Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate Executive’s employment without “Cause” (as defined below), and thereby terminate Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written notice. (b) The Executive may resign, and thereby terminate his employment (and the Employment Period), at any time for “Good Reason” (as defined below), upon not less than thirty (30) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty (30) days after the Company’s receipt of such notice. (c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” then, subject to Section 4.3(d) hereof, the following provisions shall apply: (i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving effect to any further extensions pursuant to Section 2.2 hereof, with all such amounts payable in accordance with the Company’s payroll system in the same manner and at the same time as though the Executive remained employed by the Company. (ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined below), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable in accordance with the Company’s payroll system in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof. (iii) Subject to the discretion of the Compensation Committee, the Company shall pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days following the determination of the amount thereof and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof. (iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof. (v) With respect to outstanding options and other equity based awards held by the Executive as of the date of termination, (x) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination. (vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased. (vii) With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination. (d) The Executive agrees to release the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representatives, and successors from and against any and all claims that the Executive may have against any such person relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company. (e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax. (i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error. (ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination. (iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed. (iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement. (f) For purposes of this Agreement, the Executive would be entitled to terminate his employment for “Good Reason” if without the Executive’s prior written consent: (i) The Company fails to comply with any material obligation imposed by this Agreement; (ii) The Company assigns to the Executive duties or responsibilities that are materially inconsistent with the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or (iii) The Company effects a reduction in the Executive’s Base Salary. (g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events:
Appears in 2 contracts
Sources: Employment Agreement (GNC Corp), Employment Agreement (General Nutrition Centers Inc)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) o The Company may terminate Executive’s 's employment without “"Cause” " (as defined below), and thereby terminate Executive’s 's employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ ' prior written notice.
(b) . o The Executive may resign, and thereby terminate his employment (and the Employment Period), at any time for “"Good Reason” " (as defined below), upon not less than thirty (30) days’ ' prior written notice to the Company specifying in reasonable detail the reason thereforetherefor; provided, however, that the Company shall have a reasonable opportunity to cure any such “"Good Reason ” " (to the extent possible) within thirty (30) days after the Company’s 's receipt of such notice.
(c) . o In the event the Executive’s 's employment is terminated (i) by the Company without “"Cause,” " or (ii) by the Executive for “"Good Reason” " then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) : o The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving effect to any further extensions pursuant to Section 2.2 hereof, with all such amounts payable in accordance with the Company’s 's payroll system in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) . o If such termination occurs upon or within six (6) months following a Change of Control (as defined below), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable in accordance with the Company’s 's payroll system in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) Subject to the discretion of the Compensation Committee, the . o The Company shall pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days following the determination of the amount thereof and in accordance with the Company’s 's normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(iv) . o Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall (A) continue to participate in, and be covered under, the Company’s 's group lifelike, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company and (AB) continue to be entitled to the perquisites available to the Executive immediately preceding his date of termination as provided in the Perquisite Policy for Senior Executives (as such policy may be amended by the Board of Directors of the Company from time to time), in each case (x) through to the expiration of the Employment Period, or, (By) in the event that Executive’s 's Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) . o With respect to outstanding options and other equity based awards held by the Executive as of the date of termination, (x) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) . o With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s 's designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased.
(vii) . Executive shall have the right to request, in writing, that the Board obtain a fairness opinion from a nationally recognized accounting firm or investment bank chosen by the Company, to review the Board's fair market value determination of the Common Stock. If such fairness opinion validates the fair market determination of the Board, the gross purchase price paid to the Executive for such shares under this Section 4.3(c)(vi), shall be reduced by 10% excluding such other tax or withholding as may be required by applicable law. o With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) . o The Executive agrees to release the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representatives, and successors from and against any and all claims that the Executive may have against any such person relating to the Executive’s 's employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) . o Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person or that any other event occurring with respect to the Executive and the Company for the Executive’s 's benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “"Payment”") would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “"Excise Tax”"), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax (the “"Payment Reduction”"). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax.
(i) . Notwithstanding the foregoing, the Payment Reduction shall not apply if the Executive would, on a net after-tax basis, receive less compensation than if the Payment were not so reduced. o Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s 's outside auditors at the time of such determination (the “"Accounting Firm”"), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) . o As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “"Overpayment”") or that a Payment Reduction not properly needed to be made should be made (an “"Underpayment”"). If, within seventy-five (75) days after the Accounting Firm’s 's initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s 's determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s 's determination.
(iii) . o The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) . o This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s 's employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his employment for “Good Reason” if without the Executive’s prior written consent:
(i) The Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns to the Executive duties or responsibilities that are materially inconsistent with the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a reduction in the Executive’s Base Salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events:
Appears in 2 contracts
Sources: Employment Agreement (GNC Corp), Employment Agreement (GNC Corp)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate Executive’s 's employment without “"Cause” " (as defined below), and thereby terminate Executive’s 's employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ ' prior written notice.
(b) The Executive may resign, and thereby terminate his employment (and the Employment Period), at any time for “"Good Reason” " (as defined below), upon not less than thirty (30) days’ ' prior written notice to the Company specifying in reasonable detail the reason thereforetherefor; provided, however, that the Company shall have a reasonable opportunity to cure any such “"Good Reason ” " (to the extent possible) within thirty (30) days after the Company’s 's receipt of such notice.
(c) In the event the Executive’s 's employment is terminated (i) by the Company without “"Cause,” " or (ii) by the Executive for “"Good Reason” " then, subject to Section SECTION 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section SECTION 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving effect to any further extensions pursuant to Section SECTION 2.2 hereof, with all such amounts payable in accordance with the Company’s 's payroll system in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined below), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section SECTION 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable in accordance with the Company’s 's payroll system in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section SECTION 4.3(c)(vii) hereof.
(iii) Subject to the discretion of the Compensation Committee, the The Company shall pay to the Executive a prorated share of the Annual Bonus pursuant to Section SECTION 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days following the determination of the amount thereof and in accordance with the Company’s 's normal payroll practices and procedures, subject to Section SECTION 4.3(c)(vii) hereof.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s 's group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s 's Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section SECTION 2.2 hereof.
(v) With respect to outstanding options and other equity based awards held by the Executive as of the date of termination, (x) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section SECTION 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s 's designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased. Executive shall have the right to request, in writing, that the Board obtain a fairness opinion from a nationally recognized accounting firm or investment bank chosen by the Company, to review the Board's fair market value determination of the Common Stock. If such fairness opinion validates the fair market determination of the Board, the gross purchase price paid to the Executive for such shares under this SECTION 4.3(c)(vi), shall be reduced by 10% excluding such other tax or withholding as may be required by applicable law.
(vii) With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section SECTION 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to release the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representatives, and successors from and against any and all claims that the Executive may have against any such person relating to the Executive’s 's employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person or that any other event occurring with respect to the Executive and the Company for the Executive’s 's benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “"Payment”") would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “"Excise Tax”"), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax (the “"Payment Reduction”"). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax. Notwithstanding the foregoing, the Payment Reduction shall not apply if the Executive would, on a net after-tax basis, receive less compensation than if the Payment were not so reduced.
(i) Subject to the provisions of Section SECTION 4.3(e)(ii), all determinations required to be made under this Section SECTION 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s 's outside auditors at the time of such determination (the “"Accounting Firm”"), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections SECTIONS 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “"Overpayment”") or that a Payment Reduction not properly needed to be made should be made (an “"Underpayment”"). If, within seventy-five (75) days after the Accounting Firm’s 's initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s 's determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s 's determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section SECTION 4.3(e) shall remain in full force and effect following the termination of the Executive’s 's employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his employment for “"Good Reason” " if without the Executive’s 's prior written consent:
(i) The Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns to the Executive duties or responsibilities that are materially inconsistent with the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a reduction in the Executive’s Base Salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events:
Appears in 2 contracts
Sources: Employment Agreement (General Nutrition Companies Inc), Employment Agreement (General Nutrition Companies Inc)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s 's employment without “"Cause” " (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s 's employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive's employment (and the Employment Period), at any time for “"Good Reason” " (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ ' prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty sixty (3060) days after the Company’s 's receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company's acts or omissions of which Executive had actual notice for sixty (60) days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive's employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chief Executive Officer of the Company (the "Chief Executive Officer"), within the Chief Executive Officer's sole judgment and discretion, acting in good faith after having met with the Company's Vice President of Human Resources.
(c) In the event the Executive’s 's employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s 's normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit A attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s 's normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) In the event the Executive's employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executive's Base Salary and the base salary of all executives at the same level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) Subject to the sole discretion of the Board or the Compensation Committee, the Company shall may pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days as soon as reasonably practicable following the determination thereof, but in no event later than May 15 of the amount thereof following year, and in accordance with the Company’s 's normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options and other equity equity-based awards held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, forfeited and (yB) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination pursuant to this Section 4.3 (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive Executive, and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s 's designee) ), for an amount equal to the product of (xA) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (yB) the number of shares so purchased.
(viid) With respect As a condition precedent to the amounts payable Executive's right to receive the Executive under clauses (iibenefits set forth in Section 4.3(c) and (iii) of this Section 4.3 following a Change of Controlhereof, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s 's employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s 's benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “"Payment”") would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “"Excise Tax”"), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “"Payment Reduction”"). The Executive shall have the right, in his sole discretion, right to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax, subject to the confirmation of the Accounting Firm (as defined herein) with respect to the intended effect thereof.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers KPMG LLP, or any other nationally recognized accounting firm that shall be the Company’s 's outside auditors at the time of such determination (the “"Accounting Firm”"), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “"Overpayment”") or that a Payment Reduction not properly needed to be made should be made (an “"Underpayment”"). If, within seventy-five (75) days after the Accounting Firm’s 's initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s 's determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s 's determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s 's employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive's employment for “"Good Reason” " if without the Executive’s 's prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The the Company assigns to changes the Executive's position from that of an Executive Vice President; provided, however, that (A) a change in the Executive's duties or responsibilities that are materially inconsistent with without a change in the Executive’s positions's position as an Executive Vice President shall not constitute Good Reason and (B) nothing herein shall prohibit the Company from changing the Executive's specific title as an Executive Vice President, dutiesnotwithstanding the specific title set forth in Section 1.1 hereof, responsibilities, titles and offices in effect on based upon the Effective DateCompany's needs from time to time; or
(iii) The the Company effects a reduction in the Executive’s 's Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary.
(g) For purposes of this Agreement, “"Cause” " means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 2 contracts
Sources: Employment Agreement (LNT Leasing II, LLC), Employment Agreement (LNT Leasing II, LLC)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticenotice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined below), in Section 4.3(f) hereof) upon not less than thirty (30) 30 days’ and not more than 60 days’ prior written notice to the Company specifying in reasonable detail the reason thereforereason; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possiblecurable) within thirty (30) 30 days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) The Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for 90 days or more prior to giving notice of termination for “Good Reason;” provided that any waiver by the Executive of any conduct, event or occurrence that otherwise would have constituted Good Reason shall not be a waiver of any subsequent conduct, event or occurrence of the same or any other type.
(c) In the event the Executive’s employment is terminated pursuant to this Section 4.3, other than a Change in Control Termination (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” as defined below), then, subject to Section 4.3(d4.3(e) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during on the year date of termination) had for a period of 24 months after the Executive remained in the employ date of the Company until the expiration of the Employment Period without giving effect to any further extensions pursuant to Section 2.2 hereoftermination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined below), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable in accordance with the Company’s payroll system in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) Subject to the discretion of the Compensation Committee, the The Company shall pay to the Executive a prorated pro-rated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that to which the Executive would have been entitled to had he the Executive worked for the full fiscal year during which the termination occurred, provided that based on the actual level of achievement of the applicable goals for such fiscal year. Any bonus targets are met for due as a result of the year of such termination. The bonus preceding sentence shall be payable paid in full within forty-five (45) days following a lump sum at the determination of the amount thereof time and in accordance with the Company’s normal payroll practices and procedures, subject to manner specified in Section 4.3(c)(vii) hereof3.2.
(iviii) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the The Executive shall continue have 90 days after the Executive’s employment is terminated to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives exercise vested options to purchase common stock of the Company granted prior to the Effective Date (A) through “Existing Options”); provided that in no event shall any options be exercisable after the expiration of the Employment Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options and other equity based awards held by the Executive as of the date of termination, (x) any such options that are not vested or exercisable as term of such date of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased.
(vii) With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of terminationoptions.
(d) In the event the Executive’s employment is terminated pursuant to this Section 4.3, within 60 days prior to or within one year following a Change in Control (as defined in the Smart & Final Stores, Inc. 2014 Stock Incentive Plan; provided that such Change in Control constitutes a “change in the ownership of the corporation,” a “change in effective control of the corporation” or a “change in the ownership of a substantial portion of the assets of the corporation,” within the meaning of Section 409A of the Code (as defined below)) (a “Change in Control Termination”), then, subject to Section 4.3(e) hereof, the following provisions shall apply:
(i) The Company shall pay the Executive an amount equal to two times (A) annual Base Salary (at the Base Salary rate on the date of termination) and (B) Executive’s Target Bonus (at the Target Bonus rate for the fiscal year of termination), (1) to the extent permitted by Section 409A of the Code, in a lump sum on the first regular payroll date after the 60th day after the date of termination and (2) for any remaining amounts, in accordance with Section 4.3(c)(i).
(ii) The Company shall pay to the Executive a pro-rated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) to which the Executive would have been entitled had the Executive worked for the full fiscal year during which the termination occurred, based on the actual level of achievement of the applicable goals for such fiscal year. Any bonus due as a result of the preceding sentence shall be paid in a lump sum at the time and in the manner specified in Section 3.2.
(iii) The Executive shall have 90 days after the Executive’s employment is terminated to exercise Existing Options; provided that in no event shall any options be exercisable after the expiration of the term of such options.
(e) As a condition precedent to the Executive’s right to receive the benefits set forth in Section 4.3(c) or Section 4.3(d) hereof, the Executive agrees to execute a release (“Release”) of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.3(e) hereof) (which Release shall be delivered to Executive within ten days following the date of termination) relating to the Executive’s employment by the Company and the termination thereof, thereof and such release to be Release must become effective and enforceable in form and substance reasonably satisfactory to accordance with its terms on or before the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it 60th day after Executive’s termination of employment. Such Release shall be determined that any paymentsubstantially in the form attached hereto as Exhibit A, vestingwith such modifications or additions as are necessary or advisable to render such Release enforceable under then-applicable law. In addition, distribution, or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid right to receive the benefits set forth in Section 4.3(c) or payable or distributed or distributable Section 4.3(d) hereof is conditioned on the Executive’s compliance with his obligations under Section 5 hereof and under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in Fair Competition Agreement, dated November 15, 2012, by and among the imposition of Company, Smart & Final Holdings Corp. and the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax Executive (the “Payment ReductionFair Competition Agreement”). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive under Section 4.3(c)(i) or Section 4.3(d)(i) shall commence on the first regular payroll date after the 60th day after Executive’s termination of employment, and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive first payment shall include any amounts that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be would otherwise have been made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at between the applicable Federal rate provided for in Section 1274(d) date of termination and the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice date of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreementfirst payment.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive’s employment for “Good Reason” if, without Executive’s written consent, (i) the Company materially diminishes the Executive’s authority, responsibility or duties, including if the Executive no longer reports directly to the Board, (ii) the Company requires the Executive to relocate to a principal place of employment that is 25 miles further (one-way) from the Executive’s current residence (as of the Effective Date) than the Company’s current headquarters in Commerce, California are from such residence, or (iii) without the Executive’s prior written consent:
(i) The , the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns . Notwithstanding any provision of this Agreement to the Executive duties or responsibilities that are materially inconsistent with contrary, the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a reduction in is permitted to reduce the Executive’s Base SalarySalary in connection with a Company-wide reduction in salary or a reduction in salary of the Company’s executive officers, generally, and any such reduction shall not be deemed to be “Good Reason,” provided, that the percentage of any such reduction is no greater than the percentage reduction of any other officer.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events:
Appears in 2 contracts
Sources: Employment Agreement (Smart & Final Stores, Inc.), Employment Agreement (Smart & Final Stores, Inc.)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty (30) days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for sixty (60) days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chief Executive Officer of the Company (the “Chief Executive Officer”), within the Chief Executive Officer’s sole judgment and discretion, acting in good faith after having met with the Company’s Vice President of Human Resources.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit A attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) In the event the Executive’s employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executive’s Base Salary and the base salary of all executives at the same level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) Subject to the sole discretion of the Board or the Compensation Committee, the Company shall may pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days as soon as reasonably practicable following the determination thereof, but in no event later than May 15 of the amount thereof following year, and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(ivv) Unless prohibited by law or, If the Executive elects continuation coverage (with respect to the Executive’s coverage and/or any insured benefit, eligible dependent coverage) under the terms Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA Continuation Coverage”) with respect to the applicable Company’s group health insurance contractplan, the Executive shall continue to participate in, and be covered underresponsible for payment of the monthly cost of COBRA Continuation Coverage. Unless prohibited by law, the Company’s group life, disability, sickness, accident and Company shall reimburse the Executive for any portion of the monthly cost of COBRA Continuation Coverage that exceeds the amount of the monthly health insurance programs on premium (with respect to the same basis as other executives Executive’s coverage and/or any eligible dependent coverage) payable by the Executive immediately prior to the date of the Company Executive’s termination, such reimbursements to continue (A) through the expiration of the Employment Period, or, Period in effect immediately prior to the date of termination or (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c4.3(c)(ii), for the two (2) year period set forth therein. The Company shall pay the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereofreimbursements on a monthly basis in accordance with the Company’s normal payroll practices and procedures.
(vvi) With respect to outstanding options and other equity equity-based awards held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, forfeited and (yB) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vivii) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination pursuant to this Section 4.3 (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v4.3(c)(vi) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive Executive, and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) ), for an amount equal to the product of (xA) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (yB) the number of shares so purchased.
(viiviii) With respect The Executive shall continue to be entitled to the amounts payable perquisites available to the Executive under clauses immediately preceding the Executive’s date of termination as provided in the Perquisite Policy for Senior Executives (ii) and (iii) of this Section 4.3 following a Change of Control, the Executive as such policy may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing amended by the Executive within fifteen Board from time to time), in each case (15A) days through the expiration of his the Employment Period in effect immediately prior to the date of terminationtermination or (B) in the event that Executive’s Base Salary is being paid pursuant to Section 4.3(c)(ii), for the period set forth therein.
(d) The As a condition precedent to the Executive’s right to receive the benefits set forth in Section 4.3(c) hereof, the Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, right to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax, subject to the confirmation of the Accounting Firm (as defined herein) with respect to the intended effect thereof. Notwithstanding the foregoing, the Payment Reduction shall not apply if the Executive would, on a net after-tax basis, receive less compensation than if the Payment were not so reduced.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive’s employment for “Good Reason” if without the Executive’s prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The the Company assigns to changes the Executive’s position from that of an Executive Vice President; provided, however, that (A) a change in the Executive’s duties or responsibilities that are materially inconsistent with without a change in the Executive’s positionsposition as an Executive Vice President shall not constitute Good Reason and (B) nothing herein shall prohibit the Company from changing the Executive’s specific title as an Executive Vice President, dutiesnotwithstanding the specific title set forth in Section 1.1 hereof, responsibilities, titles and offices in effect on based upon the Effective Date; orCompany’s needs from time to time;
(iii) The the Company effects a reduction in the Executive’s Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary; or
(iv) the Company requires the Executive to be based (excluding regular travel responsibilities) at any office or location more than 75 miles from the principal office of the Company.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Sources: Employment Agreement (GNC Corp)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty (30) days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for 60 days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chairman of the Board of the Company, within the Chairman of the Board’s sole judgment and discretion, acting in good faith after having met with the Company’s Vice President of Human Resources.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit A attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii4.3(c)(viii) hereof.
(iii) Subject In the event the Executive’s employment is terminated pursuant to this Section 4.3 without Cause, and if the discretion Company has previously effected reductions in the Executive’s Base Salary and the base salary of all executives at the Compensation Committeesame level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) The Company shall pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days following the determination of the amount thereof and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii4.3(c)(viii) hereof.
(ivv) Unless prohibited by law or, If the Executive elects continuation coverage (with respect to the Executive’s coverage and/or any insured benefit, eligible dependent coverage) under the terms Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA Continuation Coverage”) with respect to the applicable Company’s group health insurance contractplan, the Executive shall continue to participate in, and be covered underresponsible for payment of the monthly cost of COBRA Continuation Coverage. Unless prohibited by law, the Company’s group life, disability, sickness, accident and Company shall reimburse the Executive for any portion of the monthly cost of COBRA Continuation Coverage that exceeds the amount of the monthly health insurance programs on premium (with respect to the same basis as other executives Executive’s coverage and/or any eligible dependent coverage) payable by the Executive immediately prior to the date of the Company Executive’s termination, such reimbursements to continue (A) through the expiration of the Employment PeriodPeriod in effect immediately prior to the date of termination, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c4.3(c)(ii), for the two (2) year period set forth therein. The Company shall pay the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereofreimbursements on a monthly basis in accordance with the Company’s normal payroll practices and procedures.
(vvi) With respect to outstanding options and other equity equity-based awards held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, and (yB) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vivii) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination pursuant to this Section 4.3 (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) for an amount equal to the product of (xA) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (yB) the number of shares so purchased. The Executive shall have the right to request, in writing, that the Board obtain a fairness opinion from a nationally recognized accounting firm or investment bank chosen by the Company, to review the Board’s fair market value determination of the Common Stock. If such fairness opinion validates the fair market determination of the Board, the gross purchase price paid to the Executive for such shares under this Section 4.3(c)(vi), shall be reduced by ten percent (10%), excluding such other tax or withholding as may be required by applicable law. If such fairness opinion determines that the fair market value is greater than the Board’s fair market valuation determination of the Common Stock, the gross purchase price paid to the Executive for such shares under this Section 4.3(c)(vii) shall be based on (x) the fair market value set forth in such fairness opinion, (y) if such fairness opinion only sets forth a range of fair market value, any price within such range, as determined by the Company, or (z) if no fair market value or range is set forth in such fairness opinion, at a price greater than the Board’s fair market value determination, as determined by the Company.
(viiviii) With respect to the amounts payable to the Executive under clauses (iiSection 4.3(c)(ii) and (iii) of this Section 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his the Executive’s date of termination.
(dix) The Executive shall continue to be entitled to the perquisites available to the Executive immediately preceding the Executive’s date of termination as provided in the Perquisite Policy for Senior Executives (as such policy may be amended by the Board from time to time), in each case (A) through the expiration of the Employment Period in effect immediately prior to the date of termination, or, (B) in the event that Executive’s Base Salary is being paid pursuant to Section 4.3(c)(ii), for the period set forth therein.
(d) As a condition precedent to the Executive’s right to receive the benefits set forth in Section 4.3(c) hereof, the Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, right to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax, subject to the confirmation of the Accounting Firm (as defined herein) with respect to the intended effect thereof. Notwithstanding the foregoing, the Payment Reduction shall not apply if the Executive would, on a net after-tax basis, receive less compensation than if the Payment were not so reduced.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive’s employment for “Good Reason” if without the Executive’s prior written consent:
(i) The Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns to changes the Executive’s position from that of President and Chief Executive Officer; provided, however, that a change in the Executive’s duties or responsibilities that are materially inconsistent with without a change in the Executive’s positions, duties, responsibilities, titles position as President and offices in effect on the Effective Date; orChief Executive Officer shall not constitute Good Reason;
(iii) The Company effects a reduction in the Executive’s Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary; or
(iv) The Company requires the Executive to be based (excluding regular travel responsibilities) at any office or location more than 75 miles from the principal office of the Company.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Sources: Employment Agreement (GNC Corp)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.4(a) hereof), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticenotice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(e) hereof), upon not less than thirty (30) 30 days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the therefor. The Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty (30) 15 days after the Company’s receipt of such notice. If the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue performing duties for the Company during the 15-day cure period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during the 15-day cure period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for 90 days or more prior to giving notice of termination for “Good Reason”.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made by the Board, within its sole judgment and reasonable discretion. However, the Executive shall be entitled to challenge any such determination pursuant to the provisions of Section 6.2 hereof.
(c) In the event the Executive’s employment and the Employment Period is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereofhereof and the Executive’s continued compliance with the provisions of Section 5, Section 6.1 and Section 6.5, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (in effect at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration end of the Employment Period without giving effect as if Executive remained employed by the Company for 24 months (such period referred to any further extensions pursuant to Section 2.2 hereof, with all herein as the “Severance Period”). All such amounts payable in accordance with the Company’s payroll system Base Salary payments will be made in the same manner and at the same time as though the Executive remained employed by the CompanyCompany during the Severance Period.
(ii) The Company shall pay an amount, payable in equal installments over the Severance Period as and when payments are made pursuant to clause (i) above, to the Executive equal to the sum of the Annual Bonus payments earned by the Executive during the past two fiscal years. If such termination occurs upon or within six (6) months following a Change the Employment Period ended prior to the completion of Control (as defined below)two fiscal years, the Company aggregate Annual Bonus payments for each uncompleted year shall continue be deemed to pay be an amount equal to 60% of the Executive the Executive’s current annual Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable in accordance with the Company’s payroll system in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereofSalary.
(iii) Subject to the discretion of the Compensation Committee, the The Company shall pay the Executive an amount equal to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days following the determination of the amount thereof and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereofProrated Bonus.
(iv) Unless prohibited by law or, with respect to any insured benefit, During the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Severance Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options and other equity based awards held by the Executive as of the date of termination, (x) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from reimburse the Executive and for his premiums for continued health benefits under the Executive hereby agrees to sell any or all such shares to the Company Consolidated Omnibus Budget Reconciliation Act (or the Company’s designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased.
(vii) With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination“COBRA”).
(d) The As a condition precedent to the Executive’s right to receive the benefits set forth in Section 4.3(c) hereof, the Executive agrees to execute, within 50 days following the Executive’s date of termination (which release shall be delivered to Executive within 10 days following the date of such termination), a customary release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the termination thereof, thereof and such release to must become effective and enforceable in accordance with its terms. Such release shall be in form and substance reasonably satisfactory to the Company. The payments to the Executive under Section 4.3(c) shall be made or shall commence to be made, as the case may be, on the effective date of the release of claims set forth in this Section 4.3(d), provided that, if termination of Executive’s employment occurs within 50 days of the end of the calendar year, payment shall be made or shall commence to be made, as the case may be, on the later of (i) the effective date of the release of claims, or (ii) January 2 of the year following the year in which termination of Executive’s employment occurs, and provided further that the first payment shall include any amounts that would otherwise have been made to the Executive between the date of termination and the date of first payment.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his employment for “Good Reason” if without the Executive’s prior written consent:
(i) The Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns to the Executive duties or responsibilities that are materially inconsistent with the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a reduction in the Executive’s Base Salary.
(g) For purposes of this Agreement, “CauseGood Reason” means the occurrence of any one or more of the following eventsfollowing:
Appears in 1 contract
Sources: Employment Agreement (Sprouts Farmers Markets, LLC)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty sixty (3060) days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for sixty (60) days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chief Executive Officer of the Company (the “Chief Executive Officer”), within the Chief Executive Officer’s sole judgment and discretion, acting in good faith after having met with the Company’s Senior Vice President of Human Resources.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company; provided, however, that if the date of termination is during the Initial Employment Period, the Company shall continue to pay the Executive such Base Salary for the greater of (A) the period set forth above in this Section 4.3(c)(i) or (B) a twelve (12) month period following such date of termination. Notwithstanding any other provision of this Agreement, the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company for a minimum of six (6) months following the date of termination.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit A attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) In the event the Executive’s employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executive’s Base Salary and the base salary of all executives at the same level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) Subject to the sole discretion of the Board or the Compensation Committee, the Company shall may pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days the year following the determination year the bonus is earned, but in no event later than May 15 of the amount thereof such year, and in accordance with the Company’s normal general payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(ivv) Unless prohibited by law or, If the Executive elects continuation coverage (with respect to the Executive’s coverage and/or any insured benefit, eligible dependent coverage) under the terms Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA Continuation Coverage”) with respect to the applicable Company’s group health insurance contractplan, the Executive shall continue to participate in, and be covered underresponsible for payment of the monthly cost of COBRA Continuation Coverage. Unless prohibited by law, the Company’s group life, disability, sickness, accident and Company shall reimburse the Executive for any portion of the monthly cost of COBRA Continuation Coverage that exceeds the amount of the monthly health insurance programs on premium (with respect to the same basis as other executives Executive’s coverage and/or any eligible dependent coverage) payable by the Executive immediately prior to the date of the Company Executive’s termination, such reimbursements to continue (A) through the expiration of the Employment Period, or, Period in effect immediately prior to the date of termination or (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c4.3(c)(ii), for the two (2) year period set forth therein. The Company shall pay the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereofreimbursements on a monthly basis in accordance with the Company’s normal payroll practices and procedures.
(vvi) With respect to outstanding options and other equity equity-based awards held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, forfeited and (yB) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vivii) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination pursuant to this Section 4.3 (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v4.3(c)(vi) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive Executive, and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) ), for an amount equal to the product of (xA) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (yB) the number of shares so purchased.
(viiviii) With respect to the amounts payable Notwithstanding any other provision herein, payments and reimbursements made to the Executive under clauses (iiSection 4.2(a) and (iiiSection 4.3(c)(i)-(v) of this Section 4.3 following a Change of Control, hereof shall commence 60 days from the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The As a condition precedent to the Executive’s right to receive the benefits set forth in Section 4.3(c) hereof, the Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive’s employment for “Good Reason” if without the Executive’s prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The the Company assigns to changes the Executive’s position from that of an Executive Vice President; provided, however, that (A) a change in the Executive’s duties or responsibilities that are materially inconsistent with without a change in the Executive’s positionsposition as an Executive Vice President shall not constitute Good Reason and (B) nothing herein shall prohibit the Company from changing the Executive’s specific title as an Executive Vice President, dutiesnotwithstanding the specific title set forth in Section 1.1 hereof, responsibilities, titles and offices in effect on based upon the Effective DateCompany’s needs from time to time; or
(iii) The the Company effects a reduction in the Executive’s Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Sources: Employment Agreement (General Nutrition Centers, Inc.)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty sixty (3060) days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for sixty (60) days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chief Executive Officer of the Company (the “Chief Executive Officer”), within the Chief Executive Officer’s sole judgment and discretion, acting in good faith after having met with the Company’s Vice President of Human Resources.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit A attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) In the event the Executive’s employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executive’s Base Salary and the base salary of all executives at the same level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) Subject to the sole discretion of the Board or the Compensation Committee, the Company shall may pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days as soon as reasonably practicable following the determination thereof, but in no event later than May 15 of the amount thereof following year, and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options and other equity equity-based awards held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, forfeited and (yB) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination pursuant to this Section 4.3 (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive Executive, and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) ), for an amount equal to the product of (xA) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (yB) the number of shares so purchased.
(viid) With respect As a condition precedent to the amounts payable Executive’s right to receive the Executive under clauses (iibenefits set forth in Section 4.3(c) and (iii) of this Section 4.3 following a Change of Controlhereof, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, right to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax, subject to the confirmation of the Accounting Firm (as defined herein) with respect to the intended effect thereof.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers KPMG LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive’s employment for “Good Reason” if without the Executive’s prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The the Company assigns to changes the Executive Executive’s position from that of a Senior Vice President; provided, however, that (A) a change in the Executive’s duties or responsibilities that are materially inconsistent with without a change in the Executive’s positionsposition as a Senior Vice President shall not constitute Good Reason and (B) nothing herein shall prohibit the Company from changing the Executive’s specific title as a Senior Vice President, dutiesnotwithstanding the specific title set forth in Section 1.1 hereof, responsibilities, titles and offices in effect on based upon the Effective DateCompany’s needs from time to time; or
(iii) The the Company effects a reduction in the Executive’s Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.4(a) hereof), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticenotice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(e) hereof), upon not less than thirty (30) 30 days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the therefor. The Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty (30) 15 days after the Company’s receipt of such notice. If the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue performing duties for the Company during the 15-day cure period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during the 15-day cure period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for 90 days or more prior to giving notice of termination for “Good Reason”.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made by the Board, within its sole judgment and reasonable discretion. However, the Executive shall be entitled to challenge any such determination pursuant to the provisions of Section 6.2 hereof.
(c) In the event the Executive’s employment and the Employment Period is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereofhereof and the Executive’s continued compliance with the provisions of Section 5, Section 6.1 and Section 6.5, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (in effect at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration end of the Employment Period without giving effect as if Executive remained employed by the Company for 12 months thereafter (such period referred to any further extensions pursuant to Section 2.2 hereof, with all herein as the “Severance Period”). All such amounts payable in accordance with the Company’s payroll system Base Salary payments will be made in the same manner and at the same time as though the Executive remained employed by the CompanyCompany during the Severance Period.
(ii) The Company shall pay an amount, payable in equal installments over the Severance Period as and when payments are made pursuant to clause (i) above, to the Executive equal to the sum of the Annual Bonus payments earned by the Executive during the past two fiscal years. If such termination occurs upon or within six (6) months following a Change the Employment Period ended prior to the completion of Control (as defined below)two fiscal years, the Company aggregate Annual Bonus payments for each uncompleted year shall continue be deemed to pay be an amount equal to 25% of the Executive the Executive’s current annual Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable in accordance with the Company’s payroll system in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereofSalary.
(iii) Subject to the discretion of the Compensation Committee, the The Company shall pay the Executive an amount equal to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days following the determination of the amount thereof and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereofProrated Bonus.
(iv) Unless prohibited by law or, with respect to any insured benefit, During the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Severance Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options and other equity based awards held by the Executive as of the date of termination, (x) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from reimburse the Executive and for his premiums for continued health benefits under the Executive hereby agrees to sell any or all such shares to the Company Consolidated Omnibus Budget Reconciliation Act (or the Company’s designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased.
(vii) With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination“COBRA”).
(d) The As a condition precedent to the Executive’s right to receive the benefits set forth in Section 4.3(c) hereof; the Executive agrees to execute, within 50 days following the Executive’s date of termination (which release shall be delivered to Executive within 10 days following the date of such termination), a customary release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the termination thereof, thereof and such release to must become effective and enforceable in accordance with its terms. Such release shall be in form and substance reasonably satisfactory to the Company. The payments to the Executive under Section 4.3(c) shall be made or shall commence to be made, as the case may be, on the effective date of the release of claims set forth in this Section 4.3(d), provided that, if termination of Executive’s employment occurs within 50 days of the end of the calendar year, payment shall be made or shall commence to be made, as the case may be, on the later of (i) the effective date of the release of claims, or (ii) January 2 of the year following the year in which termination of Executive’s employment occurs, and provided further that the first payment shall include any amounts that would otherwise have been made to the Executive between the date of termination and the date of first payment.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his employment for “Good Reason” if without the Executive’s prior written consent:
(i) The Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns to the Executive duties or responsibilities that are materially inconsistent with the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a reduction in the Executive’s Base Salary.
(g) For purposes of this Agreement, “CauseGood Reason” means the occurrence of any one or more of the following eventsfollowing:
Appears in 1 contract
Sources: Employment Agreement (Sprouts Farmers Markets, LLC)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(f)), upon not less than thirty (30) 30 days’ prior written notice to the Company specifying in reasonable detail the reason thereforecircumstances constituting the asserted Good Reason therefor; provided, however, that the Company shall have a reasonable an opportunity to substantially cure any such “Good Reason ” (to the extent possible) within thirty (30) 30 days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason on account of any act or omission by the Company, the first occurrence of which the Executive had actual notice for 60 days or more prior to giving notice of termination for Good Reason.
(ii) A resignation by the Executive for Good Reason requires the Executive to actually resign his employment within 30 days after the Company’s cure period has expired if the Company has failed to substantially cure the event constituting Good Reason.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” thenpursuant to this Section 4.3, and subject to Section 4.3(d) hereof), the following provisions shall apply:
(i) The Company shall continue to pay the Executive Executive, as severance, an amount equal to two (2) times the Base Salary Salary, such amount to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving effect to any further extensions pursuant to Section 2.2 hereof, with all such amounts payable be paid in accordance with the Company’s normal payroll system in practices and procedures over the same manner and at twenty-four (24) month period beginning on the same time as though 60th day after the Executive remained employed by the Companydate of termination.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined below), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable in accordance with the Company’s payroll system in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) Subject to the discretion of the Compensation Committee, the The Company shall pay to the Executive (A) any unpaid 2014 Annual Bonus or unpaid Annual Bonus with respect to the calendar year prior to the year in which the date of the Executive’s termination occurs, and (B) a prorated share of the 2014 Annual Bonus or Annual Bonus (as applicable) pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to receive had he the Executive worked through the full year during which date of payment of such 2014 Annual Bonus or Annual Bonus (as applicable) based on the termination occurredactual level of achievement of the performance objectives, provided that bonus targets are met for the year of such termination. The bonus shall be , and with any such Annual Bonuses payable in full within forty-five (45) days following at the determination of the amount thereof time and in accordance the manner annual bonuses are paid to employees, generally.
(iii) If the Executive elects continuation coverage (with respect to the Executive’s coverage and/or any eligible dependent coverage) under the Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA Continuation Coverage”) with respect to the Company’s normal payroll practices group health insurance plan, the Company shall be responsible for payment of the monthly cost of COBRA Continuation Coverage, and proceduresthe Executive shall make timely co-payments of the costs of such coverage as if the Executive was an employee of the Company, subject such payments for coverage to Section 4.3(c)(viicontinue for the eighteen (18) hereofmonth period following the date of termination (or until such earlier date, if any, on which the Executive obtains comparable health insurance coverage from another employer).
(iv) Unless prohibited by law orNotwithstanding anything contained in any Equity Award Agreements applicable to the Executive, with respect to any insured benefitall outstanding and unvested stock options (including the Sign-on Grant, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (Aif applicable) through the expiration of the Employment Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options and other equity equity-based awards granted under Equity Award Agreements and held by the Executive as of the date of termination, termination shall become vested as follows: (xi) any such options that are not Time-Vesting Awards shall, to the extent such Time-Vesting Awards would have become vested or exercisable as of such in accordance with their terms within the twenty-four (24) month period following the date of termination shall if the Executive had remained employed with the Company through such period, become immediately expire and any such equity based awards that are not vested (and, as of such applicable, exercisable for ninety (90) days following the date of termination (notwithstanding any shorter exercise period set forth in the Equity Award Agreements), but if any Equity Award Agreement provides for a longer exercise period, then such longer exercise period shall immediately be forfeited, continue to apply) on the date of termination; and (yii) any such options that are Performance-Vesting Awards shall become vested and (and, as applicable, exercisable as of such for ninety (90) days following the date of termination (notwithstanding any shorter exercise period set forth in the Equity Award Agreements), but if any Equity Award Agreement provides for a longer exercise period, then such longer exercise period shall expire immediately continue to apply) as to a Prorated Actual Amount of such award as of the date the Compensation Committee (or other committee, or the Board) determines the Prorated Actual Amount. For purposes of this Section 4.3(c)(iv), the “Prorated Actual Amount” of each Performance-Vesting Award that shall become vested (and, as applicable, exercisable for ninety (90) days following the date of termination (notwithstanding any shorter exercise period set forth in the Equity Award Agreements), but if any Equity Award Agreement provides for a longer exercise period, then such longer exercise period shall continue to apply) hereunder shall be determined following the expiration of the ninety (90)-day performance period following applicable to each such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof)award, for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) and shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) for an amount be equal to the product of (x) the per share current fair market value Prorata Percentage of a share of Common Stock (as determined by the Board in good faith) applicable Performance-Vesting Award and (y) the total number of shares so purchasedof GNC common stock subject to such Performance-Vesting Award (if any) to which the Executive would have been entitled thereunder, if the Executive had remained employed through such applicable performance period, based on the actual achievement of the performance targets applicable to such award, as determined by the Compensation Committee (or other committee) otherwise in accordance with the terms of the Plan and each such individual grant agreement.
(viiv) With respect to the amounts payable Payments and reimbursements made to the Executive under clauses this Section 4.3(c)(i), (ii) ii)(B), and (iii) shall be made or commence on the first regular payroll date following the 60th day after the date of this termination (or, with respect to the payment provided under Section 4.3 following a Change 4.3(c)(ii)(B), if later, the date provided in Section 3.2, if at the time of Control, the Executive’s date of termination the level of achievement of the performance objectives referenced in Section 4.2(a)(iii) has not yet been established by the Board); and any vesting benefits under Section 4.3(c)(iv) shall occur on the 60th day after the Executive’s date of termination; provided that on or before such date the Release (as defined in Section 4.3(d)) has been executed and any period in which the Executive may elect revoke such Release has expired, without such Release having been revoked, and provided, further, that the payment of all the amounts otherwise due to receive be paid under Section 4.3(c)(i) shall be contingent on the present value of such amounts in a lump sum based on a present value discount rate equal Executive’s continued compliance with all post-termination restrictive covenants applicable to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of terminationcontained in Section 5.
(d) The Executive agrees to release the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representatives, and successors from and against any and all claims that the Executive may have against any such person relating As a condition precedent to the Executive’s employment by right to receive the payments and benefits set forth in Section 4.3(c)(i), (ii)(B), (iii) and (iv), the Executive agrees to execute a release in the form annexed hereto as Exhibit A (the “Release”). The Company shall, without regard to the Executive’s execution of the Release, pay the Executive the Accrued Obligations (as defined in Section 4.4(b)(i) and payable in accordance with the terms thereof) and the termination payment due pursuant to Section 4.3(c)(ii)(A), also payable in accordance with the terms thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his employment for “Good Reason” if without the Executive’s prior written consent:
(i) The Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns to the Executive duties or responsibilities that are materially inconsistent with the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a reduction in the Executive’s Base Salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events:any
Appears in 1 contract
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty sixty (3060) days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for sixty (60) days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chief Executive Officer of the Company (the “Chief Executive Officer”), within the Chief Executive Officer’s sole judgment and discretion, acting in good faith after having met with the Company’s Vice President of Human Resources.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit A attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) In the event the Executive’s employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executive’s Base Salary and the base salary of all executives at the same level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) Subject to the sole discretion of the Board or the Compensation Committee, the Company shall may pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days as soon as reasonably practicable following the determination thereof, but in no event later than May 15 of the amount thereof following year, and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(ivv) Unless prohibited by law or, If the Executive elects continuation coverage (with respect to the Executive’s coverage and/or any insured benefit, eligible dependent coverage) under the terms Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA Continuation Coverage”) with respect to the applicable Company’s group health insurance contractplan, the Executive shall continue to participate in, and be covered underresponsible for payment of the monthly cost of COBRA Continuation Coverage. Unless prohibited by law, the Company’s group life, disability, sickness, accident and Company shall reimburse the Executive for any portion of the monthly cost of COBRA Continuation Coverage that exceeds the amount of the monthly health insurance programs on premium (with respect to the same basis as other executives Executive’s coverage and/or any eligible dependent coverage) payable by the Executive immediately prior to the date of the Company Executive’s termination, such reimbursements to continue (A) through the expiration of the Employment Period, or, Period in effect immediately prior to the date of termination or (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c4.3(c)(ii), for the two (2) year period set forth therein. The Company shall pay the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereofreimbursements on a monthly basis in accordance with the Company’s normal payroll practices and procedures.
(vvi) With respect to outstanding options and other equity equity-based awards held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, forfeited and (yB) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vivii) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination pursuant to this Section 4.3 (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v4.3(c)(vi) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive Executive, and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) ), for an amount equal to the product of (xA) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (yB) the number of shares so purchased.
(viid) With respect As a condition precedent to the amounts payable Executive’s right to receive the Executive under clauses (iibenefits set forth in Section 4.3(c) and (iii) of this Section 4.3 following a Change of Controlhereof, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, right to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax, subject to the confirmation of the Accounting Firm (as defined herein) with respect to the intended effect thereof.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive’s employment for “Good Reason” if without the Executive’s prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The the Company assigns to changes the Executive Executive’s position from that of a Senior Vice President; provided, however, that (A) a change in the Executive’s duties or responsibilities that are materially inconsistent with without a change in the Executive’s positionsposition as a Senior Vice President shall not constitute Good Reason and (B) nothing herein shall prohibit the Company from changing the Executive’s specific title as a Senior Vice President, dutiesnotwithstanding the specific title set forth in Section 1.1 hereof, responsibilities, titles and offices in effect on based upon the Effective DateCompany’s needs from time to time; or
(iii) The the Company effects a reduction in the Executive’s Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Sources: Employment Agreement (General Nutrition Centers, Inc.)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty sixty (3060) days after the Company’s receipt of such notice: and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for sixty (60) days or more prior to giving notice of termination for Good Reason.
(ii) A. determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chief Executive Officer of the Company (the “Chief Executive Officer’), within the Chief Executive Officer’s sole judgment and discretion, acting in good faith after having met with the Company’s Vice President of Human Resources.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Ease Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company; provided, however, that if the date of termination is during the Initial Employment Period, the Company shall continue to pay the Executive such Base Salary for the greater of (A) the period set forth above in this Section 4.3(c)(i) or (B) a twelve (12)-month period following such date of termination.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit A attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) In the event the Executive’s employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executive’s Base Salary and the base salary of all executives at the same level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c) (i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) Subject to the sole discretion of the Board or the Compensation Committee, the Company shall may pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days as soon as reasonably practicable following the determination thereof, but in no event later than May 15 of the amount thereof following year, and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(ivv) Unless prohibited by law or, If the Executive elects continuation coverage (with respect to the Executive’s coverage and/or any insured benefit, eligible dependent coverage) under the terms Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA Continuation Coverage”) with respect to the applicable Company’s group health insurance contractplan, the Executive shall continue to participate in, and be covered underresponsible for payment of the monthly cost of COBRA Continuation Coverage. Unless prohibited by law, the Company’s group life, disability, sickness, accident and Company shall reimburse the Executive For any portion of the monthly cost of COBRA Continuation Coverage that exceeds the amount of the monthly health insurance programs on premium (with respect to the same basis as other executives Executive’s coverage and/or any eligible dependent coverage) payable by the Executive immediately prior to the date of the Company Executive’s termination, such reimbursements to continue (A) through the expiration of the Employment Period, or, Period in effect immediately prior to the date of termination or (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c4.3(c)(ii), for the two (2) year period set forth therein. The Company shall pay the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereofreimbursements on a monthly basis in accordance with the Company’s normal payroll practices and procedures.
(vvi) With respect to outstanding options and other equity equity-based awards held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, forfeited and (yB) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vivii) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination pursuant to this Section 4.3 (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v4.3(c)(vi) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive Executive, and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) ), for an amount equal to the product of (xA) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (yB) the number of shares so purchased.
(viid) With respect As a condition precedent to the amounts payable Executive’s right to receive the Executive under clauses (iibenefits set forth in Section 4.3(c) and (iii) of this Section 4.3 following a Change of Controlhereof, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be he subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, right to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax, subject to the confirmation of the Accounting Firm (as defined herein) with respect to the intended effect thereof.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii43(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive’s employment for “Good Reason” if without the Executive’s prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The the Company assigns to changes the Executive Executive’s position from that of a Senior Vice President; provided, however, that (A) a change in the Executive’s duties or responsibilities that are materially inconsistent with without a change in the Executive’s positionsposition as a Senior Vice President shall not constitute Good Reason and (B) nothing herein shall prohibit the Company from changing the Executive’s specific title as a Senior Vice President, dutiesnotwithstanding the specific title set forth in Section 1.1 hereof, responsibilities, titles and offices in effect on based upon the Effective DateCompany’s needs from time to time; or
(iii) The the Company effects a reduction in the Executive’s Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Sources: Employment Agreement (General Nutrition Centers, Inc.)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty sixty (3060) days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for sixty (60) days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chief Executive Officer of the Company (the “Chief Executive Officer”), within the Chief Executive Officer’s sole judgment and discretion, acting in good faith after having met with the Company’s Vice President of Human Resources.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company; provided, however, that if the date of termination is during the Initial Employment Period, the Company shall continue to pay the Executive such Base Salary for the greater of (A) the period set forth above in this Section 4.3(c)(i) or (B) a six (6) month period following such date of termination. Notwithstanding any other provision of this Agreement, the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company for a minimum of six (6) months following the date of termination.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit A attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) In the event the Executive’s employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executive’s Base Salary and the base salary of all executives at the same level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) Subject to the sole discretion of the Board or the Compensation Committee, the Company shall may pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days as soon as reasonably practicable following the determination thereof, but in no event later than May 15 of the amount thereof following year, and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(ivv) Unless prohibited by law or, If the Executive elects continuation coverage (with respect to the Executive’s coverage and/or any insured benefit, eligible dependent coverage) under the terms Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA Continuation Coverage”) with respect to the applicable Company’s group health insurance contractplan, the Executive shall continue to participate in, and be covered underresponsible for payment of the monthly cost of COBRA Continuation Coverage. Unless prohibited by law, the Company’s group life, disability, sickness, accident and Company shall reimburse the Executive for any portion of the monthly cost of COBRA Continuation Coverage that exceeds the amount of the monthly health insurance programs on premium (with respect to the same basis as other executives Executive’s coverage and/or any eligible dependent coverage) payable by the Executive immediately prior to the date of the Company Executive’s termination, such reimbursements to continue (A) through the expiration of the Employment Period, or, Period in effect immediately prior to the date of termination or (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c4.3(c)(ii), for the two (2) year period set forth therein. The Company shall pay the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereofreimbursements on a monthly basis in accordance with the Company’s normal payroll practices and procedures.
(vvi) With respect to outstanding options and other equity equity-based awards held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, forfeited and (yB) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vivii) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination pursuant to this Section 4.3 (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v4.3(c)(vi) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive Executive, and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) ), for an amount equal to the product of (xA) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (yB) the number of shares so purchased.
(viid) With respect As a condition precedent to the amounts payable Executive’s right to receive the Executive under clauses (iibenefits set forth in Section 4.3(c) and (iii) of this Section 4.3 following a Change of Controlhereof, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, right to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax, subject to the confirmation of the Accounting Firm (as defined herein) with respect to the intended effect thereof.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive’s employment for “Good Reason” if without the Executive’s prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The the Company assigns to changes the Executive Executive’s position from that of a Senior Vice President; provided, however, that (A) a change in the Executive’s duties or responsibilities that are materially inconsistent with without a change in the Executive’s positionsposition as a Senior Vice President shall not constitute Good Reason and (B) nothing herein shall prohibit the Company from changing the Executive’s specific title as a Senior Vice President, dutiesnotwithstanding the specific title set forth in Section 1.1Error! Reference source not found. hereof, responsibilities, titles and offices in effect on based upon the Effective DateCompany’s needs from time to time; or
(iii) The the Company effects a reduction in the Executive’s Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Sources: Employment Agreement (General Nutrition Centers, Inc.)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate Executive’s employment without “Cause” (as defined below), and thereby terminate Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written notice.
(b) . • The Executive may resign, and thereby terminate his employment (and the Employment Period), at any time for “Good Reason” (as defined below), upon not less than thirty (30) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty (30) days after the Company’s receipt of such notice.
(c) . • In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) : • The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving effect to any further extensions pursuant to Section 2.2 hereof, with all such amounts payable in accordance with the Company’s payroll system in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) . • If such termination occurs upon or within six (6) months following a Change of Control (as defined below), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable in accordance with the Company’s payroll system in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) . • Subject to the discretion of the Compensation Committee, the Company shall pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days following the determination of the amount thereof and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(iv) . • Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) . • With respect to outstanding options and other equity based awards held by the Executive as of the date of termination, (x) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) . • With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased.
(vii) . • With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) . • The Executive agrees to release the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representatives, and successors from and against any and all claims that the Executive may have against any such person relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) . • Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax.
(i) . • Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) . • As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) . • The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his employment for “Good Reason” if without the Executive’s prior written consent:
(i) The Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns to the Executive duties or responsibilities that are materially inconsistent with the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a reduction in the Executive’s Base Salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events:
Appears in 1 contract
Sources: Employment Agreement (GNC Corp)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s 's employment without “"Cause” " (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s 's employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive's employment (and the Employment Period), at any time for “"Good Reason” " (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ ' prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty sixty (3060) days after the Company’s 's receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company's acts or omissions of which Executive had actual notice for sixty (60) days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive's employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chief Executive Officer of the Company (the "Chief Executive Officer"), within the Chief Executive Officer's sole judgment and discretion, acting in good faith after having met with the Company's Vice President of Human Resources.
(c) In the event the Executive’s 's employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s 's normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit A attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s 's normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) In the event the Executive's employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executive's Base Salary and the base salary of all executives at the same level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) Subject to the sole discretion of the Board or the Compensation Committee, the Company shall may pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days as soon as reasonably practicable following the determination thereof, but in no event later than May 15 of the amount thereof following year, and in accordance with the Company’s 's normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options and other equity equity-based awards held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, forfeited and (yB) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination pursuant to this Section 4.3 (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive Executive, and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s 's designee) ), for an amount equal to the product of (xA) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (yB) the number of shares so purchased.
(vii) With respect The Executive shall continue to be entitled to the amounts payable fringe benefits available to the Executive under clauses immediately preceding the Executive's date of termination pursuant to Section 4.3, in each case (iiA) and (iii) through the expiration of this Section 4.3 following a Change of Control, the Executive may elect Employment Period in effect immediately prior to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination, or, (B) in the event that Executive's Base Salary is being paid pursuant to Section 4.3(c)(ii), for the period set forth therein.
(d) The As a condition precedent to the Executive's right to receive the benefits set forth in Section 4.3(c) hereof, the Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s 's employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s 's benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “"Payment”") would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “"Excise Tax”"), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “"Payment Reduction”"). The Executive shall have the right, in his sole discretion, right to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax, subject to the confirmation of the Accounting Firm (as defined herein) with respect to the intended effect thereof. Notwithstanding the foregoing, the Payment Reduction shall not apply if the Executive would, on a net after-tax basis, receive less compensation than if the Payment were not so reduced.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers KPMG LLP, or any other nationally recognized accounting firm that shall be the Company’s 's outside auditors at the time of such determination (the “"Accounting Firm”"), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “"Overpayment”") or that a Payment Reduction not properly needed to be made should be made (an “"Underpayment”"). If, within seventy-five (75) days after the Accounting Firm’s 's initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s 's determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s 's determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s 's employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive's employment for “"Good Reason” " if without the Executive’s 's prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The the Company assigns to changes the Executive Executive's position from that of a Senior Vice President; provided, however, that (A) a change in the Executive's duties or responsibilities that are materially inconsistent with without a change in the Executive’s positions's position as a Senior Vice President shall not constitute Good Reason and (B) nothing herein shall prohibit the Company from changing the Executive's specific title as a Senior Vice President, dutiesnotwithstanding the specific title set forth in Section 1.1 hereof, responsibilities, titles and offices in effect on based upon the Effective DateCompany's needs from time to time; or
(iii) The the Company effects a reduction in the Executive’s 's Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary.
(g) For purposes of this Agreement, “"Cause” " means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.4(a) hereof), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticenotice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(e) hereof), upon not less than thirty (30) 30 days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the therefor. The Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty (30) 15 days after the Company’s receipt of such notice. If the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue performing duties for the Company during the 15-day cure period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during the 15-day cure period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for 90 days or more prior to giving notice of termination for “Good Reason”.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made by the Board, within its sole judgment and reasonable discretion. However, the Executive shall be entitled to challenge any such determination pursuant to the provisions of Section 6.2 hereof.
(c) In the event the Executive’s employment and the Employment Period is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereofhereof and the Executive’s continued compliance with the provisions of Section 5, Section 6.1 and Section 6.5, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (in effect at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration end of the Employment Period without giving effect as if Executive remained employed by the Company for 24 months (such period referred to any further extensions pursuant to Section 2.2 hereof, with all herein as the “Severance Period”). All such amounts payable in accordance with the Company’s payroll system Base Salary payments will be made in the same manner and at the same time as though the Executive remained employed by the CompanyCompany during the Severance Period.
(ii) The Company shall pay an amount, payable in equal installments over the Severance Period as and when payments are made pursuant to clause (i) above, to the Executive equal to the sum of the Annual Bonus payments earned by the Executive during the past two fiscal years. If such termination occurs upon or within six (6) months following a Change the Employment Period ended prior to the completion of Control (as defined below)two fiscal years, the Company aggregate Annual Bonus payments for each uncompleted year shall continue be deemed to pay be an amount equal to 100% of the Executive the Executive’s current annual Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable in accordance with the Company’s payroll system in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereofSalary.
(iii) Subject to the discretion of the Compensation Committee, the The Company shall pay the Executive an amount equal to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days following the determination of the amount thereof and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereofProrated Bonus.
(iv) Unless prohibited by law or, with respect to any insured benefit, During the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Severance Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options and other equity based awards held by the Executive as of the date of termination, (x) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from reimburse the Executive and for his premiums for continued health benefits under the Executive hereby agrees to sell any or all such shares to the Company Consolidated Omnibus Budget Reconciliation Act (or the Company’s designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased.
(vii) With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination“COBRA”).
(d) The As a condition precedent to the Executive’s right to receive the benefits set forth in Section 4.3(c) hereof, the Executive agrees to execute, within 50 days following the Executive’s date of termination (which release shall be delivered to Executive within 10 days following the date of such termination), a customary release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the termination thereof, thereof and such release to must become effective and enforceable in accordance with its terms. Such release shall be in form and substance reasonably satisfactory to the Company. The payments to the Executive under Section 4.3(c) shall be made or shall commence to be made, as the case may be, on the effective date of the release of claims set forth in this Section 4.3(d), provided that, if termination of Executive’s employment occurs within 50 days of the end of the calendar year, payment shall be made or shall commence to be made, as the case may be, on the later of (i) the effective date of the release of claims, or (ii) January 2 of the year following the year in which termination of Executive’s employment occurs, and provided further that the first payment shall include any amounts that would otherwise have been made to the Executive between the date of termination and the date of first payment.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his employment for “Good Reason” if without the Executive’s prior written consent:
(i) The Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns to the Executive duties or responsibilities that are materially inconsistent with the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a reduction in the Executive’s Base Salary.
(g) For purposes of this Agreement, “CauseGood Reason” means the occurrence of any one or more of the following eventsfollowing:
Appears in 1 contract
Sources: Employment Agreement (Sprouts Farmers Markets, LLC)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate Executive’s 's employment without “"Cause” " (as defined below), and thereby terminate Executive’s 's employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ ' prior written notice.
(b) The Executive may resign, and thereby terminate his employment (and the Employment Period), at any time for “"Good Reason” " (as defined below), upon not less than thirty (30) days’ ' prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “"Good Reason ” " (to the extent possible) within thirty (30) days after the Company’s 's receipt of such notice.
(c) In the event the Executive’s 's employment is terminated (i) by the Company without “"Cause,” " or (ii) by the Executive for “"Good Reason” " then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the longer of the expiration of the Employment Period or twelve (12) months, without giving effect to any further extensions pursuant to Section 2.2 hereof, with all such amounts payable in accordance with the Company’s 's payroll system in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined below), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for a two one (21) year period following such date of termination, with all such amounts payable in accordance with the Company’s 's payroll system in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) Subject to the discretion of the Compensation Committee, the Company shall pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days following the determination of the amount thereof and in accordance with the Company’s 's normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s 's group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s 's Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two one (21) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options and other equity based awards held by the Executive as of the date of termination, (x) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s 's designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased.
(vii) With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to release the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representatives, and successors from and against any and all claims that the Executive may have against any such person relating to the Executive’s 's employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person or that any other event occurring with respect to the Executive and the Company for the Executive’s 's benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “"Payment”") would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “"Excise Tax”"), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax (the “"Payment Reduction”"). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s 's outside auditors at the time of such determination (the “"Accounting Firm”"), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “"Overpayment”") or that a Payment Reduction not properly needed to be made should be made (an “"Underpayment”"). If, within seventy-five (75) days after the Accounting Firm’s 's initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s 's determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s 's determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s 's employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his employment for “"Good Reason” " if without the Executive’s 's prior written consent:
(i) The Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns to the Executive duties or responsibilities that are materially inconsistent with the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a reduction in the Executive’s Base Salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events:
Appears in 1 contract
Sources: Employment Agreement (GNC Corp)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate Executive’s employment without “Cause” (as defined below), and thereby terminate Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written notice.
(b) The Executive may resign, and thereby terminate his employment (and the Employment Period), at any time for “Good Reason” (as defined below), upon not less than thirty (30) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty (30) days after the Company’s receipt of such notice.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving effect to any further extensions pursuant to Section 2.2 hereof, with all such amounts payable in accordance with the Company’s payroll system in the same manner and at the same time as though the Executive remained employed by the Company. In addition, if Executive’s employment is terminated pursuant to Section 4.2 or 4.3 hereof prior to December 31, 2005, then the Company will reimburse Executive for relocation of Executive and her immediate family back to the United Kingdom pursuant to the Company’s normal relocation policy.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined below), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable in accordance with the Company’s payroll system in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) Subject to the discretion of the Compensation Committee, the Company shall pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days following the determination of the amount thereof and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options and other equity based awards held by the Executive as of the date of termination, (x) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased.
(vii) With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to release the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representatives, and successors from and against any and all claims that the Executive may have against any such person relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his employment for “Good Reason” if without the Executive’s prior written consent:
(i) The Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns to the Executive duties or responsibilities that are materially inconsistent with the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or;
(iii) The Company effects a reduction in the Executive’s Base Salary; or
(iv) The Company requires the Executive to be based (excluding regular travel responsibilities) at any office or location more than 75 miles from the principal office of the Company on the Effective Date.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events:
Appears in 1 contract
Sources: Employment Agreement (General Nutrition Centers Inc)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s 's employment without “"Cause” " (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s 's employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive's employment (and the Employment Period), at any time for “"Good Reason” " (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ ' prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty (30) days after the Company’s 's receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company's acts or omissions of which Executive had actual notice for sixty (60) days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive's employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the members of the Board other than the Executive (the "Disinterested Directors"), within the sole judgment and discretion of the Disinterested Directors, as determined by majority vote thereof.
(c) In the event the Executive’s 's employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s 's normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit C attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s 's normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) Subject In the event the Executive's employment is terminated pursuant to this Section 4.3 without Cause, and if the discretion Company has previously effected reductions in the Executive's Base Salary and the base salary of all executives at the Compensation Committeesame level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) The Company shall pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days as soon as reasonably practicable following the determination thereof, but in no event later than May 15 of the amount thereof following year, and in accordance with the Company’s 's normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options and other equity equity-based awards granted pursuant to the Plan held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, forfeited and (yB) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety one hundred eighty (90)-day 180)-day period following such date of termination.
(vi) With respect The Executive shall continue to any shares of Common Stock held by be entitled to the perquisites available to the Executive that are vested immediately preceding the Executive's date of termination as provided in Section 3.4, in each case (A) through the expiration of the Employment Period in effect immediately prior to the date of termination or (or issued pursuant to B) in the exercise of options following such date of termination event that Executive's Base Salary is being paid pursuant to Section 4.3(c)(v) hereof4.3(c)(ii), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased.
(vii) With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of terminationset forth therein.
(d) The As a condition precedent to the Executive's right to receive the benefits set forth in Section 4.3(c) hereof, the Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s 's employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s 's benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “"Payment”") would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “"Excise Tax”"), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “"Payment Reduction”"). The Executive shall have the right, in his sole discretion, right to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax, subject to the confirmation of the Accounting Firm (as defined herein) with respect to the intended effect thereof. Notwithstanding the foregoing, the Payment Reduction shall not apply if the Executive would, on a net after-tax basis, receive less compensation than if the Payment were not so reduced.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers KPMG LLP, or any other nationally recognized accounting firm that shall be the Company’s 's outside auditors at the time of such determination (the “"Accounting Firm”"), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “"Overpayment”") or that a Payment Reduction not properly needed to be made should be made (an “"Underpayment”"). If, within seventy-five (75) days after the Accounting Firm’s 's initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s 's determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s 's determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s 's employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive's employment for “"Good Reason” " if without the Executive’s 's prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The the Company assigns to changes the Executive's position from that of Chairman of the Board and Chief Executive Officer; provided, however, that a change in the Executive's duties or responsibilities that are materially inconsistent with without a change in the Executive’s positions's position as Chairman of the Board and Chief Executive Officer shall not constitute Good Reason; and, dutiesprovided further, responsibilitiesthat if Executive ceases to be Chief Executive Officer, titles and offices in effect on but remains Chairman of the Effective Date; orBoard, such change shall not constitute Good Reason;
(iii) The the Company effects a reduction in the Executive’s 's Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary; or
(iv) The Company requires the Executive to relocate his residence.
(g) For purposes of this Agreement, “"Cause” " means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ prior written notice to the Company specifying in reasonable detail the reason thereforetherefor; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty sixty (3060) days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for sixty (60) days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chief Executive Officer of the Company (the “Chief Executive Officer”), within the Chief Executive Officer’s sole judgment and discretion, acting in good faith after having met with the Company’s Senior Vice President of Human Resources.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit A attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) In the event the Executive’s employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executive’s Base Salary and the base salary of all executives at the same level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) Subject to the sole discretion of the Board or the Compensation Committee, the Company shall may pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days as soon as reasonably practicable following the determination thereof, but in no event later than May 15 of the amount thereof following year, and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options and other equity equity-based awards held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, forfeited and (yB) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination pursuant to this Section 4.3 (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive Executive, and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) ), for an amount equal to the product of (xA) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (yB) the number of shares so purchased.
(viid) With respect As a condition precedent to the amounts payable Executive’s right to receive the Executive under clauses (iibenefits set forth in Section 4.3(c) and (iii) of this Section 4.3 following a Change of Controlhereof, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, right to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax, subject to the confirmation of the Accounting Firm (as defined herein) with respect to the intended effect thereof.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers KPMG LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive’s employment for “Good Reason” if without the Executive’s prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The the Company assigns to changes the Executive Executive’s position from that of President and Chief Operating Officer; provided, however, that a change in the Executive’s duties or responsibilities that are materially inconsistent with without a change in the Executive’s positions, duties, responsibilities, titles position as President and offices in effect on the Effective DateChief Operating Officer shall not constitute Good Reason; or
(iii) The the Company effects a reduction in the Executive’s Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty (30) days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for sixty (60) days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chairman of the Board of the Company (the “Chairman of the Board”), within the Chairman of the Board’s sole judgment and discretion, acting in good faith after having met with the Company’s Vice President of Human Resources.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit A attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) Subject In the event the Executive’s employment is terminated pursuant to this Section 4.3 without Cause, and if the discretion Company has previously effected reductions in the Executive’s Base Salary and the base salary of all executives at the Compensation Committeesame level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) The Company shall pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days following the determination of the amount thereof and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options and other equity based awards held by the Executive as of the date of termination, (x) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased.
(vii) With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to release the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representatives, and successors from and against any and all claims that the Executive may have against any such person relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his employment for “Good Reason” if without the Executive’s prior written consent:
(i) The Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns to the Executive duties or responsibilities that are materially inconsistent with the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a reduction in the Executive’s Base Salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events:actual
Appears in 1 contract
Sources: Employment Agreement (General Nutrition Centers, Inc.)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate Executive’s 's employment without “"Cause” " (as defined below), and thereby terminate Executive’s 's employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ ' prior written notice.
(b) The Executive may resign, and thereby terminate his employment (and the Employment Period), at any time for “"Good Reason” " (as defined below), upon not less than thirty (30) days’ ' prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “"Good Reason ” " (to the extent possible) within thirty (30) days after the Company’s 's receipt of such notice.
(c) In the event the Executive’s 's employment is terminated (i) by the Company without “"Cause,” " or (ii) by the Executive for “"Good Reason” " then, subject to Section SECTION 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section SECTION 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving effect to any further extensions pursuant to Section SECTION 2.2 hereof, with all such amounts payable in accordance with the Company’s 's payroll system in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined below), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section SECTION 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable in accordance with the Company’s 's payroll system in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section SECTION 4.3(c)(vii) hereof.
(iii) Subject to the discretion of the Compensation Committee, the Company shall pay to the Executive a prorated share of the Annual Bonus pursuant to Section SECTION 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days following the determination of the amount thereof and in accordance with the Company’s 's normal payroll practices and procedures, subject to Section SECTION 4.3(c)(vii) hereof.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s 's group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s 's Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section SECTION 2.2 hereof.
(v) With respect to outstanding options and other equity based awards held by the Executive as of the date of termination, (x) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(vSECTION 4.3(C)(V) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s 's designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased.
(vii) With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section SECTION 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to release the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representatives, and successors from and against any and all claims that the Executive may have against any such person relating to the Executive’s 's employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person or that any other event occurring with respect to the Executive and the Company for the Executive’s 's benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “"Payment”") would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “"Excise Tax”"), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax (the “"Payment Reduction”"). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax.
(i) Subject to the provisions of Section SECTION 4.3(e)(ii), all determinations required to be made under this Section SECTION 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s 's outside auditors at the time of such determination (the “"Accounting Firm”"), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections SECTIONS 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “"Overpayment”") or that a Payment Reduction not properly needed to be made should be made (an “"Underpayment”"). If, within seventy-five (75) days after the Accounting Firm’s 's initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s 's determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s 's determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(eSECTION 4.3(E) shall remain in full force and effect following the termination of the Executive’s 's employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his employment for “"Good Reason” " if without the Executive’s 's prior written consent:
(i) The Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns to the Executive duties or responsibilities that are materially inconsistent with the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a reduction in the Executive’s Base Salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events:
Appears in 1 contract
Sources: Employment Agreement (General Nutrition Companies Inc)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty (30) days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for 60 days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the President of the Company, within the President’s sole judgment and discretion, acting in good faith after having met with the Company’s Vice President of Human Resources.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit A attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) In the event the Executive’s employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executive’s Base Salary and the base salary of all executives at the same level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) Subject to the sole discretion of the Board or the Compensation Committee, the Company shall may pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days as soon as reasonably practicable following the determination thereof, but in no event later than May 15 of the amount thereof following year, and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(ivv) Unless prohibited by law or, If the Executive elects continuation coverage (with respect to the Executive’s coverage and/or any insured benefit, eligible dependent coverage) under the terms Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA Continuation Coverage”) with respect to the applicable Company’s group health insurance contractplan, the Executive shall continue to participate in, and be covered underresponsible for payment of the monthly cost of COBRA Continuation Coverage. Unless prohibited by law, the Company’s group life, disability, sickness, accident and Company shall reimburse the Executive for any portion of the monthly cost of COBRA Continuation Coverage that exceeds the amount of the monthly health insurance programs on premium (with respect to the same basis as other executives Executive’s coverage and/or any eligible dependent coverage) payable by the Executive immediately prior to the date of the Company Executive’s termination, such reimbursements to continue (A) through the expiration of the Employment PeriodPeriod in effect immediately prior to the date of termination, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c4.3(c)(ii), for the two (2) year period set forth therein. The Company shall pay the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereofreimbursements on a monthly basis in accordance with the Company’s normal payroll practices and procedures.
(vvi) With respect to outstanding options and other equity equity-based awards held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, and (yB) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vivii) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination pursuant to this Section 4.3 (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v4.3(c)(vi) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) for an amount equal to the product of (xA) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (yB) the number of shares so purchased.
(viiviii) With respect The Executive shall continue to be entitled to the amounts payable perquisites available to the Executive under clauses immediately preceding the Executive’s date of termination as provided in the Perquisite Policy for Senior Executives (ii) and (iii) of this Section 4.3 following a Change of Control, the Executive as such policy may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing amended by the Executive within fifteen Board from time to time), in each case (15A) days through the expiration of his the Employment Period in effect immediately prior to the date of termination, or, (B) in the event that Executive’s Base Salary is being paid pursuant to Section 4.3(c)(ii), for the period set forth therein.
(d) The As a condition precedent to the Executive’s right to receive the benefits set forth in Section 4.3(c) hereof, the Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, right to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax, subject to the confirmation of the Accounting Firm (as defined herein) with respect to the intended effect thereof. Notwithstanding the foregoing, the Payment Reduction shall not apply if the Executive would, on a net after-tax basis, receive less compensation than if the Payment were not so reduced.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive’s employment for “Good Reason” if without the Executive’s prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The the Company assigns changes the Executive’s position from that of Executive Vice President and Chief Operating Officer other than to a more senior position; provided, however, that a change in the Executive Executive’s duties or responsibilities that are materially inconsistent with without a change in the Executive’s positions, duties, responsibilities, titles position as Executive Vice President and offices in effect on the Effective Date; orChief Operating Officer shall not constitute Good Reason;
(iii) The the Company effects a reduction in the Executive’s Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary; or
(iv) the Company requires the Executive to be based (excluding regular travel responsibilities) at any office or location more than 75 miles from the principal office of the Company.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Sources: Employment Agreement (GNC Corp)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty sixty (3060) days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for sixty (60) days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chief Executive Officer of the Company (the “Chief Executive Officer”), within the Chief Executive Officer’s sole judgment and discretion, acting in good faith after having met with the Company’s Vice President of Human Resources.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company; provided, however, that if the date of termination is during the Initial Employment Period, the Company shall continue to pay the Executive such Base Salary for the greater of (A) the period set forth above in this Section 4.3(c)(i) or (B) a six (6) month period following such date of termination. Notwithstanding any other provision of this Agreement, the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company for a minimum of six (6) months following the date of termination.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit A attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) In the event the Executive’s employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executive’s Base Salary and the base salary of all executives at the same level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) Subject to the sole discretion of the Board or the Compensation Committee, the Company shall may pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days as soon as reasonably practicable following the determination thereof, but in no event later than May 15 of the amount thereof following year, and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(ivv) Unless prohibited by law or, If the Executive elects continuation coverage (with respect to the Executive’s coverage and/or any insured benefit, eligible dependent coverage) under the terms Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA Continuation Coverage”) with respect to the applicable Company’s group health insurance contractplan, the Executive shall continue to participate in, and be covered underresponsible for payment of the monthly cost of COBRA Continuation Coverage. Unless prohibited by law, the Company’s group life, disability, sickness, accident and Company shall reimburse the Executive for any portion of the monthly cost of COBRA Continuation Coverage that exceeds the amount of the monthly health insurance programs on premium (with respect to the same basis as other executives Executive’s coverage and/or any eligible dependent coverage) payable by the Executive immediately prior to the date of the Company Executive’s termination, such reimbursements to continue (A) through the expiration of the Employment Period, or, Period in effect immediately prior to the date of termination or (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c4.3(c)(ii), for the two (2) year period set forth therein. The Company shall pay the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereofreimbursements on a monthly basis in accordance with the Company’s normal payroll practices and procedures.
(vvi) With respect to outstanding options and other equity equity-based awards held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, forfeited and (yB) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vivii) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination pursuant to this Section 4.3 (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v4.3(c)(vi) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive Executive, and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) ), for an amount equal to the product of (xA) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (yB) the number of shares so purchased.
(viid) With respect As a condition precedent to the amounts payable Executive’s right to receive the Executive under clauses (iibenefits set forth in Section 4.3(c) and (iii) of this Section 4.3 following a Change of Controlhereof, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, right to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax, subject to the confirmation of the Accounting Firm (as defined herein) with respect to the intended effect thereof.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive’s employment for “Good Reason” if without the Executive’s prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The the Company assigns to changes the Executive’s position from that of Executive Vice President; provided, however, that (A) a change in the Executive’s duties or responsibilities that are materially inconsistent with without a change in the Executive’s positionsposition as Executive Vice President shall not constitute Good Reason and (B) nothing herein shall prohibit the Company from changing the Executive’s specific title as Executive Vice President, dutiesnotwithstanding the specific title set forth in Section 1.1 hereof, responsibilities, titles and offices in effect on based upon the Effective DateCompany’s needs from time to time; or
(iii) The the Company effects a reduction in the Executive’s Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Sources: Employment Agreement (General Nutrition Centers, Inc.)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty sixty (3060) days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for sixty (60) days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chief Executive Officer of the Company (the “Chief Executive Officer”), within the Chief Executive Officer’s sole judgment and discretion, acting in good faith after having met with the Company’s Senior Vice President of Human Resources.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit A attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) In the event the Executive’s employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executive’s Base Salary and the base salary of all executives at the same level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) Subject to the sole discretion of the Board or the Compensation Committee, the Company shall may pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days as soon as reasonably practicable following the determination thereof, but in no event later than May 15 of the amount thereof following year, and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options and other equity equity-based awards held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, forfeited and (yB) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination pursuant to this Section 4.3 (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive Executive, and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) ), for an amount equal to the product of (xA) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (yB) the number of shares so purchased.
(viid) With respect As a condition precedent to the amounts payable Executive’s right to receive the Executive under clauses (iibenefits set forth in Section 4.3(c) and (iii) of this Section 4.3 following a Change of Controlhereof, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, right to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax, subject to the confirmation of the Accounting Firm (as defined herein) with respect to the intended effect thereof.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers KPMG LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive’s employment for “Good Reason” if without the Executive’s prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The the Company assigns to changes the Executive’s position from that of an Executive Vice President; provided, however, that (A) a change in the Executive’s duties or responsibilities that are materially inconsistent with without a change in the Executive’s positionsposition as an Executive Vice President shall not constitute Good Reason and (B) nothing herein shall prohibit the Company from changing the Executive’s specific title as an Executive Vice President, dutiesnotwithstanding the specific title set forth in Section 1.1 hereof, responsibilities, titles and offices in effect on based upon the Effective DateCompany’s needs from time to time; or
(iii) The the Company effects a reduction in the Executive’s Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(f)), upon not less than thirty (30) 60 days’ prior written notice to the Company specifying in reasonable detail the reason thereforetherefor; provided, however, that the Company shall have a reasonable an opportunity to substantially cure any such “Good Reason ” (to the extent possible) within thirty (30) 60 days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason on account of any act or omission by the Company, the first occurrence of which the Executive had actual notice for 60 days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive has Good Reason, and of whether the Company has substantially cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chief Executive Officer of GNC (the “Chief Executive Officer”), within the Chief Executive Officer’s sole judgment and discretion, acting in good faith after having met with the Company’s director of Human Resources.
(iii) A resignation by the Executive for Good Reason requires the Executive to actually resign his employment within 30 days after the Company’s cure period has expired if the Company has failed to substantially cure the event constituting Good Reason.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof), the following provisions shall apply:
(i) The Company shall continue to pay the Executive Executive, as severance, an amount equal to the greater of (A) one year of the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof and (at B) the Base Salary rate during for the year of termination) had the Executive remained in the employ remainder of the Company until the expiration of the Initial Employment Period without giving effect Period, such amount to any further extensions pursuant to Section 2.2 hereof, with all such amounts payable be paid in accordance with the Company’s normal payroll system in the same manner practices and at the same time as though the Executive remained employed by the Companyprocedures.
(ii) If such termination occurs upon or within six (6) months following a Change of in Control (as defined belowin Exhibit A), the Company shall continue to pay the Executive Executive, as severance, an amount equal to two years of the Base Salary Salary, such amount to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable be paid in accordance with the Company’s normal payroll system in the same manner practices and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereofprocedures.
(iii) If the Executive’s employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executive’s Base Salary and the base salary of all executives at the same level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) shall be the Base Salary rate in effect immediately prior to such reductions. If the Executive resigns pursuant to this Section 4.3 for Good Reason, then any reduction in the Executive’s Base Salary that triggered Good Reason shall be disregarded for purposes of Section 4.3(c)(i) or (ii).
(iv) Subject to the sole discretion of the Board or the Compensation Committee, the Company shall may pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to receive had he the Executive worked through the full year during which date of payment of such Annual Bonus based on the termination occurredactual level of achievement of the performance objectives, provided that bonus targets are met for the year of such termination. The bonus shall be , and payable in full within forty-five (45) days following at the determination of the amount thereof time and in accordance the manner annual bonuses are paid to employees, generally.
(v) If the Executive elects continuation coverage (with respect to the Executive’s coverage and/or any eligible dependent coverage) under the Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA Continuation Coverage”) with respect to the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable group health insurance contractplan, the Executive shall continue to participate in, and be covered underresponsible for payment of the monthly cost of COBRA Continuation Coverage. Unless prohibited by law, the Company’s group life, disability, sickness, accident and Company shall reimburse the Executive for any portion of the monthly cost of COBRA Continuation Coverage that exceeds the amount of the monthly health insurance programs on premium (with respect to the same basis as other executives Executive’s coverage and/or any eligible dependent coverage) payable by the Executive immediately prior to the date of the Company Executive’s termination, such reimbursements to continue (A) through the expiration of the Employment Period, or, Period in effect immediately prior to the date of termination or (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c4.3(c)(ii), for the two (2period set forth therein. The Company shall pay the reimbursements on a monthly basis in accordance with the Company’s normal payroll practices and procedures. No “gross-up” for taxes on the reimbursements under this Section 4.3(c)(v) year period shall be provided to the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereofExecutive.
(vvi) With respect to The treatment of all outstanding stock options and other equity equity-based awards held by the Executive as of the date of termination, (x) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to this Section 4.3(c)(v) hereof), for 4.3 shall be governed by the one hundred eighty (180)-day period following such date terms of termination, the Company (or its designee) shall have the right to purchase from the Executive Plan and the Executive hereby agrees to sell any or all such shares individual grant agreements applicable to the Company (or the Company’s designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchasedExecutive.
(vii) With respect to the amounts payable Payments and reimbursements made to the Executive under clauses (ii) and (iii) of this Section 4.3 4.3(c) shall be made or commence on the first regular payroll date following a Change the 60th day after the date of Controltermination, provided that on or before such date the Release (as defined in Section 4.3(d)) has been executed and any period in which the Executive may elect revoke such Release has expired, without such Release having been revoked, and provided further that the payment of all such payments and reimbursements shall be contingent on the Executive’s continued compliance with all post-termination restrictive covenants applicable to receive the present value of such amounts Executive, including but not limited to those contained in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of terminationSection 5.
(d) The As a condition precedent to the Executive’s right to receive the benefits set forth in Section 4.3(c), the Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f)) relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the CompanyCompany (the “Release”).
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “Payment Reduction”). The Executive To the extent necessary to effect the Payment Reduction, the Company shall have reduce or eliminate the rightPayments by first reducing or eliminating the portion of the Payments which are not payable in cash and then by reducing or eliminating cash payments, in his sole discretion, to designate those each case in reverse order beginning with payments or benefits that shall which are to be reduced or eliminated under paid the Payment Reduction farthest in time from the initial determination, subject to avoid the imposition confirmation of the Excise TaxAccounting Firm (as defined herein) with respect to the intended effect of such Payment Reduction.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) 15 business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need was not be made that properly should be made (an “Overpayment”) or that a Payment Reduction was made that need not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) 75 days after the Accounting Firm’s initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) 35 days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will shall not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) 35 days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) 15 days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be is entitled to terminate his the Executive’s employment for “Good Reason” if without the Executive’s prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;; or
(ii) The Company assigns to the Executive duties or responsibilities that are materially inconsistent with the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a material reduction in the Executive’s Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary (in which case any such material reduction shall not be considered to be a failure by the Company to comply with a material alteration imposed by this Agreement).
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty sixty (3060) days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for sixty (60) days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chief Executive Officer of the Company (the “Chief Executive Officer”), within the Chief Executive Officer’s sole judgment and discretion, acting in good faith after having met with the Company’s director of Human Resources.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company; provided, however, that if the date of termination is during the Initial Employment Period, the Company shall continue to pay the Executive such Base Salary for the greater of (A) the period set forth above in this Section 4.3(c)(i) or (B) a twelve (12) month period following such date of termination. Notwithstanding any other provision of this Agreement, the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company for a minimum of six (6) months following the date of termination.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit B attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) In the event the Executive’s employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executive’s Base Salary and the base salary of all executives at the same level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) Subject to the sole discretion of the Board or the Compensation Committee, the Company shall may pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days no later than March 15 of the year following the determination of year the amount thereof bonus is earned, and in accordance with the Company’s normal general payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(ivv) Unless prohibited by law or, If the Executive elects continuation coverage (with respect to the Executive’s coverage and/or any insured benefit, eligible dependent coverage) under the terms Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA Continuation Coverage”) with respect to the applicable Company’s group health insurance contractplan, the Executive shall continue to participate in, and be covered underresponsible for payment of the monthly cost of COBRA Continuation Coverage. Unless prohibited by law, the Company’s group life, disability, sickness, accident and Company shall reimburse the Executive for any portion of the monthly cost of COBRA Continuation Coverage that exceeds the amount of the monthly health insurance programs on premium (with respect to the same basis as other executives Executive’s coverage and/or any eligible dependent coverage) payable by the Executive immediately prior to the date of the Company Executive’s termination, such reimbursements to continue (A) through the expiration of the Employment Period, or, Period in effect immediately prior to the date of termination or (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c4.3(c)(ii), for the two (2) year period set forth therein. The Company shall pay the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereofreimbursements on a monthly basis in accordance with the Company’s normal payroll practices and procedures.
(vvi) With respect to outstanding options and other equity equity-based awards held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, forfeited and (yB) any such options (other than the options set forth in Section 3.5(b)(i)(B) and (b)(ii)(B), which shall expire upon expiration of the 7-day period referred to in such sections) that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vivii) With respect to any options for shares of Common Stock held by the Executive that are vested as of the date of termination pursuant to this Section 4.3 (or shares issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v4.3(c)(vi) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive Executive, and the Executive hereby agrees to sell any or all such options or shares to the Company (or the Company’s designee) for an amount equal to in accordance with Sections 9.2 and 13.1 of the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchasedPlan.
(viiviii) With respect to the amounts payable Notwithstanding any other provision herein, payments and reimbursements made to the Executive under clauses (iiSection 4.2(a) and (iiiSection 4.3(c)(i)-(v) of this Section 4.3 following a Change of Control, hereof shall commence 60 days from the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The As a condition precedent to the Executive’s right to receive the benefits set forth in Section 4.3(c) hereof, the Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “Payment Reduction”). The Executive To the extent necessary to effect the Payment Reduction, the Company shall have reduce or eliminate the rightPayments by first reducing or eliminating the portion of the Payments which are not payable in cash and then by reducing or eliminating cash payments, in his sole discretion, to designate those each case in reverse order beginning with payments or benefits that shall which are to be reduced or eliminated under paid the Payment Reduction farthest in time from the initial determination, subject to avoid the imposition confirmation of the Excise TaxAccounting Firm (as defined herein) with respect to the intended effect of such Payment Reduction.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need was not be made that properly should be made (an “Overpayment”) or that a Payment Reduction was made that need not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive’s employment for “Good Reason” if without the Executive’s prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The the Company assigns to changes the Executive’s position from that of an Executive Vice President; provided, however, that (A) a change in the Executive’s duties or responsibilities that are materially inconsistent with without a change in the Executive’s positionsposition as an Executive Vice President shall not constitute Good Reason and (B) nothing herein shall prohibit the Company from changing the Executive’s specific title as an Executive Vice President, dutiesnotwithstanding the specific title set forth in Section 1.1 hereof, responsibilities, titles and offices in effect on based upon the Effective Date; orCompany’s needs from time to time;
(iii) The the Company effects a greater than 5% reduction in the Executive’s Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary; or
(iv) the Executive no longer directly reports to the CEO.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Sources: Employment Agreement (GNC Acquisition Holdings Inc.)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate Executive’s employment without “Cause” (as defined below), and thereby terminate Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written notice.
(b) The Executive may resign, and thereby terminate his employment (and the Employment Period), at any time for “Good Reason” (as defined below), upon not less than thirty (30) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” “ (to the extent possible) within thirty (30) days after the Company’s receipt of such notice.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving effect to any further extensions pursuant to Section 2.2 hereof, with all such amounts payable in accordance with the Company’s payroll system in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined below), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable in accordance with the Company’s payroll system in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) Subject to the discretion of the Compensation Committee, the Company shall pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days following the determination of the amount thereof and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options and other equity based awards held by the Executive as of the date of termination, (x) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased.
(vii) With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to release the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representatives, and successors from and against any and all claims that the Executive may have against any such person relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his employment for “Good Reason” if without the Executive’s prior written consent:
(i) The Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns to the Executive duties or responsibilities that are materially inconsistent with the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a reduction in the Executive’s Base Salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events:
Appears in 1 contract
Sources: Employment Agreement (General Nutrition International Inc)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate Executive’s 's employment without “"Cause” " (as defined below), and thereby terminate Executive’s 's employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ ' prior written notice.
(b) The Executive may resign, and thereby terminate his employment (and the Employment Period), at any time for “"Good Reason” " (as defined below), upon not less than thirty (30) days’ ' prior written notice to the Company specifying in reasonable detail the reason thereforetherefor; provided, however, that the Company shall have a reasonable opportunity to cure any such “"Good Reason ” " (to the extent possible) within thirty (30) days after the Company’s 's receipt of such notice.
(c) In the event the Executive’s 's employment is terminated (i) by the Company without “"Cause,” " or (ii) by the Executive for “"Good Reason” " then, subject to Section SECTION 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section SECTION 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving effect to any further extensions pursuant to Section SECTION 2.2 hereof, with all such amounts payable in accordance with the Company’s 's payroll system in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined below), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section SECTION 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable in accordance with the Company’s 's payroll system in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(viiSECTION 4.3(c)(viiI) hereof.
(iii) Subject to the discretion of the Compensation Committee, the The Company shall pay to the Executive a prorated share of the Annual Bonus pursuant to Section SECTION 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days following the determination of the amount thereof and in accordance with the Company’s 's normal payroll practices and procedures, subject to Section SECTION 4.3(c)(vii) hereof.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s 's group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company through (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s 's Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section SECTION 2.2 hereof.
(v) With respect to outstanding options and other equity based awards held by the Executive as of the date of termination, (x) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section SECTION 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s 's designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased. Executive shall have the right to request, in writing, that the Board obtain a fairness opinion from a nationally recognized accounting firm or investment bank chosen by the Company, to review the Board's fair market value determination of the Common Stock. If such fairness opinion validates the fair market determination of the Board, the gross purchase price paid to the Executive for such shares under this SECTION 4.3(c)(vi), shall be reduced by 10% excluding such other tax or withholding as may be required by applicable law.
(vii) With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section SECTION 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to release the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representatives, and successors from and against any and all claims that the Executive may have against any such person relating to the Executive’s 's employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person or that any other event occurring with respect to the Executive and the Company for the Executive’s 's benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “"Payment”") would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “"Excise Tax”"), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax (the “"Payment Reduction”"). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax. Notwithstanding the foregoing, the Payment Reduction shall not apply if the Executive would, on a net after-tax basis, receive less compensation than if the Payment were not so reduced.
(i) Subject to the provisions of Section SECTION 4.3(e)(ii), all determinations required to be made under this Section SECTION 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s 's outside auditors at the time of such determination (the “"Accounting Firm”"), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections SECTIONS 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “"Overpayment”") or that a Payment Reduction not properly needed to be made should be made (an “"Underpayment”"). If, within seventy-five (75) days after the Accounting Firm’s 's initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s 's determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s 's determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section SECTION 4.3(e) shall remain in full force and effect following the termination of the Executive’s 's employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his employment for “"Good Reason” " if without the Executive’s 's prior written consent:
(i) The Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns to the Executive duties or responsibilities that are materially inconsistent with the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a reduction in the Executive’s Base Salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events:
Appears in 1 contract
Sources: Employment Agreement (General Nutrition Companies Inc)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty (30) days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for 60 days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the disinterested members of the Board, within the sole judgment and discretion of the disinterested members of the Board.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit A attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii4.3(c)(viii) hereof.
(iii) Subject In the event the Executive’s employment is terminated pursuant to this Section 4.3 without Cause, and if the discretion Company has previously effected reductions in the Executive’s Base Salary and the base salary of all executives at the Compensation Committeesame level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) The Company shall pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days as soon as reasonably practicable following the determination thereof, but in no event later than May 15 of the amount thereof following year, and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options and other equity equity-based awards held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, and (yB) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased.
(vii) With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The As a condition precedent to the Executive’s right to receive the benefits set forth in Section 4.3(c) hereof, the Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, right to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax, subject to the confirmation of the Accounting Firm (as defined herein) with respect to the intended effect thereof. Notwithstanding the foregoing, the Payment Reduction shall not apply if the Executive would, on a net after-tax basis, receive less compensation than if the Payment were not so reduced.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive’s employment for “Good Reason” if without the Executive’s prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The the Company assigns to changes the Executive Executive’s position from that of Chairman of the Board; provided, however, that a change in the Executive’s duties or responsibilities that are materially inconsistent with without a change in the Executive’s positions, duties, responsibilities, titles and offices in effect on position as Chairman of the Effective Date; orBoard shall not constitute Good Reason;
(iii) The the Company effects a reduction in the Executive’s Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary;
(iv) The Company requires the Executive to relocate his residence; or
(v) the failure of GNC to grant the Executive the Option.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Sources: Employment Agreement (GNC Corp)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g) hereof), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticenotice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined below), in Section 4.3(f) hereof) upon not less than thirty (30) 30 days’ and not more than 60 days’ prior written notice to the Company specifying the existence of Good Reason and the reason therefor in reasonable detail the reason thereforedetail; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possiblecurable) within thirty (30) 30 days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period. The Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for 90 days or more prior to giving notice of termination for “Good Reason;” provided that any waiver by the Executive of any conduct, event or occurrence that otherwise would have constituted Good Reason shall not be a waiver of any subsequent conduct, event or occurrence of the same or any other type.
(c) In the event the Executive’s employment is terminated pursuant to this Section 4.3, other than a Change in Control Termination (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” as defined below), then, subject to Section 4.3(d4.3(e) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during on the year date of termination) had for a period of 24 months after the Executive remained in the employ date of the Company until the expiration of the Employment Period without giving effect to any further extensions pursuant to Section 2.2 hereoftermination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined below), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable in accordance with the Company’s payroll system in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) Subject to the discretion of the Compensation Committee, the The Company shall pay to the Executive a prorated pro-rated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that to which the Executive would have been entitled to had he the Executive worked for the full fiscal year during which the termination occurred, provided that based on the actual level of achievement of the applicable goals for such fiscal year. Any bonus targets are met for due as a result of the year preceding sentence shall be paid in a lump sum at the time and in the manner specified in Section 3.2 hereof.
(iii) The Executive shall receive 24 months of service credit with respect to any options to purchase common stock of the Company granted prior to the date of the termination and held by Executive on such date (“Existing Options”); notwithstanding the foregoing, if the Executive’s employment is terminated pursuant to this Section 4.3 on or after December 31, 2020, all Existing Options shall, as of the date of such termination, immediately vest. The bonus Executive shall be payable in full within forty-five have two (452) days following years after the determination date of the amount thereof and termination to exercise vested Existing Options, provided that in accordance with no event shall any options be exercisable after the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereofexpiration of the term of such options.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives Any restricted stock of the Company (A) through granted prior to the expiration date of the Employment Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options termination and other equity based awards held by the Executive on such date (“Existing Restricted Stock”) shall, as of the date of such termination, immediately vest with respect to the lesser of (x) any such options that are not vested or exercisable as 50% of such date the total number of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, shares subject to the applicable restricted stock agreement and (y) any such options that are vested and exercisable all of the restricted stock subject to the applicable restricted stock agreement as of such the date of termination shall expire immediately following such termination; notwithstanding the expiration foregoing, if the Executive’s employment is terminated pursuant to this Section 4.3 on or after December 31, 2020, all Existing Restricted Stock shall, as of the ninety date of such termination, immediately vest. Notwithstanding the foregoing, no portion of the restricted stock granted pursuant to the Restricted Stock Agreements between Executive and the Company dated May 25, 2017 and December 8, 2017, respectively, shall accelerate pursuant to this Section 4.3(c)(iv)
(90)-day period d) In the event the Executive’s employment is terminated pursuant to this Section 4.3 within 60 days prior to or within one year following a Change in Control (as defined in the Smart & Final Stores, Inc. 2014 Stock Incentive Plan; provided that such Change in Control constitutes a “change in the ownership of the corporation,” a “change in effective control of the corporation” or a “change in the ownership of a substantial portion of the assets of the corporation,” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)) (a “Change in Control Termination”), then, subject to Section 4.3(e) hereof, the following provisions shall apply:
(i) In lieu of the amounts set forth in Section 4.3(c)(i) hereof, Company shall pay the Executive an amount equal to two times (A) the Base Salary (at the Base Salary rate on the date of termination), payable in accordance with Section 4.3(c)(i) hereof, and (B) the Target Bonus (at the Target Bonus rate for the fiscal year of termination), payable in a lump sum on the first regular payroll date after the 60th day after the date of termination.
(viii) With respect The Company shall pay to any shares of Common Stock held by the Executive that are vested or the Executive shall receive, as of applicable, the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to other payments and benefits provided in Section 4.3(c)(v4.3(c)(ii)-(iv) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased.
(viie) With respect As a condition precedent to the amounts payable Executive’s right to receive the Executive under clauses (iibenefits set forth in Section 4.3(c), Section 4.3(d), Section 4.5(b), Section 4.5(c) and (iiior Section 4.5(d) of this Section 4.3 following a Change of Controlhereof, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to execute a release (“Release”) of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.3(e) hereof) (which Release shall be delivered to Executive within ten days following the date of termination) relating to the Executive’s employment by the Company and the termination thereof, thereof and such release to be Release must become effective and enforceable in form and substance reasonably satisfactory to accordance with its terms on or before the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it 60th day after Executive’s termination of employment. Such Release shall be determined that any paymentsubstantially in the form attached hereto as Exhibit A, vestingwith such modifications or additions as are necessary or advisable to render such Release enforceable under then-applicable law. In addition, distributionthe Executive’s right to receive the benefits set forth in Section 4.3(c), Section 4.3(d), Section 4.5(b), Section 4.5(c) or transfer by Section 4.5(d) hereof is conditioned on the Company or any successor, or any Affiliate of Executive’s compliance with his obligations under Section 5 hereof and under the foregoing or by any other person or that any other event occurring with respect Fair Competition Agreement attached hereto as Exhibit B. The payments to the Executive under Sections 4.2(a)(i), 4.3(c)(i), Section 4.3(d)(i), Section 4.5(c)(i) or Section 4.5(d)(i) hereof shall commence on the first regular payroll date after the 60th day after Executive’s termination of employment, and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or first payment shall include any amounts that would otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be been made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive between the date of termination and the Company within fifteen (15) business days date of the receipt of notice from the Company or the Executive that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreementfirst payment.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive’s employment for “Good Reason” if, without Executive’s written consent, (i) the Company materially diminishes the Executive’s authority, responsibility or duties, including if the Executive no longer reports directly to the Board, (ii) the Company requires the Executive to relocate to a principal place of employment that is 25 miles further (one-way) from the Executive’s current residence (as of the Effective Date) than the Company’s current headquarters in Commerce, California are from such residence, or (iii) without the Executive’s prior written consent:
(i) The , the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns . Notwithstanding any provision of this Agreement to the Executive duties or responsibilities that are materially inconsistent with contrary, the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a reduction in is permitted to reduce the Executive’s Base SalarySalary in connection with a Company-wide reduction in salary or a reduction in salary of the Company’s executive officers, generally, and any such reduction shall not be deemed to be “Good Reason,” provided, that the percentage of any such reduction is no greater than the percentage reduction of any other officer.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events:
Appears in 1 contract
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate Executive’s 's employment without “"Cause” " (as defined below), and thereby terminate Executive’s 's employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ ' prior written notice.
(b) The Executive may resign, and thereby terminate his employment (and the Employment Period), at any time for “"Good Reason” " (as defined below), upon not less than thirty (30) days’ ' prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “"Good Reason ” " (to the extent possible) within thirty (30) days after the Company’s 's receipt of such notice.
(c) In the event the Executive’s 's employment is terminated (i) by the Company without “"Cause,” " or (ii) by the Executive for “"Good Reason” " then, subject to Section 4.3(dSECTION 4.3(D) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section SECTION 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving effect to any further extensions pursuant to Section SECTION 2.2 hereof, with all such amounts payable in accordance with the Company’s 's payroll system in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined below), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section SECTION 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable in accordance with the Company’s 's payroll system in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section SECTION 4.3(c)(vii) hereof.
(iii) Subject to the discretion of the Compensation Committee, the Company shall pay to the Executive a prorated share of the Annual Bonus pursuant to Section SECTION 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days following the determination of the amount thereof and in accordance with the Company’s 's normal payroll practices and procedures, subject to Section SECTION 4.3(c)(vii) hereof.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s 's group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s 's Base Salary is being paid pursuant to clause (ii) of this Section SECTION 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section SECTION 2.2 hereof.
(v) With respect to outstanding options and other equity based awards held by the Executive as of the date of termination, (x) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section SECTION 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s 's designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased.
(vii) With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section SECTION 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to release the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representatives, and successors from and against any and all claims that the Executive may have against any such person relating to the Executive’s 's employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person or that any other event occurring with respect to the Executive and the Company for the Executive’s 's benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “"Payment”") would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “"Excise Tax”"), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax (the “"Payment Reduction”"). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax.
(i) Subject to the provisions of Section 4.3(e)(iiSECTION 4.3(E)(II), all determinations required to be made under this Section 4.3(eSECTION 4.3(E), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s 's outside auditors at the time of such determination (the “"Accounting Firm”"), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(iiSECTIONS 4.3(E)(II) and (iiiIII)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “"Overpayment”") or that a Payment Reduction not properly needed to be made should be made (an “"Underpayment”"). If, within seventy-five (75) days after the Accounting Firm’s 's initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s 's determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s 's determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(eSECTION 4.3(E) shall remain in full force and effect following the termination of the Executive’s 's employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his employment for “"Good Reason” " if without the Executive’s 's prior written consent:
(i) The Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns to the Executive duties or responsibilities that are materially inconsistent with the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a reduction in the Executive’s Base Salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events:
Appears in 1 contract
Sources: Employment Agreement (General Nutrition Companies Inc)
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s 's employment without “"Cause” " (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s 's employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive's employment (and the Employment Period), at any time for “"Good Reason” " (as defined belowin Section 4.3(f)), upon not less than thirty (30) 60 days’ ' prior written notice to the Company specifying in reasonable detail the reason thereforetherefor; provided, however, that the Company shall have a reasonable an opportunity to substantially cure any such “Good Reason ” (to the extent possible) within thirty (30) 60 days after the Company’s 's receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason on account of any act or omission by the Company, the first occurrence of which the Executive had actual notice for 60 days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive has Good Reason, and of whether the Company has substantially cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chief Executive Officer of GNC (the "Chief Executive Officer"), within the Chief Executive Officer's sole judgment and discretion, acting in good faith after having met with the Company's director of Human Resources.
(iii) A resignation by the Executive for Good Reason requires the Executive to actually resign his employment within 30 days after the Company's cure period has expired if the Company has failed to substantially cure the event constituting Good Reason.
(c) In the event the Executive’s 's employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof), the following provisions shall apply:
(i) The Company shall continue to pay the Executive Executive, as severance, an amount equal to one year of the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving effect to any further extensions pursuant to Section 2.2 hereof, with all such amounts payable be paid in accordance with the Company’s 's normal payroll system in the same manner practices and at the same time as though the Executive remained employed by the Companyprocedures.
(ii) If such termination occurs upon or within six (6) months following a Change of in Control (as defined belowin Exhibit A), the Company shall continue to pay the Executive Executive, as severance, an amount equal to two years of the Base Salary Salary, such amount to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable be paid in accordance with the Company’s 's normal payroll system in the same manner practices and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereofprocedures.
(iii) If the Executive's employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executive's Base Salary and the base salary of all executives at the same level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) shall be the Base Salary rate in effect immediately prior to such reductions. If the Executive resigns pursuant to this Section 4.3 for Good Reason, then any reduction in the Executive's Base Salary that triggered Good Reason shall be disregarded for purposes of Section 4.3(c)(i) or (ii).
(iv) Subject to the sole discretion of the Board or the Compensation Committee, the Company shall may pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to receive had he the Executive worked through the full year during which date of payment of such Annual Bonus based on the termination occurredactual level of achievement of the performance objectives, provided that bonus targets are met for the year of such termination. The bonus shall be , and payable in full within forty-five (45) days following at the determination of the amount thereof time and in accordance with the Company’s normal payroll practices and proceduresmanner annual bonuses are paid to employees, subject to Section 4.3(c)(vii) hereofgenerally.
(ivv) Unless prohibited by law or, If the Executive elects continuation coverage (with respect to the Executive's coverage and/or any insured benefit, eligible dependent coverage) under the terms Consolidated Omnibus Budget Reconciliation Act of 1986 ("COBRA Continuation Coverage") with respect to the applicable Company's group health insurance contractplan, the Executive shall continue to participate in, and be covered underresponsible for payment of the monthly cost of COBRA Continuation Coverage. Unless prohibited by law, the Company’s group life, disability, sickness, accident and Company shall reimburse the Executive for any portion of the monthly cost of COBRA Continuation Coverage that exceeds the amount of the monthly health insurance programs on premium (with respect to the same basis as other executives Executive's coverage and/or any eligible dependent coverage) payable by the Executive immediately prior to the date of the Company Executive's termination, such reimbursements to continue (A) through the expiration of the Employment Period, or, Period in effect immediately prior to the date of termination or (B) in the event that Executive’s 's Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c4.3(c)(ii), for the two (2period set forth therein. The Company shall pay the reimbursements on a monthly basis in accordance with the Company's normal payroll practices and procedures. No "gross-up" for taxes on the reimbursements under this Section 4.3(c)(v) year period shall be provided to the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereofExecutive.
(vvi) With respect to The treatment of all outstanding stock options and other equity equity-based awards held by the Executive as of the date of termination, (x) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to this Section 4.3(c)(v) hereof), for 4.3 shall be governed by the one hundred eighty (180)-day period following such date terms of termination, the Company (or its designee) shall have the right to purchase from the Executive Plan and the Executive hereby agrees to sell any or all such shares individual grant agreements applicable to the Company (or the Company’s designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchasedExecutive.
(vii) With respect to the amounts payable Payments and reimbursements made to the Executive under clauses (ii) and (iii) of this Section 4.3 4.3(c) shall be made or commence on the first regular payroll date following a Change the 60th day after the date of Controltermination, provided that on or before such date the Release (as defined in Section 4.3(d)) has been executed and any period in which the Executive may elect revoke such Release has expired, without such Release having been revoked, and provided further that the payment of all such payments and reimbursements shall be contingent on the Executive's continued compliance with all post-termination restrictive covenants applicable to receive the present value of such amounts Executive, including but not limited to those contained in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of terminationSection 5.
(d) The As a condition precedent to the Executive's right to receive the benefits set forth in Section 4.3(c). the Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f)) relating to the Executive’s 's employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the CompanyCompany (the "Release").
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s 's benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “"Payment”") would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “"Excise Tax”"), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “"Payment Reduction”"). The Executive To the extent necessary to effect the Payment Reduction, the Company shall have reduce or eliminate the rightPayments by first reducing or eliminating the portion of the Payments which are not payable in cash and then by reducing or eliminating cash payments, in his sole discretion, to designate those each case in reverse order beginning with payments or benefits that shall which are to be reduced or eliminated under paid the Payment Reduction farthest in time from the initial determination, subject to avoid the imposition confirmation of the Excise TaxAccounting Firm (as defined herein) with respect to the intended effect of such Payment Reduction.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s 's outside auditors at the time of such determination (the “"Accounting Firm”"), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) 15 business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need was not be made that properly should be made (an “"Overpayment”") or that a Payment Reduction was made that need not properly needed to be made should be made (an “"Underpayment”"). If, within seventy-five (75) 75 days after the Accounting Firm’s 's initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) 35 days after the Executive receives notice of the Accounting Firm’s 's determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will shall not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) 35 days after the Company receives notice of the Accounting Firm’s 's determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) 15 days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s 's employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be is entitled to terminate his the Executive's employment for “"Good Reason” " if without the Executive’s 's prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;; or
(ii) The Company assigns to the Executive duties or responsibilities that are materially inconsistent with the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a material reduction in the Executive’s 's Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary (in which case any such material reduction shall not be considered to be a failure by the Company to comply with a material alteration imposed by this Agreement).
(g) For purposes of this Agreement, “"Cause” " means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s 's employment without “"Cause” " (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s 's employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive's employment (and the Employment Period), at any time for “"Good Reason” " (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ ' prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty sixty (3060) days after the Company’s 's receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company's acts or omissions of which Executive had actual notice for sixty (60) days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive's employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chief Executive Officer of the Company (the "Chief Executive Officer"), within the Chief Executive Officer's sole judgment and discretion, acting in good faith after having met with the Company's Vice President of Human Resources.
(c) In the event the Executive’s 's employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s 's normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit A attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s 's normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) In the event the Executive's employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executive's Base Salary and the base salary of all executives at the same level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) Subject to the sole discretion of the Board or the Compensation Committee, the Company shall may pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days as soon as reasonably practicable following the determination thereof, but in no event later than May 15 of the amount thereof following year, and in accordance with the Company’s 's normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives of the Company (A) through the expiration of the Employment Period, or, (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options and other equity equity-based awards held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, forfeited and (yB) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vi) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination pursuant to this Section 4.3 (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive Executive, and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s 's designee) ), for an amount equal to the product of (xA) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (yB) the number of shares so purchased.
(vii) With respect The Executive shall continue to be entitled to the amounts payable fringe benefits available to the Executive under clauses immediately preceding the Executive's date of termination pursuant to Section 4.3, in each case (iiA) and (iii) through the expiration of this Section 4.3 following a Change of Control, the Executive may elect Employment Period in effect immediately prior to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination, or, (B) in the event that Executive's Base Salary is being paid pursuant to Section 4.3(c)(ii), for the period set forth therein.
(d) The As a condition precedent to the Executive's right to receive the benefits set forth in Section 4.3(c) hereof, the Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s 's employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s 's benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “"Payment”") would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the "Code") (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “"Excise Tax”"), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “"Payment Reduction”"). The Executive shall have the right, in his sole discretion, right to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax, subject to the confirmation of the Accounting Firm (as defined herein) with respect to the intended effect thereof. Notwithstanding the foregoing, the Payment Reduction shall not apply if the Executive would, on a net after-tax basis, receive less compensation than if the Payment were not so reduced.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers KPMG LLP, or any other nationally recognized accounting firm that shall be the Company’s 's outside auditors at the time of such determination (the “"Accounting Firm”"), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “"Overpayment”") or that a Payment Reduction not properly needed to be made should be made (an “"Underpayment”"). If, within seventy-five (75) days after the Accounting Firm’s 's initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s 's determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s 's determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s 's employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive's employment for “"Good Reason” " if without the Executive’s 's prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The the Company assigns to changes the Executive's position from that of an Executive Vice President; provided, however, that (A) a change in the Executive's duties or responsibilities that are materially inconsistent with without a change in the Executive’s positions's position as an Executive Vice President shall not constitute Good Reason and (B) nothing herein shall prohibit the Company from changing the Executive's specific title as an Executive Vice President, dutiesnotwithstanding the specific title set forth in Section 1.1 hereof, responsibilities, titles and offices in effect on based upon the Effective DateCompany's needs from time to time; or
(iii) The the Company effects a reduction in the Executive’s 's Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary.
(g) For purposes of this Agreement, “"Cause” " means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g) hereof), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticenotice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined below), in Section 4.3(f) hereof) upon not less than thirty (30) 30 days’ and not more than 60 days’ prior written notice to the Company specifying the existence of Good Reason and the reason therefor in reasonable detail the reason thereforedetail; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possiblecurable) within thirty (30) 30 days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period. The Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for 90 days or more prior to giving notice of termination for “Good Reason;” provided that any waiver by the Executive of any conduct, event or occurrence that otherwise would have constituted Good Reason shall not be a waiver of any subsequent conduct, event or occurrence of the same or any other type.
(c) In the event the Executive’s employment is terminated pursuant to this Section 4.3, other than a Change in Control Termination (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” as defined below), then, subject to Section 4.3(d4.3(e) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during on the year date of termination) had for a period of 24 months after the Executive remained in the employ date of the Company until the expiration of the Employment Period without giving effect to any further extensions pursuant to Section 2.2 hereoftermination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined below), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for a two (2) year period following such date of termination, with all such amounts payable in accordance with the Company’s payroll system in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) Subject to the discretion of the Compensation Committee, the The Company shall pay to the Executive a prorated pro-rated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that to which the Executive would have been entitled to had he the Executive worked for the full fiscal year during which the termination occurred, based on the actual level of achievement of the applicable goals for such fiscal year. Any bonus due as a result of the preceding sentence shall be paid in a lump sum at the time and in the manner specified in Section 3.2 hereof.
(iii) The Executive shall receive 24 months of service credit with respect to any options to purchase common stock of the Company granted prior to the date of the termination of Executive’s employment and held by Executive on such date (“Existing Options”). The Executive shall have two (2) years after the date of the termination of the Executive’s employment to exercise vested Existing Options, provided that bonus targets are met for in no event shall any options be exercisable after the year expiration of the term of such termination. The bonus shall be payable in full within forty-five (45) days following the determination of the amount thereof and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereofoptions.
(iv) Unless prohibited by law or, with respect to any insured benefit, the terms of the applicable insurance contract, the Executive shall continue to participate in, and be covered under, the Company’s group life, disability, sickness, accident and health insurance programs on the same basis as other executives Any restricted stock of the Company (A) through granted prior to the expiration date of the Employment Period, or, (B) in the event that termination of Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c), for the two (2) year period the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereof.
(v) With respect to outstanding options employment and other equity based awards held by the Executive on such date shall, as of the date of such termination, immediately vest with respect to the lesser of (x) any such options that are not vested or exercisable as 50% of such date the total number of termination shall immediately expire and any such equity based awards that are not vested as of such date of termination shall immediately be forfeited, shares subject to the applicable restricted stock agreement and (y) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration all of the ninety (90)-day period following such date of termination.
(vi) With respect restricted stock subject to any shares of Common Stock held by the Executive that are vested applicable restricted stock agreement as of the date of termination (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) for an amount equal to the product of (x) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (y) the number of shares so purchased.
(vii) With respect to the amounts payable to the Executive under clauses (ii) and (iii) of this Section 4.3 following a Change of Control, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) In the event the Executive’s employment is terminated pursuant to this Section 4.3 within 60 days prior to or within one year following a Change in Control (as defined in the Smart & Final Stores, Inc. 2014 Stock Incentive Plan; provided that such Change in Control constitutes a “change in the ownership of the corporation,” a “change in effective control of the corporation” or a “change in the ownership of a substantial portion of the assets of the corporation,” within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”)) (a “Change in Control Termination”), then, subject to Section 4.3(e) hereof, the following provisions shall apply:
(i) In lieu of the amounts set forth in Section 4.3(c)(i) hereof, Company shall pay the Executive an amount equal to two times (A) annual Base Salary (at the Base Salary rate on the date of termination) and (B) Executive’s Target Bonus (at the Target Bonus rate for the fiscal year of termination), (1) to the extent permitted by Section 409A of the Code and the regulations thereunder , in a lump sum on the first regular payroll date after the 60th day after the date of termination and (2) for any remaining amounts, in accordance with Section 4.3(c)(i) hereof.
(ii) The Company shall pay to the Executive or the Executive shall receive, as applicable, the other payments and benefits provided in Section 4.3(c)(ii)-(iv) hereof.
(e) As a condition precedent to the Executive’s right to receive the benefits set forth in Section 4.3(c), Section 4.3(d) or Section 4.5(b) hereof, the Executive agrees to execute a release (“Release”) of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.3(e) hereof) (which Release shall be delivered to Executive within ten days following the date of termination) relating to the Executive’s employment by the Company and the termination thereof, thereof and such release to be Release must become effective and enforceable in form and substance reasonably satisfactory to accordance with its terms on or before the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it 60th day after Executive’s termination of employment. Such Release shall be determined that any paymentsubstantially in the form attached hereto as Exhibit A, vestingwith such modifications or additions as are necessary or advisable to render such Release enforceable under then-applicable law. In addition, distributionthe Executive’s right to receive the benefits set forth in Section 4.3(c), Section 4.3(d) or transfer by Section 4.5(b) hereof is conditioned on the Company or any successor, or any Affiliate of Executive’s compliance with his obligations under Section 5 hereof and under the foregoing or by any other person or that any other event occurring with respect Fair Competition Agreement attached hereto as Exhibit B. The payments to the Executive under Sections 4.2(a)(i), 4.3(c)(i) or Section 4.3(d)(i) hereof shall commence on the first regular payroll date after the 60th day after Executive’s termination of employment, and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or first payment shall include any amounts that would otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be been made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive between the date of termination and the Company within fifteen (15) business days date of the receipt of notice from the Company or the Executive that there will be a Payment that the person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreementfirst payment.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive’s employment for “Good Reason” if, without Executive’s written consent, (i) the Company materially diminishes the Executive’s authority, responsibility or duties, including if the Executive no longer reports directly to the Board, (ii) the Company requires the Executive to relocate to a principal place of employment that is 25 miles further (one-way) from the Executive’s current residence (as of the Effective Date) than the Company’s current headquarters in Commerce, California are from such residence, or (iii) without the Executive’s prior written consent:
(i) The , the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The Company assigns . Notwithstanding any provision of this Agreement to the Executive duties or responsibilities that are materially inconsistent with contrary, the Executive’s positions, duties, responsibilities, titles and offices in effect on the Effective Date; or
(iii) The Company effects a reduction in is permitted to reduce the Executive’s Base SalarySalary in connection with a Company-wide reduction in salary or a reduction in salary of the Company’s executive officers, generally, and any such reduction shall not be deemed to be “Good Reason,” provided, that the percentage of any such reduction is no greater than the percentage reduction of any other officer.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events:
Appears in 1 contract
Termination by the Company Without Cause or Resignation by the Executive for Good Reason. (a) The Company may terminate the Executive’s employment without “Cause” (as defined belowin Section 4.3(g)), and thereby terminate the Executive’s employment (and the Employment Period) under this Agreement at any time upon not less than thirty (30) days’ prior written noticewith no requirement for notice to the Executive.
(b) The Executive may resign, and thereby terminate his the Executive’s employment (and the Employment Period), at any time for “Good Reason” (as defined belowin Section 4.3(f) hereof), upon not less than thirty sixty (3060) days’ prior written notice to the Company specifying in reasonable detail the reason therefore; provided, however, that the Company shall have a reasonable opportunity to cure any such “Good Reason ” (to the extent possible) within thirty sixty (3060) days after the Company’s receipt of such notice; and provided further that, if the Company is not seeking to cure, the Company shall not be obligated to allow the Executive to continue working during such period and may, in its sole discretion, accelerate such termination of employment (and the Employment Period) to any date during such period.
(i) Executive may not terminate employment under this Agreement for Good Reason regarding any of the Company’s acts or omissions of which Executive had actual notice for sixty (60) days or more prior to giving notice of termination for Good Reason.
(ii) A determination of whether the Executive legitimately has Good Reason for termination of the Executive’s employment under this Agreement, and of whether the Company has effectively cured and thus eliminated the grounds for such Good Reason, shall be made only by the Chief Executive Officer of the Company (the “Chief Executive Officer”), within the Chief Executive Officer’s sole judgment and discretion, acting in good faith after having met with the Company’s Vice President of Human Resources.
(c) In the event the Executive’s employment is terminated (i) by the Company without “Cause,” or (ii) by the Executive for “Good Reason” pursuant to this Section 4.3, then, subject to Section 4.3(d) hereof, the following provisions shall apply:
(i) The Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) had the Executive remained in the employ of the Company until the expiration of the Employment Period without giving in effect immediately prior to any further extensions pursuant to Section 2.2 hereofthe date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company; provided, however, that if the date of termination is during the Initial Employment Period, the Company shall continue to pay the Executive such Base Salary for the greater of (A) the period set forth above in this Section 4.3(c)(i) or (B) a twelve (12)-month period following such date of termination.
(ii) If such termination occurs upon or within six (6) months following a Change of Control (as defined belowin Exhibit A attached hereto), the Company shall continue to pay the Executive the Base Salary to which the Executive would have been entitled pursuant to Section 3.1 hereof (at the Base Salary rate during the year of termination) for the greater of (A) the period set forth in Section 4.3(c)(i) hereof or (B) a two (2) year 2)-year period following such date of termination, with all such amounts payable in accordance with the Company’s normal payroll system practices and procedures in the same manner and at the same time as though the Executive remained employed by the Company, subject to Section 4.3(c)(vii) hereof.
(iii) In the event the Executive’s employment is terminated pursuant to this Section 4.3 without Cause, and if the Company has previously effected reductions in the Executive’s Base Salary and the base salary of all executives at the same level as the Executive, which reductions were substantially similar, then the Base Salary rate for purposes of Section 4.3(c)(i) or (ii) hereof shall be the Base Salary rate in effect immediately prior to such reductions.
(iv) Subject to the sole discretion of the Board or the Compensation Committee, the Company shall may pay to the Executive a prorated share of the Annual Bonus pursuant to Section 3.2 hereof (based on the period of actual employment) that the Executive would have been entitled to had he the Executive worked the full year during which the termination occurred, provided that bonus targets are met for the year of such termination. The bonus shall be payable in full within forty-five (45) days as soon as reasonably practicable following the determination thereof, but in no event later than May 15 of the amount thereof following year, and in accordance with the Company’s normal payroll practices and procedures, subject to Section 4.3(c)(vii) hereof.
(ivv) Unless prohibited by law or, If the Executive elects continuation coverage (with respect to the Executive’s coverage and/or any insured benefit, eligible dependent coverage) under the terms Consolidated Omnibus Budget Reconciliation Act of 1986 (“COBRA Continuation Coverage”) with respect to the applicable Company’s group health insurance contractplan, the Executive shall continue to participate in, and be covered underresponsible for payment of the monthly cost of COBRA Continuation Coverage. Unless prohibited by law, the Company’s group life, disability, sickness, accident and Company shall reimburse the Executive for any portion of the monthly cost of COBRA Continuation Coverage that exceeds the amount of the monthly health insurance programs on premium (with respect to the same basis as other executives Executive’s coverage and/or any eligible dependent coverage) payable by the Executive immediately prior to the date of the Company Executive’s termination, such reimbursements to continue (A) through the expiration of the Employment Period, or, Period in effect immediately prior to the date of termination or (B) in the event that Executive’s Base Salary is being paid pursuant to clause (ii) of this Section 4.3(c4.3(c)(ii), for the two (2) year period set forth therein. The Company shall pay the Executive is entitled to such payment, without giving effect to any further extensions pursuant to Section 2.2 hereofreimbursements on a monthly basis in accordance with the Company’s normal payroll practices and procedures.
(vvi) With respect to outstanding options and other equity equity-based awards held by the Executive as of the date of terminationtermination pursuant to this Section 4.3, (xA) any such options that are not vested or exercisable as of such date of termination shall immediately expire and any such equity equity-based awards that are not vested as of such date of termination shall immediately be forfeited, forfeited and (yB) any such options that are vested and exercisable as of such date of termination shall expire immediately following the expiration of the ninety (90)-day period following such date of termination.
(vivii) With respect to any shares of Common Stock held by the Executive that are vested as of the date of termination pursuant to this Section 4.3 (or issued pursuant to the exercise of options following such date of termination pursuant to Section 4.3(c)(v4.3(c)(vi) hereof), for the one hundred eighty (180)-day period following such date of termination, the Company (or its designee) shall have the right to purchase from the Executive Executive, and the Executive hereby agrees to sell any or all such shares to the Company (or the Company’s designee) ), for an amount equal to the product of (xA) the per share current fair market value of a share of Common Stock (as determined by the Board in good faith) and (yB) the number of shares so purchased.
(viid) With respect As a condition precedent to the amounts payable Executive’s right to receive the Executive under clauses (iibenefits set forth in Section 4.3(c) and (iii) of this Section 4.3 following a Change of Controlhereof, the Executive may elect to receive the present value of such amounts in a lump sum based on a present value discount rate equal to six percent (6%) per year. Such election must be made in writing by the Executive within fifteen (15) days of his date of termination.
(d) The Executive agrees to execute a release of the Company and its respective Affiliates, officers, directors, stockholders, employees, agents, representativesinsurers, representatives and successors from and against any and all claims that the Executive may have against any such person Person (as defined in Section 5.4(f) hereof) relating to the Executive’s employment by the Company and the termination thereof, such release to be in form and substance reasonably satisfactory to the Company.
(e) Anything in this Agreement to the contrary notwithstanding, if it shall be determined that any payment, vesting, distribution, distribution or transfer by the Company or any successor, or any Affiliate of the foregoing or by any other person Person or that any other event occurring with respect to the Executive and the Company for the Executive’s benefit, whether paid or payable or distributed or distributable under the terms of this Agreement or otherwise (including under any employee benefit plan) (a “Payment”) would be subject to or result in the imposition of the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (and any regulations or guidance promulgated or issued thereunder, any successor provision, and any similar provision of state or local income tax law) (collectively, the “Excise Tax”), then the amount of the Payment shall be reduced to the highest amount that may be paid by the Company or other entity without subjecting any such Payment to the Excise Tax (the “Payment Reduction”). The Executive shall have the right, in his sole discretion, right to designate those payments or benefits that shall be reduced or eliminated under the Payment Reduction to avoid the imposition of the Excise Tax, subject to the confirmation of the Accounting Firm (as defined herein) with respect to the intended effect thereof.
(i) Subject to the provisions of Section 4.3(e)(ii), all determinations required to be made under this Section 4.3(e), including whether and when a Payment is subject to Section 4999 and the assumptions to be utilized in arriving at such determination and in determining an appropriate Payment Reduction, shall be made by PricewaterhouseCoopers LLP, or any other nationally recognized accounting firm that shall be the Company’s outside auditors at the time of such determination (the “Accounting Firm”), which Accounting Firm shall provide detailed supporting calculations to the Executive and the Company within fifteen (15) business days of the receipt of notice from the Company or the Executive that there will be a Payment that the person Person giving notice believes may be subject to the Excise Tax. All fees and expenses of the Accounting Firm shall be borne by the Company. Any determination by the Accounting Firm shall be binding upon the Company and the Executive in determining whether a Payment Reduction is required and the amount thereof (subject to Sections 4.3(e)(ii) and (iii)), in the absence of material mathematical or legal error.
(ii) As a result of uncertainty in the application of Section 4999 that may exist at the time of the initial determination by the Accounting Firm, it may be possible that in making the calculations required to be made hereunder, the Accounting Firm shall determine that a Payment Reduction need not be made that properly should be made (an “Overpayment”) or that a Payment Reduction not properly needed to be made should be made (an “Underpayment”). If, within seventy-five (75) days after the Accounting Firm’s initial determination under the preceding clause (iSection 4.3(e)(i), the Accounting Firm shall determine that an Overpayment was made, any such Overpayment shall be treated for all purposes, to the extent practicable and subject to applicable law, as a loan to the Executive with interest at the applicable Federal rate provided for in Section 1274(d) of the Code and shall be repaid by the Executive to the Company within thirty-five (35) days after the Executive receives notice of the Accounting Firm’s determination; provided, however, that the amount to be repaid by the Executive to the Company either as a loan or otherwise as a lump sum payment (where a loan is not practicable or permitted by law) shall be reduced to the extent that any portion of the Overpayment to be repaid will not be offset by a corresponding reduction in tax by reason of such repayment of the Overpayment. If the Accounting Firm shall determine that an Underpayment was made, any such Underpayment shall be due and payable by the Company to the Executive within thirty-five (35) days after the Company receives notice of the Accounting Firm’s determination.
(iii) The Executive shall give written notice to the Company of any claim by the IRS Internal Revenue Service that, if successful, would require the payment by the Executive of an Excise Tax, such notice to be provided within fifteen (15) days after the Executive shall have received written notice of such claim. The Executive shall cooperate with the Company in determining whether to contest or pay such claim and shall not pay such claim without the written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed.
(iv) This Section 4.3(e) shall remain in full force and effect following the termination of the Executive’s employment for any reason until the expiration of the statute of limitations on the assessment of taxes applicable to the Executive for all periods in which the Executive may incur a liability for taxes (including Excise Taxes), interest or penalties arising out of the operation of this Agreement.
(f) For purposes of this Agreement, the Executive would be entitled to terminate his the Executive’s employment for “Good Reason” if without the Executive’s prior written consent:
(i) The the Company fails to comply with any material obligation imposed by this Agreement;
(ii) The the Company assigns to changes the Executive Executive’s position from that of a Senior Vice President; provided, however, that (A) a change in the Executive’s duties or responsibilities that are materially inconsistent with without a change in the Executive’s positionsposition as a Senior Vice President shall not constitute Good Reason and (B) nothing herein shall prohibit the Company from changing the Executive’s specific title as a Senior Vice President, dutiesnotwithstanding the specific title set forth in Section 1.1 hereof, responsibilities, titles and offices in effect on based upon the Effective DateCompany’s needs from time to time; or
(iii) The the Company effects a reduction in the Executive’s Base Salary, unless all executives at the same level as the Executive receive a substantially similar reduction in base salary.
(g) For purposes of this Agreement, “Cause” means the occurrence of any one or more of the following events, and the Company shall have the sole discretion to determine the existence of Cause:
Appears in 1 contract
Sources: Employment Agreement (GNC Corp)