Separation Payments. Except to the extent provided in Section 5.09 and Section 5.18, Executive shall be entitled to the benefits set forth below (the “Separation Benefits”) upon a termination of employment: (a) Upon any termination of employment including by reason of death or Disability, Executive’s voluntary termination of employment (with or without Good Reason) or upon involuntary termination of Executive’s employment by the Company, Executive shall be entitled to: (i) Executive’s earned but unpaid Base Salary and other vested but unpaid cash entitlements (including any earned but unpaid cash Annual Bonus for the performance year prior to the year in which Executive terminates employment) for the period through and including the date of termination of Executive’s employment (other than entitlements referenced in Section 3.02(b) below) (the “Accrued Compensation”); and (ii) Executive’s other vested benefits earned by Executive for the period through and including the date of Executive’s termination of employment, which shall be paid in accordance with the terms of the applicable plans, programs or arrangements (the “Accrued Benefits”). (b) Upon a Qualifying Event, the Company shall pay Executive in addition to the amounts set forth in Section 3.02(a) above: (i) Cash compensation through the second anniversary of such Qualifying Event (the “Payment Period”) in equal installments during the Payment Period in accordance with the applicable Company payroll, in an aggregate amount equal to two times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment (such payment, the “Cash Severance Payment”), on the condition that Executive has delivered to the Company a release substantially in the form as attached hereto as Exhibit A (with such changes as may be required under applicable law) of any employment-related claims, provided that this release must be signed within 30 days after the Executive’s separation from service and any payment that otherwise would be made within such 30-day period shall by paid at the expiration of such 30-day period, subject to Executive’s execution of such release; provided, however, that if Executive experiences a Qualifying Event within two years following a Change in Control, the Cash Severance Payment shall instead be an aggregate amount equal to two-and-a-half times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment. (ii) A “Pro-Rata Bonus Amount” for the year of Executive’s termination of employment calculated as Executive’s Annual Bonus opportunity multiplied by a fraction, the numerator of which is the number of days in the year through the date of Executive’s termination of employment and the denominator of which is 365. The Pro-Rata Bonus Amount shall be based on the greater of Executive’s Annual Bonus opportunity at target and the actual funding percentage for the Annual Bonus Plan for such performance period, as determined by the Committee in its sole discretion. Payment of this pro-rata bonus amount, if any, shall be made to Executive at the same time as annual bonuses are paid to senior executives of the Company; (iii) With respect to equity awards made prior to the Effective Date, Executive shall be treated as eligible for ‘retirement’ under the vesting and exercise terms of any such equity award. For the avoidance of doubt, ‘retirement’ treatment for equity awards made prior to the Effective Date shall mean: (1) with respect to restricted stock units (excluding the Closing Sign-On Equity Award), performance stock units and any LTIP awards, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period) and settlement on the originally scheduled settlement date; and (2) with respect to stock options and stock appreciation rights, immediate vesting in that portion of the stock option and/or stock appreciation right that would have otherwise vested within one year following Executive’s termination of employment date and the ability to exercise such stock option and/or stock appreciation right for five years following Executive’s termination of employment date; provided, however, that Executive shall not be permitted to exercise any stock option or stock appreciation right beyond the original term of such award. Notwithstanding the foregoing, this Section 3.02(b)(iii) shall not apply to the Closing Sign-On Equity Award or equity awards granted following the Effective Date; (iv) With respect to Company equity awards granted following the Effective Date, Executive shall be treated as ‘retirement’ eligible under the vesting and exercise terms of the applicable award agreements relating to Company awards generally applicable to senior-level executives of the Company; and (v) Continued participation in all medical, health and life insurance plans at the same benefit and cost sharing level at which Executive and Executive’s eligible dependents were participating on the date of termination of Executive’s employment until the earlier of: (1) the 18- month anniversary of Executive’s termination of employment date; or (2) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-bycoverage, or benefit-by- benefit, basis); provided, however, that (A) if Executive is precluded from continuing Executive’s participation in any employee benefit plan or program as provided in this clause (v), Executive shall receive cash payments equal on an aftertax basis to the cost to Executive of obtaining the benefits provided under the plan or program in which Executive is unable to participate for the period specified in this clause (v), (B) such cost shall be deemed to be the lowest reasonable cost that would be incurred by Executive in obtaining such benefit on an individual basis, and (C) payment of such amounts shall be made quarterly in advance. For the avoidance of doubt, Executive acknowledges and agrees that Executive shall be responsible for Executive’s portion of any premiums due in connection with Executive’s continued participation in any medical, health and life insurance plans pursuant to this Section 3.02(b)(v). To the extent that Executive is a “Specified Employee” within the meaning of Section 409A of the Code at the time of her separation from service, to the extent required by Section 409A and the regulations issued thereunder, the payments to which Executive would otherwise be entitled during the first six months following her separation of service shall be deferred and accumulated for a period of six months and paid in a lump sum on the first day of the seventh month with the seventh month’s payment, with interest on such deferred compensation at the rate paid pursuant to the stable value fund of the Company’s 401(k) plan or, if such fund no longer exists, the fund with the investment criteria most clearly comparable to that of such fund. (c) For the avoidance of doubt and consistent with the applicable award agreements, equity awards made by Aetna before the Closing Effective Date, the Closing Sign-On Equity Award, 2018-2020 LTIP and any supplemental LTIP with respect to the 2018-2020 performance period shall be treated as follows: (1) upon an involuntary termination of Executive’s employment by reason of death, unvested awards shall become immediately vested (with any performance criteria deemed achieved based on target performance as of Executive’s death); and (2) upon an involuntary termination of Executive’s employment by reason of Disability, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period); provided that in each case stock options shall remain exercisable for one year following Executive’s termination of employment date, except that Executive shall not be permitted to exercise any stock option beyond the original term of such award. (d) If Executive experiences a Qualifying Event within two years following a Change in Control, any outstanding equity awards held by Executive at such time shall be treated in accordance with the terms of the applicable award agreement governing such equity awards.
Appears in 1 contract
Separation Payments. Except to the extent provided in Section 5.09 In consideration of your release and Section 5.18, Executive shall be entitled to the benefits waiver of claims set forth below in paragraph 3 below, and subject to your execution and non-revocation of this Agreement, as well as your continued compliance with the obligations set forth in paragraphs 9, 10 and 11 below, the Company will provide you (or your estate in the event of your death) with severance benefits (collectively, with the amounts payable as a result of subparagraph (a), the “Separation BenefitsConsideration”) upon a termination of employment:
(a) Upon any termination of employment including by reason of death or Disability, Executive’s voluntary termination of employment (with or without Good Reason) or upon involuntary termination of Executive’s employment by the Company, Executive shall be entitled toconsisting of:
(i) ExecutiveContinued payment of your base salary (at an annual rate of $414,544) through July 28, 2014, to be paid in accordance with the Company’s earned but unpaid Base Salary and other vested but unpaid cash entitlements (including any earned but unpaid cash Annual Bonus for the performance year prior to the year in which Executive terminates employment) for the period through and including the date of termination of Executive’s employment (other than entitlements referenced in Section 3.02(b) below) (the “Accrued Compensation”); andregular payroll practices;
(ii) Executive’s other vested benefits earned by Executive for Payment of an annual bonus in respect of the period through and including the date of Executive’s termination of employment, which shall 2012 fiscal year in an amount to be paid determined in accordance with the terms of the applicable plans, programs or arrangements Company’s 2012 annual bonus plan (as in effect as of the “Accrued Benefits”).
(bdate hereof) Upon a Qualifying Event, the Company shall pay Executive in addition without regard to the amounts set forth in Section 3.02(a) above:
(i) Cash compensation through the second anniversary of such Qualifying Event (the “Payment Period”) in equal installments during the Payment Period in accordance with the applicable Company payroll, in an aggregate amount equal to two times the sum of (y) the highest Base Salary in effect during the six-month period immediately fact that your employment will have terminated prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment (such paymentpayment date, the “Cash Severance Payment”), on the condition that Executive has delivered to the Company a release substantially in the form as attached hereto as Exhibit A (with such changes as may be required under applicable law) of any employment-related claims, provided that this release must be signed within 30 days after the Executive’s separation from service and any payment that otherwise would be made within such 30-day period shall by paid at the expiration of such 30-day period, subject to Executive’s execution of such release; provided, however, that if Executive experiences a Qualifying Event within two years following a Change in Control, the Cash Severance Payment shall instead be an aggregate amount equal to two-and-a-half times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment.
(ii) A “Pro-Rata Bonus Amount” for the year of Executive’s termination of employment calculated as Executive’s Annual Bonus opportunity multiplied by a fraction, the numerator of which is the number of days in the year through the date of Executive’s termination of employment and the denominator of which is 365. The Pro-Rata Bonus Amount shall be based on the greater of Executive’s Annual Bonus opportunity at target and the actual funding percentage for the Annual Bonus Plan for such performance period, as determined by the Committee in its sole discretion. Payment of this pro-rata bonus amount, if any, shall be made to Executive at the same time as annual bonuses in respect of the 2012 fiscal year are paid to other senior executives of the Company;
(iii) With respect Payment of an amount equal to equity awards made prior to $496,909, which the Effective Date, Executive shall be treated as eligible for ‘retirement’ under parties agree is the vesting and exercise terms of any such equity award. For the avoidance of doubt, ‘retirement’ treatment for equity awards made prior to the Effective Date shall mean: (1) with respect to restricted stock units (excluding the Closing Sign-On Equity Award), performance stock units and any LTIP awards, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as average of the end annual bonuses you received in respect of the applicable performance period) 2009, 2010 and settlement on the originally scheduled settlement date; and (2) with 2011 fiscal years, to be paid at such times as annual bonuses in respect to stock options and stock appreciation rights, immediate vesting in that portion of the stock option and/or stock appreciation right that would have otherwise vested within one 2013 fiscal year following Executive’s termination are paid to other senior executives of employment date and the ability to exercise such stock option and/or stock appreciation right for five years following Executive’s termination of employment date; provided, however, that Executive shall not be permitted to exercise any stock option or stock appreciation right beyond the original term of such award. Notwithstanding the foregoing, this Section 3.02(b)(iii) shall not apply to the Closing Sign-On Equity Award or equity awards granted following the Effective DateCompany;
(iv) With respect Options to Company equity awards granted following the Effective Date, Executive shall be treated as ‘retirement’ eligible under the vesting and exercise terms of the applicable award agreements relating to Company awards generally applicable to senior-level executives of the Company; and
(v) Continued participation in all medical, health and life insurance plans at the same benefit and cost sharing level at which Executive and Executive’s eligible dependents were participating on the date of termination of Executive’s employment until the earlier of: (1) the 18- month anniversary of Executive’s termination of employment date; or (2) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-bycoverage, or benefit-by- benefit, basis); provided, however, that (A) if Executive is precluded from continuing Executive’s participation in any employee benefit plan or program as provided in this clause (v), Executive shall receive cash payments equal on an aftertax basis to the cost to Executive of obtaining the benefits provided under the plan or program in which Executive is unable to participate for the period specified in this clause (v), (B) such cost shall be deemed to be the lowest reasonable cost that would be incurred by Executive in obtaining such benefit on an individual basis, and (C) payment of such amounts shall be made quarterly in advance. For the avoidance of doubt, Executive acknowledges and agrees that Executive shall be responsible for Executive’s portion of any premiums due in connection with Executive’s continued participation in any medical, health and life insurance plans pursuant to this Section 3.02(b)(v). To the extent that Executive is a “Specified Employee” within the meaning of Section 409A of the Code at the time of her separation from service, to the extent required by Section 409A and the regulations issued thereunder, the payments to which Executive would otherwise be entitled during the first six months following her separation of service shall be deferred and accumulated for a period of six months and paid in a lump sum on the first day of the seventh month with the seventh month’s payment, with interest on such deferred compensation at the rate paid pursuant to the stable value fund purchase shares of the Company’s 401(kcommon stock, par value $0.01 per share (“Options”) plan or, if such fund no longer exists, the fund with the investment criteria most clearly comparable and shares of restricted common stock (“Restricted Stock”) previously granted to you that of such fund.
(c) For the avoidance of doubt and consistent with the applicable award agreements, equity awards made by Aetna before the Closing Effective Date, the Closing Sign-On Equity Award, 2018-2020 LTIP and any supplemental LTIP with respect to the 2018-2020 performance period shall be treated as follows: (1) upon an involuntary termination of Executive’s employment by reason of death, are unvested awards shall become immediately vested (with any performance criteria deemed achieved based on target performance as of Executive’s death); and (2) upon an involuntary termination of Executive’s employment by reason of Disability, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period); provided that in each case stock options shall remain exercisable for one year following Executive’s termination of employment date, except that Executive shall not be permitted Notice Date will continue to exercise any stock option beyond the original term of such award.
(d) If Executive experiences a Qualifying Event within two years following a Change in Control, any outstanding equity awards held by Executive at such time shall be treated vest in accordance with the terms of the applicable award agreement governing agreements until August 1, 2015 (as if you remained employed through such equity awardsdate), and all of your vested Options shall expire on the earlier of (A) the expiration date of the Options as set forth in the applicable award agreements (without regard to your termination), or (B) October 30, 2015; and
(v) To the extent permitted by applicable law without any penalty to you or any member of the Company Group and subject to your election of COBRA continuation coverage under the Company’s group health plan, on the first regularly scheduled payroll date of each month during the eighteen (18) month period immediately following the Termination Date, the Company will pay you an amount equal to your monthly COBRA premium cost; provided, that the payments pursuant to this clause (v) shall cease earlier than the expiration of such eighteen (18) month period in the event that you become eligible to receive any employer-provided health benefits, including through a spouse’s employer, during such period.
Appears in 1 contract
Sources: Separation and Release Agreement (Mueller Industries Inc)
Separation Payments. Except to In consideration of the extent provided in Section 5.09 and Section 5.18, Executive shall be entitled to the benefits covenants set forth below herein and the Effective Date and the Re-Execution Effective Date, the Company will provide you with the following payments and benefits (collectively, the “Separation BenefitsPayments”) upon a termination of employment:):
(a) Upon any termination an aggregate amount of employment including by reason $1,577,000 (the “Severance”), less all applicable withholdings and authorized or required deductions, which will be paid to you in installments, with the first installment of death or Disability$788,500 paid on the sixtieth (60th) calendar day following the Separation Date (provided that the Re-Execution Effective Date occurs), Executive’s voluntary termination and the remaining $788,500 paid in installments of employment $197,125 on each of the three, four, five and six month anniversaries of the Separation Date;
(with or without Good Reasonb) or upon involuntary termination of Executive’s employment by to the extent you timely elect COBRA continuation coverage under the Company’s group insurance plans, Executive shall be entitled to:
the Company will reimburse you for the amount of COBRA continuation premiums (less required co-pay) until the earlier of (i) Executive12 months following the Separation Date and (ii) such time as you are no longer eligible for COBRA continuation coverage (with you being required to notify the Company within one week after becoming eligible for group medical coverage from another employer);
(c) the Company will reimburse you for (i) financial counseling services for 12 months following the Separation Date, subject to a maximum benefit of $30,000, and (ii) outplacement counseling services for 12 months following the Separation Date, subject to a maximum benefit of $30,000. You will be responsible for selecting any financial counseling advisors and any outplacement services providers;
(d) the option to purchase 66,000 shares of the Company’s earned but unpaid Base Salary Common Stock that was granted to you under the Company’s Management Incentive Plan and the Stock Option Award Agreement thereunder, dated as of May 4, 2017 (the “Option Agreement”), will fully vest on the Separation Date and will remain exercisable until it expires on the second anniversary of the Separation Date;
(e) at your election as indicated on the signature page hereto (provided that the Re-Execution Effective Date occurs), either (i) a cash payment of $155,540, less all applicable withholdings and authorized or required deductions, or (ii) 22,000 shares of the Company’s Common Stock, paid or delivered, as applicable, on the sixtieth (60th) calendar day following the Separation Date; provided that such shares, if applicable, may not be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise transferred in any manner, other vested but unpaid cash entitlements (including any earned but unpaid cash Annual Bonus for than by will or the performance year laws of descent or distribution, prior to the year in which Executive terminates employment) for third anniversary of the period through and including the date of termination of Executive’s employment (other than entitlements referenced in Section 3.02(b) below) (the “Accrued Compensation”)Separation Date; and
(iif) Executivein the event that a Change of Control (as defined in the Company’s other vested benefits earned by Executive for the period through and including the date of Executive’s termination of employmentManagement Incentive Plan) occurs on or prior to October 27, which shall be paid in accordance with the terms of the applicable plans, programs or arrangements (the “Accrued Benefits”).
(b) Upon a Qualifying Event2018, the Company shall pay Executive in addition to the amounts set forth in Section 3.02(a) above:
(i) Cash compensation through the second anniversary of such Qualifying Event (the “Payment Period”) in equal installments during the Payment Period in accordance with the applicable Company payroll, in an aggregate amount equal to two times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment (such payment, the “Cash Severance Payment”), on the condition that Executive has delivered to the Company a release substantially in the form as attached hereto as Exhibit A (with such changes as may be required under applicable law) of any employment-related claims, provided that this release must be signed within 30 days after the Executive’s separation from service and any payment that otherwise would be made within such 30-day period shall by paid at the expiration of such 30-day period, subject to Executive’s execution of such release; provided, however, that if Executive experiences a Qualifying Event within two years following a Change in Control, the Cash Severance Payment shall instead be an aggregate amount equal to two-and-a-half times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment.
(ii) A “Pro-Rata Bonus Amount” for the year of Executive’s termination of employment calculated as Executive’s Annual Bonus opportunity multiplied by a fraction, the numerator of which is the number of days in the year through the date of Executive’s termination of employment and the denominator of which is 365. The Pro-Rata Bonus Amount shall be based on the greater of Executive’s Annual Bonus opportunity at target and the actual funding percentage for the Annual Bonus Plan for such performance period, as determined by the Committee in its sole discretion. Payment of this pro-rata bonus amount, if any, shall be made to Executive at the same time as annual bonuses are paid to senior executives of the Company;
(iii) With respect to equity awards made prior to the Effective Date, Executive shall be treated as eligible for ‘retirement’ under the vesting and exercise terms of any such equity award. For the avoidance of doubt, ‘retirement’ treatment for equity awards made prior to the Effective Date shall mean: (1) with respect to restricted stock units (excluding the Closing Sign-On Equity Award), performance stock units and any LTIP awards, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period) and settlement on the originally scheduled settlement date; and (2) with respect to stock options and stock appreciation rights, immediate vesting in that portion of the stock option and/or stock appreciation right that would have otherwise vested within one year following Executive’s termination of employment date and the ability to exercise such stock option and/or stock appreciation right for five years following Executive’s termination of employment date; provided, however, that Executive shall not be permitted to exercise any stock option or stock appreciation right beyond the original term of such award. Notwithstanding the foregoing, this Section 3.02(b)(iii) shall not apply to the Closing Sign-On Equity Award or equity awards granted following the Effective Date;
(iv) With respect to Company equity awards granted following the Effective Date, Executive shall be treated as ‘retirement’ eligible under the vesting and exercise terms of the applicable award agreements relating to Company awards generally applicable to senior-level executives of the Company; and
(v) Continued participation in all medical, health and life insurance plans at the same benefit and cost sharing level at which Executive and Executive’s eligible dependents were participating on the date of termination of Executive’s employment until the earlier of: (1) the 18- month anniversary of Executive’s termination of employment date; or (2) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-bycoverage, or benefit-by- benefit, basis); provided, however, that (A) if Executive is precluded from continuing Executive’s participation in any employee benefit plan or program as provided in this clause (v), Executive shall receive cash payments equal on an aftertax basis to the cost to Executive of obtaining the benefits provided under the plan or program in which Executive is unable to participate for the period specified in this clause (v), (B) such cost shall be deemed to be the lowest reasonable cost that would be incurred by Executive in obtaining such benefit on an individual basis, and (C) payment of such amounts shall be made quarterly in advance. For the avoidance of doubt, Executive acknowledges and agrees that Executive shall be responsible for Executive’s portion of any premiums due in connection with Executive’s continued participation in any medical, health and life insurance plans pursuant to this Section 3.02(b)(v). To the extent that Executive is a “Specified Employee” within the meaning of Section 409A of the Code at the time of her separation from service, to the extent required by Section 409A and the regulations issued thereunder, the payments to which Executive would otherwise be entitled during the first six months following her separation of service shall be deferred and accumulated for a period of six months and paid in a lump sum on the first day of the seventh month with the seventh month’s payment, with interest on such deferred compensation at the rate paid pursuant to the stable value fund 44,000 shares of the Company’s 401(kCommon Stock covered by the award of restricted stock units granted to you under the Company’s Management Incentive Plan and the Restricted Stock Unit Award Agreement thereunder, dated as of May 4, 2017 (the “RSU Agreement”), that were scheduled to vest in installments of 22,000 shares on May 4, 2019 and 22,000 shares on May 4, 2020 will immediately be 100% vested. This arrangement supersedes Section 2(c) plan orof the RSU Agreement, if such fund no longer existswhich would provide for immediate forfeiture of the unvested restricted stock units upon the Separation Date. For clarity, you will not be eligible to vest in the fund with 22,000 shares covered by the investment criteria most clearly comparable RSU Agreement that were scheduled to that of such fund.
(c) For the avoidance of doubt and consistent with the applicable award agreements, equity awards made by Aetna before the Closing Effective Date, the Closing Sign-On Equity Awardvest on May 4, 2018-, and the 44,000 shares covered by the RSU Agreement that were scheduled to vest in installments on May 4 of 2019 and 2020 LTIP and any supplemental LTIP with respect to will only become vested in the 2018-2020 performance period shall be treated as follows: (1) upon an involuntary termination of Executive’s employment by reason of death, unvested awards shall become immediately vested (with any performance criteria deemed achieved based on target performance as of Executive’s death); and (2) upon an involuntary termination of Executive’s employment by reason of Disability, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period); provided event that in each case stock options shall remain exercisable for one year following Executive’s termination of employment date, except that Executive shall not be permitted to exercise any stock option beyond the original term of such award.
(d) If Executive experiences a Qualifying Event within two years following a Change in Controlof Control occurs on or prior to October 27, any outstanding equity awards held by Executive at such time shall be treated in accordance with the terms of the applicable award agreement governing such equity awards2018.
Appears in 1 contract
Separation Payments. Except to the extent provided in Section 5.09 and Section 5.18, Executive shall be entitled to the benefits set forth below (the “Separation Benefits”) upon a termination of employment:
(a) Upon any termination of employment including by reason of death or Disability, ExecutiveIn exchange for Employee’s voluntary termination of employment (with or without Good Reason) or upon involuntary termination of Executive’s employment by the Company, Executive shall be entitled to:
(i) Executive’s earned but unpaid Base Salary and other vested but unpaid cash entitlements (including any earned but unpaid cash Annual Bonus for the performance year prior to the year in which Executive terminates employment) for the period through and including the date of termination of Executive’s employment (other than entitlements referenced in Section 3.02(b) below) (the “Accrued Compensation”); and
(ii) Executive’s other vested benefits earned by Executive for the period through and including the date of Executive’s termination of employment, which shall be paid in accordance with the terms of this Release, the applicable plans, programs or arrangements Company agrees to provide the following (collectively the “Accrued BenefitsSeparation Payments”)):
(a) Employee may keep the MacBook Pro Laptop provided to him for use during his employment, as well as the golf clubs provided to Employee through the Officer Club Program. All Company information shall be wiped from the laptop prior to release to Employee. In addition, the Company cell phone number used by Employee while employed at the Company will be transferred to Employee following his final date of employment. If a cell phone (Company or personal) utilized by Employee has any Company information on it, all Company information shall be wiped from the phone on the final date of employment. These items are referred to herein collectively as the “Release Payment”.
(b) Upon a Qualifying EventAnnual incentive payment for calendar year 2019, the Company shall pay Executive in addition to the amounts set forth in Section 3.02(a) above:
(i) Cash compensation through the second anniversary of such Qualifying Event (the “Payment Period”) in equal installments during the Payment Period in accordance with the applicable Company payroll, in an aggregate amount equal to two times the sum of (y) the highest Base Salary in effect during the sixpro-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity rated for the period January 1, 2019 through August 30, 2019, at the incentive target percentage rate of 55% of Employee’s 2019 annual base salary, should an annual incentive payment be made to all other then-current officers of the Company. Actual incentive payout will be calculated and adjusted based upon final calendar year corporate financial results relative to pre-determined performance metrics and associated payout modifiers at each level of termination of employment (such paymentperformance, the “Cash Severance Payment”), on the condition that Executive has delivered to the Company a release substantially and may result in the form as attached hereto as Exhibit A (with such changes as may be required under applicable law) of any employment-related claims, provided that this release must be signed within 30 days after final amount being lower or higher than the Executive’s separation from service and any payment that otherwise would be made within such 30-day period shall by paid at the expiration of such 30-day period, subject to Executive’s execution of such release; provided, however, that if Executive experiences a Qualifying Event within two years following a Change in Control, the Cash Severance Payment shall instead be an aggregate amount equal to two-and-a-half times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s stated target Annual Bonus opportunity for the year of termination of employment.
(ii) A “Pro-Rata Bonus Amount” for the year of Executive’s termination of employment calculated as Executive’s Annual Bonus opportunity multiplied by a fraction, the numerator of which is the number of days in the year through the date of Executive’s termination of employment and the denominator of which is 365amount. The Pro-Rata Bonus Amount shall be based on the greater of Executive’s Annual Bonus opportunity at target and the actual funding percentage for the Annual Bonus Plan for such performance period, as determined by the Committee in its sole discretion. Payment of this pro-rata bonus amountPayment, if any, shall be made to Executive at the same time as annual bonuses when all other incentive payments are paid to senior executives of the Company;
(iii) With respect to equity awards made prior to the Effective Datemade, Executive shall be treated as eligible for ‘retirement’ under the vesting and exercise terms of any such equity award. For the avoidance of doubtgenerally, ‘retirement’ treatment for equity awards made prior to the Effective Date shall mean: (1) with respect to restricted stock units (excluding the Closing Sign-On Equity Award), performance stock units and any LTIP awards, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period) and settlement on the originally scheduled settlement date; and (2) with respect to stock options and stock appreciation rights, immediate vesting in that portion of the stock option and/or stock appreciation right that would have otherwise vested within one year following Executive’s termination of employment date and the ability to exercise such stock option and/or stock appreciation right for five years following Executive’s termination of employment date; provided, however, that Executive shall not be permitted to exercise any stock option or stock appreciation right beyond the original term of such award. Notwithstanding the foregoing, this Section 3.02(b)(iii) shall not apply to the Closing Sign-On Equity Award or equity awards granted following the Effective Date;
(iv) With respect to Company equity awards granted following the Effective Date, Executive shall be treated as ‘retirement’ eligible under the vesting and exercise terms of the applicable award agreements relating to Company awards generally applicable to senior-level executives of the Company; and
(v) Continued participation in all medical, health and life insurance plans at the same benefit and cost sharing level at which Executive and Executive’s eligible dependents were participating on the date of termination of Executive’s employment until the earlier of: (1) the 18- month anniversary of Executive’s termination of employment date; or (2) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-bycoverage, or benefit-by- benefit, basis); provided, however, that (A) if Executive is precluded from continuing Executive’s participation in any employee benefit plan or program as provided in this clause (v), Executive shall receive cash payments equal on an aftertax basis to the cost to Executive of obtaining the benefits provided under the plan or program in which Executive is unable to participate for the period specified in this clause (v), (B) such cost shall be deemed to be the lowest reasonable cost that would be incurred by Executive in obtaining such benefit on an individual basis, and (C) payment of such amounts shall be made quarterly in advance. For the avoidance of doubt, Executive acknowledges and agrees that Executive shall be responsible for Executive’s portion of any premiums due in connection with Executive’s continued participation in any medical, health and life insurance plans pursuant to this Section 3.02(b)(v). To the extent that Executive is a “Specified Employee” within the meaning of Section 409A of the Code at the time of her separation from service, to the extent required by Section 409A and the regulations issued thereunder, the payments to which Executive would otherwise be entitled during the first six months following her separation quarter of service shall be deferred and accumulated for a period of six months and paid in a lump sum on the first day of the seventh month with the seventh month’s payment, with interest on such deferred compensation at the rate paid pursuant to the stable value fund of the Company’s 401(k) plan or, if such fund no longer exists, the fund with the investment criteria most clearly comparable to that of such fund2020 (“Annual Incentive Payment”).
(c) For Vesting of PSU’s granted to Employee on February 6, 2017 (Grant No. 02061703), which are scheduled to vest on February 6, 2020 (“Vested PSU’s”). The payment of any performance-based long-term incentive compensation awards shall be paid after the avoidance completion of doubt the relevant performance period and consistent with the applicable award agreementsevaluation of whether, equity awards made by Aetna before and the Closing Effective Datedegree to which, the Closing Sign-On Equity Award, 2018-2020 LTIP and any supplemental LTIP with respect to the 2018-2020 performance period shall be treated as follows: (1) upon an involuntary termination of Executive’s employment by reason of death, unvested awards shall become immediately vested (with any performance criteria deemed achieved based on target performance have been met. Except as otherwise expressly provided in Sections 4 and 5, the parties agree that each of Executive’s death); their mutual promises and (2) upon an involuntary termination of Executive’s employment by reason of Disability, pro-rated vesting obligations under this Release shall suffice as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period); provided that in each case stock options shall remain exercisable full and adequate consideration for one year following Executive’s termination of employment date, except that Executive shall not be permitted to exercise any stock option beyond the original term of such awardtheir obligations under this Release.
(d) If Executive experiences a Qualifying Event within two years following a Change in Control, any outstanding equity awards held by Executive at such time shall be treated in accordance with the terms of the applicable award agreement governing such equity awards.
Appears in 1 contract
Sources: Release of Claims (Callaway Golf Co)
Separation Payments. Except (a) In the event that the Executive's employment with the Company is terminated on or prior to March 31, 2004, by the extent provided Company without Cause or by the Executive for Good Reason, in Section 5.09 and Section 5.18addition to any other pay and/or benefits which have accrued to Executive, Executive shall be entitled to the receive separation payments and benefits set forth below (the “Separation Benefits”) upon a termination of employmentas follows:
(a1) Upon any termination continuation of employment including by reason Executive's then-effective base annual salary for the longer of: (i) the period commencing on the effective date of death or Disability, the Executive’s voluntary 's termination of employment (with or without Good Reasonthe "Termination Date") or upon involuntary termination and ending on March 31, 2004; and (ii) the period commencing on the Termination Date and ending on the one- year anniversary of Executive’s employment by the Company, Executive shall Termination Date; such salary continuation to be entitled to:paid on a semi-monthly basis in arrears for the appropriate period; plus
(i2) an amount equal to two times Executive’s earned but unpaid Base Salary and other vested but unpaid cash entitlements (including any earned but unpaid cash Annual Bonus 's target APC for the performance year prior to the year in which Executive's employment is terminated, minus any amount of APC paid or payable to Executive terminates employment) for any period on or prior to March 31, 2004. The APC shall be payable to the period through and including Executive on the dates of APC payment to other executives of the Company; it being understood that the Executive does not need to be employed by the Company on any date of termination of payment in order to receive the APC set forth in this subparagraph 8(a)(2) or in order to receive the APC earned in the year immediately preceding the year in which Executive’s 's employment (other than entitlements referenced in Section 3.02(b) below) (the “Accrued Compensation”)is terminated; andplus
(ii3) Executive’s other vested benefits earned by Executive for the period continued vesting of all equity awards through and including the date of Executive’s termination of employmentMarch 31, which shall be paid 2004 (with stock options being exercisable in accordance with the terms of stock options granted generally to executives of the applicable plansCompany, programs or arrangements but the date of termination of employment being deemed March 31, 2004); plus
(4) full vesting of his deferred compensation benefit; plus
(5) continuation of the “Accrued Benefits”)Benefits through March 31, 2004.
(b) Upon a Qualifying Event, the Company shall pay Executive in addition Without regard to the amounts set forth in Section 3.02(a) above:
(i) Cash compensation through the second anniversary of such Qualifying Event (the “Payment Period”) in equal installments during the Payment Period in accordance with the applicable Company payroll, in an aggregate amount equal to two times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment (such payment, the “Cash Severance Payment”), on the condition that Executive has delivered to the Company a release substantially in the form as attached hereto as Exhibit A (with such changes as may be required under applicable law) of any employment-related claims, provided that this release must be signed within 30 days after the Executive’s separation from service and any payment that otherwise would be made within such 30-day period shall by paid at the expiration of such 30-day period, subject to Executive’s execution of such release; provided, however, that if Executive experiences a Qualifying Event within two years following a Change in Control, the Cash Severance Payment shall instead be an aggregate amount equal to two-and-a-half times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment.
(ii) A “Pro-Rata Bonus Amount” for the year of Executive’s termination of employment calculated as Executive’s Annual Bonus opportunity multiplied by a fraction, the numerator of which is the number of days in the year through the date of Executive’s termination of employment and the denominator of which is 365. The Pro-Rata Bonus Amount shall be based on the greater of Executive’s Annual Bonus opportunity at target and the actual funding percentage for the Annual Bonus Plan for such performance period, as determined by the Committee in its sole discretion. Payment of this pro-rata bonus amount, if any, shall be made to Executive at the same time as annual bonuses are paid to senior executives of the Company;
(iii) With respect to equity awards made prior to the Effective Date, Executive shall be treated as eligible for ‘retirement’ under the vesting and exercise terms of any such equity award. For the avoidance of doubt, ‘retirement’ treatment for equity awards made prior to the Effective Date shall mean: (1) with respect to restricted stock units (excluding the Closing Sign-On Equity Award), performance stock units and any LTIP awards, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance periodterm under 2 above, in the event that the Executive's employment with the Company is terminated on or after April 1, 2004, by the Company without Cause, in addition to any other pay and/or benefits which have accrued to Executive, Executive shall receive separation payments and benefits as follows:
(1) and settlement continuation of Executive's then-effective base annual salary for the period commencing on the originally scheduled settlement dateTermination Date and ending on the one-year anniversary of the Termination Date, paid on a semi-monthly basis in arrears; and plus
(2) with respect to stock options and stock appreciation rights, immediate vesting one times Executive's target APC for the year in that portion of the stock option and/or stock appreciation right that would have otherwise vested within one year following which Executive’s termination of 's employment date and the ability to exercise such stock option and/or stock appreciation right for five years following Executive’s termination of employment date; provided, however, that Executive is terminated. APC shall not be permitted to exercise any stock option or stock appreciation right beyond the original term of such award. Notwithstanding the foregoing, this Section 3.02(b)(iii) shall not apply payable to the Closing Sign-On Equity Award or equity awards granted following Executive on the Effective Date;
(iv) With respect dates of APC payment to Company equity awards granted following the Effective Date, Executive shall be treated as ‘retirement’ eligible under the vesting and exercise terms of the applicable award agreements relating to Company awards generally applicable to senior-level other executives of the Company; andit being understood that the Executive does not need to be employed by the Company on any date of payment in order to receive the APC set forth in this subparagraph 8(b)(2) or in order to receive the APC earned in the year immediately preceding the year in which Executive's employment is terminated; plus
(v3) Continued participation in continued vesting of all medical, health and life insurance plans at equity awards through the same benefit and cost sharing level at which Executive and Executive’s eligible dependents were participating on the date of termination of Executive’s employment until the earlier of: (1) the 18- month one-year anniversary of Executive’s termination of employment date; or (2) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-bycoverage, or benefit-by- benefit, basis); provided, however, that (A) if Executive is precluded from continuing Executive’s participation in any employee benefit plan or program as provided in this clause (v), Executive shall receive cash payments equal on an aftertax basis to the cost to Executive of obtaining the benefits provided under the plan or program in which Executive is unable to participate for the period specified in this clause (v), (B) such cost shall be deemed to be the lowest reasonable cost that would be incurred by Executive in obtaining such benefit on an individual basis, and (C) payment of such amounts shall be made quarterly in advance. For the avoidance of doubt, Executive acknowledges and agrees that Executive shall be responsible for Executive’s portion of any premiums due in connection with Executive’s continued participation in any medical, health and life insurance plans pursuant to this Section 3.02(b)(v). To the extent that Executive is a “Specified Employee” within the meaning of Section 409A of the Code at the time of her separation from service, to the extent required by Section 409A and the regulations issued thereunder, the payments to which Executive would otherwise be entitled during the first six months following her separation of service shall be deferred and accumulated for a period of six months and paid in a lump sum on the first day of the seventh month with the seventh month’s payment, with interest on such deferred compensation at the rate paid pursuant to the stable value fund of the Company’s 401(k) plan or, if such fund no longer exists, the fund with the investment criteria most clearly comparable to that of such fund.
(c) For the avoidance of doubt and consistent with the applicable award agreements, equity awards made by Aetna before the Closing Effective Date, the Closing Sign-On Equity Award, 2018-2020 LTIP and any supplemental LTIP with respect to the 2018-2020 performance period shall be treated as follows: (1) upon an involuntary termination of Executive’s employment by reason of death, unvested awards shall become immediately vested Termination Date (with any performance criteria deemed achieved based on target performance as of Executive’s death); and (2) upon an involuntary termination of Executive’s employment by reason of Disability, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period); provided that in each case stock options shall remain being exercisable for one year following Executive’s termination of employment date, except that Executive shall not be permitted to exercise any stock option beyond the original term of such award.
(d) If Executive experiences a Qualifying Event within two years following a Change in Control, any outstanding equity awards held by Executive at such time shall be treated in accordance with the terms of stock options granted generally to executives of the applicable award agreement governing such equity awardsCompany, but the date of termination of employment being deemed the one-year anniversary of the Termination Date); plus
(4) full vesting of his deferred compensation benefit; plus
(5) continuation of the Benefits through the one-year anniversary of the Termination Date.
(c) If Executive becomes reemployed with the Company prior to the end of the period during which he receives salary continuation pursuant to 8(a) or 8(b) above, the payments set forth in subparagraphs 8(a) or 8(b) shall cease immediately and irrevocably and Executive shall receive only remuneration from the Company in connection with Executive's new position.
Appears in 1 contract
Separation Payments. Except In consideration of Employee's agreement to the extent provided in Section 5.09 and Section 5.18terms of this Agreement, Executive shall be entitled Company will pay Employee the following amounts (the "Separation Payments"):
a. Company will continue to pay to Employee an amount equal to the benefits set forth below (Employee's base salary of $8,333.33 semi-monthly as in effect under the “Separation Benefits”) upon a termination of employment:
(a) Upon any termination of employment including by reason of death or DisabilityEmployment Agreement until December 31, Executive’s voluntary termination of employment (with or without Good Reason) or upon involuntary termination of Executive’s employment by the Company, Executive 2003. Such base salary shall be entitled to:
(i) Executive’s earned but unpaid Base Salary and other vested but unpaid cash entitlements (including any earned but unpaid cash Annual Bonus for the performance year prior continue to the year in which Executive terminates employment) for the period through and including the date of termination of Executive’s employment (other than entitlements referenced in Section 3.02(b) below) (the “Accrued Compensation”); and
(ii) Executive’s other vested benefits earned by Executive for the period through and including the date of Executive’s termination of employment, which shall be paid in accordance with the terms prevailing payroll schedule for Company executives, subject to applicable tax withholdings and other withholdings required by law, provided that the first payment will not be made any earlier than the eighth (8th) day following the date Employee executes this Agreement.
b. On January 1, 2004, or the eighth (8th) day following the date Employee executes this Agreement, whichever comes last, Company shall pay to Employee, in a lump sum, Seventy Thousand Dollars and 00/100 ($70,000.00), less applicable tax withholdings, representing the dollar value of the applicable plans, programs or arrangements (bonus that Employee would have otherwise been entitled to under the “Accrued Benefits”)Employment Agreement.
c. As promptly as practicable following the execution of this Agreement, and in no event later than the eighth (b8th) Upon a Qualifying Eventday following the date Employee executes this Agreement, the Company shall pay Executive in addition to the amounts set forth in Section 3.02(a) above:
(i) Cash compensation through the second anniversary of such Qualifying Event (the “Payment Period”) in equal installments during the Payment Period will, in accordance with the applicable Company's standard expense reimbursement policies, reimburse Employee for all appropriately documented travel and other Company payroll, in an aggregate amount equal to two times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity expense items submitted by Employee for the year of termination of employment (such paymentreimbursement. Thereafter, the “Cash Severance Payment”)Company will, on the condition that Executive has delivered to the Company a release substantially in the form as attached hereto as Exhibit A (with such changes as may be required under applicable law) of any employment-related claims, provided that this release must be signed within 30 days after the Executive’s separation from service and any payment that otherwise would be made within such 30-day period shall by paid at the expiration of such 30-day period, subject to Executive’s execution of such release; provided, however, that if Executive experiences a Qualifying Event within two years following a Change in Control, the Cash Severance Payment shall instead be an aggregate amount equal to two-and-a-half times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment.
(ii) A “Pro-Rata Bonus Amount” for the year of Executive’s termination of employment calculated as Executive’s Annual Bonus opportunity multiplied by a fraction, the numerator of which is the number of days in the year through the date of Executive’s termination of employment and the denominator of which is 365. The Pro-Rata Bonus Amount shall be based on the greater of Executive’s Annual Bonus opportunity at target and the actual funding percentage for the Annual Bonus Plan for such performance period, as determined by the Committee in its sole discretion. Payment of this pro-rata bonus amount, if any, shall be made to Executive at the same time as annual bonuses are paid to senior executives of the Company;
(iii) With respect to equity awards made prior to the Effective Date, Executive shall be treated as eligible for ‘retirement’ under the vesting and exercise terms of any such equity award. For the avoidance of doubt, ‘retirement’ treatment for equity awards made prior to the Effective Date shall mean: (1) with respect to restricted stock units (excluding the Closing Sign-On Equity Award), performance stock units and any LTIP awards, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period) and settlement on the originally scheduled settlement date; and (2) with respect to stock options and stock appreciation rights, immediate vesting in that portion of the stock option and/or stock appreciation right that would have otherwise vested within one year following Executive’s termination of employment date and the ability to exercise such stock option and/or stock appreciation right for five years following Executive’s termination of employment date; provided, however, that Executive shall not be permitted to exercise any stock option or stock appreciation right beyond the original term of such award. Notwithstanding the foregoing, this Section 3.02(b)(iii) shall not apply to the Closing Sign-On Equity Award or equity awards granted following the Effective Date;
(iv) With respect to Company equity awards granted following the Effective Date, Executive shall be treated as ‘retirement’ eligible under the vesting and exercise terms of the applicable award agreements relating to Company awards generally applicable to senior-level executives of the Company; and
(v) Continued participation in all medical, health and life insurance plans at the same benefit and cost sharing level at which Executive and Executive’s eligible dependents were participating on the date of termination of Executive’s employment until the earlier of: (1) the 18- month anniversary of Executive’s termination of employment date; or (2) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-bycoverage, or benefit-by- benefit, basis); provided, however, that (A) if Executive is precluded from continuing Executive’s participation in any employee benefit plan or program as provided in this clause (v), Executive shall receive cash payments equal on an aftertax basis to the cost to Executive of obtaining the benefits provided under the plan or program in which Executive is unable to participate for the period specified in this clause (v), (B) such cost shall be deemed to be the lowest reasonable cost that would be incurred by Executive in obtaining such benefit on an individual basis, and (C) payment of such amounts shall be made quarterly in advance. For the avoidance of doubt, Executive acknowledges and agrees that Executive shall be responsible for Executive’s portion of any premiums due in connection with Executive’s continued participation in any medical, health and life insurance plans pursuant to this Section 3.02(b)(v). To the extent that Executive is a “Specified Employee” within the meaning of Section 409A of the Code at the time of her separation from service, to the extent required by Section 409A and the regulations issued thereunder, the payments to which Executive would otherwise be entitled during the first six months following her separation of service shall be deferred and accumulated for a period of six months and paid in a lump sum on the first day of the seventh month with the seventh month’s payment, with interest on such deferred compensation at the rate paid pursuant to the stable value fund of the Company’s 401(k) plan or, if such fund no longer exists, the fund with the investment criteria most clearly comparable to that of such fund.
(c) For the avoidance of doubt and consistent with the applicable award agreements, equity awards made by Aetna before the Closing Effective Date, the Closing Sign-On Equity Award, 2018-2020 LTIP and any supplemental LTIP with respect to the 2018-2020 performance period shall be treated as follows: (1) upon an involuntary termination of Executive’s employment by reason of death, unvested awards shall become immediately vested (with any performance criteria deemed achieved based on target performance as of Executive’s death); and (2) upon an involuntary termination of Executive’s employment by reason of Disability, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period); provided that in each case stock options shall remain exercisable for one year following Executive’s termination of employment date, except that Executive shall not be permitted to exercise any stock option beyond the original term of such award.
(d) If Executive experiences a Qualifying Event within two years following a Change in Control, any outstanding equity awards held by Executive at such time shall be treated in accordance with the terms Company's standard expense reimbursement policies, promptly reimburse Employee for any additional Company expenses appropriately incurred by Employee prior to December 31, 2003.
d. For the period beginning on January 1, 2004 and ending December 31, 2004, (the "Severance Period"), Company will continue to pay to Employee (or Employee's estate, in the case of his death) an amount equal to the Employee's base salary of $8,333.33 semi-monthly as in effect under the Employment Agreement as of the date hereof. Such amount shall continue to be paid in accordance with the prevailing payroll schedule for Company executives, subject to applicable award agreement governing such equity awardstax withholdings and other withholdings required by law. In addition, the Company will pay the premium for health insurance coverage during the Severance Period for Employee, his spouse, and his children under the Company's health plan in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA).
e. Employee agrees and acknowledges that, in the event the Company reasonably determines in good faith that Employee has committed a breach of this Agreement or has breached any of the provisions of the Employment Agreement that continue to remain in effect pursuant to Section 5 hereof, then the Company's obligation to make payments under Section 4(a), (b), (c), and (d) above shall immediately terminate and cease, and Employee will thereafter no longer be entitled to receive any compensation or payment from the Company.
Appears in 1 contract
Sources: Employment Separation Agreement (Liquidmetal Technologies Inc)
Separation Payments. Except Subject to the extent provided in Section 5.09 and Section 5.18, Executive shall be entitled to the benefits set forth below (the “Separation Benefits”) upon a termination of employment:
(a) Upon any termination of employment including by reason of death or Disability, Executive’s voluntary termination of employment (with or without Good Reason) or upon involuntary termination of Executive’s employment by the Company, Executive shall be entitled to:
(i) Executive’s earned but unpaid Base Salary and other vested but unpaid cash entitlements (including any earned but unpaid cash Annual Bonus for the performance year prior to the year in which Executive terminates employment) for the period through and including the date of termination of Executive’s employment (other than entitlements referenced in Section 3.02(b) below) (the “Accrued Compensation”); and
(ii) Executive’s other vested benefits earned by Executive for the period through and including the date of Executive’s termination of employment, which shall be paid in accordance with the terms of the applicable plans, programs or arrangements (the “Accrued Benefits”).
(b) Upon a Qualifying Event, the Company shall pay Executive in addition to the amounts set forth in Section 3.02(a) above:
(i) Cash compensation through the second anniversary of such Qualifying Event (the “Payment Period”) in equal installments during the Payment Period in accordance with the applicable Company payroll, in an aggregate amount equal to two times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for execution and non-revocation of the year release of termination of employment (such payment, the “Cash Severance Payment”), on the condition that Executive has delivered to claims against the Company a release substantially in the form as attached hereto as Exhibit A (with such changes as may be required under applicable lawthe “Release”) of any employment-related claims, provided that this release must be signed within 30 days after following the Resignation Date and the Executive’s separation from service and any payment that otherwise would be made within such 30-day period shall by paid at continued compliance with the expiration Restrictive Covenants in accordance with Section 12 of such 30-day period, subject to Executive’s execution of such release; provided, however, that if Executive experiences a Qualifying Event within two years following a Change in Controlthe Employment Agreement, the Cash Severance Payment Company shall instead be make the following payments in the manner and time frames described below:
(a) the prorata retention payment of $63,800 pursuant to section 9(b) of the Employment Agreement payable in a lump sum no later than 30 days following the Resignation Date;
(b) an aggregate amount equal to two-and-a-half times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior annual bonus that would have been paid to the time Executive with respect to the Company’s 2011 fiscal year pursuant to Section 4(b)(i) of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for Employment Agreement had the year of termination of employment.
(ii) A “Pro-Rata Bonus Amount” for the year of Executive’s termination of employment calculated as Executive’s Annual Bonus opportunity multiplied by a fraction, the numerator of which is the number of days in the year Executive remained employed through the date of Executive’s termination of employment and the denominator of on which is 365. The Pro-Rata Bonus Amount shall be based on the greater of Executive’s Annual Bonus opportunity at target and the actual funding percentage for the Annual Bonus Plan for such performance period, as determined by the Committee in its sole discretion. Payment of this pro-rata bonus amount, if any, shall be made to Executive at the same time as annual bonuses are paid to senior executives of the Company;
(iii) With respect Company generally, with the actual payment to equity awards made prior to be based upon the Effective Date, Executive shall be treated as eligible for ‘retirement’ under the vesting and exercise terms of any such equity award. For the avoidance of doubt, ‘retirement’ treatment for equity awards made prior to the Effective Date shall mean: (1) with respect to restricted stock units (excluding the Closing Sign-On Equity Award), performance stock units and any LTIP awards, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end achievement of the applicable performance period) goals (and settlement determined based on the originally scheduled settlement date; and (2) exercise of negative discretion no less favorable to the Executive than that exercised with respect to stock options and stock appreciation rights, immediate vesting in that portion active senior executives of the stock option and/or stock appreciation right that would have otherwise vested within one year following Executive’s termination of employment date and the ability Company generally) with such bonus to exercise such stock option and/or stock appreciation right for five years following Executive’s termination of employment datebe payable no later than March 15, 2012; provided, however, that any amount payable pursuant to the preceding clause shall be reduced by the Guaranteed Bonus Payments (as defined in the Employment Agreement), each in the amount of $43,750, that have been paid to the Executive on or about March 31, 2011 and June 30, 2011 and will be paid on or about September 30, 2011 and December 31, 2011 (which, subject to the proviso below, shall be paid as if the Executive remained employed through each such payment date), in each case pursuant to the terms and conditions of the executive retention program; provided, further, however, that the bonus payments under this Section 2(b), other than the bonus payments that would otherwise be due to the Executive under Section 9(a) of the Employment Agreement, are subject to the Executive continuing to provide services pursuant to the Consulting Agreement between the Executive and the Company, dated as of August 25, 2011 (the “Consulting Agreement”), through December 31, 2011; and
(c) to the extent unvested as of the Resignation Date, the Executive’s Initial LTIP Award shall fully vest and become non-forfeitable upon the Resignation Date, but shall be paid at such time as the Initial LTIP Award would otherwise have been paid had the Executive remained employed with the Company (the earlier of (i) immediately prior to a Change of Control or (ii) on January 26, 2012). Any payments under this Section 2 to the Executive shall not be permitted to exercise taken into account for purposes of any stock option retirement plan (including any supplemental retirement plan or stock appreciation right beyond the original term of such award. Notwithstanding the foregoing, this Section 3.02(b)(iiiarrangement) shall not apply to the Closing Sign-On Equity Award or equity awards granted following the Effective Date;
(iv) With respect to Company equity awards granted following the Effective Date, Executive shall be treated as ‘retirement’ eligible under the vesting and exercise terms of the applicable award agreements relating to Company awards generally applicable to senior-level executives of other benefit plan sponsored by the Company; and
(v) Continued participation in all medical, health and life insurance plans at the same benefit and cost sharing level at which Executive and Executive’s eligible dependents were participating on the date of termination of Executive’s employment until the earlier of: (1) the 18- month anniversary of Executive’s termination of employment date; or (2) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-bycoverage, or benefit-by- benefit, basis); provided, however, that (A) if Executive is precluded from continuing Executive’s participation in any employee benefit plan or program except as provided in this clause (v), Executive shall receive cash payments equal on an aftertax basis to the cost to Executive of obtaining the benefits provided under the plan or program in which Executive is unable to participate for the period specified in this clause (v), (B) such cost shall be deemed to be the lowest reasonable cost that would be incurred by Executive in obtaining such benefit on an individual basis, and (C) payment of such amounts shall be made quarterly in advance. For the avoidance of doubt, Executive acknowledges and agrees that Executive shall be responsible for Executive’s portion of any premiums due in connection with Executive’s continued participation in any medical, health and life insurance plans pursuant to this Section 3.02(b)(v). To the extent that Executive is a “Specified Employee” within the meaning of Section 409A of the Code at the time of her separation from service, to the extent otherwise expressly required by Section 409A and the regulations issued thereunder, the payments to which Executive would otherwise be entitled during the first six months following her separation of service shall be deferred and accumulated for a period of six months and paid in a lump sum on the first day of the seventh month with the seventh month’s payment, with interest on such deferred compensation at the rate paid pursuant to the stable value fund of the Company’s 401(k) plan or, if such fund no longer exists, the fund with the investment criteria most clearly comparable to that of such fundplans or applicable law.
(c) For the avoidance of doubt and consistent with the applicable award agreements, equity awards made by Aetna before the Closing Effective Date, the Closing Sign-On Equity Award, 2018-2020 LTIP and any supplemental LTIP with respect to the 2018-2020 performance period shall be treated as follows: (1) upon an involuntary termination of Executive’s employment by reason of death, unvested awards shall become immediately vested (with any performance criteria deemed achieved based on target performance as of Executive’s death); and (2) upon an involuntary termination of Executive’s employment by reason of Disability, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period); provided that in each case stock options shall remain exercisable for one year following Executive’s termination of employment date, except that Executive shall not be permitted to exercise any stock option beyond the original term of such award.
(d) If Executive experiences a Qualifying Event within two years following a Change in Control, any outstanding equity awards held by Executive at such time shall be treated in accordance with the terms of the applicable award agreement governing such equity awards.
Appears in 1 contract
Separation Payments. Except Pursuant to the extent provided in Section 5.09 satisfactory transition of all information and Section 5.18material requested by the Company, Executive shall be entitled the Company agrees to the benefits set forth below following:
A. The Company shall pay Employee $200,000, without any tax withholdings or other deductions (the “Separation Benefits”) upon a termination of employment:
(a) Upon any termination of employment including by reason of death or Disability, Executive’s voluntary termination of employment (with or without Good Reason) or upon involuntary termination of Executive’s employment by the Company, Executive shall be entitled to:
(i) Executive’s earned but unpaid Base Salary and other vested but unpaid cash entitlements (including any earned but unpaid cash Annual Bonus for the performance year prior to the year in which Executive terminates employment) for the period through and including the date of termination of Executive’s employment (other than entitlements referenced in Section 3.02(b) below) (the “Accrued Compensation”); and
(ii) Executive’s other vested benefits earned by Executive for the period through and including the date of Executive’s termination of employment, which shall be paid in accordance with the terms of the applicable plans, programs or arrangements (the “Accrued Benefits”).
(b) Upon a Qualifying Event, the Company shall pay Executive in addition to the amounts set forth in Section 3.02(a) above:
(i) Cash compensation through the second anniversary of such Qualifying Event (the “Payment Period”) in equal installments during the Payment Period in accordance with the applicable Company payroll, in an aggregate amount equal to two times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment (such payment, the “Cash Severance Payment”). The Separation Payment shall be delivered to Employee at this home address (71 Westland Avenue, Newton, MA 02465) in a manner to ensure that it is received by Employee within 8 calendar days of the execution of this Agreement by both Parties. Company shall issue to Employee a Form-1099 for the Separation Payment in the ordinary course of its business. The Company shall also pay Employee $10,000 for attorney’s fees in connection with this matter.
B. The Company shall also pay to Employee accrued salary of $6,557.40 through March 6, 2020, including any March contributions to the 401k plan, and unused vacation days totaling $28,415.40; each payable on the condition that Executive has delivered to next scheduled pay period.
C. If the Company a release substantially in Employee timely and properly elects COBRA continuation coverage under the form as attached hereto as Exhibit A (with such changes as may Company’s group health plan, the Employee shall only be required under applicable law) to pay active employee rates, as in effect from time to time, until September 6, 2020. At the conclusion of any employment-related claims, provided that this release must be signed within 30 days after the Executive’s separation from service and any payment that otherwise would be made within such 30-day period shall by paid at the expiration of such 30-day period, subject to Executive’s execution of such release; provided, however, that if Executive experiences a Qualifying Event within two years following a Change in Control, the Cash Severance Payment shall instead be an aggregate amount equal to two-and-a-half times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment.
(ii) A “Pro-Rata Bonus Amount” for the year of Executive’s termination of employment calculated as Executive’s Annual Bonus opportunity multiplied by a fraction, the numerator of which is the number of days in the year through the date of Executive’s termination of employment and the denominator of which is 365. The Pro-Rata Bonus Amount Employee shall be based on the greater of Executive’s Annual Bonus opportunity at target and the actual funding percentage for the Annual Bonus Plan for such performance periodeligible to continue his coverage, as determined by the Committee in its sole discretion. Payment of this pro-rata bonus amount, if any, shall be made pursuant to Executive at the same time as annual bonuses are paid to senior executives of the Company;
(iii) With respect to equity awards made prior to the Effective Date, Executive shall be treated as eligible for ‘retirement’ under the vesting and exercise terms of any such equity award. For the avoidance of doubt, ‘retirement’ treatment for equity awards made prior to the Effective Date shall mean: (1) with respect to restricted stock units (excluding the Closing Sign-On Equity Award), performance stock units and any LTIP awards, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period) and settlement on the originally scheduled settlement date; and (2) with respect to stock options and stock appreciation rights, immediate vesting in that portion of the stock option and/or stock appreciation right that would have otherwise vested within one year following Executive’s termination of employment date and the ability to exercise such stock option and/or stock appreciation right for five years following Executive’s termination of employment date; provided, however, that Executive shall not be permitted to exercise any stock option or stock appreciation right beyond the original term of such award. Notwithstanding the foregoing, this Section 3.02(b)(iii) shall not apply to the Closing Sign-On Equity Award or equity awards granted following the Effective Date;
(iv) With respect to Company equity awards granted following the Effective Date, Executive shall be treated as ‘retirement’ eligible under the vesting and exercise terms of the applicable award agreements relating to Company awards generally applicable to senior-level executives of the Company; and
(v) Continued participation in all medical, health and life insurance plans at the same benefit and cost sharing level at which Executive and Executive’s eligible dependents were participating on the date of termination of Executive’s employment until the earlier of: (1) the 18- month anniversary of Executive’s termination of employment date; or (2) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-bycoverage, or benefit-by- benefit, basis); provided, however, that (A) if Executive is precluded from continuing Executive’s participation in any employee benefit plan or program as provided in this clause (v), Executive shall receive cash payments equal on an aftertax basis to the cost to Executive of obtaining the benefits provided under the plan or program in which Executive is unable to participate for the period specified in this clause (v), (B) such cost shall be deemed to be the lowest reasonable cost that would be incurred by Executive in obtaining such benefit on an individual basisCOBRA, and (C) payment of such amounts shall be made quarterly in advance. For the avoidance of doubt, Executive acknowledges and agrees that Executive shall be responsible for Executivethe entire COBRA premium for the remainder of the applicable COBRA continuation period.
D. Employee’s portion options granted under the Company’s 2014 Stock Option and Equity Incentive Plan shall continue to vest until September 6, 2020. Employee shall have until March 6, 2021 to exercise his vested options and Employee shall be allowed to use a cashless exercise provision to exercise his vested options. Subject to federal securities laws, Employee shall be free of any premiums due restrictions preventing him from exercising and selling his vested options as of the eighth day following the execution of this Agreement.
E. The Company shall include Employee’s name in the upcoming planned scientific publication in connection with Executive’s continued participation in any medical, health and life insurance plans pursuant to this Section 3.02(b)(v). To the extent that Executive is a “Specified Employee” within the meaning of Section 409A of the Code at the time of her separation from service, to the extent required by Section 409A and the regulations issued thereunder, the payments to which Executive would otherwise be entitled during the first six months following her separation of service shall be deferred and accumulated for a period of six months and paid in a lump sum on the first day of the seventh month with the seventh month’s payment, with interest on such deferred compensation at the rate paid pursuant to the stable value fund of the Company’s 401(k) plan or, if such fund no longer exists, the fund with the investment criteria most clearly comparable to that of such fundcompleted Phase II trial for REL-1017.
(c) For the avoidance of doubt and consistent with the applicable award agreements, equity awards made by Aetna before the Closing Effective Date, the Closing Sign-On Equity Award, 2018-2020 LTIP and any supplemental LTIP with respect to the 2018-2020 performance period shall be treated as follows: (1) upon an involuntary termination of Executive’s employment by reason of death, unvested awards shall become immediately vested (with any performance criteria deemed achieved based on target performance as of Executive’s death); and (2) upon an involuntary termination of Executive’s employment by reason of Disability, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period); provided that in each case stock options shall remain exercisable for one year following Executive’s termination of employment date, except that Executive shall not be permitted to exercise any stock option beyond the original term of such award.
(d) If Executive experiences a Qualifying Event within two years following a Change in Control, any outstanding equity awards held by Executive at such time shall be treated in accordance with the terms of the applicable award agreement governing such equity awards.
Appears in 1 contract
Sources: Separation and Settlement Agreement (Relmada Therapeutics, Inc.)
Separation Payments. Except to the extent provided in Section 5.09 Article 4 and Section 5.186.08, Executive shall be entitled to the benefits set forth below (the “"Separation Benefits”") upon a termination of employment:
(a) Upon any termination of employment including by reason of death or Disability, Executive’s 's voluntary termination of employment (with or without Good Reason) Reason or upon involuntary termination of Executive’s 's employment by the Companywith or without Cause, Executive shall be entitled to:
(i) Executive’s earned but unpaid Base Salary and other vested but unpaid cash entitlements (including any earned but unpaid cash Annual Bonus for the performance year prior to the year in which Executive terminates employment) for the period through and including the date of termination of Executive’s employment (other than entitlements referenced in Section 3.02(b3.03(b) below) (the “Accrued Compensation”); and
(ii) Executive’s other vested benefits earned by Executive for the period through and including the date of Executive’s termination of employment, which shall be paid in accordance with the terms of the applicable plans, programs or arrangements (the “Accrued Benefits”).
(b) Upon a Qualifying Event, the Company shall pay Executive in addition to the amounts set forth in Section 3.02(a3.03(a) above:
(i) Cash compensation through the second anniversary of such Qualifying Event (the “"Payment Period”") in equal installments during the Payment Period in accordance with the applicable Company payroll, in an aggregate amount equal to two times the sum of (yi) the highest Base Salary as in effect during the six-month period immediately prior to the time of such termination of employment and (zii) the Executive’s target Annual Bonus bonus opportunity for the year of termination of employment (such payment, the “Cash Severance Payment”)employment, on the condition that Executive has delivered to the Company a release substantially in the form as attached hereto as Exhibit A (with such changes as may be required under applicable law) of any employment-related claims, provided that this release must be signed within 30 days after the Executive’s separation from service and any payment that otherwise would be made within such 30-day period shall by paid at the expiration of such 30-day periodperiod with interest at the Stated Interest Rate (as defined below), subject to Executive’s execution of such release; provided, however, that if Executive experiences a Qualifying Event within two years following a Change in Control, the Cash Severance Payment shall instead be an aggregate amount equal to two-and-a-half times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (zii) A pro-rata bonus amount for the year of termination calculated as the Executive’s target Annual Bonus bonus opportunity for the year of termination of employment.
(ii) A “Pro-Rata Bonus Amount” for the year of Executive’s termination of employment calculated as Executive’s Annual Bonus opportunity multiplied by times a fraction, the numerator of which is the number of days in the year through the date of Executive’s termination of employment and the denominator of which is 365. The Pro-Rata Bonus Amount shall be based on the greater of Executive’s Annual Bonus opportunity at target and the actual funding percentage for the Annual Bonus Plan for such performance period, as determined by the Committee in its sole discretion. Payment of this pro-rata bonus amount, if any, shall be made to Executive at the same time as annual bonuses are paid to senior executives of the Company;).
(iii) With respect to equity awards made prior to the Effective Date, Executive shall be treated as eligible for ‘retirement’ under the vesting and exercise terms of any such equity award. For the avoidance of doubt, ‘retirement’ treatment for equity awards made prior to the Effective Date shall mean: (1) with respect to restricted stock units (excluding the Closing Sign-On Equity Award), performance stock units and any LTIP awards, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period) and settlement on the originally scheduled settlement date; and (2) with respect to stock options and stock appreciation rights, immediate vesting in that portion of the stock option and/or stock appreciation right that would have otherwise vested within one year following Executive’s termination of employment date and the ability to exercise such stock option and/or stock appreciation right for five years following Executive’s termination of employment date; provided, however, that Executive shall not be permitted to exercise any stock option or stock appreciation right beyond the original term of such award. Notwithstanding the foregoing, this Section 3.02(b)(iii) shall not apply to the Closing Sign-On Equity Award or equity awards granted following the Effective Date;
(iv) With respect to Company equity awards granted following the Effective Date, Executive shall be treated as ‘retirement’ eligible under the vesting and exercise terms of the applicable award agreements relating to Company awards generally applicable to senior-level executives of the Company; and
(v) Continued participation in all medical, health and life insurance plans at the same benefit and cost sharing level at which Executive and Executive’s eligible dependents were participating on the date of termination of Executive’s employment until the earlier of: (1) the 18- month anniversary of Executive’s termination of employment date; or (2) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-bycoverage, or benefit-by- benefit, basis); provided, however, that (A) if Executive is precluded from continuing Executive’s participation in any employee benefit plan or program as provided in this clause (v), Executive shall receive cash payments equal on an aftertax basis to the cost to Executive of obtaining the benefits provided under the plan or program in which Executive is unable to participate for the period specified in this clause (v), (B) such cost shall be deemed to be the lowest reasonable cost that would be incurred by Executive in obtaining such benefit on an individual basis, and (C) payment of such amounts shall be made quarterly in advance. For the avoidance of doubt, Executive acknowledges and agrees that Executive shall be responsible for Executive’s portion of any premiums due in connection with Executive’s continued participation in any medical, health and life insurance plans pursuant to this Section 3.02(b)(v). To the extent that Executive is a “Specified Employee” within the meaning of Section 409A 409A(a)(2)(B)(i) of the Code at the time of her his separation from service, if any payment that Executive becomes entitled to under this Agreement is considered deferred compensation subject to interest, penalties and additional tax imposed pursuant to section 409A(a) of the extent required by Code as a result of the application of Section 409A and 409A(a)(2)(B)(i) of the regulations issued thereunderCode, the then such payments of deferred compensation to which Executive would otherwise be entitled during the first six months following her his separation of service shall be deferred and accumulated for a period of six months and paid in a lump sum on the first day of the seventh month with the seventh month’s paymentpayment (or, if earlier, Executive’s date of death), with interest on such deferred compensation at the rate paid pursuant to the stable value fund of the Company’s 401(k) plan or, if such fund no longer exists, the fund with the investment criteria most clearly comparable to that of such fundfund (the “Stated Interest Rate”).
(c) For the avoidance of doubt and consistent with the applicable award agreements, equity awards made by Aetna before the Closing Effective Date, the Closing Sign-On Equity Award, 2018-2020 LTIP and any supplemental LTIP with respect to the 2018-2020 performance period shall be treated as follows: (1) upon an involuntary termination of Executive’s employment by reason of death, unvested awards shall become immediately vested (with any performance criteria deemed achieved based on target performance as of Executive’s death); and (2) upon an involuntary termination of Executive’s employment by reason of Disability, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period); provided that in each case stock options shall remain exercisable for one year following Executive’s termination of employment date, except that Executive shall not be permitted to exercise any stock option beyond the original term of such award.
(d) If Executive experiences a Qualifying Event within two years following a Change in Control, any outstanding equity awards held by Executive at such time shall be treated in accordance with the terms of the applicable award agreement governing such equity awards.
Appears in 1 contract
Separation Payments. Except to the extent provided in Section 5.09 and Section 5.18, Executive shall be entitled Employee acknowledges that Employee has no right to the benefits set forth below in this Agreement but for Employee's execution of this Agreement. Provided Employee timely signed this Agreement on the Separation Date or no later than January 10, 2025 (the “Separation Benefits”"First Execution Date"), executes this Agreement a second time on or within five (5) upon a termination days after June 30, 2025 (the "Second Execution Date"), does not revoke his signature after the First Execution Date or Second Execution Date pursuant to the revocation provision set forth below, and the parties entered into and Company did not terminate the Consulting Agreement (attached as Exhibit B) due to Employee's breach of employmentthat agreement, has returned all Company property and information as required by this Agreement, and complies with all confidentiality and other provisions of this Agreement (collectively, "Payment Conditions"), the Company will:
i) Pay Employee, less applicable taxes and withholdings: (a) Upon any termination severance in the amount of employment including by reason $453,200.00, and (b) reimbursement of death or Disability, Executive’s voluntary termination of employment (with or without Good Reason) or upon involuntary termination of Executive’s employment by the Company, Executive shall be entitled to:
(i) Executive’s earned but unpaid Base Salary costs the Employee incurs to maintain health and other vested but unpaid cash entitlements (including any earned but unpaid cash Annual Bonus for the performance year prior medical benefits pursuant to the year in which Executive terminates employmentConsolidated Omnibus Budget Reconciliation Act ("COBRA") for eighteen (18) months after the period through and including Separation Date (collectively, the date of termination of Executive’s employment (other than entitlements referenced in Section 3.02(b) below) (the “Accrued Compensation”"Separation Payment"); and
(ii) Executive’s other vested benefits earned by Executive for the period through and including the date of Executive’s termination of employment, which . The Separation Payment shall be paid in accordance with the terms of the applicable plans, programs or arrangements (the “Accrued Benefits”).
(b) Upon a Qualifying Event, the Company shall pay Executive in addition to the amounts set forth in Section 3.02(a) above:
(i) Cash compensation through the second anniversary of such Qualifying Event (the “Payment Period”) in roughly equal installments during the Payment Period in accordance with the applicable Company payrollregularly scheduled payroll schedule beginning on regularly scheduled payroll date immediately following July 15, in an aggregate amount equal to two times 2025. In the sum event of (y) Employee's death after the highest Base Salary in effect during Separation Date and completion of the six-month period immediately Consulting Agreement but prior to the time receipt of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment (such paymentSeparation Payment, the “Cash Severance Payment”), on the condition that Executive has delivered to the Company a release substantially in the form as attached hereto as Exhibit A (with such changes as may be required under applicable law) of any employment-related claims, provided that this release must be signed within 30 days after the Executive’s separation from service and any payment that otherwise would be made within such 30-day period shall by paid at the expiration of such 30-day period, subject to Executive’s execution of such release; provided, however, that if Executive experiences a Qualifying Event within two years following a Change in Control, the Cash Severance Separation Payment shall instead be an aggregate amount equal to two-and-a-half times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment.
(ii) A “Pro-Rata Bonus Amount” for the year of Executive’s termination of employment calculated as Executive’s Annual Bonus opportunity multiplied by a fraction, the numerator of which is the number of days in the year through the date of Executive’s termination of employment and the denominator of which is 365. The Pro-Rata Bonus Amount shall be based on the greater of Executive’s Annual Bonus opportunity at target and the actual funding percentage for the Annual Bonus Plan for such performance period, as determined by the Committee in its sole discretion. Payment of this pro-rata bonus amount, if any, shall be made to Executive at the same time and in the same manner as annual described herein to Employee's estate.
ii) If Gogo Business Aviation LLC decides, in its discretion, to award a 2024 Bonus Payment (which has not yet been earned and is not yet determinable), Employee shall receive such bonus, payable in accordance with the Company's normal practice for paying out such bonuses are paid to senior executives in 2025.
iii) Immediately following the First Execution Date, all of the Company;
Employee's outstanding Awards (iiias defined in the Gogo Inc. 2024 Omnibus Incentive Plan (as amended from time to time or any successor equity plan) With respect to equity awards made prior to shall vest. Further, any stock options that vest per the Effective Datepreceding sentence shall remain exercisable until the date which is eighteen (18) months after the First Execution Date (or, Executive shall be treated as eligible for ‘retirement’ under if earlier, the vesting and exercise terms of any such equity award. For the avoidance of doubt, ‘retirement’ treatment for equity awards made prior to the Effective Date shall mean: (1) with respect to restricted stock units (excluding the Closing Sign-On Equity Award), performance stock units and any LTIP awards, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as expiration of the end of the applicable performance period) and settlement on the originally scheduled settlement date; and (2) with respect to stock options and stock appreciation rights, immediate vesting in that portion of the stock option and/or stock appreciation right that would have otherwise vested within one year following Executive’s termination of employment date and the ability to exercise such stock option and/or stock appreciation right for five years following Executive’s termination of employment date; provided, however, that Executive shall not be permitted to exercise any stock option or stock appreciation right beyond the full original term of such award. Notwithstanding the foregoing, this Section 3.02(b)(iii) shall not apply to the Closing Sign-On Equity Award or equity awards granted following the Effective Date;
(iv) With respect to Company equity awards granted following the Effective Date, Executive shall be treated as ‘retirement’ eligible under the vesting and exercise terms of the applicable award agreements relating to Company awards generally applicable to senior-level executives of the Company; and
(v) Continued participation in all medical, health and life insurance plans at the same benefit and cost sharing level at which Executive and Executive’s eligible dependents were participating on the date of termination of Executive’s employment until the earlier of: (1) the 18- month anniversary of Executive’s termination of employment date; or (2) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-bycoverage, or benefit-by- benefit, basisstock option); provided, however, that (A) if Executive is precluded from continuing Executive’s participation in any employee benefit plan or program as provided in this clause (v), Executive shall receive cash payments equal on an aftertax basis to the cost to Executive of obtaining the benefits provided under the plan or program in which Executive is unable to participate for the period specified in this clause (v), (B) such cost shall be deemed to be the lowest reasonable cost that would be incurred by Executive in obtaining such benefit on an individual basis, and (C) payment of such amounts shall be made quarterly in advance. For the avoidance of doubt, Executive acknowledges and agrees that Executive shall be responsible for Executive’s portion of any premiums due in connection with Executive’s continued participation in any medical, health and life insurance plans pursuant to this Section 3.02(b)(v). To the extent that Executive is a “Specified Employee” within the meaning of Section 409A of the Code at the time of her separation from service, to the extent required by Section 409A and the regulations issued thereunder, the payments to which Executive would otherwise be entitled during the first six months following her separation of service shall be deferred and accumulated for a period of six months and paid in a lump sum on the first day of the seventh month with the seventh month’s payment, with interest on such deferred compensation at the rate paid pursuant to the stable value fund of the Company’s 401(k) plan or, if such fund no longer exists, the fund with the investment criteria most clearly comparable to that of such fund.
(c) For the avoidance of doubt and consistent with the applicable award agreements, equity awards made by Aetna before the Closing Effective Date, the Closing Sign-On Equity Award, 2018-2020 LTIP and any supplemental LTIP with respect to the 2018-2020 performance period shall be treated as follows: (1) upon an involuntary termination of Executive’s employment by reason of death, unvested awards shall become immediately vested (with any performance criteria deemed achieved based on target performance as of Executive’s death); and (2) upon an involuntary termination of Executive’s employment by reason of Disability, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period); provided that in each case stock options shall remain exercisable for one year following Executive’s termination of employment date, except that Executive shall not be permitted to exercise any stock option beyond the original term of such award.
(d) If Executive experiences a Qualifying Event within two years following a Change in Control, any outstanding equity awards held by Executive at such time shall be treated in accordance with the terms of the applicable award agreement governing such equity awards.
Appears in 1 contract
Separation Payments. Except In addition to the extent provided payments set forth in Section 5.09 2(a) hereof, subject to (i) Executive’s continued compliance with the Restrictive Covenants (as defined below), and Section 5.18, Executive shall be entitled to (ii) Executive’s execution and non-revocation of (x) this Agreement and (y) the benefits set forth below General Release attached hereto as Exhibit A (the “Separation BenefitsRelease”) upon a termination and in consideration of employment:
(a) Upon any termination of employment including by reason of death or Disabilitythe Release, and Executive’s voluntary termination of employment (with or without Good Reason) or upon involuntary termination of Executive’s employment by other promises set forth herein, the Company, Executive in full satisfaction of the obligations set forth in Section 5(d) of the Employment Agreement or otherwise, shall be entitled topay:
(i) to Executive, a lump-sum cash payment, payable within 55 days after the Termination Date and effectiveness of the Release, equal to the sum of:
(A) $915,026.25, which is equal to 150% of Executive’s earned but unpaid Base Salary and other vested but unpaid cash entitlements (including any earned but unpaid cash Annual Bonus for as defined in the performance year Employment Agreement) as of the date immediately prior to the year Termination Date;
(B) $954,114.75, which is equal to 150% of Executive’s Annual Bonus (as defined in the Employment Agreement) for 2020;
(C) $26,451.90, which is equal to the monthly COBRA costs of providing health and welfare benefits for Executive and Executive’s dependents under the plans in which Executive terminates employmentwas participating as of the Termination Date, times eighteen;
(ii) for to Executive, a lump-sum cash payment, payable within 75 days after the period through Termination Date and including effectiveness of the date Release, equal to $833,333, which is the amount that will be unpaid as of termination of Executive’s employment (other than entitlements referenced in Section 3.02(b) below) the Termination Date under the Cash Incentive Award letter agreement (the “Accrued CompensationRetention Letter”) from the Company dated as of March 2, 2020 (the “Cash Incentive Award”); and
(iiiii) on behalf of Executive, the amount required to buy out the Executive’s other vested benefits earned by Executive for the period through and including the date of Executive’s termination of employment, which shall be paid in accordance with the terms of the applicable plans, programs or arrangements leased Company automobile (the “Accrued vehicle”) from the Company’s fleet leasing provider (the “lessor”), payable to the lessor, and the Company shall permit Executive to retain the vehicle, and the Company will promptly take all actions necessary to effect the full and complete transfer of ownership and title of the vehicle from the lessor (or its affiliate, as the case may be) to Executive (collectively 2(b)(i), 2(b)(ii) and 2(b)(iii), the “Separation Benefits”).
(b) Upon a Qualifying Event, the Company shall pay Executive in addition to the amounts set forth in Section 3.02(a) above:
(i) Cash compensation through the second anniversary of such Qualifying Event (the “Payment Period”) in equal installments during the Payment Period in accordance with the applicable Company payroll, in an aggregate amount equal to two times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment (such payment, the “Cash Severance Payment”), on the condition that Executive has delivered to the Company a release substantially in the form . Except as attached hereto otherwise expressly required by law or as Exhibit A (with such changes as may be required under applicable law) of any employment-related claims, specifically provided that this release must be signed within 30 days after the Executive’s separation from service and any payment that otherwise would be made within such 30-day period shall by paid at the expiration of such 30-day period, subject to Executive’s execution of such release; provided, however, that if Executive experiences a Qualifying Event within two years following a Change in Control, the Cash Severance Payment shall instead be an aggregate amount equal to two-and-a-half times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment.
(ii) A “Pro-Rata Bonus Amount” for the year of Executive’s termination of employment calculated as Executive’s Annual Bonus opportunity multiplied by a fraction, the numerator of which is the number of days in the year through the date of Executive’s termination of employment and the denominator of which is 365. The Pro-Rata Bonus Amount shall be based on the greater of Executive’s Annual Bonus opportunity at target and the actual funding percentage for the Annual Bonus Plan for such performance period, as determined by the Committee in its sole discretion. Payment of this pro-rata bonus amount, if any, shall be made to Executive at the same time as annual bonuses are paid to senior executives of the Company;
(iii) With respect to equity awards made prior to the Effective Dateherein, Executive shall be treated as eligible for ‘retirement’ under have no right to compensation, benefits or other amounts after the vesting and exercise terms of any such equity award. For the avoidance of doubt, ‘retirement’ treatment for equity awards made prior to the Effective Date shall mean: (1) with respect to restricted stock units (excluding the Closing Sign-On Equity Award), performance stock units and any LTIP awards, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period) and settlement on the originally scheduled settlement date; and (2) with respect to stock options and stock appreciation rights, immediate vesting in that portion of the stock option and/or stock appreciation right that would have otherwise vested within one year following Executive’s termination of employment date and the ability to exercise such stock option and/or stock appreciation right for five years following Executive’s termination of employment date; provided, however, that Executive shall not be permitted to exercise any stock option or stock appreciation right beyond the original term of such award. Notwithstanding the foregoing, this Section 3.02(b)(iii) shall not apply to the Closing Sign-On Equity Award or equity awards granted following the Effective Termination Date;
(iv) With respect to Company equity awards granted following the Effective Date, Executive shall be treated as ‘retirement’ eligible under the vesting and exercise terms of the applicable award agreements relating to Company awards generally applicable to senior-level executives of the Company; and
(v) Continued participation in all medical, health and life insurance plans at the same benefit and cost sharing level at which Executive and Executive’s eligible dependents were participating on the date of termination of Executive’s employment until the earlier of: (1) the 18- month anniversary of Executive’s termination of employment date; or (2) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-bycoverage, or benefit-by- benefit, basis); provided, however, that (A) if Executive is precluded from continuing Executive’s participation in any employee benefit plan or program as provided in this clause (v), Executive shall receive cash payments equal on an aftertax basis to the cost to Executive of obtaining the benefits provided under the plan or program in which Executive is unable to participate for the period specified in this clause (v), (B) such cost shall be deemed to be the lowest reasonable cost that would be incurred by Executive in obtaining such benefit on an individual basis, and (C) payment of such amounts shall be made quarterly in advance. For the avoidance of doubt, Executive acknowledges and agrees that Executive shall be responsible for Executive’s portion of any premiums due in connection with Executive’s continued participation in any medical, health and life insurance plans pursuant to this Section 3.02(b)(v). To the extent that Executive is a “Specified Employee” within the meaning of Section 409A of the Code at the time of her separation from service, to the extent required by Section 409A and the regulations issued thereunder, the payments to which Executive would otherwise be entitled during the first six months following her separation of service shall be deferred and accumulated for a period of six months and paid in a lump sum on the first day of the seventh month with the seventh month’s payment, with interest on such deferred compensation at the rate paid pursuant to the stable value fund of the Company’s 401(k) plan or, if such fund no longer exists, the fund with the investment criteria most clearly comparable to that of such fund.
(c) For the avoidance of doubt and consistent with the applicable award agreements, equity awards made by Aetna before the Closing Effective Date, the Closing Sign-On Equity Award, 2018-2020 LTIP and any supplemental LTIP with respect to the 2018-2020 performance period shall be treated as follows: (1) upon an involuntary termination of Executive’s employment by reason of death, unvested awards shall become immediately vested (with any performance criteria deemed achieved based on target performance as of Executive’s death); and (2) upon an involuntary termination of Executive’s employment by reason of Disability, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period); provided that in each case stock options shall remain exercisable for one year following Executive’s termination of employment date, except that Executive shall not be permitted to exercise any stock option beyond the original term of such award.
(d) If Executive experiences a Qualifying Event within two years following a Change in Control, any outstanding equity awards held by Executive at such time shall be treated in accordance with the terms of the applicable award agreement governing such equity awards.
Appears in 1 contract
Sources: Transition and Consulting Services Agreement (Vivint Smart Home, Inc.)
Separation Payments. Except to In connection with the extent provided termination of your employment with the Company, and in Section 5.09 consideration of your obligations and Section 5.18agreements set forth in this Letter Agreement, Executive shall you will be entitled to the following payments and benefits set forth below (the “Separation Benefits”) upon a termination of employment:in each case, less applicable tax withholdings):
(a) Upon any termination The Company will pay you, promptly after the date the release in Paragraph 4 below becomes effective (the "Release Effective Date"), which based on the terms of employment including by reason this Letter Agreement will be prior to March 15, 2020, a cash lump payment equal to the sum of death or Disability, Executive’s voluntary termination of employment (with or without Good Reason) or upon involuntary termination of Executive’s employment by the Company, Executive shall be entitled to:
one times (i) Executive’s earned but unpaid Base Salary your current annual base salary ($450,000) and other vested but unpaid cash entitlements (including any earned but unpaid cash Annual Bonus for the performance year prior to the year in which Executive terminates employmentii) for the period through and including the date of termination of Executive’s employment (other than entitlements referenced in Section 3.02(b) below) a bonus (the “Accrued Compensation”); and
(ii) Executive’s other vested benefits earned by Executive for the period through and including the date of Executive’s termination of employment, which shall be paid in accordance with the terms of the applicable plans, programs or arrangements (the “Accrued Benefits”).
(b) Upon a Qualifying Event, the Company shall pay Executive in addition to the amounts set forth in Section 3.02(a) above:
(i) Cash compensation through the second anniversary of such Qualifying Event (the “Payment PeriodBonus”) in equal installments during the Payment Period in accordance with the applicable Company payroll, in an aggregate amount equal to two times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment (such payment, the “Cash Severance Payment”), on the condition that Executive has delivered to the Company a release substantially in the form as attached hereto as Exhibit A (with such changes as may be required under applicable law) of any employment-related claims, provided that this release must be signed within 30 days after the Executive’s separation from service and any payment that otherwise would be made within such 30-day period shall by paid at the expiration of such 30-day period, subject to Executive’s execution of such release; provided, however, that if Executive experiences a Qualifying Event within two years following a Change in Control, the Cash Severance Payment shall instead be an aggregate amount equal to two-and-a-half times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment.
(ii) A “Pro-Rata Bonus Amount” for the year of Executive’s termination of employment calculated as Executive’s Annual Bonus opportunity $450,000 multiplied by a fraction, fraction (but in no event greater than 1) the numerator of which is the number of calendar days in 2019 prior to and including the year through the date of Executive’s termination of employment Termination Date and the denominator of which is 365. The Pro-Rata Bonus Amount shall be based on the greater of Executive’s Annual Bonus opportunity at target and the actual funding percentage for the Annual Bonus Plan for such performance period, as determined by the Committee in its sole discretion. Payment of this pro-rata bonus amount, if any, shall be made to Executive at the same time as annual bonuses are paid to senior executives lieu of the Company;Termination Bonus due under the Severance Agreement.
(iiib) With respect to equity awards made prior to The Company will pay you, promptly after the Release Effective Date, Executive shall be treated as eligible for ‘retirement’ under the vesting and exercise terms a cash lump sum of any such equity award. For the avoidance of doubt$20,970.96, ‘retirement’ treatment for equity awards made prior which is equal to the Effective Date shall mean: (1) with respect to restricted stock units (excluding the Closing Signsum of 12 months of company contributions for group life, long-On Equity Award), performance stock units term disability and any LTIP awards, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period) and settlement on the originally scheduled settlement date; and (2) with respect to stock options and stock appreciation rights, immediate vesting in that portion of the stock option and/or stock appreciation right that would have otherwise vested within one year following Executive’s termination of employment date and the ability to exercise such stock option and/or stock appreciation right for five years following Executive’s termination of employment date; provided, however, that Executive shall not be permitted to exercise any stock option or stock appreciation right beyond the original term of such award. Notwithstanding the foregoing, this Section 3.02(b)(iii) shall not apply to the Closing Sign-On Equity Award or equity awards granted following the Effective Date;
(iv) With respect to Company equity awards granted following the Effective Date, Executive shall be treated as ‘retirement’ eligible under the vesting and exercise terms of the applicable award agreements relating to Company awards generally applicable to senior-level executives of the Company; and
(v) Continued participation in all medical, health and life insurance plans at the same benefit and cost sharing level at which Executive and Executive’s eligible dependents were participating on the date of termination of Executive’s employment until the earlier of: (1) the 18- month anniversary of Executive’s termination of employment date; or (2) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-bycoverage, or benefit-by- benefit, basis); provided, however, that (A) if Executive is precluded from continuing Executive’s participation in any employee benefit plan or program as provided in this clause (v), Executive shall receive cash payments equal on an aftertax basis to the cost to Executive of obtaining the benefits provided under the plan or program in which Executive is unable to participate for the period specified in this clause (v), (B) such cost shall be deemed to be the lowest reasonable cost that would be incurred by Executive in obtaining such benefit on an individual basis, and (C) payment of such amounts shall be made quarterly in advance. For the avoidance of doubt, Executive acknowledges and agrees that Executive shall be responsible for Executive’s portion of any premiums due in connection with Executive’s continued participation in any medical, health and life insurance plans pursuant to this Section 3.02(b)(v). To the extent that Executive is a “Specified Employee” within the meaning of Section 409A of the Code at the time of her separation from service, to the extent required by Section 409A and the regulations issued thereunder, the payments to which Executive would otherwise be entitled during the first six months following her separation of service shall be deferred and accumulated for a period of six months and paid in a lump sum on the first day of the seventh month with the seventh month’s payment, with interest on such deferred compensation at the rate paid pursuant to the stable value fund of the Company’s 401(k) plan or, if such fund no longer exists, the fund with the investment criteria most clearly comparable to that of such fundbenefits.
(c) For the avoidance of doubt Pursuant to and consistent with the applicable award agreements, equity awards made by Aetna before the Closing Effective Date, the Closing Sign-On Equity Award, 2018-2020 LTIP and any supplemental LTIP with respect to the 2018-2020 performance period shall be treated as follows: (1) upon an involuntary termination of Executive’s employment by reason of death, unvested awards shall become immediately vested (with any performance criteria deemed achieved based on target performance as of Executive’s death); and (2) upon an involuntary termination of Executive’s employment by reason of Disability, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period); provided that in each case stock options shall remain exercisable for one year following Executive’s termination of employment date, except that Executive shall not be permitted to exercise any stock option beyond the original term of such award.
(d) If Executive experiences a Qualifying Event within two years following a Change in Control, any outstanding equity awards held by Executive at such time shall be treated in accordance with the terms of the Notice of Key Employee Incentive Plan Cash Award (the “▇▇▇▇ Award”) dated August 24, 2018, following ratification of the 2019 revenue performance target achievements, if and to the extent achieved, the Company will promptly pay you a pro-rated portion of the final installment of your ▇▇▇▇ Award based on time served, as calculated in the notice and at the times set forth in the notice.
(d) Pursuant to and in accordance with the terms of each of the Notice of Long Term Incentive Cash Award dated January 1, 2017 and the Notice of Long Term Incentive Cash Award dated June 2, 2016 (your “LTI Awards”), following certification of the achievement of the applicable award targets, if and to the extent achieved, the Company will pay you a pro-rated portion of the unvested installments under the LTI Awards based on time served, as calculated in each notice and at the times set forth in each notice.
(e) Pursuant to and in accordance with the terms of the retention bonus letter agreement governing dated February 9, 2017, the Company shall pay you, promptly after the Termination Date, the second and final tranche of the retention bonus ($71,250) to the extent such equity awardsamount remains unpaid as of the Termination Date.
(f) The Company will pay you, promptly after the Termination Date, a cash lump sum equal to (i) your base salary accrued through the Termination Date and (ii) any earned but unused vacation pay, in each case to the extent not previously paid.
(g) The Company will pay you, promptly after submission of appropriate expense documentation, reimbursement for any travel or business expenses through the Termination Date.
(h) The Company will continue to provide health and wellness benefits, including access to the Employee Assistance Program, through the end of the month of the Termination Date. You may elect to continue your health benefits beyond this date through COBRA by paying the required contribution. Pay Flex (888-678-7835) will notify you of your rights and elections.
(i) If earned under the terms of the RSU Agreement, all or a portion of the Retention Award will accelerate and pay out on the Release Effective Date. March 26, 2019
(j) The Company will pay for the United States and Luxembourg tax preparation services for the 2018 tax year, using the Company’s preferred tax preparation service provider.
Appears in 1 contract
Separation Payments. Except In consideration of the promises and covenants made by Employee in this Agreement, including the general waiver and release of claims which forms a material part of this Agreement and Employee’s compliance with all of the terms and conditions of this Agreement, and conditioned on Employee’s timely execution and non-revocation of this Agreement, the Company will make the following “Separation Payments” pursuant to the extent provided in Section 5.09 Severance Plan and Section 5.18, Executive shall be entitled to the benefits set forth below (the “Separation Benefits”) upon outstanding award agreements governing Employee’s outstanding equity awards consistent with a termination of employmentwithout cause pursuant to such plans and agreements:
(a) Upon any termination the Company will pay to Employee the prorated portion of employment including by reason Employee’s annual short term cash incentive bonus payable pursuant to the STIP that will be determined to be payable for calendar year 2025 based on actual performance attainment and prorated based on the Employee’s days of death or Disabilityservice during calendar year 2025 through the Separation Date as a one-time, Executive’s voluntary termination lump-sum payment, less all applicable and legally required withholdings and deductions, to be paid out when bonuses are paid to similarly situated executives but no later than March 15, 2026;
(b) the Company will pay to Employee severance in the amount of employment $4,360,200 as a one-time, lump-sum payment, less all applicable and legally required withholdings and deductions, to be paid within sixty (60) days following the Separation Date;
(c) the Company will vest and settle with or without Good Reason) or upon involuntary termination of Executive’s employment by the Company, Executive shall be entitled toEmployee:
(i) Executive’s earned but unpaid Base Salary and other vested but unpaid cash entitlements 1,069 shares of time-based restricted stock units under the Mativ Holdings, Inc. 2015 Long-term Incentive Plan (including any earned but unpaid cash Annual Bonus for the performance year prior to the year in which Executive terminates employment“2015 LTIP”) for the period through and including the date of termination of Executive’s employment (other than entitlements referenced in Section 3.02(b) below) (the “Accrued Compensation”); granted on February 16, 2023, and
(ii) Executive’s other vested benefits earned by Executive 22,776 shares of time-based restricted stock units under the Mativ Holdings, Inc. 2024 Equity and Incentive Plan (“2024 LTIP”) granted on February 13, 2024, for a total of 23,845 shares of time-based restricted stock units constituting a prorated portion of her unvested time-based restricted stock unit award agreements under the period through 2015 LTIP and including 2024 LTIP, subject to the date terms and conditions of Executive’s termination such plan and agreements;
(d) the Company will vest and settle with Employee:
(i) 26,102 shares of employmentperformance-based restricted stock units under the 2015 LTIP granted on February 16, which shall 2023, and
(ii) 53,805 shares of performance-based restricted stock units under the 2024 LTIP granted on February 13, 2024, for a total of 79,907 shares of performance-based restricted stock units constituting a prorated portion of her unvested performance-based restricted stock units award agreements under the 2015 LTIP and 2024 LTIP and based on average completed performance;
(e) the Company will pay to Employee a one-time, lump-sum payment of $25,000, less all applicable and legally required withholdings and deductions, for professional outplacement services, to be paid in accordance with within sixty (60) days following the terms Separation Date; and
(f) the Company will pay to Employee a lump-sum payment equal to the monthly premiums that Employee would be required to pay if she elected continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) under the medical and dental plans of the applicable plansCompany in which the Employee was participating immediately before the Separation Date based upon the premium rates in effect as of the Separation Date, programs or arrangements multiplied by twenty-four (24), to be paid within sixty (60) days following the “Accrued Benefits”)Separation Date.
(bg) Upon a Qualifying EventIn addition, upon presentation of appropriate documentation, the Company shall pay Executive Employee’s reasonable counsel fees, not to exceed $10,000, incurred in addition to the amounts set forth in Section 3.02(a) above:
(i) Cash compensation through the second anniversary of such Qualifying Event (the “Payment Period”) in equal installments during the Payment Period in accordance connection with the applicable Company payrollnegotiation and documentation of this Agreement, in an aggregate amount equal to two times and matters related hereto, payable within sixty (60) days following the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment (such payment, the “Cash Severance Payment”), on the condition that Executive has delivered to the Company a release substantially in the form as attached hereto as Exhibit A (with such changes as may be required under applicable law) of any employment-related claims, provided that this release must be signed within 30 days after the Executive’s separation from service and any payment that otherwise would be made within such 30-day period shall by paid at the expiration of such 30-day period, subject to Executive’s execution of such releaseSeparation Date; provided, however, that if Executive experiences a Qualifying Event within two years following a Change in Controlthe event the Company requests that Employee submit invoices associated with such legal representation to substantiate the reimbursement of reasonable attorneys’ fees and costs, the Cash Severance Payment Employee shall instead be an aggregate amount equal permitted to tworedact such legal invoices to protect and preserve attorney-and-a-half times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employmentclient privilege.
(iih) A “Pro-Rata Bonus Amount” for the year of Executive’s termination of employment calculated as Executive’s Annual Bonus opportunity multiplied by a fraction, the numerator of which Employee acknowledges and agrees that Employee is the number of days in the year through the date of Executive’s termination of employment and the denominator of which is 365. The Pro-Rata Bonus Amount shall be based on the greater of Executive’s Annual Bonus opportunity at target and the actual funding percentage for the Annual Bonus Plan for such performance period, as determined by the Committee in its sole discretion. Payment of this pro-rata bonus amount, if any, shall be made to Executive at the same time as annual bonuses are paid to senior executives of the Company;
(iii) With respect to equity awards made prior to the Effective Date, Executive shall be treated as not eligible for ‘retirement’ under the vesting and exercise terms of any such equity award. For the avoidance of doubt, ‘retirement’ treatment for equity awards made prior to the Effective Date shall mean: (1) with respect to restricted stock units (excluding the Closing Sign-On Equity Award), performance stock units and any LTIP awards, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period) and settlement on the originally scheduled settlement date; and (2) with respect to stock options and stock appreciation rights, immediate vesting in that portion of the stock option and/or stock appreciation right that would have otherwise vested within one year following Executive’s termination of employment date and the ability to exercise such stock option and/or stock appreciation right for five years following Executive’s termination of employment date; provided, however, that Executive shall not be permitted to exercise any stock option payments or stock appreciation right beyond the original term of such award. Notwithstanding the foregoing, this Section 3.02(b)(iii) shall not apply to the Closing Sign-On Equity Award or equity awards granted following the Effective Date;
(iv) With respect to Company equity awards granted following the Effective Date, Executive shall be treated as ‘retirement’ eligible under the vesting and exercise terms of the applicable award agreements relating to Company awards generally applicable to senior-level executives of the Company; and
(v) Continued participation in all medical, health and life insurance plans at the same benefit and cost sharing level at which Executive and Executive’s eligible dependents were participating on the date of termination of Executive’s employment until the earlier of: (1) the 18- month anniversary of Executive’s termination of employment date; or (2) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-bycoverage, or benefit-by- benefit, basis); provided, however, that (A) if Executive is precluded from continuing Executive’s participation in any employee benefit plan or program other than as provided in this clause (v), Executive shall receive cash payments equal on an aftertax basis to Agreement and expressly acknowledges that she is not eligible for any additional equity interests other than the cost to Executive of obtaining the benefits provided under the plan interests already owned by Employee or program in which Executive is unable to participate for the period otherwise specified in this clause (v), (B) such cost shall be deemed to be the lowest reasonable cost that would be incurred by Executive in obtaining such benefit on an individual basis, and (C) payment of such amounts shall be made quarterly in advance. For the avoidance of doubt, Executive acknowledges and agrees that Executive shall be responsible for Executive’s portion of any premiums due in connection with Executive’s continued participation in any medical, health and life insurance plans pursuant to this Section 3.02(b)(v). To the extent that Executive is a “Specified Employee” within the meaning of Section 409A of the Code at the time of her separation from service, to the extent required by Section 409A and the regulations issued thereunder, the payments to which Executive would otherwise be entitled during the first six months following her separation of service shall be deferred and accumulated for a period of six months and paid in a lump sum on the first day of the seventh month with the seventh month’s payment, with interest on such deferred compensation at the rate paid pursuant to the stable value fund of the Company’s 401(k) plan or, if such fund no longer exists, the fund with the investment criteria most clearly comparable to that of such fundherein.
(c) For the avoidance of doubt and consistent with the applicable award agreements, equity awards made by Aetna before the Closing Effective Date, the Closing Sign-On Equity Award, 2018-2020 LTIP and any supplemental LTIP with respect to the 2018-2020 performance period shall be treated as follows: (1) upon an involuntary termination of Executive’s employment by reason of death, unvested awards shall become immediately vested (with any performance criteria deemed achieved based on target performance as of Executive’s death); and (2) upon an involuntary termination of Executive’s employment by reason of Disability, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period); provided that in each case stock options shall remain exercisable for one year following Executive’s termination of employment date, except that Executive shall not be permitted to exercise any stock option beyond the original term of such award.
(d) If Executive experiences a Qualifying Event within two years following a Change in Control, any outstanding equity awards held by Executive at such time shall be treated in accordance with the terms of the applicable award agreement governing such equity awards.
Appears in 1 contract
Separation Payments. Except to In consideration of the extent provided in Section 5.09 and Section 5.18, Executive shall be entitled to the benefits covenants set forth below herein and the Effective Date and the Re-Execution Effective Date, the Company will provide you with the following payments and benefits (collectively, the “Separation BenefitsPayments”) upon a termination of employment:):
(a) Upon any termination an aggregate amount of employment including by reason $1,691,000 (the “Severance”), less all applicable withholdings and authorized or required deductions, which will be paid to you in installments, with the first installment of death or Disability$845,500 paid on the sixtieth (60th) calendar day following the Separation Date (provided that the Re-Execution Effective Date occurs), Executive’s voluntary termination and the remaining $845,500 paid in installments of employment $211,375 on each of the three, four, five and six month anniversaries of the Separation Date;
(with or without Good Reasonb) or upon involuntary termination of Executive’s employment by to the extent you timely elect COBRA continuation coverage under the Company’s group insurance plans, Executive shall be entitled to:
the Company will reimburse you for the amount of COBRA continuation premiums (less required co-pay) until the earlier of (i) Executive12 months following the Separation Date and (ii) such time as you are no longer eligible for COBRA continuation coverage (with you being required to notify the Company within one week after becoming eligible for group medical coverage from another employer);
(c) the Company will reimburse you for (i) financial counseling services for 12 months following the Separation Date, subject to a maximum benefit of $30,000, and (ii) outplacement counseling services for 12 months following the Separation Date, subject to a maximum benefit of $30,000. You will be responsible for selecting any financial counseling advisors and any outplacement services providers;
(d) the option to purchase 88,000 shares of the Company’s earned but unpaid Base Salary Common Stock that was granted to you under the Company’s Management Incentive Plan and the Stock Option Award Agreement thereunder, dated as of May 4, 2017 (the “Option Agreement”), will fully vest on the Separation Date and will remain exercisable until it expires on the second anniversary of the Separation Date;
(e) at your election as indicated on the signature page hereto (provided that the Re-Execution Effective Date occurs), either (i) a cash payment of $207,384, less all applicable withholdings and authorized or required deductions, or (ii) 29,333 shares of the Company’s Common Stock, paid or delivered, as applicable, on the sixtieth (60th) calendar day following the Separation Date; provided that such shares, if applicable, may not be sold, assigned, conveyed, gifted, pledged, hypothecated or otherwise transferred in any manner, other vested but unpaid cash entitlements (including any earned but unpaid cash Annual Bonus for than by will or the performance year laws of descent or distribution, prior to the year in which Executive terminates employment) for third anniversary of the period through and including the date of termination of Executive’s employment (other than entitlements referenced in Section 3.02(b) below) (the “Accrued Compensation”)Separation Date; and
(iif) Executivein the event that a Change of Control (as defined in the Company’s other vested benefits earned by Executive for the period through and including the date of Executive’s termination of employmentManagement Incentive Plan) occurs on or prior to October 27, which shall be paid in accordance with the terms of the applicable plans, programs or arrangements (the “Accrued Benefits”).
(b) Upon a Qualifying Event2018, the Company shall pay Executive in addition to the amounts set forth in Section 3.02(a) above:
(i) Cash compensation through the second anniversary of such Qualifying Event (the “Payment Period”) in equal installments during the Payment Period in accordance with the applicable Company payroll, in an aggregate amount equal to two times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment (such payment, the “Cash Severance Payment”), on the condition that Executive has delivered to the Company a release substantially in the form as attached hereto as Exhibit A (with such changes as may be required under applicable law) of any employment-related claims, provided that this release must be signed within 30 days after the Executive’s separation from service and any payment that otherwise would be made within such 30-day period shall by paid at the expiration of such 30-day period, subject to Executive’s execution of such release; provided, however, that if Executive experiences a Qualifying Event within two years following a Change in Control, the Cash Severance Payment shall instead be an aggregate amount equal to two-and-a-half times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment.
(ii) A “Pro-Rata Bonus Amount” for the year of Executive’s termination of employment calculated as Executive’s Annual Bonus opportunity multiplied by a fraction, the numerator of which is the number of days in the year through the date of Executive’s termination of employment and the denominator of which is 365. The Pro-Rata Bonus Amount shall be based on the greater of Executive’s Annual Bonus opportunity at target and the actual funding percentage for the Annual Bonus Plan for such performance period, as determined by the Committee in its sole discretion. Payment of this pro-rata bonus amount, if any, shall be made to Executive at the same time as annual bonuses are paid to senior executives of the Company;
(iii) With respect to equity awards made prior to the Effective Date, Executive shall be treated as eligible for ‘retirement’ under the vesting and exercise terms of any such equity award. For the avoidance of doubt, ‘retirement’ treatment for equity awards made prior to the Effective Date shall mean: (1) with respect to restricted stock units (excluding the Closing Sign-On Equity Award), performance stock units and any LTIP awards, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period) and settlement on the originally scheduled settlement date; and (2) with respect to stock options and stock appreciation rights, immediate vesting in that portion of the stock option and/or stock appreciation right that would have otherwise vested within one year following Executive’s termination of employment date and the ability to exercise such stock option and/or stock appreciation right for five years following Executive’s termination of employment date; provided, however, that Executive shall not be permitted to exercise any stock option or stock appreciation right beyond the original term of such award. Notwithstanding the foregoing, this Section 3.02(b)(iii) shall not apply to the Closing Sign-On Equity Award or equity awards granted following the Effective Date;
(iv) With respect to Company equity awards granted following the Effective Date, Executive shall be treated as ‘retirement’ eligible under the vesting and exercise terms of the applicable award agreements relating to Company awards generally applicable to senior-level executives of the Company; and
(v) Continued participation in all medical, health and life insurance plans at the same benefit and cost sharing level at which Executive and Executive’s eligible dependents were participating on the date of termination of Executive’s employment until the earlier of: (1) the 18- month anniversary of Executive’s termination of employment date; or (2) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-bycoverage, or benefit-by- benefit, basis); provided, however, that (A) if Executive is precluded from continuing Executive’s participation in any employee benefit plan or program as provided in this clause (v), Executive shall receive cash payments equal on an aftertax basis to the cost to Executive of obtaining the benefits provided under the plan or program in which Executive is unable to participate for the period specified in this clause (v), (B) such cost shall be deemed to be the lowest reasonable cost that would be incurred by Executive in obtaining such benefit on an individual basis, and (C) payment of such amounts shall be made quarterly in advance. For the avoidance of doubt, Executive acknowledges and agrees that Executive shall be responsible for Executive’s portion of any premiums due in connection with Executive’s continued participation in any medical, health and life insurance plans pursuant to this Section 3.02(b)(v). To the extent that Executive is a “Specified Employee” within the meaning of Section 409A of the Code at the time of her separation from service, to the extent required by Section 409A and the regulations issued thereunder, the payments to which Executive would otherwise be entitled during the first six months following her separation of service shall be deferred and accumulated for a period of six months and paid in a lump sum on the first day of the seventh month with the seventh month’s payment, with interest on such deferred compensation at the rate paid pursuant to the stable value fund 58,667 shares of the Company’s 401(kCommon Stock covered by the award of restricted stock units granted to you under the Company’s Management Incentive Plan and the Restricted Stock Unit Award Agreement thereunder, dated as of May 4, 2017 (the “RSU Agreement”), that were scheduled to vest in installments of 29,333 shares on May 4, 2019 and 29,334 shares on May 4, 2020 will immediately be 100% vested. This arrangement supersedes Section 2(c) plan orof the RSU Agreement, if such fund no longer existswhich would provide for immediate forfeiture of the unvested restricted stock units upon the Separation Date. For clarity, you will not be eligible to vest in the fund with 29,333 shares covered by the investment criteria most clearly comparable RSU Agreement that were scheduled to that of such fund.
(c) For the avoidance of doubt and consistent with the applicable award agreements, equity awards made by Aetna before the Closing Effective Date, the Closing Sign-On Equity Awardvest on May 4, 2018-, and the 58,667 shares covered by the RSU Agreement that were scheduled to vest in installments on May 4 of 2019 and 2020 LTIP and any supplemental LTIP with respect to will only become vested in the 2018-2020 performance period shall be treated as follows: (1) upon an involuntary termination of Executive’s employment by reason of death, unvested awards shall become immediately vested (with any performance criteria deemed achieved based on target performance as of Executive’s death); and (2) upon an involuntary termination of Executive’s employment by reason of Disability, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period); provided event that in each case stock options shall remain exercisable for one year following Executive’s termination of employment date, except that Executive shall not be permitted to exercise any stock option beyond the original term of such award.
(d) If Executive experiences a Qualifying Event within two years following a Change in Controlof Control occurs on or prior to October 27, any outstanding equity awards held by Executive at such time shall be treated in accordance with the terms of the applicable award agreement governing such equity awards2018.
Appears in 1 contract
Separation Payments. Except In consideration of the promises and covenants made by Employee in this Agreement, including the general waiver and release of claims which forms a material part of this Agreement and Employee’s compliance with all of the terms and conditions of this Agreement, and conditioned on Employee’s timely execution and non-revocation of this Agreement, the Company will make the following “Separation Payments” pursuant to the extent provided in Section 5.09 Severance Plan and Section 5.18, Executive shall be entitled to the benefits set forth below (the “Separation Benefits”) upon outstanding award agreements governing Employee’s outstanding equity awards consistent with a termination of employmentwithout cause pursuant to such plans and agreements:
(a) Upon any termination the Company will pay to Employee the prorated portion of employment including by reason Employee’s annual short term cash incentive bonus payable pursuant to the STIP that will be determined to be payable for calendar year 2025 based on actual performance attainment and prorated based on the Employee’s days of death or Disabilityservice during calendar year 2025 through the Separation Date as a one-time, Executive’s voluntary termination lump-sum payment, less all applicable and legally required withholdings and deductions, to be paid out when bonuses are paid to similarly situated executives but no later than March 15, 2026;
(b) the Company will pay to Employee severance in the amount of employment $1,158,300 as a one-time, lump-sum payment, less all applicable and legally required withholdings and deductions, to be paid within sixty (60) days following the Separation Date;
(c) the Company will vest and settle with or without Good Reason) or upon involuntary termination of Executive’s employment by the Company, Executive shall be entitled toEmployee:
(i) Executive’s earned but unpaid Base Salary and other vested but unpaid cash entitlements 1,736 shares of time-based restricted stock units under the Mativ Holdings, Inc. 2015 Long-term Incentive Plan (including any earned but unpaid cash Annual Bonus for the performance year prior to the year in which Executive terminates employment“2015 LTIP”) for the period through and including the date of termination of Executive’s employment (other than entitlements referenced in Section 3.02(b) below) (the “Accrued Compensation”); andgranted on February 16, 2023,
(ii) Executive’s other vested benefits earned by Executive 4,792 shares of time-based restricted stock units under the Mativ Holdings, Inc. 2024 Equity and Incentive Plan (“2024 LTIP”) granted on February 13, 2024, and
(iii) 1,602 shares of time-based restricted stock units under the Mativ Holdings, Inc. 2024 Equity and Incentive Plan (“2025 LTIP”) granted on March 19, 2025, for a total of 8,130 shares of time-based restricted stock units constituting a prorated portion of his unvested time-based restricted stock unit award agreements under the period through 2015 LTIP and including the date of Executive’s termination of employment2024 LTIP, which shall be paid in accordance with subject to the terms and conditions of the applicable plans, programs or arrangements (the “Accrued Benefits”).such plan and agreements;
(bd) Upon a Qualifying Event, the Company shall pay Executive in addition to the amounts set forth in Section 3.02(a) abovewill vest and settle with Employee:
(i) Cash compensation through 4,102 shares of performance-based restricted stock units under the second anniversary 2015 LTIP granted on February 16, 2023, (ii) 11,321 shares of such Qualifying Event performance-based restricted stock units under the 2024 LTIP granted on February 13, 2024, and
(iii) 2,403 shares of performance-based restricted stock units under the 2025 LTIP granted on March 19, 2025, for a total of 17,826 shares of performance-based restricted stock units constituting a prorated portion of his unvested performance-based restricted stock units award agreements under the 2015 LTIP and 2024 LTIP and based on average completed performance;
(e) the Company will pay to Employee a one-time, lump-sum payment of $25,000, less all applicable and legally required withholdings and deductions, for professional outplacement services, to be paid within sixty (60) days following the Separation Date; and
(f) the Company will pay to Employee a lump-sum payment equal to, $46,682.10, which amount is equal to the monthly premiums that Employee would be required to pay if he elected continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“Payment PeriodCOBRA”) under the medical and dental plans of the Company in equal installments during which the Payment Period in accordance with Employee was participating immediately before the applicable Company payroll, in an aggregate amount equal to two times Separation Date based upon the sum of (y) the highest Base Salary premium rates in effect during as of the six-month period immediately prior Separation Date, multiplied by eighteen (18), to be paid within sixty (60) days following the Separation Date.
(g) Employee acknowledges and agrees that Employee is not eligible for any payments or benefits other than as provided in this Agreement and expressly acknowledges that he is not eligible for any additional equity interests other than the interests already owned by Employee or otherwise specified herein.
(h) Notwithstanding any other provision of this Agreement to the time of contrary, Employee expressly agrees that any compensation paid to Employee pursuant to this Agreement that is or becomes subject to recovery under any law, government regulation, stock exchange listing or Company clawback policy requirement will be subject to such termination of employment deductions and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment (such payment, the “Cash Severance Payment”), on the condition that Executive has delivered to the Company a release substantially in the form as attached hereto as Exhibit A (with such changes clawback as may be required under applicable law) of any employment-related claims, provided that this release must be signed within 30 days after the Executive’s separation from service and any payment that otherwise would to be made within such 30-day period shall by paid at the expiration of such 30-day period, subject to Executive’s execution of such release; provided, however, that if Executive experiences a Qualifying Event within two years following a Change in Control, the Cash Severance Payment shall instead be an aggregate amount equal to two-and-a-half times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment.
(ii) A “Pro-Rata Bonus Amount” for the year of Executive’s termination of employment calculated as Executive’s Annual Bonus opportunity multiplied by a fraction, the numerator of which is the number of days in the year through the date of Executive’s termination of employment and the denominator of which is 365. The Pro-Rata Bonus Amount shall be based on the greater of Executive’s Annual Bonus opportunity at target and the actual funding percentage for the Annual Bonus Plan for such performance period, as determined by the Committee in its sole discretion. Payment of this pro-rata bonus amount, if any, shall be made to Executive at the same time as annual bonuses are paid to senior executives of the Company;
(iii) With respect to equity awards made prior to the Effective Date, Executive shall be treated as eligible for ‘retirement’ under the vesting and exercise terms of any such equity award. For the avoidance of doubt, ‘retirement’ treatment for equity awards made prior to the Effective Date shall mean: (1) with respect to restricted stock units (excluding the Closing Sign-On Equity Award), performance stock units and any LTIP awards, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period) and settlement on the originally scheduled settlement date; and (2) with respect to stock options and stock appreciation rights, immediate vesting in that portion of the stock option and/or stock appreciation right that would have otherwise vested within one year following Executive’s termination of employment date and the ability to exercise such stock option and/or stock appreciation right for five years following Executive’s termination of employment date; provided, however, that Executive shall not be permitted to exercise any stock option or stock appreciation right beyond the original term of such award. Notwithstanding the foregoing, this Section 3.02(b)(iii) shall not apply to the Closing Sign-On Equity Award or equity awards granted following the Effective Date;
(iv) With respect to Company equity awards granted following the Effective Date, Executive shall be treated as ‘retirement’ eligible under the vesting and exercise terms of the applicable award agreements relating to Company awards generally applicable to senior-level executives of the Company; and
(v) Continued participation in all medical, health and life insurance plans at the same benefit and cost sharing level at which Executive and Executive’s eligible dependents were participating on the date of termination of Executive’s employment until the earlier of: (1) the 18- month anniversary of Executive’s termination of employment date; or (2) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-bycoverage, or benefit-by- benefit, basis); provided, however, that (A) if Executive is precluded from continuing Executive’s participation in any employee benefit plan or program as provided in this clause (v), Executive shall receive cash payments equal on an aftertax basis to the cost to Executive of obtaining the benefits provided under the plan or program in which Executive is unable to participate for the period specified in this clause (v), (B) such cost shall be deemed to be the lowest reasonable cost that would be incurred by Executive in obtaining such benefit on an individual basis, and (C) payment of such amounts shall be made quarterly in advance. For the avoidance of doubt, Executive acknowledges and agrees that Executive shall be responsible for Executive’s portion of any premiums due in connection with Executive’s continued participation in any medical, health and life insurance plans pursuant to this Section 3.02(b)(v). To the extent that Executive is a “Specified Employee” within the meaning of Section 409A of the Code at the time of her separation from servicesuch law, to the extent required by Section 409A and the regulations issued thereundergovernment regulation, the payments to which Executive would otherwise be entitled during the first six months following her separation of service shall be deferred and accumulated for a period of six months and paid in a lump sum on the first day of the seventh month with the seventh month’s payment, with interest on such deferred compensation at the rate paid pursuant to the stable value fund of the Company’s 401(k) plan or, if such fund no longer exists, the fund with the investment criteria most clearly comparable to that of such fundstock exchange listing or policy.
(c) For the avoidance of doubt and consistent with the applicable award agreements, equity awards made by Aetna before the Closing Effective Date, the Closing Sign-On Equity Award, 2018-2020 LTIP and any supplemental LTIP with respect to the 2018-2020 performance period shall be treated as follows: (1) upon an involuntary termination of Executive’s employment by reason of death, unvested awards shall become immediately vested (with any performance criteria deemed achieved based on target performance as of Executive’s death); and (2) upon an involuntary termination of Executive’s employment by reason of Disability, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period); provided that in each case stock options shall remain exercisable for one year following Executive’s termination of employment date, except that Executive shall not be permitted to exercise any stock option beyond the original term of such award.
(d) If Executive experiences a Qualifying Event within two years following a Change in Control, any outstanding equity awards held by Executive at such time shall be treated in accordance with the terms of the applicable award agreement governing such equity awards.
Appears in 1 contract
Separation Payments. Except to (a) In connection with the extent provided in Section 5.09 and Section 5.18conclusion of the Executive’s employment on the Separation Date, the Executive shall will be entitled to the benefits set forth below (the “Separation Benefits”) upon a termination of employment:
(a) Upon any termination of employment including by reason of death or DisabilityAccrued Amounts, Executive’s voluntary termination of employment (with or without Good Reason) or upon involuntary termination of Executive’s employment by the Company, Executive which amounts shall be entitled to:
(i) Executive’s earned but unpaid Base Salary and other vested but unpaid cash entitlements (including any earned but unpaid cash Annual Bonus for the performance year prior payable to the year in which Executive terminates employment) for the period through and including the date of termination of Executive’s employment (other than entitlements referenced in Section 3.02(b) below) (the “Accrued Compensation”); and
(ii) Executive’s other vested benefits earned by Executive for the period through and including the date of Executive’s termination of employment, which shall be paid in accordance with the terms of the applicable plans, programs or arrangements (the “Accrued Benefits”).
(b) Upon a Qualifying Event, the Company shall pay Executive in addition to the amounts set forth in Section 3.02(a) above:
(i) Cash compensation through the second anniversary of such Qualifying Event (the “Payment Period”) in equal installments during the Payment Period in accordance with the applicable Company payrollprovisions in the Employment Agreement. In addition to the Accrued Amounts, in an aggregate amount equal subject to two times (x) the sum Executive’s continued compliance with the terms of this Agreement, including, without limitation, the terms of the Restrictive Covenant and Cooperation Provisions (as defined below), (y) the highest Base Salary in effect Executive’s provision of the Transition Services during the six-month period immediately prior to the time of such termination of employment Transition Period and (z) the Executive’s target Annual Bonus opportunity for timely execution, delivery and non-revocation of the year Release of termination of employment (such payment, the “Cash Severance Payment”), on the condition that Executive has delivered to the Company a release substantially in the form as Claims attached hereto as Exhibit A B (the “Release”) (as further discussed in Section 6), the Executive will be entitled to the following payments and benefits (collectively, the “Severance Consideration”) in full satisfaction of his rights in connection with such changes as may be required a termination by the Company without Cause under applicable lawSection 8(d) of any employment-related claims, provided that this release must be signed within 30 days after the Executive’s separation from service and any payment that otherwise would be made within such 30-day period shall by paid at the expiration of such 30-day period, subject to Executive’s execution of such release; provided, however, that if Executive experiences a Qualifying Event within two years following a Change in Control, the Cash Severance Payment shall instead be Employment Agreement:
(i) an aggregate amount equal to two-and-a-half $3,556,800 (representing two (2) times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (zA) the Executive’s target Base Salary (at the highest rate in effect in the six (6) month period preceding the date of this Agreement) and (B) the Executive’s average Annual Bonus opportunity over the 2022 and 2023 fiscal years), which amount shall be payable in substantially equal installments in accordance with the Company’s normal payroll policies commencing within thirty (30) days following the Separation Date, and continuing for twenty-four (24) consecutive months thereafter (the year of termination of employment.“Severance Term”);
(ii) A “Proa pro-Rata Bonus Amount” for rata portion of the year of Executive’s termination of employment calculated as Executive’s Annual Bonus opportunity multiplied for the 2024 calendar year based on actual results for such year (provided that any applicable subjective performance criteria shall be deemed achieved at target) (determined by multiplying the amount of such bonus which would be due for the full year by a fraction, the numerator of which is the number of days in full or partial months during the 2024 year through that the date of Executive’s termination of employment Executive served as Chief Executive Officer and the denominator of which is 365. The twelve (12)), payable within thirty (30) days following the Separation Date (the “Pro-Rata Bonus Amount shall be based on the greater of Executive’s Annual Bonus opportunity at target and the actual funding percentage for the Annual Bonus Plan for such performance period, as determined by the Committee in its sole discretion. Payment of this pro-rata bonus amount, if any, shall be made to Executive at the same time as annual bonuses are paid to senior executives of the CompanyBonus”);
(iii) With respect subject to equity awards made prior (A) the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) and (B) the Executive’s continued copayment of premiums at the same level and cost to the Effective Executive as if the Executive were an employee of the Company (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars), continued participation in the Company’s group health plan (to the extent permitted under applicable law and the terms of such plan) which covers the Executive (and the Executive’s eligible dependents) for a period of twelve (12) months following the Separation Date at the Company’s expense, provided that the Executive is eligible and remains eligible for COBRA coverage; provided, further, that the Company may modify such continuation coverage to the extent reasonably necessary to avoid the imposition of any excise taxes on the Company for failure to comply with the nondiscrimination requirements of the Patient Protection and Affordable Care Act of 2010, as amended, and/or the Health Care and Education Reconciliation Act of 2010, as amended (to the extent applicable); and provided, further, that in the event that the Executive obtains other employment that offers group health benefits, such continuation of coverage by the Company hereunder shall immediately cease; and
(iv) for twelve (12) months following the Separation Date, the Executive shall be treated as eligible for ‘retirement’ under will have access to Company-provided outplacement services at a level commensurate with the vesting and exercise terms of any such equity award. For the avoidance of doubt, ‘retirement’ treatment for equity awards made prior to the Effective Date shall mean: (1) with respect to restricted stock units (excluding the Closing Sign-On Equity Award), performance stock units and any LTIP awards, pro-rated vesting as of Executive’s termination of employment date (position in accordance with any performance criteria deemed achieved based on actual performance the Company’s practices as of the end of the applicable performance period) and settlement on the originally scheduled settlement date; and (2) with respect in effect from time to stock options and stock appreciation rights, immediate vesting in that portion of the stock option and/or stock appreciation right that would have otherwise vested within one year following Executive’s termination of employment date and the ability to exercise such stock option and/or stock appreciation right for five years following Executive’s termination of employment datetime; provided, however, that Executive the foregoing payments and benefits shall not be permitted to exercise any stock option or stock appreciation right beyond the original term of such award. Notwithstanding the foregoing, this Section 3.02(b)(iii) shall not apply subject to the Closing Sign-On Equity Award or equity awards granted following terms set and conditions set forth in Section 8(e) of the Effective Date;Employment Agreement.
(ivb) With respect to Company equity awards granted following the Effective Date, Executive shall be treated as ‘retirement’ eligible under the vesting and exercise terms of the applicable award agreements relating to Company awards generally applicable to senior-level executives of the Company; and
(v) Continued participation in all medical, health and life insurance plans at the same benefit and cost sharing level at which Executive and Executive’s eligible dependents were participating on the date of termination of Executive’s employment until the earlier of: (1) the 18- month anniversary of Executive’s termination of employment date; or (2) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-bycoverage, or benefit-by- benefit, basis); provided, however, that (A) if Executive is precluded from continuing Executive’s participation in any employee benefit plan or program as provided in this clause (v), Executive shall receive cash payments equal on an aftertax basis to the cost to Executive of obtaining the benefits provided under the plan or program in which Executive is unable to participate for the period specified in this clause (v), (B) such cost shall be deemed to be the lowest reasonable cost that would be incurred by Executive in obtaining such benefit on an individual basis, and (C) payment of such amounts shall be made quarterly in advance. For the avoidance of doubt, The Executive acknowledges and agrees that Executive shall be responsible for Executive’s portion of any premiums due in connection with Executive’s continued participation in any medical, health and life insurance plans pursuant to this Section 3.02(b)(v). To the extent that Executive is a “Specified Employee” within the meaning of Section 409A of the Code at the time of her separation from service, to the extent required by Section 409A and the regulations issued thereunder, the payments to which Executive would otherwise be entitled during the first six months following her separation of service shall be deferred and accumulated for a period of six months and paid in a lump sum on the first day of the seventh month with the seventh month’s payment, with interest on such deferred compensation at the rate paid pursuant to the stable value fund of the Company’s 401(k) plan or, if such fund no longer exists, the fund with the investment criteria most clearly comparable to that of such fund.
(c) For the avoidance of doubt and consistent with the applicable award agreements, equity awards made by Aetna before the Closing Effective Date, the Closing Sign-On Equity Award, 2018-2020 LTIP and any supplemental LTIP with respect to the 2018-2020 performance period shall be treated as follows: (1) upon an involuntary termination of Executive’s employment by reason of death, unvested awards shall become immediately vested (with any performance criteria deemed achieved based on target performance as of Executive’s death); and (2) upon an involuntary termination of Executive’s employment by reason of Disability, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period); provided that in each case stock options shall remain exercisable for one year following Executive’s termination of employment date, except that Executive he shall not be permitted entitled to exercise any stock option beyond the original term of such award.
(d) If Executive experiences a Qualifying Event within two years following a Change in Control, any outstanding equity awards held by Executive at such time shall be treated in accordance with further separation payments or other termination benefits under the terms of the applicable award agreement governing such equity awardsEmployment Agreement or otherwise, except as for the benefits expressly provided herein. The Executive further acknowledges and agrees that the Pro Rata Bonus shall constitute the Executive’s sole entitlement to an Annual Bonus in respect of the 2024 calendar year.
Appears in 1 contract
Separation Payments. Except In consideration for your signing this Agreement, subject to the extent provided conditions set forth below, you will receive:
A. Salary continuation at the rate of $950,000 per annum for a period beginning with the Retirement Date through March 31, 2006, which amounts shall be payable in Section 5.09 substantially equal semi-monthly installments. Such salary continuation shall not be reduced by the amount of compensation and Section 5.18benefits you receive from other employment (including self-employment) during the salary continuation period.
B. The Company shall pay you a minimum bonus of $634,000 for the Company’s fiscal year ending March 31, Executive 2005. However, if the Company achieves or exceeds the Company’s annual financial budget as approved by the Company’s Board of Directors for such year, you shall be entitled to a minimum bonus of $950,000. The bonus provided for herein shall be paid at the benefits set forth below time the Company pays bonuses to its senior executives for such fiscal year, immediately following the approval of such bonuses by the Compensation Committee of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation’s Board of Directors, or by June 15, 2005, if bonuses are not paid for that year.
C. For purposes of the Company’s Supplemental Executive Retirement Plan, you shall be treated as having remained actively employed by the Company through December 31, 2004, with the compensation provided for in the Second Amendment, dated as of December 31, 2003 (the “Separation BenefitsSecond Amendment”) upon a termination of employment:
(a) Upon any termination of employment including by reason of death or Disability), Executive’s voluntary termination of employment (with or without Good Reason) or upon involuntary termination of Executive’s employment by the Company, Executive shall be entitled to:
(i) Executive’s earned but unpaid Base Salary and other vested but unpaid cash entitlements (including any earned but unpaid cash Annual Bonus for the performance year prior to the year in which Executive terminates employment) for Original Employment Agreement dated as of June 12, 2000 between you and the period through and including the date of termination of Executive’s employment (other than entitlements referenced in Section 3.02(b) below) Company (the “Accrued CompensationOriginal Agreement”); and, as amended by the First Amendment (the “First Amendment”) dated as of May 7, 2003. The Original Agreement as amended by the First Amendment and the Second Amendment hereafter is referred to as the “Employment Agreement”. As such, you shall be credited with ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ a full year as of Service (as defined in the Supplemental Executive Retirement Plan) for 2004, and the compensation provided for in the Second Amendment shall be taken into account for purposes of determining your Final Average Base Salary (as defined in the Supplemental Executive Retirement Plan) under the Supplemental Executive Retirement Plan.
D. The Company shall accelerate to the date hereof the vesting of the remaining 25,000 options granted to you on May 22, 2002 (iiGrant Number 006090) Executive’s under the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Corporation 2001 Stock Incentive Plan, (the “Plan”) which presently are unvested. For the purpose of exercising these and all other vested benefits earned by Executive for the period through and including the date of Executive’s termination of employmentoptions, which you shall be paid deemed to have retired in accordance with the terms and conditions of the applicable plans, programs or arrangements (the “Accrued Benefits”).
(b) Upon a Qualifying Event, the Company shall pay Executive in addition to the amounts set forth in Section 3.02(a) above:
(i) Cash compensation through the second anniversary of such Qualifying Event (the “Payment Period”) in equal installments during the Payment Period in accordance with the applicable Company payroll, in an aggregate amount equal to two times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment (such payment, the “Cash Severance Payment”), on the condition that Executive has delivered to the Company a release substantially in the form as attached hereto as Exhibit A (with such changes as may be required under applicable law) of any employment-related claims, provided that this release must be signed within 30 days after the Executive’s separation from service and any payment that otherwise would be made within such 30-day period shall by paid at the expiration of such 30-day period, subject to Executive’s execution of such release; provided, however, that if Executive experiences a Qualifying Event within two years following a Change in Control, the Cash Severance Payment shall instead be an aggregate amount equal to two-and-a-half times the sum of (y) the highest Base Salary in effect during the six-month period immediately prior to the time of such termination of employment and (z) the Executive’s target Annual Bonus opportunity for the year of termination of employment.
(ii) A “Pro-Rata Bonus Amount” for the year of Executive’s termination of employment calculated as Executive’s Annual Bonus opportunity multiplied by a fraction, the numerator of which is the number of days in the year through the date of Executive’s termination of employment and the denominator of which is 365Plan. The Pro-Rata Bonus Amount shall be based on the greater of Executive’s Annual Bonus opportunity at target and the actual funding percentage for the Annual Bonus Plan for such performance period, as determined by the Committee in its sole discretion. Payment of this pro-rata bonus amount, if any, shall be made to Executive at the same time as annual bonuses are paid to senior executives of the Company;
(iii) With respect to equity awards made prior to the Effective Date, Executive shall be treated as eligible for ‘retirement’ All vested options under the vesting and exercise terms of any such equity award. For the avoidance of doubt, ‘retirement’ treatment for equity awards made prior to the Effective Date shall mean: (1) with respect to restricted stock units (excluding the Closing Sign-On Equity Award), performance stock units and any LTIP awards, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period) and settlement on the originally scheduled settlement date; and (2) with respect to stock options and stock appreciation rights, immediate vesting in that portion of the stock option and/or stock appreciation right that would have otherwise vested within one year following Executive’s termination of employment date and the ability to exercise such stock option and/or stock appreciation right for five years following Executive’s termination of employment date; provided, however, that Executive shall not be permitted to exercise any stock option or stock appreciation right beyond the original term of such award. Notwithstanding the foregoing, this Section 3.02(b)(iii) shall not apply to the Closing Sign-On Equity Award or equity awards granted following the Effective Date;
(iv) With respect to Company equity awards granted following the Effective Date, Executive shall be treated as ‘retirement’ eligible under the vesting and exercise terms of the applicable award agreements relating to Company awards generally applicable to senior-level executives of the Company; and
(v) Continued participation in all medical, health and life insurance plans at the same benefit and cost sharing level at which Executive and Executive’s eligible dependents were participating on the date of termination of Executive’s employment until the earlier of: (1) the 18- month anniversary of Executive’s termination of employment date; or (2) the date, or dates, Executive receives equivalent coverage and benefits under the plans and programs of a subsequent employer (such coverage and benefits to be determined on a coverage-bycoverage, or benefit-by- benefit, basis); provided, however, that (A) if Executive is precluded from continuing Executive’s participation in any employee benefit plan or program as provided in this clause (v), Executive shall receive cash payments equal on an aftertax basis to the cost to Executive of obtaining the benefits provided under the plan or program in which Executive is unable to participate for the period specified in this clause (v), (B) such cost shall be deemed to be the lowest reasonable cost that would be incurred by Executive in obtaining such benefit on an individual basis, and (C) payment of such amounts shall be made quarterly in advance. For the avoidance of doubt, Executive acknowledges and agrees that Executive shall be responsible for Executive’s portion of any premiums due in connection with Executive’s continued participation in any medical, health and life insurance plans pursuant to this Section 3.02(b)(v). To the extent that Executive is a “Specified Employee” within the meaning of Section 409A of the Code at the time of her separation from service, to the extent required by Section 409A and the regulations issued thereunder, the payments to which Executive would otherwise be entitled during the first six months following her separation of service shall be deferred and accumulated for a period of six months and paid in a lump sum on the first day of the seventh month with the seventh month’s payment, with interest on such deferred compensation at the rate paid pursuant to the stable value fund of the Company’s 401(k) plan or, if such fund no longer exists, the fund with the investment criteria most clearly comparable to that of such fund.
(c) For the avoidance of doubt and consistent with the applicable award agreements, equity awards made by Aetna before the Closing Effective Date, the Closing Sign-On Equity Award, 2018-2020 LTIP and any supplemental LTIP with respect to the 2018-2020 performance period shall be treated as follows: (1) upon an involuntary termination of Executive’s employment by reason of death, unvested awards shall become immediately vested (with any performance criteria deemed achieved based on target performance as of Executive’s death); and (2) upon an involuntary termination of Executive’s employment by reason of Disability, pro-rated vesting as of Executive’s termination of employment date (with any performance criteria deemed achieved based on actual performance as of the end of the applicable performance period); provided that in each case stock options Plan shall remain exercisable for one year following Executive’s termination the time period specified in Section 5(h) of employment datesuch Plan, except as in effect on the date hereof. You agree that Executive the items provided for in this Section shall be subject to all applicable deductions and withholdings required by federal, state and local law. You acknowledge that you are not be permitted entitled to exercise any stock option beyond receive such items unless you execute this Agreement and do not revoke your signature during the original seven (7) day period referred to in Section 15 below. You represent that during the term of such award.
(dyour employment with the Company you did not breach your fiduciary duty to the Company. You agree that the automobile benefit you have been receiving pursuant to Section 3(d) If Executive experiences a Qualifying Event within two years following a Change in Controlof the Employment Agreement shall cease as of the Retirement Date and, any outstanding equity awards held by Executive at such time if you elect COBRA coverage, you shall be treated in accordance with solely responsible for the terms of the applicable award agreement governing such equity awardspayments relating thereto.
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