Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (A) a material adverse change to Executive’s positions, titles, offices, or duties following the Effective Date from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (D) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (A) through (D) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of non-renewal of the Term by the Executive pursuant to Section 1), the Company shall pay the following amounts, and make the following other benefits available, to Executive.
Appears in 3 contracts
Sources: Employment Agreement (SciPlay Corp), Employment Agreement (Scientific Games Corp), Employment Agreement (Scientific Games Corp)
Termination by the Company Without Cause or by Executive for Good Reason. The If Executive's employment is terminated by (i) the Company may terminate Executive’s employment at any time without Cause, or (ii) by Executive for any reason or no reason, and Executive may terminate Executive’s employment for “"Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: ," Executive will be entitled to receive (A) a material adverse change to Executive’s positionshis Accrued Obligations, titles, offices, or duties following the Effective Date from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease cash severance payment equal to fifty percent (50%) of Executive's Annual Base Salary, payable in base salary or material decrease regular installments in Executive’s Incentive Compensation opportunity provided under this Agreement; accordance with the Company's general payroll practices (in effect from time to time) beginning on the first pay date following the date of termination and ending on the sixth monthly anniversary date of the first pay date, (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer addition of the cost of Company; and-provided health insurance to each severance payment made in accordance with Section 4(e)(B) above, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or and (D) any other material failure by the bonus described in Section 3(a)(ii) above for the calendar year in which such termination occurs if Executive would have otherwise been entitled to receive such bonus had his employment not been terminated (provided that if the date of such termination occurs prior to the last day of the calendar year in respect of which such bonus is awarded, then such bonus will be prorated upon the number of days elapsed prior to Executive's date of termination). Any such bonus amount payable under this Section 4(e) will be payable at such time as such amount would have been payable had Executive's employment not been terminated. In addition to the foregoing, the Company shall provide to perform any material obligation underExecutive, or material breach by for a period of up to six (6) months following the date of termination of employment with the Company, outplacement services, including, but not limited to: instruction and counseling to assess and develop job goals and interviewing, networking and negotiating skills; assistance with resume preparation and initiation of a job search; secretarial support, and the use of private offices at the outplacement firm's premises. Executive and the Company shall agree upon the outplacement services provider, and the aggregate cost of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason such services under any of clauses (A) through (D) of this Section 4(e) shall not be considered effective unless Executive shall have provided exceed Seventy Five Hundred Dollars ($7,500). As a condition to the Company with written notice of Company's obligations to make the specific reasons for such termination within thirty (30) days after he has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to payments described in this Section 4(e), the Company and Executive actually terminates his will execute and deliver within 30 days after the date of termination of employment within one (1) year following a general mutual release in the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment is terminated form reasonably required by the Company without Cause or by Executive for Good Reason (and not, for Company. Notwithstanding anything in this Agreement to the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of non-renewal of the Term by the Executive pursuant to Section 1)contrary, the Company shall will have no obligation to pay the following amountsany amounts payable under this Section 4(e) during such times as Executive is in breach of Sections 5, and make the following other benefits available6, to Executiveor 7 hereof.
Appears in 3 contracts
Sources: Employment Agreement (Cellectar Biosciences, Inc.), Employment Agreement (Cellectar Biosciences, Inc.), Employment Agreement (Cellectar Biosciences, Inc.)
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (A) a material adverse change to Executive’s positions, titles, offices, or duties following the Effective Date from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (D) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (A) through (D) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of non-non- renewal of the Term by the Executive pursuant to Section 1), the Company shall pay the following amounts, and make the following other benefits available, to Executive.
Appears in 2 contracts
Sources: Employment Agreement (SciPlay Corp), Employment Agreement (Scientific Games Corp)
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time hereunder without Cause, for any reason or no reason, and Executive may shall be permitted to terminate Executive’s employment hereunder for “Good Reason (as hereinafter defined). If the Company terminates Executive’s employment hereunder without Cause, other than due to death or Disability, or if Executive effects a termination for Good Reason, Executive shall be entitled to receive the payments and benefits set forth in this Section 5.4.” For purposes of this Agreement “Good Reason” shall mean that, without
(a) If Executive’s prior written consentemployment hereunder is terminated by the Company without Cause, so long as Executive has not breached any of the following terms contained in Section 4, Executive shall have occurred: be entitled to each of the following:
(Ai) a material adverse change to Executive’s positionsAccrued Employment Entitlements;
(ii) Executive’s annual Base Salary in effect as of the date of such termination, titles, offices, or duties following the Effective Date from those set forth payable in Section 2, except, in such case, in connection accordance with the termination Company’s normal payroll practices for a period of Executive’s employment for Cause or due to Total Disability, death or expiration of the Termtwelve (12) months following any such termination; provided, however, that if Executive is, as of the date of such termination, a Good Reason event shall “specified employee” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), any amount that is (1) not be deemed to have occurred iftreated as a short-term deferral within the meaning of Treas. Reg. § 1.409A-1(b)(4), and (2) exceeds the Company ceases to be a publicly-traded company, separation pay limit under Treas. Reg. § 1.409A-1(b)(9)(iii)(A) (two times the lesser of (A) the sum of Executive’s annualized compensation based on Executive’s duties changing from those of a public company chief executive officer annual Base Salary for the calendar year preceding the calendar year in which termination occurs (adjusted for any increase during that year that was expected to those of a private company chief executive officer; continue indefinitely if Executive’s employment had not been terminated), or (B) the maximum amount that may be taken into account under a material decrease qualified plan pursuant to Code Section 401(a)(17) for the year in base salary which such termination occurs), will not be paid before the date that is six months after such date of termination, or material decrease in if earlier, the date of Executive’s Incentive Compensation opportunity death. Any payments or benefits to which Executive would otherwise be entitled during such non-payment period will be accumulated and paid or otherwise provided to Executive on the first day of the seventh month following such date of termination, or if earlier, within 30 days of Executive’s death to his surviving spouse (or to his estate if Executive’s spouse does not survive him). For purposes of this Section 5.4(a)(ii) and Section 5.4(b), any amount that is paid as a short-term deferral within the meaning of Treas. Reg. § 1.409A-1(b)(4), or within the separation pay limit under Treas. Reg. § 1.409A-1(b)(9)(iii)(A) shall be treated as a separate payment, provided the aggregate of the separate payments under this Agreement; Section 5.4(a)(ii) shall not exceed an amount equal to the Executive’s annual Base Salary in effect as of the date of such termination or for a period in excess of twelve (C12) months following any such termination;
(iii) an amount equal to the most recent Annual Bonus received by Executive for any fiscal year ended prior to the date of such termination (determined without regard to any performance goals) , payable in a requirement that on a continuing basis Executive reports to anyone other than the Boardlump sum within thirty (30) days following such termination of employment; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting if such termination or resignation occurs within thirty (30) days prior to the Boardcalendar year end, Executive may also be required to report to a senior executive the payment, without interest, of the controlling company; or (D) any other material failure amount paid for a termination by the Company without Cause shall be paid no earlier than January 1 of the next year; and
(iv) Executive and Executive’s dependents shall be entitled to perform continue to participate in the Company’s welfare benefit plans and insurance programs on the same terms as other actively employed executives for a period of twelve (12) months from the termination date. Following the expiration of such twelve-month period, Executive and/or Executive’s dependents shall be entitled to any material obligation under, or material breach continuation of benefits as are provided under such benefit plans by the Company or as are required to be provided in accordance with applicable law.
(b) If Executive’s employment hereunder is terminated by the Executive for Good Reason, so long as Executive has not breached any of the terms contained in Section 4, Executive shall be entitled to the benefits provided in Section 5.4(a), except the severance benefit specified in Section 5.4(a)(ii) (the “Regular Severance Benefit”) shall be payable in a lump sum (the “Permitted Lump Sum Benefit”) to the extent it is (1) treated as a short-term deferral within the meaning of Treas. Reg. § 1.409A-1(b)(4), or (2) does not exceed the separation pay limit under Treas. Reg. § 1.409A-1(b)(9)(iii)(A) (two times the lesser of (A) the sum of Executive’s annualized compensation based on Executive’s annual Base Salary for the calendar year preceding the calendar year in which termination occurs (adjusted for any material provision ofincrease during that year that was expected to continue indefinitely if Executive’s employment had not been terminated), this Agreementor (B) the maximum amount that may be taken into account under a qualified plan pursuant to Code Section 401(a)(17) for the year in which such termination occurs), as described in Section 5.4(a)(ii). The Permitted Lump Sum Benefit shall be payable within thirty (30) days following such termination of employment; provided, howeverprovided further, that if such termination or resignation occurs within thirty (30) days prior to the calendar year end, the payment, without interest, of the Permitted Lump Sum Benefit paid for a termination by Executive for Good Reason shall be paid no earlier than January 1 of the next year and any remaining amount shall be payable in installments in accordance with the Regular Severance Benefit provisions of Section 5.4(a)(ii).
(c) Any outstanding stock options granted to Executive shall be vested and/or exercisable for the period through the date of such termination of employment, and shall remain exercisable, in accordance with the terms contained in the plan and the agreement pursuant to which such option awards were granted.
(d) For purposes of the calculation of Executive’s benefits under any of clauses (A) through (D) of this Section 4(e) shall not be considered effective unless supplemental defined benefit plan in which Executive participates, Executive shall have provided the Company be credited with written notice one additional year of the specific reasons for such termination within thirty (30) days after he has knowledge service as a result of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to this Section 4(a), (b), (c) or (d) or due to a notice of non-renewal of the Term by the Executive pursuant to Section 1), the Company shall pay the following amounts, and make the following other benefits available, to Executive5.4.
Appears in 2 contracts
Sources: Employment Agreement (Cinemark Holdings, Inc.), Employment Agreement (Cinemark Holdings, Inc.)
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (A) a material adverse change to Executive’s positions, titles, offices, or duties following the Effective Date duties, from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; or (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (D) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (A) through (DC) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he Executive has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one ninety (190) year days following the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of or non-renewal of the Term by the Executive pursuant to Section 1Term), the Company shall pay or provide the following amounts, and make the following other benefits available, amounts to Executive.:
Appears in 2 contracts
Sources: Employment Agreement (Light & Wonder, Inc.), Employment Agreement (Light & Wonder, Inc.)
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (A) a material adverse change to Executive’s positions, titles, offices, or duties following the Effective Date from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; or (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (D) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (A) through (DC) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he Executive has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of or non-renewal of the Term by the Executive pursuant to Section 1Term), the Company shall pay or provide the following amounts, and make the following other benefits available, amounts to Executive.:
Appears in 1 contract
Sources: Employment Agreement (SciPlay Corp)
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (A) a material adverse change to Executive’s positions, titles, offices, or duties following the Effective Date from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (D) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; or (D) the Company requiring Executive to be based anywhere other than within fifty (50) miles of Executive’s job location as of the Effective Date, except for reasonably required travel on the Company’s business; provided, however, that a termination by Executive for Good Reason under any of clauses (A) through (D) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he Executive has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of non-renewal or upon the expiration of the Term by the Executive pursuant to Section 1Term), the Company shall pay or provide the following amounts, and make the following other benefits available, amounts to Executive.:
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (A) a material adverse change to Executive’s positions, titles, offices, or duties following the Effective Date from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; or (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (D) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (A) through (DC) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of non-non- renewal of the Term by the Executive pursuant to Section 1), the Company shall pay the following amounts, and make the following other benefits available, to Executive.
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (Ai) a material change, adverse change to Executive, in Executive’s positions, titles, offices, or duties following the Effective Date from those set forth as provided in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed (ii) an assignment of any significant duties to have occurred if, the Company ceases to be a publicly-traded company, based on Executive which are materially inconsistent with Executive’s duties changing from those of a public company chief executive officer positions or offices held under Section 2 and adverse to those of a private company chief executive officerExecutive; (Biii) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity incentive compensation opportunities provided under this Agreement; (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (Div) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (Ai) through (Div) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event giving rise to Good ReasonCompany. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of non-renewal or upon the expiration of the Term by the Executive pursuant to Section 1Term), the Company shall pay the following amounts, and make the following other benefits available, to Executive.
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (A) a material adverse change to Executive’s positions, titles, offices, or duties following the Effective Employment Start Date from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; or (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (D) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (A) through (DC) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he Executive has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one ninety (190) year days following the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of non-renewal or upon the expiration of the Term by the Executive pursuant to Section 1Term), the Company shall pay or provide the following amounts, and make the following other benefits available, amounts to Executive.:
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The If Executive's employment is terminated hereunder by the Company may terminate Executive’s employment at any time without other than for Cause, for any reason Disability or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean thatDeath (including, without limitation, if an arbitrator determines that Executive’s prior written consent, any of 's employment was terminated hereunder by the following shall have occurred: (A) a material adverse change to Executive’s positions, titles, offices, or duties following the Effective Date from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s employment Company other than for Cause or due to Total Disability), death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (D) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (A) through (D) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason Reason:
(and not, i) the Company shall pay to Executive in a lump sum a severance payment equal to the amount of Base Salary payable to Executive for a twelve (12) month period;
(ii) the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of non-renewal of the Term by the Company shall reimburse Executive pursuant to Section 15(c) for reasonable expenses incurred, but not paid prior to such termination of employment;
(iii) Executive shall be entitled to any other rights, compensation and/or benefits as may be due to Executive in accordance with the terms and provisions of any agreements, plans or programs of the Company through and including the Date of Termination; and
(iv) the Stock Option shall become fully vested as of the Date of Termination. If the Company concurrently executes a general release (in a form reasonably acceptable to the Executive) of all known and unknown claims that the Company and persons affiliated with the Company may then have against the Executive and the Company agrees not to prosecute any legal action or other proceeding based upon any of such claims, payment of the severance payment provided for in (a)(i) above will be conditional upon Executive's execution of a general release (in a form reasonably acceptable to the Company) of all known and unknown claims under this Agreement (other than as a stockholder or option holder) that Executive may then have against the Company or persons affiliated with the Company and the Executive having agreed not to prosecute any legal action or other proceeding based upon any of such claims. The foregoing notwithstanding, upon the written election of Executive, in his sole discretion, the total of the benefits payable under this Section 9(a) shall be reduced to the maximum after tax payment (as determined by Executive and agreed to by the Board) to the extent the payment of such amounts would cause Executive's total termination benefits (as determined by Executive's tax advisor) to constitute an "excess" parachute payment under Section 280G of the Internal Revenue Code of 1986, as amended (the "Code"), and by reason of such excess parachute payment Executive would be subject to an excise tax under Section 4999(a) of the Company shall pay the following amounts, and Code. If Executive fails to make the following other election described in this paragraph, no reduction in the termination benefits available, payable to ExecutiveExecutive shall be made.
Appears in 1 contract
Sources: Employment Agreement (Lil Marc Inc)
Termination by the Company Without Cause or by Executive for Good Reason. The Company Arm Board, in accordance with the Services Agreement, may terminate Executive’s the employment of Executive without “Cause” (as defined in subparagraph 5(a)) at any time without Causeduring his term of employment by giving thirty (30) days’ written notice to Executive specifying therein the effective date of termination provided, for any reason or no reason, and Executive that the Arm Board may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any change the characterization of the following shall have occurred: (A) a material adverse change to Executive’s positions, titles, offices, or duties following the Effective Date from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (D) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (A) through (D) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days before or after he the effective date of termination if the Arm Board has knowledge learned of new information or otherwise upon a showing that the termination could have been for Cause. Executive shall have the right, but not the obligation, to terminate this Agreement, subject to the surviving terms of this Agreement, as set forth herein, in the event or circumstance constituting Executive has a Good Reason and to terminate his employment with the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty by giving sixty (3060) days after such days’ written notice has been given to the Company and the Arm Board specifying therein the effective date of resignation. For purposes of this Agreement, and subject to the Company’s opportunity to cure as provided in subparagraph 5(i) hereof, Executive actually terminates shall have “Good Reason” to terminate his employment within one hereunder if such termination shall be the result of:
(1i) year following a significant reduction by the initial occurrence Company in the authority, duties or responsibilities of Executive, or any other action by the event giving rise Company which results in a significant diminution of his authority, duties, or responsibilities as Chief Executive Officer, excluding for this purpose an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by Executive; and (ii) any material reduction in Executive’s annual salary, opportunity to Good Reasonearn annual or long-term incentives, or other monetary compensation, including but not limited to those provided in this Agreement, other than as a result of an isolated, insubstantial and inadvertent action not taken in bad faith and which is remedied by the Company promptly after receipt of notice thereof given by Executive. In Notwithstanding any provision above or elsewhere in this Agreement to the event that contrary, (i) the Arm Board, in accordance with the Services Agreement, may place Executive on paid leave for up to ninety (90) days while the Arm Board is determining whether there is a basis to terminate Executive’s employment is terminated for Cause, or (ii) make take the actions described in Section 5(l), neither of which actions by the Company without Cause or by Executive for Arm Board will constitute Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of non-renewal of the Term by the Executive pursuant to Section 1), the Company shall pay the following amounts, and make the following other benefits available, to ExecutiveReason.
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate If this Agreement and Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (A) a material adverse change to Executive’s positions, titles, offices, or duties following the Effective Date from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (D) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (A) through (D) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment hereunder is terminated by the Company without Cause or by Executive for Good Reason (as defined below) prior to the expiration of the Term (it being understood by the parties that termination upon death or by reason of Disability, which are addressed in Sections 7 and not8, respectively, shall not constitute a termination without Cause), then Executive shall be entitled to the following benefits; provided that the payments and benefits under Section 9(a)(i) and Section 9(a)(ii)(C) are subject to the execution by Executive of the Release attached hereto and made a part hereof (the “Release”) and the effectiveness of such Release. For all purposes under Section 8 and this Section 9, any payments due to Executive solely as a result of a termination of his employment that is not a “separation from service” shall be postponed until the occurrence of a “separation from service” (or such earlier permitted event) to the extent necessary to satisfy Section 409A of the Code.
(i) Commencing on the sixtieth (60th) day after Executive’s termination of employment, but contingent upon the execution and effectiveness of the Release attached hereto prior to such date, and subject to Section 19(r) below, Executive shall be entitled to:
(A) payment, in installments, ratably over twenty-four (24) months after such date (the “Severance Period”) in accordance with the Company’s normal payroll cycle and procedures, of an amount equal to the greater of (X) $9.5 million and (Y) the product of (x) two (2) multiplied by (y) the sum of (I) Executive’s Base Salary in effect as of the date of termination, and (II) the average of the Annual Incentive Payments paid in cash in respect of the two fiscal years prior to the date of Executive’s termination of employment (such greater amount, the “Termination Payment”); provided that in the event of Executive’s termination of employment by Executive for Good Reason as a result of a Change of Control (that also constitutes a change in ownership of the Company or in the ownership of a substantial portion of the assets of the Company as provided in Section 409A(a)(2)(A)(v) of the Code) within two years following such Change of Control, the Termination Payment shall be made in a lump sum cash payment; payment, in installments over the Severance Period, in accordance with the Company’s normal payroll cycle and procedures, of an amount equal to financial planning benefits for two (2) years following his termination of employment; and
(B) continuation of health insurance coverage in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA”), including medical and dental coverage and excess disability and life insurance coverage during such COBRA period, in each case, on the same basis as those benefits are generally made available to active Peer Executives. The Company’s portion of the cost of such coverage and the provision of the coverage itself will be borne/provided by the Company in a manner that does not adversely affect its medical plan or otherwise result in adverse tax consequences as determined in its sole discretion. Thereafter, the Company shall provide Executive with health insurance, excess disability and life insurance coverage that is reasonably comparable to the coverage provided to Peer Executives under such policies at such time, under insurance policies issued by the insurer(s) who then administer(s) or provide(s) the benefits under the applicable plans until his death (the “Retiree Benefits”), to the extent that the Company determines in its reasonable judgment that maintaining the Retiree Benefits would not adversely affect its medical plan or the benefits paid thereunder or would result in penalties under Public Health Service Act section 2716 (the “PHSA”) or related provisions of the Code or the Employee Retirement Income Security Act of 1974, as amended (“ERISA”); provided, however, that, in the event the Company determines in its reasonable judgment that maintaining the Retiree Benefits would adversely affect its plan(s) or the benefits provided thereunder or result in penalties under the PHSA, the Code, ERISA or any other applicable law, then the Company may cease providing the Retiree Benefits to Executive and in lieu thereof agrees to pay Executive, on the first business day of each month, a monthly amount equal to the Company’s allocable portion of the cost of such Retiree Benefits. The Retiree Benefits will be provided in a manner exempt from or consistent with Code Section 409A, and to the extent such payments are taxable to Executive, Executive shall be grossed up accordingly. Notwithstanding anything herein to the contrary, Executive’s right to the Retiree Benefits shall terminate as of (i) the date on which reasonably comparable health insurance is made available to Executive by a subsequent employer, including the Company, or through the employment of his spouse, if any, or (ii) if Executive’s employment with the Company was terminated by Executive without Good Reason or due to Executive’s election not to extend the Term, in each case, the date on which Executive commences any employment, consulting, advisory, directorship, agency, promotional or independent contractor arrangement with any person or Entity (as defined below) (other than any such arrangement in which Executive serves solely as a non-executive director). For purposes of the foregoing sentence, Executive is required to send written notice of the terms and conditions of any such subsequent employment, consulting, advisory, directorship, agency, promotional or independent contractor arrangement and the corresponding benefits earned from any such employment, to the extent applicable, and shall provide, or cause to be provided, to the Company, in writing, correct, complete and timely information concerning the same to the extent reasonably requested by the Company. Continued coverage under COBRA and the Retiree Benefits will be subject to the terms of the relevant welfare plans and in accordance with the Company’s policies applicable to similarly situated employees, as amended from time to time.
(ii) Except as otherwise provided for in this clause (ii), on the 60th day after Executive’s termination of employment, to the extent not theretofore paid or provided to Executive, Executive shall be entitled to: (A) any other accrued but unpaid Base Salary to the date of termination of employment; (B) any Annual Incentive Payments earned but unpaid for fiscal years ended prior to the year in which the date of termination occurs; (C) contingent upon the execution and effectiveness of the Release prior to the 60th day after Executive’s termination of employment, a pro rata portion of the Annual Incentive Payment, if any, for the fiscal year in which the termination of employment occurs, equal to the product of (x) the full Annual Incentive Payment amount that would otherwise be payable in respect of such year if Executive had remained employed through such year, if any, without any reduction due to individual performance factors, and (y) a fraction, the numerator of which is equal to the number of days elapsed in such fiscal year to the date of termination and the denominator of which is 365, with such incentive payment amount to be paid in the calendar year following the year in which Executive’s termination occurred at the time that the full Annual Incentive Payment amount would have been paid had Executive’s employment not been terminated, (D) to the extent applicable to Executive and to the extent provided under the terms of the Severance/Change in Control Policy (as defined below), if any outstanding cash incentive awards granted to Executive are eligible to become fully vested and payable solely contingent upon Executive’s continued employment hereunder and the passage of time, continued vesting of such awards, with payment of such awards to be made in accordance with the awards’ terms, notwithstanding Executive’s earlier termination of employment, (E) any unreimbursed business expenses incurred prior to the date of termination and to which Executive is entitled to be reimbursed pursuant to Section 5(f) and (F) other amounts or accrued benefits required to be paid or provided or which Executive is eligible to receive (whether on such 60th day or thereafter) under any employee benefit plan, program, policy or practice or contract or agreement of the Company (all of such other amounts and benefits referred to in this Section 9(a)(ii) shall be referred to in this Agreement as the “Other Benefits”). For the avoidance of doubt, Executive shall not be a participant in that certain Company Severance/Change in Control Policy as amended and restated effective as of September 24, 2007 and amended by Amendment No. 1 thereto, as it may be further amended from time to time (the “Severance/ Change in Control Policy”).
b. In the event that there is an alleged material breach by Executive of any continuing obligations under Section 14 or Section 16 of this Agreement or the Release, any unpaid amounts under this Section 9 shall be suspended until such time as there has been a final determination made by the appropriate tribunal that Executive has in fact materially breached any provision of such section, at which time any right to further payment shall be forfeited. The Company shall only implement a payment suspension following written notice of such breach and providing Executive a period of at least 30 days following such written notice to cure the material breach. Any payments or reimbursements under this Section 9 shall not be deemed the continuation of Executive’s employment for any purpose. Except as specifically enumerated in the event Release, the Company’s payment obligations under this Section 9 will not negate or reduce (i) any amounts otherwise due but not yet paid to Executive by the Company, (ii) any other amounts payable to Executive outside this Agreement, (iii) compensation and benefits under any other plan or agreement covering Executive or Executive’s beneficiaries, which shall be governed by the terms of such plan or agreement or (iv) any rights to indemnification set forth in this Agreement or otherwise.
c. For purposes of this Agreement, “Good Reason” shall mean, (i) the consummation of a termination pursuant to Section 4(a)Change of Control or, (b), (c) or (d) or due to a notice of non-renewal any of the Term by the Executive pursuant to Section 1), the Company shall pay the following amounts, and make the following other benefits available, to without Executive.’s consent:
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (A) a material adverse change to Executive’s positions, titles, offices, or duties following the Effective Date from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred ifoccurred, if the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive operating officer to those of a private company chief executive operating officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that President & Chief Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling companyOfficer; or (D) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (A) through (D) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he she has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his her employment within one (1) year following the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of non-renewal of the Term by the Executive pursuant to Section 1), the Company shall pay the following amounts, and make the following other benefits available, to Executive.
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of If this Agreement “Good Reason” shall mean that, without and Executive’s prior written consent, any of the following shall have occurred: (A) a material adverse change to Executive’s positions, titles, offices, or duties following the Effective Date from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s 's employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (D) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (A) through (D) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment hereunder is terminated by the Company without Cause or by Executive for Good Reason (and notas defined below) prior to the expiration of the Term (which, for the avoidance of doubt, shall include any extension of the Term that has been agreed to by the parties in accordance with Section 2 hereof), (it being understood by the parties that termination by death or Disability shall not constitute a termination without Cause), then Executive shall be entitled to the following payments and benefits (in addition to the Accrued Obligations) upon the execution and effectiveness of the Release attached hereto and made a part hereof (the “Release”), and conditioned further upon Executive's continued compliance with his post-termination obligations hereunder (Sections 10 through 13) and under any other applicable Company policy. For all purposes under this Section 8, any payments due to Executive solely as a result of a termination of his employment that is not a “separation from service” shall be postponed until the occurrence of a “separation from service” (or such earlier permitted event) to the extent necessary to satisfy Section 409A of the Code.
a. Commencing on the effectiveness of the Release, provided that such execution and effectiveness shall occur on or prior to 60 days after Executive's termination of employment, and subject to Section 14(q) below, Executive shall be entitled to:
(A) commencing on the first payroll payment date following the effectiveness of the Release, payment, in monthly installments ratably over the period beginning on the date of Executive's employment termination and ending on the last day of the Term (i.e., with respect to any termination prior to the third anniversary of the Start Date, as if Executive had remained employed through the last day of the Term and, with respect to any termination occurring after the third anniversary of the Start Date, as if Executive had remained employed through to the last day of the one year extension of the Term, provided that the parties have agreed to such extension in accordance with Section 2 hereof (whichever such time period as is applicable being the “Severance Period”), to be in a monthly amount (prior to deduction of applicable withholding taxes) equal to the quotient obtained by dividing the (I) sum of (A) Executive's Base Salary in effect as of the date of termination (for the avoidance of doubt, including any deferred amounts of Base Salary), and (B) Executive's Target Bonus amount for the Company's fiscal year in which his termination of employment occurs, by (II) twelve (12);
(B) continued medical and life insurance benefits for Executive and Executive's eligible dependents in accordance with the terms of the applicable Company plans, in which he participated immediately prior to such termination, as in effect from time to time until the earlier of the expiration of the Severance Period and the date Executive is or becomes eligible for comparable coverage under the medical and life insurance plans of another employer (the “Continued Coverage Period”); provided, to the extent such medical coverage is not permissible by law or such coverage would cause the Company to incur any excise tax, reimburse Executive on the first business day of every month during the first eighteen months of the Continued Coverage Period for the COBRA health care continuation premiums incurred by Executive, and reimburse Executive thereafter for the remainder of the Continued Coverage Period for the premium costs incurred by Executive for comparable coverage reasonably acceptable to the Company;
(C) a prorated Annual Bonus for the fiscal year of termination based on actual Company results for such fiscal year (and without any exercise of negative discretion) and paid when it would have otherwise have been paid if Executive had continued to be employed (provided that Executive shall be paid the 2011 Guaranteed Bonus if such amount is unpaid at the time of termination);
(D) payment of the Cash Inducement Bonus to the extent unpaid, and continued vesting during the Severance Period of the Inducement RSUs, Inducement Options, 2011 PSUs and 2011 Options, so as to be fully vested and nonforfeitable as of the end of the Severance Period, so long as Executive complies with his post termination obligations under this Agreement or otherwise (and in the case of the 2011 PSUs with the payout based on actual performance as of the end of the performance period), except that the Inducement RSUs and 2011 PSUs shall be settled on the dates originally provided for in the applicable award agreements;
(E) continued vesting on a daily pro-rated basis during the Severance Period (with, for the avoidance of doubt, no further vesting occurring after the end of the Severance Period) of all other equity and other long-term incentive awards (including share units and stock options), if any, granted to Executive at any time after the grants of the 2011 PSUs and 2011 Options (for example, (A) if the termination occurred prior to the third anniversary of the Start Date, then, in the case of an equity grant based on a three year time-vesting period or three year performance cycle awarded on July 1, 2013, the grant would continue to vest based on the period from July 1, 2013 through September 26, 2014 and be 452/1,096th vested as of the last day of the Severance Period, so long as Executive complies with his post termination obligations under this Agreement or otherwise (and in the case of any awards subject to satisfaction of performance requirements, with the payout based on actual performance as of the end of the three-year illustrative performance period, as pro-rated as provided above), and that any time-vesting restricted stock units shall be settled on the last day of the Severance Period and any performance stock units shall be settled on the dates originally provided for in the applicable award agreements, and (B) if the parties have agreed to a one-year extension of the Term in accordance with Section 2 hereof, and if the termination occurred during such one-year extension period, then the provisions of Section 9 shall apply);
(F) in the event of a termination pursuant Change in Control (as hereinafter defined) that occurs during the Severance Period, immediately prior to such Change in Control, (1) all equity and other long-term incentive awards under this Section 4(a8(a) shall immediately become vested and nonforfeitable to the same extent as they would have otherwise become vested under this Section 8(a), (b)2) all vested stock options (including those vesting herein) shall be exercisable in connection with such Change in Control, (c3) all restricted stock units and/or performance stock units shall be settled on the date of such Change in Control (unless such Change in Control is not a change of ownership or (d) or due to a notice of non-renewal effective control of the Term by Company or of a substantial portion of the Executive pursuant to Section 1), assets of the Company within the meaning of Section 409A, in which case such restricted stock units and/or performance stock units shall pay be settled on the dates originally provided for in the applicable award agreements or any earlier date of Executive's death; such delayed payment, a “409A CiC Postponement”); and
(G) In the case of stock options that vest during the Severance Period, Executive shall be provided with a one year period to exercise each such option commencing on the end of the Severance Period, in each case not to exceed the maximum term of the applicable option. In the event that, as a result of the timing of the effectiveness of the Release, any payment to Executive under this Section 8 or under Section 9, as the case may be, that is nonqualified deferred compensation under Section 409A of the Code could be payable (or commence) in either of two taxable years of Executive, such payment shall be made (or commence) on the later of January 15 of the later such taxable year or the first payroll payment date following amounts, and make the following other benefits available, to Executivedate of effectiveness of the Release.
Appears in 1 contract
Sources: Employment Agreement (Wendy's Co)
Termination by the Company Without Cause or by Executive for Good Reason. (i) The Company may terminate Executive’s employment at any time hereunder without Cause if such termination is approved by the Board of Directors. Any termination by the Company of Executive’s employment hereunder which does not (A) constitute a termination for Cause under Subparagraph (d)(i), (B) result from the death or disability of Executive under Subparagraph (b) or (c), or (C) result from the expiration of the Term on June 30, 2023 shall be deemed a termination without Cause, for any reason or no reason, and .
(ii) Executive may terminate Executive’s his employment hereunder for “Good Reason.” For purposes of this Agreement . “Good Reason” shall mean that, without Executive’s prior written consent, the occurrence of any of the following shall have occurredwithout Executive’s written consent: (A) a material adverse change to change, in the nature or scope of Executive’s positionsresponsibilities, titlesauthorities, officespowers, functions, or duties following under this Agreement (which for the Effective Date from those set forth in Section 2, except, in such case, in connection with the termination avoidance of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event doubt shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that occur in the event that the Company ceases to be a publicly-traded standalone public company, in addition to reporting to the Board, Executive may also be required to report to whether through becoming a senior executive subsidiary of the controlling a publicly held company or becoming a privately held company); or (DB) any other material failure by the Company to perform any material obligation under, or material a breach by the Company of any of its material provision of, this Agreementobligations hereunder; provided, however, that or (C) a termination by material change in the geographic location at which Executive for must perform his services. To constitute a Good Reason under any of clauses termination, Executive (A1) through (D) of this Section 4(e) shall not be considered effective unless Executive shall have provided must provide written notice to the Company with written notice of the specific reasons for such termination within thirty ninety (3090) days after he has of Executive’s initial actual knowledge of the existence of the event or circumstance constituting Good Reason and Reason, (2) may not terminate his employment pursuant to this Subparagraph unless the Company shall have failed fails to cure remedy the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been deemed given pursuant to this Agreement (the “Cure Period”), and (3) Executive must terminate employment with the Company and Executive actually terminates his employment within one no later than thirty (130) year following days after the initial occurrence end of the event giving rise Cure Period, and only if the Company has failed to Good Reason. In remedy the event that Executive’s employment is terminated by the Company without Cause or by Executive for constituting Good Reason (and not, for within the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of non-renewal of the Term by the Executive pursuant to Section 1), the Company shall pay the following amounts, and make the following other benefits available, to ExecutiveCure Period.
Appears in 1 contract
Sources: Employment Agreement (Boston Properties LTD Partnership)
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (Ai) a material change, adverse change to Executive, in Executive’s positions, titles, offices, or duties following the Effective Date from those set forth as provided in Section 22 hereof, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed (ii) an assignment of any significant duties to have occurred if, the Company ceases to be a publicly-traded company, based on Executive which are materially inconsistent with Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officerpositions or offices held under Section 2 hereof; (Biii) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity incentive compensation opportunities provided under this Agreement; (Civ) change the location of Executive’s office or of the Company’s principal executive offices from the existing location in New York, NY to a requirement that on place not within thirty (30) miles of the existing location in New York, NY, or change the location of Executive’s office to a continuing basis Executive reports to anyone location other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer location of the Company’s principal executive office; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or and (Dv) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (Ai) through — (Dv) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event giving rise to Good ReasonCompany. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) ), or (d) hereof or due to a notice of non-renewal the expiration of the Term by the Executive pursuant to Section 1Term), the Company shall pay the following amounts, and make the following other benefits available, to Executive.. Initial
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (Ai) a material change, adverse change to Executive, in Executive’s positions, titles, offices, or duties following the Effective Date from those set forth as provided in Section 22 hereof, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed (ii) an assignment of any significant duties to have occurred if, the Company ceases to be a publicly-traded company, based on Executive which are materially inconsistent with Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officerpositions or offices held under Section 2 hereof; (Biii) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity incentive compensation opportunities provided under this Agreement; (Civ) change the location of Executive’s office from the existing location in Alpharetta, Georgia to a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is place not a former executive officer within forty (40) miles of the Companyexisting location in Alpharetta, Georgia; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (Dv) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (Ai) through (Dv) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event giving rise to Good ReasonCompany. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) hereof or due to a notice of non-renewal the expiration of the Term by the Executive pursuant to Section 1Term), the Company shall pay the following amounts, and make the following other benefits available, to Executive.
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment at any time for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (Ai) a material change, adverse change to Executive, in Executive’s positions, titles, offices, or duties following the Effective Date from those set forth as provided in Section 22 hereof, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed (ii) an assignment of any significant duties to have occurred if, the Company ceases to be a publicly-traded company, based on Executive which are materially inconsistent with Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officerpositions or offices held under Section 2 hereof; (Biii) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity incentive compensation opportunities provided under this Agreement; (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (Div) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; or (v), the Company moves the Executive’s place of assignment (office) more than fifty (50) miles from its immediately preceding location, provided, however, that a termination by Executive for Good Reason under any of clauses (Ai) through (Dv) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event giving rise to Good ReasonCompany. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) hereof or due to a notice of non-renewal the expiration of the Term by the Executive pursuant to Section 1Term), the Company shall pay the following amounts, and make the following other benefits available, to Executive.
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (A) a material adverse change to Executive’s positions, titles, offices, or duties following the Effective Employment Start Date from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; or (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (D) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (A) through (DC) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he Executive has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of non-renewal or upon the expiration of the Term by the Executive pursuant to Section 1Term), the Company shall pay or provide the following amounts, and make the following other benefits available, amounts to Executive.:
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: If (Ax) a material adverse change to Executive’s positions, titles, offices, or duties following the Effective Date from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (D) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (A) through (D) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment is terminated by the Company other than for Cause, death or Disability (i.e., without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (cCause) or (dy) or due Executive terminates employment with Good Reason, then Executive will receive the amounts set forth in Section 6(a)(i) and, on the condition that Executive signs a separation agreement containing a plenary release of claims in substantially the form attached as Exhibit B hereto within 50 days after the Date of Termination and such plenary release becomes final, binding and irrevocable, Executive shall also be entitled to a notice receive the following from the Company:
(i) During the first year following the execution of non-renewal this Agreement an amount equal to: three months of Executive’s annualized Base Salary then in effect (determined without regard to any reduction in such Base Salary constituting Good Reason from the Term by Date of Termination to the date that is three months after the Date of Termination (the “Severance Period”)) provided, however, that each installment payable before the plenary release becomes final, binding and irrevocable shall not be paid to Executive pursuant until such plenary release becomes final, binding and irrevocable (at which time all such amounts that would have been paid but for the delay described in this clause (i) shall be paid.
(ii) During the second year following the execution of this Agreement. An amount equal to: six months of Executive’s annualized Base Salary then in effect (determined without regard to Section 1any reduction in such Base Salary constituting Good Reason from the Date of Termination to the date that is six months after the Date of Termination (the “Severance Period”)) provided, however, that each installment payable before the plenary release becomes final, binding and irrevocable shall not be paid to Executive until such plenary release becomes final, binding and irrevocable (at which time all such amounts that would have been paid but for the delay described in this clause (i) shall be paid.
(iii) During the Severance Period, if Executive elects to continue Company medical benefits through theC onsolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company shall continue to pay the following amountsCompany’s costs of such benefits as Executive elects to continue under the same plans and on the same terms and conditions as such benefits are provided to active employees. If for any reason COBRA coverage is unavailable at any time during the Severance Period, the Company shall reimburse Executive no less frequently than quarterly in advance an amount which, after taxes, is sufficient for Executive to purchase medical and dental coverage for Executive and Executive’s dependents that is substantially equivalent to the medical and dental coverage that Executive and Executive’s dependents were receiving immediately prior to the Date of Termination and that is available to comparable active employees, reduced by the amount that would be paid by comparable active employees for such coverage under the Company’s plans. The Company’s obligation under this Section 6(b)(ii) shall terminate or be reduced to the extent that Executive enrolls in substantially similar coverage (determined on a benefit-by-benefit basis) provided by a subsequent employer.
(iv) The Company shall pay Executive the full amount of Executive’s target bonuses for the fiscal year in which such termination occurs prorated based upon goals achieved through Date of Termination.
(v) Notwithstanding the foregoing, if Executive engages in a material breach of any provision of this Agreement or Executive’s Confidentiality Agreement during the Severance Period (or the period applicable to such obligation, if shorter or longer), and make such breach is not cured in the following other benefits availablereasonable determination of the Company within five business days after receipt from the Company of notice thereof, then the Company’s continuing obligations under this Section 6(b) shall cease as of the date of the breach and Executive shall be entitled to Executiveno further payments hereunder.
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time time, without Cause, for any reason or no reason, and Executive may terminate Executive’s his employment hereunder for “Good Reason.” (as defined below). For purposes of this Agreement Agreement, “Good Reason” shall mean that, that without Executive’s prior written consent, any of the following shall have occurred: , within 60 days after Executive first had actual knowledge of the most recent conduct or event comprising an element of the alleged ground for termination for Good Reason (it not being necessary that all elements comprising the alleged ground for termination for Good Reason have occurred within such 60-day period): (I) a material change (A) a material that is adverse change to Executive, in Executive’s positions, titles, offices, or duties following the Effective Date from those set forth as provided in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause Cause, Total Disability or due to Total Disabilitydeath, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) represented by any of the following: (w) the failure to promote Executive to the position of Chief Executive Officer of the Company by January 1, 2009, (x) the failure to re-elect Executive as a material member of the Board of Directors, (y) the failure to appoint Executive to, or the removal of Executive from, the position of either Chairman or Vice Chairman of the Board of Directors, or (z) a change in Executive’s reporting arrangement so that he no longer reports solely and directly to the Board of Directors; (II) an assignment of any significant duties to Executive which are materially inconsistent with Executive’s positions or offices held under Section 2; (III) a decrease in base salary Base Salary or material decrease in Executive’s Incentive Compensation opportunity compensation opportunities or in the aggregate benefits provided under this Agreement; (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (DIV) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; (V) a relocation of the principal executive offices of the Company more than thirty-five (35) miles from their existing location in New York, NY, or a change in the location of Executive’s office to a location other than the Company’s principal executive offices; or (VI) any failure to secure the agreement of any successor corporation or other entity to the Company to fully assume the Company’s obligations under this Agreement in a form reasonably acceptable to Executive; provided, however, that a termination by Executive for Good Reason under any of clauses (AI) through — (DVI) of this Section 4(e) shall not be considered effective unless only if, within 30 days following delivery of a written notice by Executive shall have provided to the Company with written notice of the specific reasons that Executive is terminating his employment for such termination within thirty (30) days after he has knowledge of the event or circumstance constituting Good Reason and setting forth in reasonable detail the facts and circumstances allegedly constituting Good Reason, the Company shall have has failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event circumstances giving rise to Good Reason. In the event that Executive’s employment is terminated (A) by the Company without Cause or (B) by Executive for Good Reason (as to (A) and (B), including, without limitation, a deemed termination by the Company without Cause or by Executive for Good Reason (and not, for pursuant to the avoidance of doubt, in delivery by the event Company of a Nonrenewal Notice in accordance with Section 2; and as to (A), including, without limitation, a deemed termination by the Company without Cause due to a Failed Termination for Cause pursuant to Section 4(a4(c), (b), (c) or (d) or due to a notice of non-renewal of the Term by the Executive pursuant to Section 1), the Company shall pay the following amounts, and make the following other benefits available, to Executive.Executive (such payments and benefits, the “Section 4(e) Payments and Benefits”):
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. (i) The Company may terminate Executive’s employment at any time hereunder without Cause if such termination is approved by the Board of Directors. Any termination by the Company of Executive’s employment hereunder which does not (A) constitute a termination for Cause under Subparagraph (d)(i), (B) result from the death or disability of Executive under Subparagraph (b) or (c), or (C) result from the expiration of the Term shall be deemed a termination without Cause. For the avoidance of doubt, for any reason or no reason, and employment may continue beyond the expiration of the Term on an at-will basis in the absence of a new agreement.
(ii) Executive may terminate Executive’s his employment hereunder for “Good Reason.” For purposes of this Agreement . “Good Reason” shall mean that, without Executive’s prior written consent, the occurrence of any of the following shall have occurredwithout Executive’s written consent: (A) a material adverse change to change, in the nature or scope of Executive’s positionsresponsibilities, titlesauthorities, officespowers, functions, or duties following under this Agreement (which for the Effective Date from those set forth in Section 2, except, in such case, in connection with the termination avoidance of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event doubt shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that occur in the event that the Company ceases to be a publicly-traded standalone public company, in addition to reporting to the Board, Executive may also be required to report to whether through becoming a senior executive subsidiary of the controlling a publicly held company or becoming a privately held company); or (DB) any other material failure by the Company to perform any material obligation under, or material a breach by the Company of any of its material provision of, this Agreementobligations hereunder; provided, however, that or (C) a termination by material change in the geographic location at which Executive for must perform his services. To constitute a Good Reason under any of clauses termination, Executive (A1) through (D) of this Section 4(e) shall not be considered effective unless Executive shall have provided must provide written notice to the Company with written notice of the specific reasons for such termination within thirty ninety (3090) days after he has of Executive’s initial actual knowledge of the existence of the event or circumstance constituting Good Reason and Reason, (2) may not terminate his employment pursuant to this Subparagraph unless the Company shall have failed fails to cure remedy the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been deemed given pursuant to this Agreement (the “Cure Period”), and (3) Executive must terminate employment with the Company and Executive actually terminates his employment within one no later than thirty (130) year following days after the initial occurrence end of the event giving rise Cure Period, and only if the Company has failed to Good Reason. In remedy the event that Executive’s employment is terminated by the Company without Cause or by Executive for constituting Good Reason (and not, for within the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of non-renewal of the Term by the Executive pursuant to Section 1), the Company shall pay the following amounts, and make the following other benefits available, to ExecutiveCure Period.
Appears in 1 contract
Sources: Employment Agreement (Boston Properties LTD Partnership)
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (A) a material adverse change to Executive’s positions, titles, offices, or duties following the Effective Date from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; or (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (D) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (A) through (DC) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he Executive has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his her employment within one (1) year following the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of non-renewal or upon the expiration of the Term by the Executive pursuant to Section 1Term), the Company shall pay or provide the following amounts, and make the following other benefits available, amounts to Executive.:
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (A) a material adverse change to Executive’s positions, titles, offices, or duties following the Effective Date duties, from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officer; (B) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity provided under this Agreement; (C) a requirement Executive is required to work full time at any place of employment that on a continuing basis Executive reports to anyone other is more than the Boardtwenty (20) miles from Executive’s residence; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event acknowledges that the Company ceases travel to be a publicly-traded company, Las Vegas and other business travel referenced in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling companySection 2 does not constitute Good Reason; or (D) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (A) through (D) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he Executive has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his her employment within one (1) year following the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of or non-renewal of the Term by the Executive pursuant to Section 1Term), the Company shall pay or provide the following amounts, and make the following other benefits available, amounts to Executive.:
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment at any time for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (Ai) a material change, adverse change to Executive, in Executive’s positions, titles, offices, or duties following the Effective Date from those set forth as provided in Section 22 hereof, except, in such case, in connection with the termination of Executive’s employment for Cause or due to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed (ii) an assignment of any significant duties to have occurred if, the Company ceases to be a publicly-traded company, based on Executive which are materially inconsistent with Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officerpositions or offices held under Section 2 hereof; (Biii) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity incentive compensation opportunities provided under this Agreement; (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer of the Company; and, provided, further, that in the event that the Company ceases to be a publicly-traded company, in addition to reporting to the Board, Executive may also be required to report to a senior executive of the controlling company; or (Div) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; or (v), the Company moves the Executive’s place of assignment (office) more than fifty (50) miles from its immediately preceding location, provided, however, that a termination by Executive for Good Reason under any of clauses (Ai) through (Dv) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he has knowledge the occurence of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following such termination for Good Reason shall be effective no later than thirty days after the initial occurrence expiration of the event giving rise to Good ReasonCompany’s cure period. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) hereof or due to a notice of non-renewal the expiration of the Term by the Executive pursuant to Section 1Term), the Company shall pay the following amounts, and make the following other benefits available, to Executive.
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The (1) This Agreement may be terminated: (i) by the Executive for Good Reason (as defined below) and (ii) by the Company may terminate Executive’s employment at any time without Cause.
(2) In the event this Agreement is terminated by the Executive for Good Reason or by the Company without Cause, for any reason or no reason, and the Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of be entitled to the following shall have occurred: following:
(A) any accrued but unpaid Base Salary for services rendered to the date of termination;
(B) any accrued but unpaid expenses required to be reimbursed under this Agreement;
(C) a material adverse change payment equal to Executive’s positionsseverance amount indicated on the Schedule (the “Severance Amount”); and
(D) any benefits (except perquisites) to which the Executive was entitled pursuant to Section 5(b) hereof shall continue to be paid or provided by the Company, titlesas the case may be, officesfor the Benefits Continuation Period indicated on the Schedule, subject to the terms of any applicable plan or duties following insurance contract and applicable law provided that such benefits are exempt from Section 409A by reason of Treasury Regulation Section 1.409A-1(a)(5) or otherwise. In the Effective Date from those set forth in Section 2, except, in such case, in connection with the termination of Executive’s employment for Cause event all or due to Total Disability, death or expiration a portion of the Term; providedbenefits to which the Executive was entitled pursuant to Section 5(b) hereof are subject to Section 409A, the Executive shall not be entitled to the benefits that are subject to Section 409A subsequent to the “applicable 2 ½ month period” (as such term is defined under Treasury Regulation Section 1.409A-1(b)(4)(i)(A)).
(3) In the event of a termination for Good Reason or without Cause, the payment of the Severance Amount shall be made at the same times as the Company pays compensation to its employees over the applicable monthly period and any other payments owed under Section 6(c) shall be promptly paid. Provided, however, that a Good Reason event any balance of the Severance Amount remaining due on the “applicable 2 ½ month period” (as such term is defined under Treasury Regulation Section 1.409A-1(b)(4)(i)(A)) after the end of the tax year in which the Executive’s employment is terminated or the Term ends shall not be deemed paid on the last day of the applicable 2½ month period. The payment of the Severance Amount and the acceleration of vesting shall be conditioned on the Executive signing an Agreement and General Release (in the form attached hereto as Exhibit B, with such revisions as counsel to have occurred if, the Company ceases deems necessary) which releases the Company or any of its affiliates (including its officers, directors and their affiliates) from any liability under this Agreement or related to be a publicly-traded company, based on the Executive’s duties changing from those employment with the Company provided that (x) the payment of a public company chief executive officer to those the Severance Amount is made on or before the 90th day following the Executive’s termination of a private company chief executive officeremployment; (By) a material decrease in base salary or material decrease in such Agreement and General Release is executed by the Executive’s Incentive Compensation opportunity provided under this Agreement; (C) a requirement that on a continuing basis Executive reports to anyone other than the Board; provided that Executive may be required to report , submitted to the Board through Company, and the chairman statutory period during which the Executive is entitled to revoke the Agreement and General Release under applicable law has expired on or another Board member who is not a former executive officer of the Companybefore that 90th day; and, provided, further, that and (z) in the event that the Company ceases to be 90 day period begins in one taxable year and ends in a publicly-traded companysecond taxable year, in addition to reporting to then the Board, Executive may also be required to report to a senior executive payment of the controlling company; or (D) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (A) through (D) of this Section 4(e) Severance Amount shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event giving rise to Good Reason. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, made in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of non-renewal of the Term by the Executive pursuant to Section 1), the Company shall pay the following amounts, and make the following other benefits available, to Executivesecond taxable year.
Appears in 1 contract
Termination by the Company Without Cause or by Executive for Good Reason. The Company may terminate Executive’s employment at any time without Cause, for any reason or no reason, and Executive may terminate Executive’s employment for “Good Reason.” For purposes of this Agreement “Good Reason” shall mean that, without Executive’s prior written consent, any of the following shall have occurred: (Ai) a material change, adverse change to Executive, in Executive’s positions, titles, offices, or duties following the Effective Date from those set forth as provided in Section 22 hereof, except, in such case, in connection with the termination of Executive’s employment for Cause Cause, Total Disability or due death; (ii) an assignment of any significant duties to Total Disability, death or expiration of the Term; provided, however, that a Good Reason event shall not be deemed to have occurred if, the Company ceases to be a publicly-traded company, based on Executive which are materially inconsistent with Executive’s duties changing from those of a public company chief executive officer to those of a private company chief executive officerpositions or offices held under Section 2 hereof; (Biii) a material decrease in base salary or material decrease in Executive’s Incentive Compensation opportunity incentive compensation opportunities provided under this Agreement; iv) change the location of Executive’s office or of the Company’s principal executive offices from the existing location in New York, NY to a place not within forty (C40) miles of the existing location in New York, NY, or change the location of Executive’s office to a requirement that on a continuing basis Executive reports to anyone location other than the Board; provided that Executive may be required to report to the Board through the chairman or another Board member who is not a former executive officer location of the Company’s principal executive office; and, provided, further, that in the event that the Company ceases v) failure to be a publicly-traded company, in addition to reporting appoint Executive to the Boardposition of CFO on or before January 1, Executive may also be required to report to a senior executive of the controlling company2010; or and (Dvi) any other material failure by the Company to perform any material obligation under, or material breach by the Company of any material provision of, this Agreement; provided, however, that a termination by Executive for Good Reason under any of clauses (Ai) through — (Div) of this Section 4(e) shall not be considered effective unless Executive shall have provided the Company with written notice of the specific reasons for such termination within thirty (30) days after he has knowledge of the event or circumstance constituting Good Reason and the Company shall have failed to cure the event or condition allegedly constituting Good Reason within thirty (30) days after such notice has been given to the Company and Executive actually terminates his employment within one (1) year following the initial occurrence of the event giving rise to Good ReasonCompany. In the event that Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (and not, for the avoidance of doubt, in the event of a termination pursuant to Section 4(a), (b), (c) or (d) or due to a notice of non-renewal of the Term by the Executive pursuant to Section 1hereof), the Company shall pay the following amounts, and make the following other benefits available, to Executive.
Appears in 1 contract