Termination After a Change in Control. (a) If during the Employment Period (i) the Company terminates Executive’s employment for reasons other than death, Disability or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twenty-four (24) months after a Change in Control, then, from and after the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall be entitled to the payments and benefits described in paragraph (b) below, contingent upon executing and returning to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days). (b) Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum cash payment equal to (i) two (2) times the sum of (A) Executive’s Base Salary in effect as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus for the year in which the termination occurs and (ii) a pro rata cash payment equal to Executive’s Target Annual Bonus for the year of termination based on service from the commencement of the applicable bonus year through the Effective Date of Termination. In addition, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5.
Appears in 3 contracts
Sources: Employment Agreement (Mills Limited Partnership), Employment Agreement (Mills Corp), Employment Agreement (Mills Limited Partnership)
Termination After a Change in Control. (a) If during the Employment Period (i) If Executive is terminated by the Company terminates Executive’s employment for reasons other than death, Disability or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twentyduring the three-four (24) months after year period following a Change in ControlControl (as defined in Section 5(f) below) for any reason other than Cause, then, from and after the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, then Executive shall be entitled to the payments following:
(A) During the longer of (i) the 18-month period following his termination and benefits described (ii) the remainder of the Employment Period in paragraph (b) beloweffect at the date of termination, contingent upon executing and returning except to the Company (extent prohibited under the terms of any applicable insurance policy, he shall continue to be covered under the Company's welfare benefit plans to the same extent and not revoking) a release of claims in substantially on the form attached hereto same terms as Exhibit A within those benefits are provided to the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days)Company's active employees.
(bB) Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), He shall receive from the Company shall pay to Executive a lump sum cash payment an amount (the "Severance Pay") equal to the greater of (i) two (2) one and one-half times the sum of (Ax) the Executive’s 's current Annual Base Salary plus (y) the amount of any bonus paid to Executive in effect as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus for the year in which the termination occurs preceding twelve months and (ii) a pro rata cash payment the Annual Base Salary and Annual Bonuses through the end of the then current Employment Period (provided, that the amount of each of the Annual Bonuses so paid shall equal to Executive’s the Target Annual Bonus for Bonus). The Severance Pay amount shall be paid (a) if clause (i) in the year of termination based previous sentence applies, over the 18-month period commencing on service from the commencement of the applicable bonus year through the Effective Date of Termination. In additiondate Executive's employment terminates, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in equal monthly or more frequent installments in accordance with the equity incentive plan Company's payroll schedule or (b) if clause (ii) in the previous sentence applies, as and when such amounts would be paid in accordance with Sections 3(a) and (b) above. The Company's obligation to provide welfare benefit coverage and make severance payments under which this Section 5(e) shall cease with respect to periods after the relevant grant was made and any applicable grant agreementsearlier to occur of the date of Executive's death, or the date, if any, of the breach by Executive of the provisions of Section 6.
(ii) If Executive terminates his employment hereunder voluntarily following a Change in Control, then Executive shall not be entitled to Severance Pay; provided, however, that if Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs Reason (as defined below) during the Employment Period and within twentythree-four (24) months after year period following a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), such termination shall not be considered a voluntary termination by Executive will and Executive shall be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have treated as if he had been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance terminated by the Company and/or Executive against corporate Performance Targets pursuant to paragraph (as defined i) of this Section 5(e) above. "Good Reason" means, in the LTIP Guidelines) event of or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the following a Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5.:
Appears in 3 contracts
Sources: Employment Agreement (Ap Holdings Inc), Employment Agreement (Standard Parking Ii LLC), Employment Agreement (Apcoa Inc)
Termination After a Change in Control. (a) If during In the Employment Period (i) the Company terminates event Executive’s 's employment for reasons other than deathis terminated, Disability without Cause, voluntarily or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twenty-four (24) months involuntarily after a Change in Control, then, from and after the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall be entitled to do the payments and benefits described in paragraph (b) below, contingent upon executing and returning to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days).following:
(bi) Within Base Salary earned and payable through the later Date of Termination;
(xii) fifteen (15) days following any unpaid Cash Bonus earned and accrued with respect to any year preceding the Effective Date of Termination and payable when bonuses for such year are paid to other Company executives subject to the terms and requirements of such bonus as may be established by the Board or Compensation Committee;
(yiii) eight (8) days after Executive provides an executed release of claims as described aboveamount equal to two times the Base Salary, as long as such release in effect on the Date of claims is not revoked by Executive during the seven (7) day period following its execution by Executive)Termination, the Company shall pay to Executive be paid in a lump sum cash payment equal to (i) two (2) times the sum of (A) as soon as administratively feasible after Executive’s Base Salary in effect as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus for the year in which the termination occurs and (ii) a pro rata cash payment equal to Executive’s Target Annual Bonus for the year of termination based on service from the commencement of the applicable bonus year through the Effective 's Date of Termination. In addition;
(iv) outstanding stock options, vesting equity and all other rights with respect to stock options and other equity-based compensation performance awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, vested and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable exercised in accordance with the terms of the original grant agreementapplicable plan and award agreements;
(v) continued participation for twelve (12) months by the Executive and his eligible dependents in the Company's group medical and dental plan in which he and his eligible dependents were participating immediately prior to the Date of Termination, subject to the terms and conditions of the plans as such plans are amended from time to time. The Executive shall be required to continue to pay the employee-paid portion of such coverage. Upon the earlier of the expiration of twelve (12) months or the date the Executive becomes eligible for medical benefits with a subsequent employer, this coverage shall cease, and the Executive and his dependents, if anyapplicable, may elect group continuation coverage under COBRA;
(vi) any amounts earned, accrued or owing to the Executive but not yet paid under Section 8; and
(vii) Except as provided in 9(h) below, any payment and otherwise benefit in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance applicable plans and dental insurance plans in which Executive or his dependents participated as programs of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5Company.
Appears in 2 contracts
Sources: Employment Agreement (Seitel Inc), Employment Agreement (Seitel Inc)
Termination After a Change in Control. (a) If during the Employment Period (i) In the event Executive's employment is terminated by the Company terminates without Cause, or if Executive’s employment for reasons other than death's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and as a result Executive elects to terminate his employment, Disability or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twenty-four (24) 12 months after following a Change in of Control, then, from and after the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall be entitled to the payments same compensation and benefits described in paragraph (bSection 4(a) below, contingent upon executing and returning hereof with respect to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted any termination by the Company (which permitted time period shall not be less than twenty-one (21) days).
(b) Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides without Cause, PLUS an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum cash payment equal to (i) two (2) times the sum of (A) Executive’s Base Salary in effect as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus for the year in which the termination occurs and (ii) a pro rata cash payment amount equal to Executive’s Target Annual Bonus for the year of termination based 's annual base salary on service from the commencement of the applicable bonus year through the Effective Date of Termination. In addition, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of termination (the Change in Control, such measurement "Supplemental Payment"). The Supplemental Payment shall be used and paid to Executive in one lump sum within twenty (220) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to days after the effective date of such termination, it being the intent of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive as a result of Executive's employment or retention by another employer in any capacity.
(ii) A "Change in Control, such corporate Performance Targets and individual performance goals " shall be either deemed to have occurred if (xi) deemed 100% satisfied any "Person" (as such term is used in Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities, other than any person who acquires five percent (5%) or more of the outstanding common stock of the Company in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code (a "Chapter 11 Plan"), or (yii) measured against actual performance the Company shall merge with or consolidate into any other entity, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (iii) the stockholders of the Company approve and effect an agreement for the sale or disposition by the Company and/or the Employee against corporate Performance Targets of all or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms substantially all of the original grant agreementCompany's assets. Notwithstanding the foregoing, if any, and otherwise no Change in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement Control of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall providebe deemed to have occurred by virtue of any transaction which results in Executive, at its expenseor any group, continued participation association or other organization of persons related to, including, or acting in concert with Executive ("Related Persons"), acquiring, directly or indirectly, any medical insurance and dental insurance plans interest in the Company which Executive would otherwise constitute a Change of Control. Further, the restriction in the preceding sentence shall apply in the event of Executive's employment by, or his dependents participated as any other business affiliation with, any such Related Persons or the Company after such Change of the Effective Date Control for a period of Termination for twenty-four (24) 12 months following the Effective Date such Change of Termination, as described in Section 6.5Control.
Appears in 2 contracts
Sources: Employment Agreement (Kasper a S L LTD), Employment Agreement (Kasper a S L LTD)
Termination After a Change in Control. (a) If during In the Employment Period (i) the Company terminates event Executive’s 's employment for reasons other than deathis terminated, Disability without Cause, voluntarily or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twenty-four (24) months involuntarily after a Change in Control, then, from and after the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall be entitled to do the payments and benefits described in paragraph (b) below, contingent upon executing and returning to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days).following:
(bi) Within Base Salary earned and payable through the later Date of Termination;
(xii) fifteen (15) days following any unpaid Cash Bonus earned and accrued with respect to any year preceding the Effective Date of Termination and payable when bonuses for such year are paid to other Company executives subject to the terms and requirements of such bonus as may be established by the Board or Compensation Committee;
(yiii) eight (8) days after Executive provides an executed release of claims as described aboveamount equal to two times the Base Salary, as long as such release in effect on the Date of claims is not revoked by Executive during the seven (7) day period following its execution by Executive)Termination, the Company shall pay to Executive be paid in a lump sum cash payment equal to (i) two (2) times the sum of (A) as soon as administratively feasible after Executive’s Base Salary in effect as of the Effective 's Date of Termination but in no event later than two and (B) Executive’s Target Annual Bonus for one-half months after the year in which the termination occurs and (ii) a pro rata cash payment equal to Executive’s Target Annual Bonus for the year of termination based on service from the commencement of the applicable bonus year through the Effective Date of Termination. In addition;
(iv) outstanding stock options, vesting equity and all other rights with respect to stock options and other equity-based compensation performance awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, vested and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable exercised in accordance with the terms of the original grant agreementapplicable plan and award agreements;
(v) continued participation for twelve (12) months by the Executive and his eligible dependents in the Company's group medical and dental plan in which he and his eligible dependents were participating immediately prior to the Date of Termination, subject to the terms and conditions of the plans as such plans are amended from time to time. The Executive shall be required to continue to pay the employee-paid portion of such coverage. Upon the earlier of the expiration of twelve (12) months or the date the Executive becomes eligible for medical benefits with a subsequent employer, this coverage shall cease, and the Executive and his dependents, if anyapplicable, may elect group continuation coverage under COBRA;
(vi) any amounts earned, accrued or owing to the Executive but not yet paid under Section 8; and
(vii) Except as provided in 9(h) below, any payment and otherwise benefit in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance applicable plans and dental insurance plans in which Executive or his dependents participated as programs of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5Company.
Appears in 2 contracts
Sources: Employment Agreement (Seitel Inc), Employment Agreement (Seitel Inc)
Termination After a Change in Control. (a) If during In the Employment Period (i) event Executive's employment is terminated by the Company terminates Executive’s employment for reasons other than death, Disability or without Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twenty-four (24) 12 months after following a Change in of Control, then, from or if Executive's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and after the Effective Date of Termination, the Company shall have no further obligation as a result Executive elects to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise applyterminate his employment, Executive shall be entitled to the payments same compensation and benefits described in paragraph (bSection 4(a) below, contingent upon executing and returning of the Agreement with respect to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted any termination by the Company (which permitted time period shall not be less than twenty-one (21) days).
(b) Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides without Cause, PLUS an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum cash payment equal to (i) two (2) times the sum of (A) Executive’s Base Salary in effect as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus for the year in which the termination occurs and (ii) a pro rata cash payment amount equal to Executive’s Target Annual Bonus for the year of termination based 's annual base salary on service from the commencement of the applicable bonus year through the Effective Date of Termination. In addition, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of such termination (the Change in Control, such measurement "Supplemental Payment"). The Supplemental Payment shall be used and paid to Executive in one lump sum within twenty (220) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to days after the effective date of such termination, it being the intent of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive as a result of Executive's employment or retention by another employer in any capacity.
A " Change in Control, such corporate Performance Targets and individual performance goals " shall be either deemed to have occurred if (xi) deemed 100% satisfied any "Person" (as such term is used in Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities, other than any person who acquires five percent (5%) or more of the outstanding common stock of the Company in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code (a "Chapter 11 Plan"), or (yii) measured against actual performance the Company shall merge with or consolidate into any other entity, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (iii) the stockholders of the Company approve and effect an agreement for the sale or disposition by the Company and/or the Employee against corporate Performance Targets of all or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms substantially all of the original grant agreementCompany's assets. Notwithstanding the foregoing, if any, and otherwise no Change in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement Control of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall providebe deemed to have occurred by virtue of any transaction which results in Executive, at its expenseor any group, continued participation association or other organization of persons related to, including, or acting in concert with Executive ("Related Persons"), acquiring, directly or indirectly, any medical insurance and dental insurance plans interest in the Company which Executive would otherwise constitute a Change of Control. Further, the restriction in the preceding sentence shall apply in the event of Executive's employment by, or his dependents participated as any other business affiliation with, any such Related Persons or the Company after such Change of the Effective Date Control for a period of Termination for twenty-four (24) 12 months following the Effective Date such Change of Termination, as described in Section 6.5Control.
Appears in 1 contract
Termination After a Change in Control. (a) If during In the Employment Period (i) event Executive's employment with the Company terminates Executive’s employment for reasons other than deathis terminated without Cause, Disability or Cause or Executive suffers a Constructive Termination, within thirteen (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twenty-four (2413) months after following a Change in Control, then, from and after the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall be entitled to the payments and benefits described in paragraph (b) below, contingent upon executing and returning to the Company (and not revoking) signs a release of claims in substantially the form attached hereto as Exhibit A within the time permitted by favor of the Company (which permitted time period and allows that release to become effective pursuant to Section 6 of this Agreement, then Executive shall not be less than twenty-one (21) days).
(b) Within receive the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum cash payment equal to severance benefits: (i) two an amount equivalent to his base salary for eighteen (218) times months from the sum date of termination, payable as salary continuation in accordance with the Company's ordinarily scheduled payroll (Aless standard payroll deductions and withholdings); (ii) Executive’s Base Salary reimbursement for his health insurance premiums at his current rate of coverage for eighteen (18) months following the termination of Company-paid group health insurance coverage, provided Executive timely elects continued coverage under COBRA; and (iii) the vesting of the Option and Restricted Shares (but not the Acquisition Restricted Shares) shall be accelerated such that in effect addition to the number of options and shares vested as of the Effective Date date of Termination termination pursuant to terms of the applicable plan documents and agreements, the number of options and shares that would have vested over the thirty (B30) month period following such date of termination had the Executive’s Target Annual Bonus for 's employment not been terminated without Cause, shall be deemed vested as of the year date of termination. The severance payments and health care reimbursement in which the termination occurs subsections (i) and (ii) a pro rata cash payment equal above shall cease when Executive commences full-time employment with another business entity. Executive hereby agrees to Executive’s Target Annual Bonus for notify the year Company within three (3) business days of termination based on service from accepting such employment. Executive understands and agrees that the commencement benefits he is eligible to receive under this Section 5.4(b) are being provided to him in lieu of any benefits he would otherwise be entitled to receive under the applicable bonus year through the Effective Date Company's Change of Termination. In additionControl Senior Management Severance/Equity Acceleration Plan, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under that plan under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5circumstances.
Appears in 1 contract
Termination After a Change in Control. (a) If during In the Employment Period (i) the Company terminates Executive’s employment for reasons other than death, Disability or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twenty-four (24) months after event of a "Change in ------------------------------------- Control, then, from and after the Effective Date " of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall be entitled to the payments and benefits described in paragraph (b) below, contingent upon executing and returning to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days).
(b) Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum cash payment equal to (i) two (2) times the sum of (A) Executive’s Base Salary in effect defined as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus date hereof in the Company's 1996 Stock Incentive Plan for the year in which the termination occurs and (ii) a pro rata cash payment equal to Executive’s Target Annual Bonus for the year of termination based on service from the commencement of the applicable bonus year through the Effective Date of Termination. In addition, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP GuidelinesEmployees), Executive will be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commencedif, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-within twenty- four (24) months following the Effective closing of such a Change in Control (or at any time prior thereto but in contemplation thereof):
(i) There is a material reduction in the Employee's title, authority or responsibilities, including reporting responsibilities;
(ii) The Employee's Annual Base Salary is reduced;
(iii) The Employee's office at which he is to perform his duties is relocated to a location more than thirty (30) miles from the location at which the Employee performed his duties prior to the Change in Control;
(iv) The Company fails to continue in effect any incentive, bonus or other compensation plan in which the Employee participates, unless the Company substitutes a substantially equivalent benefit;
(v) The Company fails to continue in effect any employee benefit plan (including any medical, hospitalization, life insurance, dental or disability benefit plan in which the Employee participated) or any material fringe benefit or perquisite enjoyed by the Employee at the time of the Change in Control, unless the Company substitutes benefits which, in the aggregate, are substantially equivalent;
(vi) The Company breaches any material provision of this Employment Agreement; or
(vii) The Company fails to obtain a satisfactory agreement from any successor or assign of the Company to assume and agree to perform this Employment Agreement; Then the Employee shall have the option to voluntarily terminate his employment and the Company shall:
(a) Pay the Employee his full base salary earned but not yet paid through the Termination Date at the greater of Terminationthe rate in effect at the time of the Change in Control or the Termination Date ("Higher Annual Base Salary"), plus any bonuses or incentive compensation which, pursuant to the terms of any compensation or benefit plan, have been earned and are payable as described in Section 6.5.of the
Appears in 1 contract
Sources: Employment Agreement (Humana Inc)
Termination After a Change in Control. In the event that a Change in Control occurs and the Company terminates the Employee’s employment without Cause within 12 months thereafter or the Employee resigns for Good Reason within 12 months thereafter, then:
(a) If during the Employment Period Company will provide the Employee with severance benefits in an amount of twelve (12) months of your then existing base salary, less payroll deductions and all required withholdings, paid either (at the Company’s discretion) in a lump sum or in a regular payments at equal intervals over a period of time not to exceed 12 months, and
(b) all stock options held by the Employee shall have their vesting accelerated such that they are fully vested and exercisable as of the date of the Change of Control Termination (the “Acceleration”), provided that, as a precondition of receiving the payments and benefits under this paragraph, the Employee must first sign and allow to become effective a general release of claims in favor of the Company in a form acceptable to the Company. Notwithstanding the foregoing, the Employee shall not be entitled to any payments or benefits pursuant to this paragraph upon the termination of his employment with the Company if (i) such termination occurs in connection with the Company terminates ExecutiveEmployee commencing employment with an Intevac Entity, in which case the terms of this section 2 shall then apply with equal force and effect to the Employee’s employment for reasons other than deathwith the Intevac Entity, Disability or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twenty-four (24) months after in connection with a Change in Control, then, from and after the Effective Date of TerminationControl pursuant to section 1(a) above, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 person or 6.7, whichever would otherwise apply, Executive shall be entitled to the payments and benefits described in paragraph (b) below, contingent upon executing and returning to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days).
(b) Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum cash payment equal to (i) two (2) times the sum of (A) Executive’s Base Salary in effect as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus for the year entity that acquires Intevac or division in which the termination occurs and (ii) a pro rata cash payment equal to Executive’s Target Annual Bonus for the year of termination based on service from the commencement Employee works, or substantially all of the applicable bonus year through the Effective Date of Termination. In addition, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered for such purpose to have been employed at the end assets of the calendar year Intevac division in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated Employee works, offers the Employee a job that is comparable to the Employee’s job with Intevac in accordance with terms of responsibility, compensation and benefits within 90 days of the LTIP as then in effect; provided that if date on which the Company terminates ExecutiveEmployee’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5Intevac terminates.
Appears in 1 contract
Termination After a Change in Control. (a) If Executive, by written notice to the Board of Directors, shall have the right to terminate his employment at any time during a thirty-day period commencing on the ninetieth day following a Change of Control. Upon such termination, the Employment Period (i) the Company terminates Executive’s employment for reasons other than death, Disability or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twenty-four (24) months after a Change in Control, then, from and after the Effective Date of TerminationTerm shall terminate, the Company shall have no further obligation not be obligated to pay any Base Salary provide compensation or benefits under this Agreement with respect to Executive andthe period following such termination, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, and Executive shall be entitled to the payments same compensation and benefits described in paragraph (b) belowSection 9 hereof, contingent upon executing payable at the same time and returning to in the Company (and not revoking) a release of claims in substantially the form attached hereto same form, as Exhibit A within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days)if his employment had been terminated for Good Reason.
(b) Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company A "Change in Control" shall pay be deemed to Executive a lump sum cash payment equal to have occurred if (i) any "Person" (as such term is used in Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities, other than any person who acquires five percent (5%) or more of the outstanding common stock of the Company in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code (a "Chapter 11 Plan"), or (ii) during any period of two (2) times consecutive years (not including any period prior to the sum execution of (A) Executive’s Base Salary in effect as this Agreement), individuals who at the beginning of such period constitute the members of the Effective Date Board of Termination Directors and any new director, whose election to the Board of Directors or nomination for election to the Board of Directors by the Company's stockholders was approved by a vote of at least two-thirds (B2/3) Executive’s Target Annual Bonus for the year in which the termination occurs and (ii) a pro rata cash payment equal to Executive’s Target Annual Bonus for the year of termination based on service from the commencement of the applicable bonus year through directors then still in office who either were directors at the Effective Date beginning of Termination. In additionthe period or whose election or nomination for election was previously so approved, vesting and all cease for any reason to constitute a majority of the Board of Directors (except as a result of a Chapter 11 Plan), or (iii) the Company shall merge with or consolidate into any other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (corporation, other than LTIP Awards) will be treated a merger or consolidation which would result in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered for such purpose to have been employed at the end holders of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if voting securities of the Company terminates Executive’s employment for reasons other outstanding immediately prior thereto holding immediately thereafter securities representing more than death, Disability fifty percent (50%) of the combined voting power of the voting securities of the Company or Cause such surviving entity outstanding immediately after such merger or Executive timely terminates his employment for Good Reason, and such termination occurs during consolidation; except that a merger or consolidation effected to implement a Chapter 11 Plan or recapitalization of the Employment Period and within twenty-four Company (24or similar transaction) months after shall not constitute a Change in Control, notwithstanding Section VI.D. or (iv) the stockholders of the LTIP Guidelines currently in Company approve and effect a plan of complete liquidation of the Company or an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets.
(c) In the event that any payment or benefit received or to be received by Executive pursuant to the terms of this Agreement (the "Contract Payments") or of any other plan, arrangement or agreement of the Company (or any comparable provisions in any subsequently adopted LTIP Guidelinesaffiliate) ("Other Payments" and, together with the Contract Payments, the "Payments") would be subject to the excise tax imposed by Section 4999 of the Code (the "Excise Tax"), Executive will be entitled to payment as determined as provided below, and the aggregate present value of Payments exceeds three (3) times Executive's "base amount" (as such term is defined in Section 280G of the full amount Code) by $100,000 or less, the Payments shall be reduced (without pro rationbut not below zero) until no portion of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect Payments would be subject to the applicable Performance Period, calculated Excise Tax. Such determination shall be made in accordance with the LTIP Guidelines; provided that for purposes an opinion of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance counsel selected by the Company and/or and reasonably acceptable to Executive against corporate Performance Targets (as defined "Tax Counsel") and, in making such determination, (i) the LTIP Guidelines) value of any non-cash benefit or individual performance goals, as applicable, has been measured, and any deferred payment or benefit included in such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 payments shall be determined in accordance with the provisions principles of such programSections 280G(d)(3) of the Code, policy or plan; providedand (ii) Executive shall be entitled, howeverat any time by written notice to the Company, that, to reduce the amount of any Payment otherwise payable to him and to select from among the Payments those to be so reduced.
(d) In the event that any Payment would be subject to the last sentence Excise Tax imposed by Section 4999 of the Code, as determined as provided below, and the aggregate present value of the Payments exceeds three (3) times Executive's "base amount" (as such term is defined in Section 6.5280G of the Code) by more than $100,000, the Company shall providepay to Executive, at its expensethe time specified in this Section 10 below, continued participation an additional amount (the "Gross-Up Payment") such that the net amount retained by the Executive, after deduction of the Excise Tax on Payments and any federal, state and local income tax and the Excise Tax upon the Gross-Up Payment, and any interest, penalties or additions to tax payable by Executive with respect thereto, shall be equal to the total present value (using the applicable federal rate (as defined in Section 1274(d) of the Code in such calculation) of the Payments at the time such Payments are to be made.
(e) For purposes of determining whether any medical insurance of the Payments will be subject to the Excise Tax and dental insurance plans the amounts of such Excise Tax, (i) the total amount of the Payments shall be treated as "parachute payments" within the meaning of section 280G(b)(2) of the Code, and all "excess parachute payments" within the meaning of section 280G(b)(1) of the Code shall be treated as subject to the Excise Tax, except to the extent that, in the opinion of Tax Counsel, a Payment (in whole or in part) does not constitute a "parachute payment" within the meaning of section 280G(b)(2) of the Code, or such "excess parachute payments" (in whole or in part) are not subject to the Excise Tax, (ii) the amount of the Payments that shall be treated as subject to the Excise Tax shall be equal to the lesser of (A) the total amount of the Payments or (B) the amount of "excess parachute payments" within the meaning of section 280G(b)
(1) of the Code (after applying clause (1) hereof), and (iii) the value of any non-cash benefits or any deferred payment or benefit shall be determined by Tax Counsel in accordance with the principles of sections 280G(d)(3) and (4) of the Code. For purposes of determining the amount of the Gross-Up Payment, Executive shall be deemed to pay federal income taxes at the highest marginal rates of federal income taxation applicable to individuals in the calendar year in which the Gross-Up Payment is to be made and state and local income taxes at the highest marginal rates of taxation applicable to individuals as are in effect in the state and locality of Executive's residence in the calendar year in which the Gross-Up Payment is to be made, net of the maximum reduction in federal income taxes that can be obtained from deduction of such state and local taxes, taking into account any limitations applicable to individuals subject to federal income tax at the highest marginal rates.
(f) The Gross-Up Payments provided for in this Section 10 shall be made upon the earlier of (i) the payment to Executive of any Payment or (ii) the imposition upon Executive or his dependents participated as payment by Executive of any Excise Tax. If it is established pursuant to a final determination of a court or an Internal Revenue Service proceeding or the opinion of Tax Counsel that the Excise Tax is less than the amount taken into account under Section 10 hereof, Executive shall repay to the Company within thirty (30) days of Executive's receipt of notice of such final determination or opinion the portion, of the Effective Date Gross-Up Payment attributable to such reduction (plus the portion of Termination for twentythe Gross-four Up Payment attributable to the Excise Tax and federal, state and local income tax imposed on the Gross-Up Payment being repaid by Executive, if such repayment results in a reduction in Excise Tax or a federal, state and local income tax deduction) plus any interest received by Executive on the amount of such repayment. If it is established pursuant to a final determination of a court, an Internal Revenue Service proceeding, or the opinion of Tax Counsel that the Excise Tax exceeds the amount taken into account hereunder (24including by reason of any payment the existence or amount of which cannot be determined at the time of the Gross-Up Payment), the Company shall make an additional Gross-Up Payment in respect of such excess within thirty (30) months following days of the Effective Date Company's receipt of Terminationnotice of such final determination or opinion.
(g) In the event of any change in, or further interpretation of, sections 280G or 4999 of the Code and the regulations promulgated thereunder, Executive shall be entitled, by written notice to the Company, to request an opinion of Tax Counsel regarding the application of such change to any of the foregoing, the Company shall use its best efforts to cause such opinion to be rendered as described promptly as practicable. All fees and expenses of Tax Counsel incurred in Section 6.5connection with this agreement shall be borne by the Company.
Appears in 1 contract
Termination After a Change in Control. (a) If during the Employment Period Period, (i) the Company terminates Executive’s employment for reasons other than death, Disability or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twenty-four (24) months after a Change in Control, then, from and after the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall be entitled to the payments and benefits described in paragraph (b) or (c) below, whichever is applicable, contingent upon executing and returning to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days).
(b) Within In the event that Executive’s employment is terminated by the Company or Executive as provided in Section 6.8(a) above within twenty-four (24) months after a Change in Control that is not a Simon Change in Control (as defined below), then within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described in Section 6.8(a) above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum cash payment equal to (i) two (2) times the sum of (A) Executive’s Base Salary in effect as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus for the year in which the termination occurs and (ii) a pro rata cash payment equal to Executive’s Target Annual Bonus for the year of termination based on service from the commencement of the applicable bonus year through the Effective Date of Termination. In addition, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will be entitled to the payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured or ratified by the Executive Compensation Committee, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5.
(c) In the event that Executive’s employment is terminated by the Company or Executive as provided in Section 6.8(a) above within twenty-four (24) months after a Simon Change in Control, then within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described in Section 6.8(a) above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum cash payment equal to (i) three (3) times the sum of (A) Executive’s Base Salary in effect as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus for the year in which the termination occurs and (ii) a pro rata cash payment equal to Executive’s Target Annual Bonus for the year of termination based on service from the commencement of the applicable bonus year through the Effective Date of Termination. In addition, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason or Executive exercises the right to terminate his employment as provided in Section 6.8(d) in a timely manner, and such termination occurs during the Employment Period and within twenty-four (24) months after a Simon Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will be entitled the payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5.
(d) Notwithstanding anything in this Agreement to the contrary, if (i) a Change in Control occurs and, immediately following and as a result of such Change in Control, Simon Property Group or an affiliate thereof (which for purposes of this Section 6.8(d) shall mean any entity in which Simon Property Group owns or controls more than fifty percent (50%) of the voting interests) (a “Simon Affiliate”) or any “group” (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934) that includes Simon Property Group or a Simon Affiliate has the right to elect at least a majority of the members of the Board of Directors of the Company, whether through the ownership of voting securities or by contract or otherwise or (ii) any of ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇ or an officer or director of Simon Property Group or of a Simon Affiliate (other than an independent director of any such entity, as defined in Rule 303A.02 of the New York Stock Exchange Listed Company Manual) has authority to establish and direct the policies or strategic direction of the Company’s in-line leasing activities other than in connection with general responsibilities as a member of the Company’s Board of Directors (either (i) or (ii) being hereinafter referred to as a “Simon Change in Control”), Executive shall have the right to terminate his employment hereunder by delivering written notice to the Company within ninety (90) days after the effective date of such Simon Change in Control (which notice shall state the Effective Date of Termination and which Effective Date of Termination shall not be more than ninety (90) days after the date of such notice) and, in the event Executive exercises such right in a timely manner, then within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described in Section 6.8(a) above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive the payments and benefits set forth in Section 6.8(c) in lieu of the payments and benefits set forth in Section 6.4 hereof.
Appears in 1 contract
Sources: Employment Agreement (Mills Corp)
Termination After a Change in Control. (a) If during the Employment Period (i) the Company terminates Executive’s employment for reasons other than death, Disability or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs This Agreement shall automatically terminate if within twenty-four (24) months one year after a Change in Control, then, from and after the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall be entitled to the payments and benefits described as defined in paragraph (be), the Executive is involuntarily terminated without cause or the Employee voluntarily terminates for Good Reason, as defined in paragraph (f). If such termination occurs, Employee shall receive a lump-sum acquisition payment (“Acquisition Payment”) below, contingent upon executing and returning in the amount equal to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days).
(b) Within the later sum of (x) fifteen eighteen (1518) days following months Base Salary at the Effective Date then current rate of Termination and annual compensation plus (y) eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum cash payment equal to (i) two (2) times the sum of (A) Executive’s Base Salary in effect as average of the Effective Date of Termination bonus and (B) Executive’s Target Annual Bonus incentive compensation earned by the Executive for the three calendar years immediately preceding the year in which the termination occurs Change in Control occurs, regardless of when the bonus or incentive compensation is paid. Company recognizes that the bonus and (ii) incentive compensation earned by the Executive for a pro rata cash payment equal to Executiveparticular year’s Target Annual Bonus for service might be paid in the year of termination based on service from the commencement of the applicable bonus year through the Effective Date of Termination. In addition, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered for such purpose to have been employed at the end of after the calendar year in which the termination occurredbonus or incentive compensation is earned. Any LTIP Awards The amount payable to the Executive hereunder shall not covered by be reduced to account for the time value of money or discounted to present value. The payment required under this Section 6.1 hereof will be treated 19(d) is payable no later than the end of the seventh month after the month in accordance with which the LTIP as then in effect; provided that if the Company terminates ExecutiveEmployee’s employment for reasons other than death, Disability or Cause or Executive timely terminates. If the Employee terminates his employment for Good Reason, and the date of termination shall be the date specified by the Employee in his notice of termination. If termination of the Executive occurs under section 19(d), Company will provide Executive benefit continuation to include Acquisition Payment health insurance benefits (“Additional Benefits”) for 18 months following the date of such termination occurs during under the Employment Period Consolidated Omnibus Reconciliation Act (“COBRA”) for Executive and within twenty-four (24) months after Executive’s spouse at Company’s cost. In the event of a Change in Control, notwithstanding Control and the termination of this Agreement under this Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines19(d), no provision contained in this Agreement should be construed to prevent Executive will from negotiating a new employment agreement with either the Company or the acquirer of Company, should the parties desire to do so. The Parties agree that the above-referenced Acquisition Payment and Additional Benefits shall be entitled to payment of the full amount (without pro ration) received by Executive in lieu of any unvested LTIP Awards that have been made and all claims and/or damages which may be sustained by Executive due to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in ControlControl and the termination of Executive’s employment and will be accepted by Executive in full satisfaction of all such claims and damages, such measurement shall be used and (2) other than benefits expressly provided in other written agreements that provide for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5Control benefits.
Appears in 1 contract
Termination After a Change in Control. Notwithstanding anything herein to the contrary, if the Executive’s employment terminates due to either a Without Cause Termination or a Constructive Discharge following a Change in Control (a) If during as defined below), then the Employment Period Company will pay the Executive (or the Executive’s surviving spouse, estate or personal representative, as applicable), (i) the Company terminates Executive’s employment for reasons other than death, Disability or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twenty-four (24) months after a Change in Control, then, from and after the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall be entitled to the payments and benefits described in paragraph (b) below, contingent upon executing and returning to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days).
(b) Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum cash payment equal to the aggregate Monthly Base Salary for eighteen (18) months, (ii) any and all Base Salary and Incentive Compensation Awards earned but unpaid through the date of such termination, and (iii) a pro rata portion of the Incentive Compensation Award in respect of the fiscal year in which Executive’s employment terminates due to either a Without Cause Termination or a Constructive Discharge following a Change in Control (paid at the Target Level), provided that all the performance targets relating to such Incentive Compensation Award are attained. The payments set forth in (i) two and (2ii) above shall be made no later than thirty (30) days after such Without Cause Termination or Constructive Discharge, and the payment in (iii) above shall be made at the time or times the sum of (A) Executive’s Base Salary as incentive compensation awards in effect as respect of the Effective Date of Termination and (B) Executive’s Target Annual Bonus for the fiscal year in which the termination Without Cause Termination or Constructive Discharge occurs and (ii) a pro rata cash payment equal are payable by the Company to Executive’s Target Annual Bonus for the year of termination based on service from the commencement of the applicable bonus year through the Effective Date of Terminationits other similarly situated executive officers. In addition, vesting upon such event, all of the Executive’s outstanding and all other rights with respect to unvested stock options and any other equity-based equity awards or other incentives or compensation awards not covered by Section 6.1 above (other than LTIP Awards) that are subject to vesting will become immediately and fully vested and exercisable, and all outstanding options, awards, incentives and compensation shall be treated extended and remain exercisable in accordance with the equity incentive plan under which they were granted or awarded. Furthermore, upon such event, the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered entitled to continue coverage under all health and welfare plans for the Executive and members of the Executive’s immediate family, including medical and dental benefits, during the eighteen (18)-month period immediately following such purpose termination, with the Executive’s cost being no greater than the cost applicable to have the Executive had the Executive been employed an active, full-time employee of the Company during such period. Following the expiration of such eighteen (18)-month period, Executive and members of the Executive’s immediate family, shall be permitted to continue coverage under the Company’s medical, prescription and dental plan for any remaining continuation period required under COBRA (treating such eighteen (18)-month period as part of the continuation period required by COBRA), at the end of applicable premium rate for similarly situated participants. The payments to be made, and the calendar year in which the termination occurred. Any LTIP Awards not covered benefits to be provided, by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than deathto the Executive pursuant to this Section VIII(B) are in lieu of any payments, Disability benefits or Cause or compensation the Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will may otherwise be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made receive pursuant to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5VIII(A).
Appears in 1 contract
Sources: Executive Employment Agreement (Jackson Hewitt Tax Service Inc)
Termination After a Change in Control. (a) If during In the Employment Period (i) the Company terminates Executive’s employment for reasons other than death, Disability or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twenty-four (24) months after event of a "Change in Control, then, from and after the Effective Date " of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall be entitled to the payments and benefits described in paragraph (b) below, contingent upon executing and returning to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days).
(b) Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum cash payment equal to (i) two (2) times the sum of (A) Executive’s Base Salary in effect defined as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus date hereof in the Company's 1996 Stock Incentive Plan for the year in which the termination occurs and (ii) a pro rata cash payment equal to Executive’s Target Annual Bonus for the year of termination based on service from the commencement of the applicable bonus year through the Effective Date of Termination. In addition, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP GuidelinesEmployees), Executive will be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commencedif, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for within twenty-four (24) months following the Effective closing of such a Change in Control (or at any time prior thereto but in contemplation thereof):
(i) There is a material reduction in the Employee's title, authority or responsibilities, including reporting responsibilities;
(ii) The Employee's Annual Base Salary is reduced;
(iii) The Employee's office at which he is to perform his duties is relocated to a location more than thirty (30) miles from the location at which the Employee performed his duties prior to the Change in Control;
(iv) The Company fails to continue in effect any incentive, bonus or other compensation plan in which the Employee participates, unless the Company substitutes a substantially equivalent benefit;
(v) The Company fails to continue in effect any employee benefit plan (including any medical, hospitalization, life insurance, dental or disability benefit plan in which the Employee participated) or any material fringe benefit or perquisite enjoyed by the Employee at the time of the Change in Control, unless the Company substitutes benefits which, in the aggregate, are substantially equivalent;
(vi) The Company breaches any material provision of this Employment Agreement; or
(vii) The Company fails to obtain a satisfactory agreement from any successor or assign of the Company to assume and agree to perform this Employment Agreement; Then the Employee shall have the option to voluntarily terminate his employment and the Company shall:
a) Pay the Employee his full base salary earned but not yet paid through the Termination Date at the greater of Terminationthe rate in effect at the time of the Change in Control or the Termination Date ("Higher Annual Base Salary"), plus a bonus calculated at one hundred twenty-five percent (125%) of his Annual Base Salary prorated for the current fiscal year through the Termination Date.
b) Pay the Employee a lump sum in an amount equal to two and one-half (2 1/2) times the amount equal to the sum of (1) the Employee's Higher Annual Base Salary plus (2) the maximum target bonus or incentive compensation which could have been earned by the Employee calculated as if all relevant goals had been met during the then current fiscal year of the Company pursuant to the terms of the incentive compensation plan in which he participates. If there is no incentive compensation plan in effect as of the Termination Date, then for purposes of this Agreement it shall be assumed that the amount of incentive compensation to be paid to the Employee shall be the maximum target amount under any incentive compensation plan in which he participated at the date of the Change in Control or the most recent plan participated in, whichever would be greater.
c) Maintain in full force and effect for the benefit of the Employee and the Employee's dependents and beneficiaries, at the Company's expense, all life insurance, health insurance, dental insurance, accidental death and dismemberment insurance and disability insurance under plans and programs in which the Employee and/or the Employee's dependents and beneficiaries participated immediately prior to the Termination Date, provided that continued participation is possible under the general terms and provisions of such plans and programs ("Extended Benefits"). The Extended Benefits shall be continued until the earlier of (A) the second (2nd) anniversary of the Termination Date, (B) the effective date of the Employee's coverage under equivalent benefits from a new employer (provided that no such equivalent benefits shall be considered effective unless and until all pre-existing condition limitations and waiting period restrictions have been waived or have otherwise lapsed), or (C) the death of the Employee. If participation in any such plan or program is barred, the Company shall arrange at its own expense to provide the Employee with benefits substantially similar to those which he was entitled to receive under such plans and programs. At the end of the period of coverage, the Employee shall have the right to have assigned to him, at no cost and with no apportionment of prepaid premiums, any assignable insurance policy relating specifically to him. Employee shall be entitled to continuation coverage as provided in Section 8(d) at the conclusion of the coverage provided under this Section. The amount of any payment provided for in this Section 9 shall be offset by any lump sum cash payments due the Employee upon termination under any other provisions of this Employment Agreement.
d) To the extent that any amounts or payments in the nature of compensation [within the meaning of Section 280G of the Internal Revenue Code of 1986, as described amended, and the regulations promulgated thereunder ("Section 280G")] to or for the benefit of the Employee under this Employment Agreement or otherwise (or any part of such amount or other payment) constitutes an "excess parachute payment" within the meaning of Section 280G and Section 4999 of the Internal Revenue Code, then the Company shall pay to Employee an additional sum such that, after all taxes applicable to the receipt of such amount have been subtracted therefrom, the remaining amount will equal the sum of the amount of tax imposed with respect to the "excess parachute payment," plus any interest and penalties thereon (other than those caused solely by Employee's action or inaction). Therefore, the effect shall be to maintain the Employee in the same financial position that he would have been in had no tax under Section 6.5280G been imposed.
Appears in 1 contract
Sources: Employment Agreement (Humana Inc)
Termination After a Change in Control. (a) If during the Employment Period (i) If Executive is terminated by the Company terminates Executive’s employment for reasons other than death, Disability or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twentyduring the three-four (24) months after year period following a Change in ControlControl (as defined in Section 5(f) below) for any reason other than Cause, then, from and after the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, then Executive shall be entitled to the payments following:
(A) During the longer of (i) the 18-month period following his termination and benefits described (ii) the remainder of the Employment Period in paragraph (b) beloweffect at the date of termination, contingent upon executing and returning except to the Company (extent prohibited under the terms of any applicable insurance policy, he shall continue to be covered under the Company's welfare benefit plans to the same extent and not revoking) a release of claims in substantially on the form attached hereto same terms as Exhibit A within those benefits are provided to the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days)Company's active employees.
(bB) Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), He shall receive from the Company shall pay to Executive a lump sum cash payment an amount (the "SEVERANCE PAY") equal to the greater of (i) two (2) one and one-half times the sum of (Ax) the Executive’s 's current Annual Base Salary plus (y) the amount of any bonus paid to Executive in effect as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus for the year in which the termination occurs preceding twelve months and (ii) a pro rata cash payment the Annual Base Salary and Annual Bonuses through the end of the then current Employment Period (PROVIDED, that the amount of each of the Annual Bonuses so paid shall equal to Executive’s the Target Annual Bonus for Bonus). The Severance Pay amount shall be paid (a) if clause (i) in the year of termination based previous sentence applies, over the 18-month period commencing on service from the commencement of the applicable bonus year through the Effective Date of Termination. In additiondate Executive's employment terminates, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in equal monthly or more frequent installments in accordance with the equity incentive plan Company's payroll schedule or (b) if clause (ii) in the previous sentence applies, as and when such amounts would be paid in accordance with Sections 3(a) and (b) above. The Company's obligation to provide welfare benefit coverage and make severance payments under which this Section 5(e) shall cease with respect to periods after the relevant grant was made and any applicable grant agreementsearlier to occur of the date of Executive's death, or the date, if any, of the breach by Executive of the provisions of Section 6.
(ii) If Executive terminates his employment hereunder voluntarily following a Change in Control, then Executive shall not be entitled to Severance Pay; provided, however, that if Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs Reason (as defined below) during the Employment Period and within twentythree-four (24) months after year period following a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), such termination shall not be considered a voluntary termination by Executive will and Executive shall be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have treated as if he had been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance terminated by the Company and/or Executive against corporate Performance Targets pursuant to paragraph (as defined i) of this Section 5(e) above. "GOOD REASON" means, in the LTIP Guidelines) event of or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the following a Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5.:
Appears in 1 contract
Termination After a Change in Control. (a) If during the Employment Period (i) the Company terminates Executive’s employment for reasons other than death, Disability or Cause or (ii) Executive timely terminates his employment for “Good Reason”, and either (i) such termination occurs during the Employment Period and in anticipation of a Change in Control or (ii) occurs within twenty-four (24) months after a Change in Control, then, from and after the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall be entitled to the payments and benefits described in paragraph (b) belowthe following paragraph, contingent upon executing and returning to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A B within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days).
(b) . Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) or if later, eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive Executive: (a) a lump sum cash payment equal to (i) two (2) times the sum of (A) Executive’s Base Salary in effect as of the Effective Date of Termination and $1,150,000, (B) Executive’s Target Annual Bonus for the year in which the termination occurs occurs, and (C) $580,000 and (ii) a pro rata cash payment equal to of Executive’s Target Annual Bonus for the year of termination based on service from the commencement of the applicable bonus year through the date of termination; provided, however, that if the Effective Date of TerminationTermination occurs on or after February 2, 2005 but prior to February 2, 2007, the Company shall pay to Executive, in lieu of the payment provided for in subsection (a)(i) above, a lump sum cash payment equal to two and one-half (2-1/2) times the sum of (A) $1,150,000, (B) Executive’s Target Annual Bonus for the year in which termination occurs and (C) $580,000; and provided further that if the Effective Date of Termination occurs on or after February 2, 2007, the Company shall pay to Executive, in lieu of the payments provided for in subsection (a)(i) above and the preceding proviso, a lump sum cash payment equal to three (3) times the sum of (A) $1,150,000, (B) Executive’s Target Annual Bonus for the year in which termination occurs, and (C) $580,000. In addition, the Inducement Grant will fully vest if not already vested and the Inducement Grant and any Annual Equity Compensation Awards made prior to the Effective Date of Termination will, to the extent not already settled, be settled in accordance with the terms of the grant documents covering such grants or awards and consistent with the terms of this Agreement, and vesting and all other rights with respect to of stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards that are not covered by Section 6.1 hereof above or the preceding provisions of this Section 6.8 will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit plan, program, policy or plan arrangement described in Section 5.1 or 5.2 shall be determined in accordance with the provisions of such program, policy or planthereof; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-four two (242) months years following the Effective Date of Termination, as described in Section 6.5.
Appears in 1 contract
Sources: Employment Agreement (Mills Corp)
Termination After a Change in Control. In the event that a ------------------------------------- Change in Control (aas defined below) If shall occur during the Employment Period (i) Term and within 12 months after such Change in Control Employee's employment shall be terminated by the Company terminates Executive’s employment for reasons other than death, Disability or without Cause or (ii) Executive timely terminates his employment by Employee for Good ReasonReason (whether or not such termination occurs prior to the end of the Term), and either (i) or (ii) occurs within twenty-four (24) months after a Change in Control, then, from and after the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive Employee shall be entitled to the following payments and benefits described in lieu of any entitlement under paragraph 6(d) above, subject to Employee's compliance with paragraph 7 below:
(bi) belowa lump sum payment, contingent upon executing and returning payable within 90 days after the effective date of termination, of an amount in cash equal to the Company product of (and not revokingA) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days).
(b) Within the later sum of (x) fifteen (15) days following Employee's annual salary at the Effective Date rate in effect on the date of Termination and termination plus (y) eight the greater of Employee's target bonus under the Company's bonus plan for the year of termination or the avenge of Employee's bonus for the three years preceding the date of termination, multiplied by (8) days after Executive provides an executed release B) the greater of claims three or the number of years and partial years remaining in the Term;
(ii) Employee shall continue to be covered (or shall be provided substantially equivalent benefits) at the Company's expense to the same extent as described aboveprior to his termination by the Company's medical, dental and life insurance plans for the longer of the remainder of the Term or three years, subject to the proviso at the end of paragraph (d)(iii);
(iii) Employee shall be entitled to the benefits specified in paragraphs (d)(iv) and (v); and
(iv) if it shall be determined that any payment or distribution by the Company to or for the benefit of Employee, whether paid or payable or distributed or distributable pursuant to the terms of this Employment Agreement or otherwise (a "Payment"), would be subject to the excise tax ------- imposed by Section 4999 of the Internal Revenue Code of 1986, as long as such release of claims is not revoked by Executive during amended (the seven "Code") (7) day period following its execution by Executivethe "Excise Tax"), then the Company shall pay to Executive Employee an ---- ---------- additional payment (a lump sum cash payment equal "Gross-Up Payment") in an amount necessary to (i) two (2) times the sum of (A) Executive’s Base Salary in effect as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus ---------------- reimburse Employee, on an after-tax basis, for the year in which the termination occurs Excise Tax and for any federal, state and local income tax and excise tax (ii) a pro rata cash payment equal to Executive’s Target Annual Bonus for the year of termination based on service from the commencement of the applicable bonus year through the Effective Date of Termination. In addition, vesting including any interest and all other rights penalties imposed with respect to stock options and other equity-based compensation awards not covered such taxes) that may be imposed by Section 6.1 above (other than LTIP Awards) will be treated in accordance with reason of the equity incentive plan under which Payment. For purposes of determining the relevant grant was made and amount of any applicable grant agreements; providedGross- Up Payment, however, that Executive Employee shall be considered for such purpose deemed to have been employed pay federal, state and local income taxes at the end highest applicable marginal rate of taxation in the calendar year in which the termination occurredGross-Up Payment is to be made. Any LTIP Awards not covered by Section 6.1 hereof will All determinations required to be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four made under this paragraph (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelinese)(iv), Executive will including whether a Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance a nationally-known independent accounting firm mutually agreed upon by the Company and/or Executive against corporate Performance Targets and Employee (as defined in the LTIP Guidelines"Accounting Firm") or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior which shall provide detailed supporting --------------- calculations both to the effective date Company and Employee within 15 business days of the Change request for such determination. Such request may be made by either party. The Company shall pay the fees and expenses of the Accounting Firm in Control, such measurement connection with any determinations hereunder. The Gross-Up Payment shall be used and (2) for any calendar year in which actual performance paid by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date within 10 days of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms Accounting Firm's determination of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5amount thereof.
Appears in 1 contract
Termination After a Change in Control. (a) If during the Employment Period (i) If the Company Employee terminates Executivehis employment with the Bank for any reason during the Window Period after a Change in Control or the Employee’s employment is terminated without Cause during the Window Period after a Change in Control, the Employee will be entitled to the sum of Accrued Obligations (as defined in Section 12(a)(iii)) plus a cash amount (subject to any applicable payroll or other taxes required to be withheld) equal to the excess, if any, of 299% of the Employee’s “annualized includable compensation for reasons the base period,” as defined in Code Section 280G, over the total amount payable to the Employee under Section 12(a)(i), payable in a single lump sum on the Date of Termination.
(ii) Employee may elect, prior to December 31, 2007, to have the cash amount (other than deaththe Accrued Obligations) to which he is entitled under Section 12(d)(i) paid in 24 or 36 equal monthly installments, Disability with the first installment paid on the date of termination or Cause resignation and the remaining installments paid on the first day of each succeeding month. Such election shall not apply to amounts otherwise payable in the year the election is made, nor cause amounts to be paid in the year the election is made that would not otherwise be payable in that year. Subsequent changes to the time or form of payment of such cash amount shall be made only in accordance with Code Section 409A, the 409A Regulations, and other applicable guidance, including any transition rules promulgated by the Internal Revenue Service.
(iii) Notwithstanding the foregoing, the timing of an amount payable to a Key Employee under Section 12(d) (whether or not subject to an installment election) shall be determined as follows: the lump sum payment shall be made or installments shall commence on the first day of the month following the six-month anniversary of Employee’s Date of Termination. The initial payment made under the preceding sentence shall include amounts that would have been paid under Section 12(d) through the date of such initial payment had the Employee not been a Key Employee. Accrued Obligations payable to a Key Employee under Section 12(d) shall be paid on the first day of the month following the six-month anniversary of the Employee’s Date of Termination.
(iv) For purposes of this Agreement, a “Change of Control” occurs if, after the date of this Agreement, (i) any person, including a “group” as defined in Section 13(d)(3) of the Securities Exchange Act of 1934, becomes the owner or beneficial owner of Bank securities having 50% or more of the combined voting power of the then outstanding Bank securities that may be cast for the election of the Bank’s directors other than as a result of an issuance of securities initiated by the Bank, or open market purchases approved by the Board of Directors, as long as the majority of the Board of Directors approving the purchases is a majority at the time the purchases are made; or (ii) Executive timely terminates his employment for Good Reasonas the direct or indirect result of, and either or in connection with, a tender or exchange offer, a merger or other business combination, a sale of assets, a contested election of directors, or any combination of these events, the persons who were directors of the Bank before such events cease to constitute a majority of the Bank’s Board, or any successor’s board, within two years of the last of such transactions. For purposes of this Agreement, a Change of Control occurs on the date on which an event described in (i) or (ii) occurs within twenty-four (24) months after occurs. If a Change of Control occurs on account of a series of transactions or events, the Change of Control occurs on the date of the last of such transactions or events.
(v) It is the intention of the parties that no payment be made or benefit provided to Employee pursuant to this Agreement that would constitute an “excess parachute payment” within the meaning of Section 280G of the Code and any regulations thereunder, thereby resulting in a loss of an income tax deduction by the Bank or the imposition of an excise tax on Employee under Section 4999 of the Code. If the independent accountants serving as auditors for the Bank on the date of a Change of Control (or any other accounting firm designated by the Bank) determine that some or all of the payments or benefits scheduled under this Agreement, as well as any other payments or benefits on a Change of Control, then, from and after the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall be entitled to the payments and benefits described in paragraph (b) below, contingent upon executing and returning to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted nondeductible by the Company (which permitted time period shall not under Section 280G of the Code, then the payments scheduled under this Agreement will be reduced to one dollar less than twenty-one (21) days).
(b) Within the later maximum amount which may be paid without causing any such payment or benefit to be nondeductible. The determination made as to the reduction of (x) fifteen (15) days following benefits or payments required hereunder by the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described aboveindependent accountants shall be binding on the parties. Employee shall have the right to designate within a reasonable period, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum cash payment equal to (i) two (2) times the sum of (A) Executive’s Base Salary in effect as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus for the year in which the termination occurs and (ii) a pro rata cash payment equal to Executive’s Target Annual Bonus for the year of termination based on service from the commencement of the applicable bonus year through the Effective Date of Termination. In addition, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) payments or benefits will be treated in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreementsreduced; provided, however, that Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever no direction is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5received from Employee, the Company Bank shall provide, at implement the reductions in its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5discretion.
Appears in 1 contract
Termination After a Change in Control. (a) If during In the Employment Period (i) the Company terminates Executive’s employment for reasons other than death, Disability or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twenty-four (24) months after event of a "Change in ------------------------------------- Control, then, from and after the Effective Date " of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall be entitled to the payments and benefits described in paragraph (b) below, contingent upon executing and returning to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days).
(b) Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum cash payment equal to (i) two (2) times the sum of (A) Executive’s Base Salary in effect defined as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus date hereof in the Company's 1996 Stock Incentive Plan for the year in which the termination occurs and (ii) a pro rata cash payment equal to Executive’s Target Annual Bonus for the year of termination based on service from the commencement of the applicable bonus year through the Effective Date of Termination. In addition, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP GuidelinesEmployees), Executive will be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commencedif, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for within twenty-four (24) months following the Effective closing of such Change in Control (or at any time prior thereto but in contemplation thereof):
(i) There is a material reduction in the Employee's title, authority or responsibilities, including reporting responsibilities;
(ii) The Employee's Annual Base Salary is reduced;
(iii) The Employee's office at which he is to perform his duties is relocated to a location more than thirty (30) miles from the location at which the Employee performed his duties prior to the Change in Control;
(iv) The Company fails to continue in effect any incentive, bonus or other compensation plan in which the Employee participates, unless the Company substitutes a substantially equivalent benefit;
(v) The Company fails to continue in effect any Employee benefit plan (including any medical, hospitalization, life insurance, dental or disability benefit plan in which the Employee participated) or any material fringe benefit or perquisite enjoyed by the Employee at the time of the Change in Control, unless the Company substitutes benefits which, in the aggregate, are substantially equivalent;
(vi) The Company breaches any material provision of this Employment Agreement; or
(vii) The Company fails to obtain a satisfactory agreement from any successor or assign of the Company to assume and agree to perform this Employment Agreement, Then the Employee shall have the option to voluntarily terminate his employment and the Company shall:
(a) Pay the Employee his full base salary earned but not yet paid through the Termination Date at the greater of Terminationthe rate in effect at the time of the Change in Control or the Termination Date ("Higher Annual Base Salary"), plus any bonuses or incentive compensation which, pursuant to the terms of any compensation or benefit plan, have been earned and are payable as described of the Termination Date. For purposes of this Agreement, bonuses and incentive compensation shall be considered payable if all conditions for earning them have been met and any requirement that Employee be actively employed as of the date of payment shall be disregarded.
(b) Pay the Employee a lump sum in an amount equal to two and one- half (2 1/2) times the amount equal to the sum of (1) the Employee's Higher Annual Base Salary plus (2) the maximum target bonus or incentive compensation which could have been earned by the Employee calculated as if all relevant goals had been met during the then current fiscal year of the Company pursuant to the terms of the incentive compensation plan in which he participates. If there is no incentive compensation plan in effect as of Termination Date, then for purposes of this Agreement it shall be assumed that the amount of incentive compensation to be paid to the Employee shall be the maximum target amount under any incentive compensation plan in which he participated at the date of the Change in Control or the most recent plan participated in, whichever would be greater.
(c) Maintain in full force and effect for the benefit of the Employee and the Employee's dependents and beneficiaries, at the Company's expense, all life insurance, health insurance, dental insurance, accidental death and dismemberment insurance and disability insurance under plans and programs in which the Employee and/or the Employee's dependents and beneficiaries participated immediately prior to the Termination Date, provided that continued participation is possible under the general terms and provisions of such plans and programs ("Extended Benefits"). The Extended Benefits shall be continued until the earlier of (A) the second (2nd) anniversary of the Termination Date, (B) the effective date of the Employee's coverage under equivalent benefits from a new employer (provided that no such equivalent benefits shall be considered effective unless and until all pre- existing condition limitations and waiting period restrictions have been waived or have otherwise lapsed), or (C) the death of the Employee. If participation in any such plan or program is barred, the Company shall arrange at its own expense to provide the Employee with benefits substantially similar to those which he was entitled to receive under such plans and programs. At the end of the period of coverage, the Employee shall have the right to have assigned to him, at no cost and with no apportionment of prepaid premiums, any assignable insurance policy relating specifically to him. Employee shall be entitled to continuation coverage as provided by the Consolidated Omnibus Budget Reconciliation Act (COBRA) at the conclusion of the coverage provided under this Section. The amount of any payment or benefit provided for in this Section 6.59 shall be offset by any lump sum cash payments due the Employee upon Termination under any other provisions of this Employment Agreement.
Appears in 1 contract
Sources: Employment Agreement (Humana Inc)
Termination After a Change in Control. (a) If during Notwithstanding anything herein to the Employment Period (i) contrary, if the Company terminates Executive’s employment for reasons other than death, Disability terminates due to either a Without Cause Termination or Cause or a Constructive Discharge during the six (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twenty-four (24) months after 6)-month period immediately following a Change in ControlControl (as defined below), then, from and after the Effective Date of Termination, then the Company shall have will pay the Executive (or the Executive’s surviving spouse, estate or personal representative, as applicable), no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall be entitled to the payments and benefits described in paragraph later than thirty (b) below, contingent upon executing and returning to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days).
(b) Within the later of (x) fifteen (1530) days following the Effective Date of after such Without Cause Termination and (y) eight (8) days after Executive provides an executed release of claims as described aboveor Constructive Discharge, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum cash payment equal to (i) two (2) times the sum Executive’s then-current Base Salary, plus any and all Base Salary and Incentive Compensation Awards earned but unpaid through the date of such termination. In addition, upon such event, all of the Executive’s outstanding and unvested stock options and any other equity awards or other incentives or compensation that is subject to vesting will become immediately and fully vested and exercisable, and all outstanding options, awards, incentives and compensation shall be extended and remain exercisable until the later of (Aa) Executive’s Base Salary in effect as December 31st of the Effective Date of Termination and (B) Executive’s Target Annual Bonus for the year in which they would otherwise have expired or (b) the termination occurs and (ii) a pro rata cash payment equal to Executive’s Target Annual Bonus for the year of termination based on service from the commencement 15th day of the applicable bonus year through third month following the Effective Date of Terminationmonth in which they would have expired. In additionFurthermore, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with upon such event, the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered entitled to continue coverage under all health and welfare plans for such purpose to have been employed at the end Executive and members of the calendar year in which Executive’s immediate family, including medical and dental benefits, during the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance twelve (12)-month period immediately following such termination, with the LTIP as then in effect; provided that if Executive’s cost being no greater than the cost applicable to the Executive had the Executive been an active, full-time employee of the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reasonduring such period. The payments to be made, and such termination occurs during the Employment Period and within twenty-four (24benefits to be provided, by the Company to the Executive pursuant to this Section VIII(B) months after a Change are in Controllieu of any payments, notwithstanding Section VI.D. of benefits or compensation the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will may otherwise be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made receive pursuant to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5VIII(A).
Appears in 1 contract
Sources: Executive Employment Agreement (Jackson Hewitt Tax Service Inc)
Termination After a Change in Control. Notwithstanding anything herein to the contrary, if the Executive’s employment terminates due to either a Without Cause Termination or a Constructive Discharge following a Change in Control (aas defined below), then the Company will pay the Executive (or the Executive’s surviving spouse, estate or personal representative, as applicable), no later than thirty (30) If during the Employment Period days after such Without Cause Termination or Constructive Discharge, (i) the Company terminates Executive’s employment for reasons other than death, Disability or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twenty-four (24) months after a Change in Control, then, from and after the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall be entitled to the payments and benefits described in paragraph (b) below, contingent upon executing and returning to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days).
(b) Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum cash payment equal to (i) two (2) times the sum of (A) Executive’s aggregate Monthly Base Salary in effect as for the Continuation Period, (ii) any and all Base Salary and Incentive Compensation Awards earned but unpaid through the date of the Effective Date of Termination such termination, (iii) any unpaid amounts pursuant to Section IV(iv)(b)(2), and (B) Executive’s Target Annual Bonus for the year in which the termination occurs and (iiiv) a pro rata cash payment equal to portion of the Incentive Compensation Award in respect of the fiscal year in which Executive’s employment terminates due to either a Without Cause Termination or a Constructive Discharge following a Change in Control (paid at the Target Annual Bonus for Level), provided that all the year of termination based on service from the commencement of the applicable bonus year through the Effective Date of Terminationperformance targets relating to such Incentive Compensation Award have been attained. In addition, vesting upon such event, all of the Executive’s outstanding and all other rights with respect to unvested stock options and any other equity-based equity awards or other incentives or compensation awards not covered by Section 6.1 above (other than LTIP Awards) that is subject to vesting will become immediately and fully vested and exercisable, and all outstanding options, awards, incentives and compensation shall be treated extended and remain exercisable in accordance with the equity incentive plan under which they were granted or awarded. Furthermore, upon such event, the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered entitled to continue coverage under all health and welfare plans for the Executive and members of the Executive’s immediate family, including medical and dental benefits, during the twelve (12)-month period immediately following such purpose termination, with the Executive’s cost being no greater than the cost applicable to have the Executive had the Executive been employed an active, full-time employee of the Company during such period. Following the expiration of such twelve (12)-month period, Executive and members of the Executive’s immediate family, shall be permitted to continue coverage under the Company’s medical, prescription and dental plan for any remaining continuation period required under COBRA (treating such twelve (12)-month period as part of the continuation period required by COBRA), at the end of applicable premium rate for similarly situated participants. The payments to be made, and the calendar year in which the termination occurred. Any LTIP Awards not covered benefits to be provided, by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than deathto the Executive pursuant to this Section VIII(B) are in lieu of any payments, Disability benefits or Cause or compensation the Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will may otherwise be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made receive pursuant to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5VIII(A).
Appears in 1 contract
Sources: Executive Employment Agreement (Jackson Hewitt Tax Service Inc)
Termination After a Change in Control. (a) If during the Employment Period (i) If Executive is terminated by the Company terminates Executive’s employment for reasons other than death, Disability or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twentyduring the three-four (24) months after year period following a Change in ControlControl (as defined in Section 5(f) below) for any reason other than Cause, then, from and after the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, then Executive shall be entitled to the payments following:
(A) During the longer of (i) the 18-month period following his termination and benefits described (ii) the remainder of the Employment Period in paragraph (b) beloweffect at the date of termination, contingent upon executing and returning except to the Company (extent prohibited under the terms of any applicable insurance policy, he shall continue to be covered under the Company's welfare benefit plans to the same extent and not revoking) a release of claims in substantially on the form attached hereto same terms as Exhibit A within those benefits are provided to the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days)Company's active employees.
(bB) Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), He shall receive from the Company shall pay to Executive a lump sum cash payment an amount (the "SEVERANCE PAY") equal to the greater of (i) two (2) one and one-half times the sum of (Ax) the Executive’s 's current Annual Base Salary plus (y) the amount of any bonus paid to Executive in effect as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus for the year in which the termination occurs preceding twelve months and (ii) a pro rata cash payment the Annual Base Salary and Annual Bonuses through the end of the then current Employment Period (PROVIDED, that the amount of each of the Annual Bonuses so paid shall equal to Executive’s the Target Annual Bonus for Bonus). The Severance Pay amount shall be paid (a) if clause (i) in the year of termination based previous sentence applies, over the 18-month period commencing on service from the commencement of the applicable bonus year through the Effective Date of Termination. In additiondate Executive's employment terminates, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in equal monthly or more frequent installments in accordance with the equity incentive plan Company's payroll schedule or (b) if clause (ii) in the previous sentence applies, as and when such amounts would be paid in accordance with Sections 3(a) and (b) above. The Company's obligation to provide welfare benefit coverage and make severance payments under which this Section 5(c) shall cease with respect to periods after the relevant grant was made and any applicable grant agreementsearlier to occur of the date of Executive's death, or the date, if any, of the breach by Executive of the provisions of Section 6.
(ii) If Executive terminates his employment hereunder voluntarily following a Change in Control, then Executive shall not be entitled to Severance Pay; provided, however, that if Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs Reason (as defined below) during the Employment Period and within twentythree-four (24) months after year period following a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), such termination shall not be considered a voluntary termination by Executive will and Executive shall be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have treated as if he had been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance terminated by the Company and/or Executive against corporate Performance Targets pursuant to paragraph (as defined i) of this Section 5(e) above. "GOOD REASON" means, in the LTIP Guidelines) event of or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the following a Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5.:
Appears in 1 contract
Sources: Employment Agreement (Apcoa Standard Parking Inc /De/)
Termination After a Change in Control. (a) If during the Employment Period (i) If Executive is terminated by the Company terminates Executive’s employment for reasons other than death, Disability or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twentyduring the three-four (24) months after year period following a Change in ControlControl (as defined in Section 5(f) below) for any reason other than Cause, then, from and after the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, then Executive shall be entitled to the payments following:
(A) During the longer of (i) the 18-month period following his termination and benefits described (ii) the remainder of the Employment Period in paragraph (b) beloweffect at the date of termination, contingent upon executing and returning except to the Company (extent prohibited under the terms of any applicable insurance policy, he shall continue to be covered under the Company's welfare benefit plans to the same extent and not revoking) a release of claims in substantially on the form attached hereto same terms as Exhibit A within those benefits are provided to the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days)Company's active employees.
(bB) Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), He shall receive from the Company shall pay to Executive a lump sum cash payment an amount (the "Severance Pay") equal to the greater of (i) two (2) one and one-half times the sum of (Ax) the Executive’s 's current Annual Base Salary plus (y) the amount of any bonus paid to Executive in effect as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus for the year in which the termination occurs preceding twelve months and (ii) a pro rata cash payment the Annual Base Salary and Annual Bonuses through the end of the then current Employment Period (provided, that the amount of each of the Annual Bonuses so paid shall equal to Executive’s the Target Annual Bonus for Bonus). The Severance Pay amount shall be paid (a) if clause (i) in the year of termination based previous sentence applies, over the 18-month period commencing on service from the commencement of the applicable bonus year through the Effective Date of Termination. In additiondate Executive's employment terminates, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in equal monthly or more frequent installments in accordance with the equity incentive plan under which Company's payroll schedule or (b) if clause (ii) in the relevant grant was made previous sentence applies, as and any applicable grant agreements; provided, however, that Executive shall when such amounts would be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated paid in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four (24Sections 3(a) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5.and
Appears in 1 contract
Sources: Annual Report
Termination After a Change in Control. If, within one (a1) If during the Employment Period year after a Change in Control (i) the Company terminates Executive’s shall terminate Employee's employment for reasons other than death, for Cause or Disability or Cause or (ii) Executive timely terminates his Employee shall terminate employment for Good Reason, and either (i) or (ii) occurs within twenty-four (24) months after a Change in Control, then, from and after the Effective Date of Termination, the Company shall have no further obligation to Employee under this Agreement or otherwise except to pay any Base Salary to Executive andEmployee:
4.2.7.1 Any accrued and unpaid base compensation (including accrued vacation, in lieu but less applicable withholdings) and reimbursement of any severance unpaid reimbursable expenses owed by Company to Employee through the termination date, which amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall be entitled paid to the payments and benefits described Employee in paragraph (b) below, contingent upon executing and returning to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days).
(b) Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum in cash payment equal to within 30 days after the date of termination; and
4.2.7.2 Severance compensation totaling three (3) years' base salary, based on Employee's annual salary as in effect at the date of termination. Payment of such severance compensation shall be made in one lump sum payable within 70 days after the date of termination, or such later date as may be required by Section 10 of this Agreement, and shall be conditioned upon (i) two (2) times Employee executing a Separation Agreement, which shall include among other things the sum of (A) Executive’s Base Salary language set forth in effect as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus for the year in which the termination occurs Exhibit A and (ii) a pro rata cash payment equal to Executive’s Target Annual Bonus for the year of termination based on service from the commencement of the applicable bonus year through the Effective Date of Termination. In addition, vesting and all other rights Employee's compliance with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with the equity incentive plan his obligations under which the relevant grant was made and any applicable grant agreementsArticle 6; provided, however, that Executive shall be considered for such purpose to have been employed Company may in its sole discretion revise the language in Exhibit A at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee time prior to the effective date execution of the Change in Control, such measurement Separation Agreement. Severance compensation pursuant to this Section 4.2.7 shall be used and (2) for in lieu of any calendar year in other severance benefit or other right or remedy to which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall Employee would otherwise be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines entitled under Company's policies in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of on the Effective Date or thereafter. Employee acknowledges and agrees that in the event Employee breaches any provision of Termination for twenty-four (24) months following Article 6 or the Effective Date of TerminationSeparation Agreement, as described in his right to receive severance payments under this Section 6.54.2.7 shall automatically terminate and Employee shall repay all severance payments received.
Appears in 1 contract
Sources: Executive Employment Agreement (Superior Industries International Inc)
Termination After a Change in Control. (a) If during In the Employment Period (i) event Executive's employment is terminated by the Company terminates without Cause, or if Executive’s employment for reasons other than death's duties or responsibilities are significantly reduced or made inconsistent with Executive's title or position and as a result Executive elects to terminate his employment, Disability or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twenty-four (24) 12 months after following a Change in of Control, then, from and after the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall be entitled to the payments same compensation and benefits described in paragraph (bSection 4(a) below, contingent upon executing and returning of the Agreement with respect to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted any termination by the Company (which permitted time period shall not be less than twenty-one (21) days).
(b) Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides without Cause, PLUS an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum cash payment equal to (i) two (2) times the sum of (A) Executive’s Base Salary in effect as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus for the year in which the termination occurs and (ii) a pro rata cash payment amount equal to Executive’s Target Annual Bonus for the year of termination based 's annual base salary on service from the commencement of the applicable bonus year through the Effective Date of Termination. In addition, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced (1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of termination (the Change in Control, such measurement "Supplemental Payment"). The Supplemental Payment shall be used and paid to Executive in one lump sum within twenty (220) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to days after the effective date of such termination, it being the intent of the parties that the Supplemental Payment shall not be reduced by any compensation thereafter actually received by Executive as a result of Executive's employment or retention by another employer in any capacity.
A " Change in Control, such corporate Performance Targets and individual performance goals " shall be either deemed to have occurred if (xi) deemed 100% satisfied any "Person" (as such term is used in Section 13(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act")) becomes the "beneficial owner" (as determined pursuant to Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the combined voting power of the Company's then outstanding securities, other than any person who acquires five percent (5%) or more of the outstanding common stock of the Company in accordance with a plan of reorganization under chapter 11 of Title 11 of the United States Code (a "Chapter 11 Plan"), or (yii) measured against actual performance the Company shall merge with or consolidate into any other entity, other than a merger or consolidation which would result in the holders of the voting securities of the Company outstanding immediately prior thereto holding immediately thereafter securities representing more than fifty percent (50%) of the combined voting power of the voting securities of the Company or such surviving entity outstanding immediately after such merger or consolidation or (iii) the stockholders of the Company approve and effect an agreement for the sale or disposition by the Company and/or the Employee against corporate Performance Targets of all or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms substantially all of the original grant agreementCompany's assets. Notwithstanding the foregoing, if any, and otherwise no Change in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement Control of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall providebe deemed to have occurred by virtue of any transaction which results in Executive, at its expenseor any group, continued participation association or other organization of persons related to, including, or acting in concert with Executive ("Related Persons"), acquiring, directly or indirectly, any medical insurance and dental insurance plans interest in the Company which Executive would otherwise constitute a Change of Control. Further, the restriction in the preceding sentence shall apply in the event of Executive's employment by, or his dependents participated as any other business affiliation with, any such Related Persons or the Company after such Change of the Effective Date Control for a period of Termination for twenty-four (24) 12 months following the Effective Date such Change of Termination, as described in Section 6.5Control.
Appears in 1 contract
Termination After a Change in Control. (a) If during Notwithstanding any other provision contained herein, if the Employment Period (i) the Company terminates Executive’s employment for reasons other than death, Disability hereunder is terminated by the Executive as a voluntary resignation with or Cause or (ii) Executive timely terminates his employment for without Good Reason, by the Company on account of its failure to renew the Agreement in accordance with Section 1 or without Cause (in all cases other than on account of the Executive’s death or disability, as that term is defined under any long-term disability plan maintained by the Company and either (i) or (ii) occurs covering the Executive), in each case within twenty-four (24) months after following a Change in ControlControl (as defined in the EIP), then, from and after then the Effective Date of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and, in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive shall will be entitled to receive the payments Accrued Obligations, and benefits described in paragraph (b) below, contingent upon executing and returning subject to the Company (Executive’s compliance with Sections 7 through 11 and not revoking) his execution of a release of claims in substantially the form attached hereto as Exhibit A Release and such Release becoming effective and irrevocable within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days).
(b) Within the later of (x) fifteen (15) 60 days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive)Date, the Company shall pay to Executive a lump sum cash payment will be entitled to:
(a) an amount equal to the sum of:
(i) twenty-four (24) months of the Executive’s then-current Base Salary;
(ii) two (2) times the sum of (A) Executive’s Base Salary in effect as of then current Target Bonus; and
(iii) a pro-rated Bonus equal to the Effective Date of Termination and (B) Executive’s then current Target Annual Bonus for the year in which the termination occurs Executive was terminated based on the number of days the Executive was employed; payable as a lump-sum in accordance with the Company’s normal payroll practices following the date the Release becomes effective and irrevocable, provided that if the 60-day period spans two calendar years, the payment will be made in the second calendar year; and
(b) a lump-sum payment equal to eighteen (18) months’ premiums at the rates in effect on the Termination Date for health coverage under COBRA, less applicable withholding taxes, payable on the payroll date following the date the Release becomes effective and irrevocable, provided that if the 60- day period spans two calendar years, the payment will be made in the second calendar year. Notwithstanding the foregoing, if the Change in Control does not constitute a “change in control event” within the meaning of Treasury Regulation section 1.409A-3(i)(5)(i), the amounts payable pursuant to Sections 5.5(a)(i) and (ii) a pro rata cash payment equal to Executive’s Target Annual Bonus for the year of termination based on service from the commencement of the applicable bonus year through the Effective Date of Termination. In addition, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) this Agreement will be treated payable in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered substantially equal installments for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-twenty- four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will be entitled to payment of the full amount (without pro ration) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commenced, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; Company’s normal payroll practices, with the first such installment commencing on the payroll date following the date the Release becomes effective and irrevocable, provided that for purposes of calculating if the LTIP Award for any Performance Period that has commenced (1) for any completed 60-day period spans two calendar years, the payments will commence in the second calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has and will include all amounts that otherwise would have been measured, and such measurement has paid had no delay been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for twenty-four (24) months following the Effective Date of Termination, as described in Section 6.5imposed.
Appears in 1 contract
Sources: Employment Agreement (Neptune Wellness Solutions Inc.)
Termination After a Change in Control. (a) If during In the Employment Period (i) the Company terminates Executive’s employment for reasons other than death, Disability or Cause or (ii) Executive timely terminates his employment for Good Reason, and either (i) or (ii) occurs within twenty-four (24) months after event of a “Change in Control, then, from and after the Effective Date ” of Termination, the Company shall have no further obligation to pay any Base Salary to Executive and(as defined as of the date hereof in the Company’s 1996 Stock Incentive Plan for Employees), in lieu of any severance amounts payable under Section 6.5 or 6.7, whichever would otherwise apply, Executive Employee shall be entitled to the payments and benefits described set forth in paragraph (b) below, contingent upon executing and returning to the Company (and not revoking) a release of claims in substantially the form attached hereto as Exhibit A within the time permitted by the Company (which permitted time period shall not be less than twenty-one (21) days).
(b) Within the later of (x) fifteen (15) days following the Effective Date of Termination and (y) eight (8) days after Executive provides an executed release of claims as described above, as long as such release of claims is not revoked by Executive during the seven (7) day period following its execution by Executive), the Company shall pay to Executive a lump sum cash payment equal to (i) two (2) times the sum of (A) Executive’s Base Salary in effect as of the Effective Date of Termination and (B) Executive’s Target Annual Bonus for the year in which the termination occurs and (ii) a pro rata cash payment equal to Executive’s Target Annual Bonus for the year of termination based on service from the commencement of the applicable bonus year through the Effective Date of Termination. In addition, vesting and all other rights with respect to stock options and other equity-based compensation awards not covered by Section 6.1 above (other than LTIP Awards) will be treated in accordance with the equity incentive plan under which the relevant grant was made and any applicable grant agreements; provided, however, that Executive shall be considered for such purpose to have been employed at the end of the calendar year in which the termination occurred. Any LTIP Awards not covered by Section 6.1 hereof will be treated in accordance with the LTIP as then in effect; provided that if the Company terminates Executive’s employment for reasons other than death, Disability or Cause or Executive timely terminates his employment for Good Reason, and such termination occurs during the Employment Period and within twenty-four (24) months after a Change in Control, notwithstanding Section VI.D. of the LTIP Guidelines currently in effect (or any comparable provisions in any subsequently adopted LTIP Guidelines), Executive will be entitled to payment of the full amount (without pro ration10(b) of any unvested LTIP Awards that have been made to Executive for any Performance Period that has commencedthis Agreement, payable in cash and/or equity, as previously determined by the Executive Compensation Committee with respect to the applicable Performance Period, calculated in accordance with the LTIP Guidelines; provided that for purposes of calculating the LTIP Award for any Performance Period that has commenced if,
(1) for any completed calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets (as defined in the LTIP Guidelines) or individual performance goals, as applicable, has been measured, and such measurement has been ratified by the Company’s Executive Compensation Committee prior to the effective date of the Change in Control, such measurement shall be used and (2) for any calendar year in which actual performance by the Company and/or Executive against corporate Performance Targets or individual performance goals has not yet been so measured and ratified by the Executive Compensation Committee prior to the effective date of the Change in Control, such corporate Performance Targets and individual performance goals shall be either (x) deemed 100% satisfied or (y) measured against actual performance by the Company and/or the Employee against corporate Performance Targets or individual performance goals, as applicable, whichever is greater, which LTIP Awards shall be payable in accordance with the terms of the original grant agreement, if any, and otherwise in accordance with the LTIP Guidelines in effect for such Performance Period. The entitlement of Executive to benefits under any benefit program, policy or plan described in Section 5.1 shall be determined in accordance with the provisions of such program, policy or plan; provided, however, that, subject to the last sentence of Section 6.5, the Company shall provide, at its expense, continued participation in any medical insurance and dental insurance plans in which Executive or his dependents participated as of the Effective Date of Termination for Within twenty-four (24) months following Change in Control Employee’s employment with the Effective Company is terminated either by the Company without Good Cause or by Employee after one of the following events occurs:
(A) There is a material reduction in the Employee’s title, authority or responsibilities, including reporting responsibilities;
(B) The Employee’s Annual Base Salary is reduced;
(C) The Employee’s office at which he is to perform his duties is relocated to a location more than thirty (30) miles from the location at which the Employee performed his duties prior to such relocation;
(D) The Company fails to continue in effect any incentive, bonus or other compensation plan in which the Employee participates, unless the Company substitutes a substantially equivalent benefit;
(E) The Company fails to continue in effect any employee benefit plan (including any medical, hospitalization, life insurance, dental or disability benefit plan in which the Employee participated) or any material fringe benefit or perquisite enjoyed by the Employee at the time of the Change in Control, unless the Company substitutes benefits which, in the aggregate, are substantially equivalent;
(F) The Company breaches any material provision of this Employment Agreement; or
(G) The Company fails to obtain a satisfactory agreement from any successor or assign of the Company to assume and agree to perform this Employment Agreement.
(b) In the event that a termination of Employee’s employment with the Company occurs pursuant to Section 10(a) of this Agreement, the Company shall
(1) Pay Employee no later than thirty (30) calendar days after such Termination Date his full base salary earned but not yet paid through the Termination Date at the greater of Terminationthe rate in effect at the time of the Change in Control or the Termination Date (“Higher Annual Base Salary”).
(2) Pay Employee his annual bonus for the fiscal year in which the Termination Date occurs calculated at the percentage earned under the applicable plan based on actual performance for such fiscal year, prorated for the portion of the fiscal year of the Company that has elapsed prior to the Termination Date and paid at the same time as bonuses are paid to other participants in the plan for such fiscal year; provided that if the Termination Date occurs in the same calendar year in which the Change in Control occurs, the amount to which Employee is entitled pursuant to this Section 10(b)(2) shall not be less than Employee’s annual bonus for the fiscal year calculated at the target percentage of his Annual Base Salary prorated through the date of the Change in Control.
(3) Pay Employee no later than thirty (30) calendar days after such Termination Date a lump sum in an amount equal to two and one-half (2 1/2) times the amount equal to the sum of (1) the Employee’s Higher Annual Base Salary plus (2) the target annual bonus which could have been earned by the Employee for the fiscal year of the Company in which the Termination Date occurs calculated as if all relevant goals had been met during that fiscal year pursuant to the terms of the incentive compensation plan in which he participates. If there is no incentive compensation plan in effect as of the Termination Date, then for purposes of this Agreement it shall be assumed that the amount of incentive compensation to be paid to the Employee shall be the maximum target amount under any incentive compensation plan in which he participated at the date of the Change in Control or the most recent plan participated in, whichever would be greater.
(4) Maintain in full force and effect for the benefit of the Employee and the Employee’s dependents and beneficiaries, at the Company’s expense, all life insurance, health insurance, dental insurance, accidental death and dismemberment insurance and disability insurance under plans and programs in which the Employee and/or the Employee’s dependents and beneficiaries participated immediately prior to the Termination Date, provided that continued participation is possible under the general terms and provisions of such plans and programs (“Extended Benefits”). The Extended Benefits shall be continued until the earlier of (i) the second (2nd) anniversary of the Termination Date, (ii) the effective date of the Employee’s coverage under equivalent benefits from a new employer (provided that no such equivalent benefits shall be considered effective unless restrictions have been waived or have otherwise lapsed), or (iii) the death of the Employee. If participation in any such plan or program is barred, the Company shall arrange at its own expense to provide the Employee with benefits substantially similar to those which he was entitled to receive under such plans and programs. On the Termination Date, and without any reduction or limitation on the obligations described above, the Employee shall have the right to have assigned to him, at no cost and with no apportionment of prepaid premiums, any assignable insurance policy relating specifically to him. Employee shall be entitled to continuation coverage as provided in Section 6.59(e) at the conclusion of the coverage provided under this Section.
(5) Notwithstanding the terms and provisions of any equity compensation plan of the Company as in effect as of the date hereof or as amended hereafter, (i) to the extent any of the restricted shares or other equity-based awards thereunder granted to Employee that may be outstanding which have not yet vested or been forfeited, such shares or awards shall become vested and non-forfeitable as of the Termination Date; provided, that performance-based shares and awards shall vest at the percentage earned under the applicable plan or award based on actual performance for the applicable performance period, (ii) to the extent stock options thereunder granted to Employee have not become fully vested and exercisable as of the Termination Date, such options shall become fully vested; provided, that if such stock options are performance-vested stock options, they will vest only to the extent they would have vested if the target level of performance had been achieved and (iii) all vested stock options granted after the date of this Agreement shall be exercisable until the earlier of (A) two (2) years following the Termination Date, or (B) the original term of the option grant. The amount of any payment provided for in this Section 10 shall be offset by any lump sum cash payments due the Employee upon termination under any other provisions of this Agreement
Appears in 1 contract
Sources: Employment Agreement (Humana Inc)