Termination and Severance Payments. (a) The Executive’s employment under this Agreement may be terminated prior to the end of the Term, if applicable, only as follows (each a “Terminating Event”): (i) Upon the death of the Executive. If the Executive’s employment is terminated because of the Executive’s death, the Company shall pay the Executive’s estate any sums due him as Base Salary or reimbursement of expenses through the end of the month during which death occurred in accordance with the Company’s standard payroll procedures. The Company shall also pay the Executive’s estate an Annual Bonus for the year that death occurs, based on actual performance for such year and prorated to reflect the number of days employed during such year. Any Annual Bonus for previous years which was not yet paid shall be paid pursuant to the terms as set forth in Section 3(b). Any Annual Bonus for the year of death shall be paid by the Company on the earlier of (i) 70 days after the year end in which the Executive died or (ii) the first pay period following the Company’s press release announcing its financial performance for the year in which the Executive died. (ii) Upon the Disability of the Executive for a period of 90 days, which includes any period of payment under the Company’s accident and health plan. During the period of any Disability leading up to the termination of the Executive’s employment under this provision, the Company shall continue to pay the Executive his full Base Salary at the rate then in effect and all perquisites and other benefits (other than any Annual Bonus) in accordance with the Company’s standard payroll procedures until the Executive becomes eligible for benefits under any long-term disability plan or insurance program maintained by the Company; provided, however, that the amount of any such payments to the Executive shall be reduced by the sum of the amounts, if any, payable to the Executive for the same period under any other disability benefit or pension plan covering the Executive. Furthermore, the Company shall pay the Executive any Annual Bonus earned through the date of onset of the physical or mental impairment that led to the Disability, based on actual performance for the year which includes the date of onset of the physical or mental impairment that led to the Disability and prorated to reflect the number of days employed through such date. Any Annual Bonus for previous years which was not yet paid shall be paid pursuant to the terms as set forth in Section 3(b). Any Annual Bonus for the year which includes the date of onset of the physical or mental impairment that led to the Disability shall be paid by the Company on the earlier of (i) 70 days after the year end in which the Executive became Disabled or (ii) the first pay period following the Company’s press release announcing its financial performance for the year in which the Executive became Disabled. (iii) by the Company upon delivery of a Notice of Termination to the Executive. If the Executive’s employment is terminated under this provision, the Executive shall receive only any sums due him as base salary and reimbursement of expenses through the date of such termination, which shall be paid in accordance with the Company’s standard payroll procedures. (iv) By the Executive effective upon the 30th day after delivery of a Notice of Termination. If the Executive resigns under this provision, the Executive shall receive any sums due him as Base Salary or reimbursement of expenses through the date of such termination, which shall be paid in accordance with the Company’s standard payroll procedures. (b) With the exceptions of the provisions of this Section 4, and the express terms of any benefit plan under which the Executive is a participant, it is agreed that, upon termination of the Executive’s employment, the Company shall have no obligation to the Executive for, and the Executive waives and relinquishes, any further compensation or benefits (exclusive of COBRA benefits). Unless otherwise stated in this Section 4, the effect of termination on any outstanding incentive awards, stock options, stock appreciation rights, performance units, or other incentives shall be governed by the terms of the applicable benefit or incentive plan and/or the agreements governing such incentives. Within 60 days of termination of the Executive’s employment, and as a condition to the Company’s obligation to pay any severance hereunder, the Company and the Executive shall enter into a mutual release in the form agreed to by the parties, and neither party may revoke such release within the revocation period stated in such release, which shall acknowledge such remaining obligations and discharge Executive on one hand and the Company and its officers, directors and employees on the other hand with respect to their actions for or on behalf of the Company, from any other claims or obligations arising out of or in connection with the Executive’s employment by the Company, including the circumstances of such termination. In addition, if such severance payment is made by the Company, and if the 60 day period spans two calendar years, regardless of when such release is executed by the Executive, such severance payment must be made in the subsequent calendar year, regardless of when the release is executed by the Executive. (c) As a condition to the Company’s obligation to pay any severance hereunder, regardless of the reason for the termination of the Executive’s employment, the Executive shall resign as a director of the Company and any of its subsidiaries, if the Executive is then serving in any such position. (d) Notwithstanding anything contained in this Agreement to the contrary, (i) if the Executive is suspended or temporarily prohibited from participating, in any way or to any degree, in the conduct of the Company’s affairs by (1) a notice served under Section 8(e) or (g) of Federal Deposit Insurance Act (“FDIA”) (12 U.S.C. Section 1818 (e) or (g)) or (2) as a result of any other regulatory or legal action directed at the Executive by any regulatory or law enforcement agency having jurisdiction over the Executive (each of the foregoing referred to herein as a “Suspension Action”), and if this Agreement is not terminated, the Company’s obligations under this Agreement shall be suspended as of the earlier of the effective date of such Suspension Action or the date on which the Executive was provided notice of the Suspension Action, unless stayed by appropriate proceedings. If the charges underlying the Suspension Action are dismissed, the Company shall: (i) pay on the first day of the first month following such dismissal of charges (or as provided elsewhere in this Agreement) the Executive all of the compensation withheld while the obligations under this Agreement were suspended; and (ii) reinstate any such obligations which were suspended. (ii) if the Executive is removed or permanently prohibited from participating, in any way or to any degree, in the conduct of the Company’s affairs by (1) an order issued under Section 8(e)(4) or (g)(1) of the FDIA (12 U.S.C. Section 1818 (e)(4) or (g)(1)) or (2) any other legal or law enforcement action (each of the foregoing referred to herein as a “Removal Action”), all obligations of the Executive under this Agreement shall terminate as of the effective date of the Removal Action, but any vested rights of the parties hereto shall not be affected. (iii) if the Company is in default (as defined in Section 3(x)(1) of the FDIA, 12 U.S.C. Section 1813(x)(1)), all obligations under this Agreement shall terminate as of the date of default, but this Section (4)(d) shall not affect any vested rights of the parties hereto. (iv) if the FDIC is appointed receiver or conservator under Section 11(c) of the FDIA (12 U.S.C. Section 1821(c)) of any depository institution controlled by the Company, the Company shall have the right to terminate all obligations of the Company under this Agreement as of the date of such receivership or conservatorship, other than any rights of the Executive that vested prior to such appointment. Any vested rights of the Executive may be subject to such modifications that are consistent with the authority of the FDIC. (e) If the FDIC provides open bank assistance under Section 13(c) of the FDIA (12 U.S.C. 1823(c)) to the Company or any depository institution controlled by the Company, but excluding any such assistance provided to the industry generally, the Company shall have the right to terminate all obligations of the Company under this Agreement as of the date of such assistance, other than any rights of the Executive that vested prior to the FDIC action. Any vested rights of the Executive may be subject to such modifications that are consistent with the authority of the FDIC. (f) If the FDIC requires a transaction under Section 13(f) or 13(k) of the FDIA (12 U.S.C. 1823(f) and (k)) by the Company or any depository institution controlled by the Company, the Company shall have the right to terminate all obligations of the Company under this Agreement as of the date of such transaction, other than any rights of the Executive that vested prior to the transaction. Any vested rights of the Executive may be subject to such modifications that are consistent with the authority of the FDIC. (g) Notwithstanding anything contained in this Agreement to the contrary, any payments made to the Executive pursuant to this Agreement, or otherwise, are subject to and conditioned upon their compliance with 12 U.S.C. Section 1828(k) and Part 359 of the FDIC Rules and Regulations (12 C.F.R. Section 359, et seq.). In addition, all obligations under this Agreement are further subject to such conditions, restrictions, limitations and forfeiture provisions as may separately apply pursuant to any applicable state banking laws. Any payments suspended by operation of this Section 4(g) shall be paid as a lump sum within 30 days following receipt of the concurrence or consent of the appropriate federal or state banking agency of the Company or as otherwise directed by such federal or state banking agency.
Appears in 1 contract
Sources: Employment Agreement (Independence Bancshares, Inc.)
Termination and Severance Payments. If your employment with ADP is terminated, you will receive the following compensation:
a. If you are discharged for cause, ADP’s obligation to make payments to you shall cease on the date of such discharge, other than earned but unpaid salary, reimbursement for expenses, and vested but unused vacation days (a) The Executive’s "Accrued Obligations"). As used herein, the term “for cause” shall cover circumstances where ADP elects to terminate your employment under this Agreement may be terminated prior to the end of the Term, if applicable, only as follows (each a “Terminating Event”):
because you have (i) Upon the death been convicted of the Executive. If the Executive’s employment is terminated because of the Executive’s death, the Company shall pay the Executive’s estate any sums due him as Base Salary or reimbursement of expenses through the end of the month during which death occurred in accordance with the Company’s standard payroll procedures. The Company shall also pay the Executive’s estate an Annual Bonus pled nolo contendere to a criminal act for the year that death occurs, based on actual performance for such year and prorated to reflect the number of days employed during such year. Any Annual Bonus for previous years which was not yet paid shall be paid pursuant to the terms as set forth in Section 3(b). Any Annual Bonus for the year of death shall be paid by the Company on the earlier of (i) 70 days after the year end in which the Executive died or punishment under applicable law may be imprisonment for more than one year, (ii) willfully or recklessly failed or refused to perform your material obligations as Corporate Vice President of Human Resources, (iii) committed any act or omission of gross negligence in the first pay period following performance of your material duties hereunder, (iv) committed any act of willful or reckless misconduct in the Companyperformance of your material duties hereunder, (v) violated your restrictive covenants, or (vi) violated ADP’s press release announcing its financial performance for the year in Code of Business Conduct and Ethics, a copy of which the Executive diedcan be found at ▇▇▇.▇▇▇.▇▇▇ under “About ADP”.
(ii) Upon the Disability of the Executive for a period of 90 days, which includes any period of payment b. If you become permanently and seriously disabled as defined under the CompanyADP’s accident and health plan. During the period of any Disability leading up to the termination of the Executive’s employment under this provision, the Company shall continue to pay the Executive his full Base Salary at the rate then in effect and all perquisites and other benefits (other than any Annual Bonus) in accordance with the Company’s standard payroll procedures until the Executive becomes eligible for benefits under any long-long term disability plan or insurance program maintained by the Company; providedthen in effect, howeverso that you are absent from your office due to such disability and otherwise unable substantially to perform your services hereunder such that ADP recognizes you as qualified for ADP's long term disability ADP may terminate your employment, that the amount of any such and ADP’s obligation to make payments to the Executive you (beyond previously accrued and unpaid amounts) shall be reduced by the sum of the amounts, if any, payable to the Executive for the same period under any other disability benefit or pension plan covering the Executive. Furthermore, the Company shall pay the Executive any Annual Bonus earned through the date of onset of the physical or mental impairment that led to the Disability, based cease on actual performance for the year which includes the date of onset of the physical or mental impairment that led to the Disability and prorated to reflect the number of days employed through such date. Any Annual Bonus for previous years which was not yet paid shall be paid pursuant to the terms as set forth in Section 3(b). Any Annual Bonus for the year which includes the date of onset of the physical or mental impairment that led to the Disability shall be paid by the Company on the earlier of (i) 70 days after the year end in which the Executive became Disabled or (ii) the first pay period following the Company’s press release announcing its financial performance for the year in which the Executive became Disabled.
(iii) by the Company upon delivery of a Notice of Termination to the Executive. If the Executive’s employment is terminated under this provision, the Executive shall receive only any sums due him as base salary and reimbursement of expenses through the date of such termination, which shall be paid in accordance with other than the Company’s standard payroll proceduresAccrued Obligations.
c. If your death occurs while you are actively employed by ADP, ADP’s obligation to make payments to you (ivbeyond the Accrued Obligations) By the Executive effective upon the 30th day after delivery of a Notice of Termination. If the Executive resigns under this provision, the Executive shall receive any sums due him as Base Salary or reimbursement of expenses through cease on the date of your death.
d. If you elect to resign from ADP without Good Reason, ADP’s obligation to make payments to you (beyond the Accrued Obligations) shall cease on the date your employment ends.
e. If during your employment with ADP, ADP terminates your employment for any reason other than “for cause” as described in paragraph, or if you resign for Good Reason, and you execute and do not revoke a written release upon such termination, which shall be paid in accordance a form provided by ADP consistent with the Company’s standard payroll procedures.
(b) With the exceptions of the provisions of this Section 4Agreement and containing no additional restrictive covenants other than those contained herein, and the express terms of any benefit plan under which the Executive is a participant, it is agreed that, upon termination of the Executive’s employment, the Company shall have no obligation to the Executive for, and the Executive waives all claims against ADP and relinquishes, any further compensation or benefits (exclusive of COBRA benefits). Unless otherwise stated in this Section 4, the effect of termination on any outstanding incentive awards, stock options, stock appreciation rights, performance units, or other incentives shall be governed by the terms of the applicable benefit or incentive plan and/or the agreements governing such incentives. Within 60 days of termination of the Executive’s employment, and as a condition to the Company’s obligation to pay any severance hereunder, the Company and the Executive shall enter into a mutual release in the form agreed to by the parties, and neither party may revoke such release within the revocation period stated in such release, which shall acknowledge such remaining obligations and discharge Executive on one hand and the Company and its officers, directors and employees on the other hand related parties with respect to their actions for or on behalf of the Company, from any other claims or obligations all matters arising out of or in connection with the Executive’s your employment by the CompanyADP, including the circumstances of such termination. In addition, if such severance payment is made by the Company, and if the 60 day period spans two calendar years, regardless of when such release is executed by the Executive, such severance payment must be made in the subsequent calendar year, regardless of when the release is executed by the Executive.
(c) As a condition to the Company’s obligation to pay any severance hereunder, regardless of the reason for or the termination of the Executive’s employment, the Executive shall resign as a director of the Company and any of its subsidiaries, if the Executive is then serving in any such position.
thereof (d) Notwithstanding anything contained in this Agreement to the contrary,
(i) if the Executive is suspended or temporarily prohibited from participating, in any way or to any degree, in the conduct of the Company’s affairs by (1) a notice served under Section 8(e) or (g) of Federal Deposit Insurance Act (“FDIA”) (12 U.S.C. Section 1818 (e) or (g)) or (2) as a result of any other regulatory or legal action directed at the Executive by any regulatory or law enforcement agency having jurisdiction over the Executive (each of the foregoing referred to herein as a “Suspension ActionRelease”), you will be paid an amount in cash (beyond the Accrued Obligations) totaling your then annual salary and if this Agreement is not terminatedtarget bonus, the Company’s obligations under this Agreement shall be suspended as of the earlier of the effective date of such Suspension Action or the date on which the Executive was provided notice of the Suspension Action, unless stayed by appropriate proceedings. If the charges underlying the Suspension Action are dismissed, the Company shall: (i) pay on the first day of the first month following such dismissal of charges (or as provided elsewhere in this Agreement) the Executive all of the compensation withheld while the obligations under this Agreement were suspended; and (ii) reinstate any such obligations which were suspended.
(ii) if the Executive is removed or permanently prohibited from participating, in any way or to any degree, in the conduct of the Company’s affairs by (1) an order issued under Section 8(e)(4) or (g)(1) of the FDIA (12 U.S.C. Section 1818 (e)(4) or (g)(1)) or (2) any other legal or law enforcement action (each of the foregoing referred to herein as a “Removal Action”), all obligations of the Executive under this Agreement shall terminate as of payable within 10 days after the effective date of the Removal Action, but any vested rights Release. You will separately receive (in addition to the bonus of the parties hereto shall prior fiscal year, if not be affected.
yet received) the bonus for the fiscal year of termination that you would have otherwise have received if your employment had not been terminated, based upon your (iiiand to the extent applicable, ADP’s) if the Company is in default actual full-year performance (as defined in Section 3(x)(1) determined by the Compensation Committee), prorated to reflect the portion of the FDIAfiscal year worked through the date of termination. Further, 12 U.S.C. Section 1813(x)(1)such amount will be paid in the following fiscal year at the same time that bonuses would have otherwise been paid in the ordinary course, absent termination of employment. In the event your employment is terminated without Cause or if you resign for Good Reason, in either case, effective prior to May 1, 2015, then any stock and stock options originally granted under paragraphs 3(a)(i), all obligations under 3(b) and 4 of this Agreement shall terminate as accelerate and vest in full, provided that any vested options must be exercised within 60 days of the date of default, but this Section (4)(d) acceleration. No payment herein shall not affect any vested rights of the parties hereto.
(iv) if the FDIC is appointed receiver or conservator under Section 11(c) of the FDIA (12 U.S.C. Section 1821(c)) of any depository institution controlled by the Company, the Company shall have the right to terminate all obligations of the Company under this Agreement as of the date of such receivership or conservatorship, other than any rights of the Executive that vested prior to such appointment. Any vested rights of the Executive may be subject to such modifications that are consistent with the authority of the FDICmitigation.
f. You will be entitled to participate in the Change in Control Severance Plan for Corporate Officers (e) If the FDIC provides open bank assistance under Section 13(c) of the FDIA (12 U.S.C. 1823(c)) to the Company or any depository institution controlled by the Company, but excluding any such assistance provided to the industry generally, the Company shall have the right to terminate all obligations of the Company under this Agreement as of the date of such assistance, other than any rights of the Executive that vested prior to the FDIC action. Any vested rights of the Executive may be subject to such modifications that are consistent with the authority of the FDIC.
(f) If the FDIC requires a transaction under Section 13(f) or 13(k) of the FDIA (12 U.S.C. 1823(f) and (k)) by the Company or any depository institution controlled by the Company, the Company shall have the right to terminate all obligations of the Company under this Agreement as of the date of such transaction, other than any rights of the Executive that vested prior to the transaction. Any vested rights of the Executive may be subject to such modifications that are consistent with the authority of the FDIC.
(g) Notwithstanding anything contained in this Agreement to the contrary, any payments made to the Executive pursuant to this Agreement, or otherwise, are subject to and conditioned upon their compliance with 12 U.S.C. Section 1828(k) and Part 359 of the FDIC Rules and Regulations (12 C.F.R. Section 359, et seq.“CIC Plan”). In additionthe event of a “change in control” of ADP (as such term is defined in the CIC Plan), all obligations under this Agreement are further subject you will be entitled to such conditions, restrictions, limitations and forfeiture provisions as may separately apply pursuant to any applicable state banking laws. Any payments suspended by operation of this Section 4(g) shall be paid as a lump sum within 30 days following receipt the greater of the concurrence or consent of benefits and payments under the appropriate federal or state banking agency of the Company or as otherwise directed by such federal or state banking agencyCIC Plan and this letter agreement.
Appears in 1 contract
Sources: Employment Agreement (Automatic Data Processing Inc)
Termination and Severance Payments. (a) The ExecutiveIf your employment with ADP is terminated, you will receive the following compensation:
a. If you are discharged for cause, ADP’s obligation to make payments to you shall cease on the date of such discharge. As used herein, the term “for cause” shall cover circumstances where ADP elects to terminate your employment under this Agreement may be terminated prior to the end of the Term, if applicable, only as follows (each a “Terminating Event”):
because you have (i) Upon the death been convicted of the Executive. If the Executive’s employment is terminated because of the Executive’s death, the Company shall pay the Executive’s estate any sums due him as Base Salary or reimbursement of expenses through the end of the month during which death occurred in accordance with the Company’s standard payroll procedures. The Company shall also pay the Executive’s estate an Annual Bonus pled nolo contendere to a criminal act for the year that death occurs, based on actual performance for such year and prorated to reflect the number of days employed during such year. Any Annual Bonus for previous years which was not yet paid shall be paid pursuant to the terms as set forth in Section 3(b). Any Annual Bonus for the year of death shall be paid by the Company on the earlier of (i) 70 days after the year end in which the Executive died or punishment under applicable law may be imprisonment for more than one year, (ii) willfully or recklessly failed or refused to perform your material obligations as President and Chief Executive Officer, (iii) committed any act or omission of gross negligence in the first pay period following the Companyperformance of your material duties hereunder, (iv) committed any act of willful or reckless misconduct, (v) violated your restrictive covenants, or (vi) violated either ADP’s press release announcing its financial performance “Code of Business Conduct and Ethics”, or ADP’s “Code of Ethics for the year in Principal Executive Officer and Senior Financial Officers”, as each may be updated from time to time and which the Executive diedcan be found at ▇▇▇.▇▇▇.▇▇▇ under “About ADP”.
(ii) Upon the Disability of the Executive for a period of 90 days, which includes any period of payment b. If you become permanently and seriously disabled as defined under the CompanyADP’s accident and health plan. During the period of any Disability leading up to the termination of the Executive’s employment under this provision, the Company shall continue to pay the Executive his full Base Salary at the rate then in effect and all perquisites and other benefits (other than any Annual Bonus) in accordance with the Company’s standard payroll procedures until the Executive becomes eligible for benefits under any long-long term disability plan or insurance program maintained by the Company; providedthen in effect, howeverso that you are absent from your office due to such disability and otherwise unable substantially to perform your services hereunder, that the amount of any such ADP may terminate your employment, and ADP’s obligation to make payments to the Executive you (beyond previously accrued and unpaid amounts) shall be reduced by the sum of the amounts, if any, payable to the Executive for the same period under any other disability benefit or pension plan covering the Executive. Furthermore, the Company shall pay the Executive any Annual Bonus earned through the date of onset of the physical or mental impairment that led to the Disability, based cease on actual performance for the year which includes the date of onset of the physical or mental impairment that led to the Disability and prorated to reflect the number of days employed through such date. Any Annual Bonus for previous years which was not yet paid shall be paid pursuant to the terms as set forth in Section 3(b). Any Annual Bonus for the year which includes the date of onset of the physical or mental impairment that led to the Disability shall be paid by the Company on the earlier of (i) 70 days after the year end in which the Executive became Disabled or (ii) the first pay period following the Company’s press release announcing its financial performance for the year in which the Executive became Disabled.
(iii) by the Company upon delivery of a Notice of Termination to the Executive. If the Executive’s employment is terminated under this provision, the Executive shall receive only any sums due him as base salary and reimbursement of expenses through the date of such termination.
c. If your death occurs while you are actively employed by ADP, which ADP’s obligation to make payments to you (beyond previously accrued and unpaid amounts) shall cease on the date of your death.
d. If you elect to resign from ADP, ADP’s obligation to make payments to you (beyond previously accrued and unpaid amounts) shall cease on the date your employment ends.
e. If during your employment with ADP, ADP terminates your employment for any reason other than “for cause” as described in paragraph 4(a) or for a disability as set forth in paragraph 4(b) or upon your death as set forth in paragraph 4(c) or you elect to resign as set forth in paragraph 4(d), and you execute and do not revoke a Release, you will be paid an amount (in accordance with addition to any previously accrued but unpaid amounts) equal to 2.6 times your annual salary for the Company’s standard payroll procedures.
fiscal year of termination, payable in monthly installments over 12 months. You will separately receive the bonus for the fiscal year of termination that you would have otherwise have received if your employment had not been terminated, based upon your (ivand to the extent applicable, ADP’s) By actual full-year performance (as determined by the Executive effective upon Compensation Committee), prorated to reflect the 30th day after delivery portion of a Notice of Termination. If the Executive resigns under this provision, the Executive shall receive any sums due him as Base Salary or reimbursement of expenses fiscal year worked through the date of termination. Further, such termination, which shall amount will be paid in accordance with the Company’s standard payroll proceduresfollowing fiscal year at the same time that bonuses would have otherwise been paid in the ordinary course, absent termination of employment.
f. You will continue to participate in the Change in Control Severance Plan for Corporate Officers (b) With the exceptions “CIC Plan”). In the event of a “change in control” of ADP and a subsequent “qualifying termination” occurs (as such terms are defined in the CIC Plan), you will be entitled to the greater of the provisions of benefits and payments under the CIC Plan and this Section 4letter agreement. Further, and for the express terms of any benefit plan under which the Executive is a participant, it is agreed that, upon termination purposes of the Executive’s employment, the Company shall have no obligation to the Executive for, and the Executive waives and relinquishes, any further compensation or benefits (exclusive of COBRA benefits). Unless otherwise stated in this Section 4, the effect of termination on any outstanding incentive awards, stock options, stock appreciation rights, performance units, or other incentives shall be governed by the terms application of the applicable benefit or incentive plan and/or the agreements governing such incentives. Within 60 days of termination “severance benefit” described in Section 1.1 of the Executive’s employmentCIC Plan, and as a condition you will be entitled to the Company’s obligation an amount equal to pay any severance hereunder, the Company and the Executive shall enter into a mutual release in the form agreed to by the parties, and neither party may revoke such release within the revocation period stated in such release, which shall acknowledge such remaining obligations and discharge Executive on one hand and the Company and its officers, directors and employees on the other hand with respect to their actions for or on behalf 200% of the Company, from any other claims or obligations arising out of or in connection with the Executive’s employment by the Company, including the circumstances of such termination. In addition, if such severance payment is made by the Company, and if the 60 day period spans two calendar years, regardless of when such release is executed by the Executive, such severance payment must be made in the subsequent calendar year, regardless of when the release is executed by the Executive.
(c) As a condition to the Company’s obligation to pay any severance hereunder, regardless of the reason for the termination of the Executive’s employment, the Executive shall resign as a director of the Company and any of its subsidiaries, if the Executive is then serving in any such position.
(d) Notwithstanding anything contained in this Agreement to the contrary,
(i) if the Executive is suspended or temporarily prohibited from participating, in any way or to any degree, in the conduct of the Company’s affairs by (1) a notice served under Section 8(e) or (g) of Federal Deposit Insurance Act (“FDIA”) (12 U.S.C. Section 1818 (e) or (g)) or (2) as a result of any other regulatory or legal action directed at the Executive by any regulatory or law enforcement agency having jurisdiction over the Executive (each of the foregoing referred to herein as a “Suspension Action”), and if this Agreement is not terminated, the Company’s obligations under this Agreement shall be suspended as of the earlier of the effective date of such Suspension Action or the date on which the Executive was provided notice of the Suspension Action, unless stayed by appropriate proceedings. If the charges underlying the Suspension Action are dismissed, the Company shall: (i) pay on the first day of the first month following such dismissal of charges (or as provided elsewhere in this Agreement) the Executive all of the compensation withheld while the obligations under this Agreement were suspended; and (ii) reinstate any such obligations which were suspended.
(ii) if the Executive is removed or permanently prohibited from participating, in any way or to any degree, in the conduct of the Company’s affairs by (1) an order issued under Section 8(e)(4) or (g)(1) of the FDIA (12 U.S.C. Section 1818 (e)(4) or (g)(1)) or (2) any other legal or law enforcement action (each of the foregoing referred to herein as a “Removal Action”), all obligations of the Executive under this Agreement shall terminate as of the effective date of the Removal Action, but any vested rights of the parties hereto shall not be affected.
(iii) if the Company is in default current total annual compensation” (as defined in Section 3(x)(1the CIC plan) under the circumstances of clause 1.1(a)(i) thereof and 150% of current total annual compensation under the FDIA, 12 U.S.C. Section 1813(x)(1)), all obligations under this Agreement shall terminate as circumstances of the date of default, but this Section (4)(dclause 1.1(a)(ii) shall not affect any vested rights of the parties heretothereof.
(iv) if the FDIC is appointed receiver or conservator under Section 11(c) of the FDIA (12 U.S.C. Section 1821(c)) of any depository institution controlled by the Company, the Company shall have the right to terminate all obligations of the Company under this Agreement as of the date of such receivership or conservatorship, other than any rights of the Executive that vested prior to such appointment. Any vested rights of the Executive may be subject to such modifications that are consistent with the authority of the FDIC.
(e) If the FDIC provides open bank assistance under Section 13(c) of the FDIA (12 U.S.C. 1823(c)) to the Company or any depository institution controlled by the Company, but excluding any such assistance provided to the industry generally, the Company shall have the right to terminate all obligations of the Company under this Agreement as of the date of such assistance, other than any rights of the Executive that vested prior to the FDIC action. Any vested rights of the Executive may be subject to such modifications that are consistent with the authority of the FDIC.
(f) If the FDIC requires a transaction under Section 13(f) or 13(k) of the FDIA (12 U.S.C. 1823(f) and (k)) by the Company or any depository institution controlled by the Company, the Company shall have the right to terminate all obligations of the Company under this Agreement as of the date of such transaction, other than any rights of the Executive that vested prior to the transaction. Any vested rights of the Executive may be subject to such modifications that are consistent with the authority of the FDIC.
(g) Notwithstanding anything contained in this Agreement to the contrary, any payments made to the Executive pursuant to this Agreement, or otherwise, are subject to and conditioned upon their compliance with 12 U.S.C. Section 1828(k) and Part 359 of the FDIC Rules and Regulations (12 C.F.R. Section 359, et seq.). In addition, all obligations under this Agreement are further subject to such conditions, restrictions, limitations and forfeiture provisions as may separately apply pursuant to any applicable state banking laws. Any payments suspended by operation of this Section 4(g) shall be paid as a lump sum within 30 days following receipt of the concurrence or consent of the appropriate federal or state banking agency of the Company or as otherwise directed by such federal or state banking agency.
Appears in 1 contract
Sources: Employment Agreement (Automatic Data Processing Inc)