregoing, to the extent required to avoid penalties under Section 409A of the Code, the cash severance payable under Section 3 of this Agreement shall be delayed until the first day of the seventh month following the Executive’s Date of Termination.
(c) For purposes of this Agreement, a “termination of employment” shall mean a “Separation from Service” as defined in Section 409A of the Code and the regulations promulgated thereunder, such that the Employers and the Executive reasonably anticipate that the level of bona fide services the Executive would perform after a termination of employment would permanently decrease to a level that is less than 50% of the average level of bona fide services performed (whether as an employee or as an independent contractor) over the immediately preceding thirty-six (36) month period.