TERMINATION OF EMPLOYMENT; EFFECT OF TERMINATION. (a) Executive's employment hereunder shall terminate upon the first to occur of the following: (i) upon thirty (30) days' prior written notice to Executive upon the determination by the Board of Directors that Executive's performance of his duties has not been fully satisfactory for any reason which would not constitute "justifiable cause" (as hereinafter defined); (ii) upon three (3) days' prior written notice to Executive upon the determination by the Board of Directors that there is justifiable cause for such termination; (iii) automatically and without notice upon the death of Executive; (iv) in accordance with the terms of subsection (e) hereof upon the "disability" (as hereinafter defined) of Executive; (v) upon written notice by the Executive to the Company of a termination for good reason (as defined in subsection (f) below) within ninety (90) days after the event that constitutes good reason; or (vi) upon 30 days' prior written notice by Executive to the Company of the Executive's voluntary termination of employment without good reason. (b) For the purposes of this Agreement, the term "disability" shall mean the inability of Executive, due to illness, accident or any other physical or mental incapacity, substantially to perform the material functions of his duties for a period of six (6) consecutive months or for a total of eight (8) months (whether or not consecutive) in any twelve (12) month period during the term of this Agreement, as reasonably determined by the Board of Directors, in good faith, after examination of Executive by an independent physician reasonably acceptable to Executive. (c) For the purposes hereof, the term "justifiable cause" shall mean: (i) Executive's repeated failure or refusal to attempt to perform his duties pursuant to, or Executive's breach of, this Agreement where such conduct or breach shall not have ceased or been remedied within 15 days following written warning from the Company; (ii) Executive's performance of any act or his failure to act, for which if Executive were prosecuted and convicted, a crime or offense involving money or property of the US Shipping Group, or which would constitute a felony in the jurisdiction involved, would have occurred; (iii) Executive's performance of any act or his failure to act which constitutes, in the reasonable good faith determination of the Board of Directors, dishonesty, fraud or a breach of a fiduciary trust, including without limitation misappropriation of funds; (iv) any intentional unauthorized disclosure by Executive to any person, firm or corporation other than the members of the US Shipping Group and their respective directors, managers, officers and employees, of any confidential information or trade secret of the US Shipping Group; (v) any attempt by Executive to secure any personal profit (other than through his ownership of Units of Parent) in connection with the business of the US Shipping Group (for example, without limitation, using US Shipping Group assets to pursue other interests, diverting any business opportunity belonging to US Shipping Group to himself or to a third party, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or taking bribes or kickbacks); (vi) Executive's engagement in a fraudulent act to the material damage of the US Shipping Group; (vii) Executive's illegal use of controlled substances; (viii) any act or omission by Executive involving malfeasance or gross negligence in the performance of Executive's duties to the material detriment of the US Shipping Group, as determined in reasonable good faith by the Board of Directors; or (ix) the entry of any order of a court that remains in effect and is not discharged for a period of at least sixty (60) days, which enjoins or otherwise limits or restricts the performance by Executive under this Agreement, relating to any contract, agreement or commitment made by or applicable to Executive in favor of any former employer or any other person. Upon termination of Executive's employment for justifiable cause, Executive shall not be entitled to any amounts or benefits hereunder other than such portion of Executive's annual salary and reimbursement of expenses pursuant to Section 4 hereof as has been accrued through the date of his termination of employment.
Appears in 1 contract
TERMINATION OF EMPLOYMENT; EFFECT OF TERMINATION. (a) The Executive's employment hereunder shall terminate may be terminated at any time upon written notice by the Company, upon the first to occur occurrence of any of the followingfollowing events during the term of this agreement:
(i) upon thirty (30) days' prior written notice to Executive upon the determination by the Board of Directors that Executive's performance of his duties has not been fully satisfactory for any reason which would not constitute "justifiable cause" (as hereinafter defined);
(ii) upon three (3) days' prior written notice to Executive upon the determination by the Board of Directors that there is justifiable cause for such termination;
(iii) automatically and without notice upon the death of Executive;
(ivii) in accordance with the terms disability of subsection (e) hereof upon the "disability" (as hereinafter defined) of Executive;
(v) upon written notice by the Executive to the Company of a termination for good reason (as defined in subsection (f) below) within ninety (90) days after the event that constitutes good reason; or
(vi) upon 30 days' prior written notice by Executive to the Company of the Executive's voluntary termination of employment without good reason.
paragraph (b) ); For the purposes of this Agreementhereof, the term "disability" shall mean the inability of Executive, due to illness, accident or any other physical or mental incapacity, substantially to perform the material functions of his duties in a normal manner for a period of six (6) consecutive months or for a total of eight (8) months (whether or not consecutive) in any twelve (12) month period during the term of this Agreement, as reasonably determined by the Board of Directors, in good faith, after examination of Executive by an independent physician reasonably acceptable to Executive.. or
(ciii) the determination that there is cause (as hereinafter defined) for such termination. For the purposes hereof, the term "justifiable cause" shall mean: mean and be limited to, if one of the following events should occur during the employment term:
(A) Executive is convicted in a court of law of a (i) Executive's repeated failure felony or refusal to attempt to perform his duties pursuant to, or Executive's breach of, this Agreement where such conduct or breach shall not have ceased or been remedied within 15 days following written warning from the Company; (ii) Executive's performance of any act or his failure to act, for which if Executive were prosecuted and convicted, a crime or offense involving material misuse or misappropriation of money or other property of the US Shipping Group, or which would constitute Company; or
(B) Executive breaches a felony in the jurisdiction involved, would have occurred; (iii) Executive's performance material provision of any act or his failure to act which constitutes, in the reasonable good faith determination of the Board of Directors, dishonesty, fraud or a this Agreement and such breach of a fiduciary trust, including without limitation misappropriation of funds; (iv) any intentional unauthorized disclosure by Executive to any person, firm or corporation other than the members of the US Shipping Group and their respective directors, managers, officers and employees, of any confidential information or trade secret of the US Shipping Group; (v) any attempt by Executive to secure any personal profit (other than through his ownership of Units of Parent) in connection with the business of the US Shipping Group (for example, without limitation, using US Shipping Group assets to pursue other interests, diverting any business opportunity belonging to US Shipping Group to himself or to a third party, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or taking bribes or kickbacks); (vi) Executive's engagement in a fraudulent act to the material damage of the US Shipping Group; (vii) Executive's illegal use of controlled substances; (viii) any act or omission by Executive involving malfeasance or gross negligence in the performance of Executive's duties to the material detriment of the US Shipping Group, as determined in reasonable good faith by the Board of Directors; or (ix) the entry of any order of a court that remains in effect and is not discharged continues for a period of thirty (30) days after written notice of such breach is given to Executive by Company.
(b) Executive may resign from his employment without good reason by notice to the Company at least sixty (60) daysdays prior to the date of termination.
(c) Executive shall have the right to terminate Executive's employment hereunder at any time for good reason. For purposes hereof, which enjoins or otherwise limits or restricts the performance “good reason” shall mean, a reasonable determination by Executive under that any of the following has occurred:
(i) A material breach by the Company of the terms of this Agreement, relating which breach is not cured promptly after notice thereof from Executive; or
(ii) A change in control (as hereinafter defined) has occurred and following such change of control or during the sixty (60) days prior to such change of control, the Company has reduced the Executive’s base salary and or benefits, in one or a series of reductions, below the Executive’s base salary for any contractof the three years period immediately preceding the change of control. A change in control shall mean (a) any person becomes the beneficial owner (as term is defined in the Securities Exchange Act of 1934) directly or indirectly, agreement of securities representing more than fifty percent (50%) of the total voting power of Company’s shares; or commitment made (b) a change in the composition of the Board of Directors as a result of which fewer than a majority of the directors are Incumbent Directors. Incumbent Directors shall mean directors who are either directors of the Company on the date hereof or are elected by the Board of Directors with the affirmative vote of a majority of the Incumbent Directors at the time of election or applicable (c) the Company merges with another corporation after which a majority of the shares of the resulting entity are not held by shareholders of the Company prior to the merger.
(iii) An assignment to Executive in favor of any former employer duties inconsistent with Executive’s position (including status, office, title, and reporting requirements) authority, duties or any other person. Upon termination responsibilities as contemplated by Section 3 hereof which results in diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated and insubstantial action not taken in bad faith which is remedied by the Company after receipt of notice thereof given by Executive.
(d) In the event that Executive's employment is terminated by Executive for justifiable any reason other than good reason or by the Company for cause, Executive shall not will be entitled to any amounts or benefits hereunder other than such portion of Executive's annual only his accrued salary and reimbursement of expenses pursuant to Section 4 hereof as has been accrued through the date of termination and nothing more.
(e) In the event that Executive's employment is terminated by Executive for good reason or by the Company without cause, the Company shall pay to Executive, within thirty (30) days after the date of termination, his termination monthly salary for an additional one year after the date of employmenttermination, bonus, vacation pay, expense reimbursement and any other entitlements under this Agreement to the extent not previously paid through the term of this Agreement.
(f) If Executive’s employment is terminated by reason of Executive’s death, this Agreement shall terminate without further obligation other than payment of accrued obligations. If Executive’s employment is terminated by reason of Executive’s disability, this Agreement shall terminate without further obligation other than payment of (i) accrued obligations, (ii) Welfare Benefit Continuation, and (iii) Executive’s base salary for a period of six (6) months following termination.
Appears in 1 contract
TERMINATION OF EMPLOYMENT; EFFECT OF TERMINATION. Section 6 of the Employment Agreement is hereby amended as follows:
(a) Executive's employment hereunder shall terminate upon Insert the first following prior to occur the end of the following:
clause (iv) upon thirty of Section 6(a): “; provided, however, that if (30A) days' prior written notice to Executive upon the determination by the Board of Directors that Executive's performance of his duties has not been fully satisfactory for any reason which would not constitute "justifiable cause" (as hereinafter defined);
(ii) upon three (3) days' prior written notice to Executive upon the determination by the Board of Directors that there is justifiable cause for such termination;
(iii) automatically and without notice upon the death of Executive;
(iv) within six months after a Change in accordance with the terms of subsection (e) hereof upon the "disability" Control (as hereinafter defined) of Executive;
(v) upon written notice by the Executive to notifies the Company in writing of a termination for good reason (as defined in subsection (f) below) within ninety (90) days after his desire to voluntarily terminate his employment, the event that constitutes good reason; or
(vi) upon 30 days' prior written notice by Executive to the Company date of the Executive's voluntary his termination of employment without good reason.
(b) For shall be the purposes of this Agreement, the term "disability" shall mean the inability of Executive, due to illness, accident or any other physical or mental incapacity, substantially to perform the material functions of his duties for a period of six (6) consecutive months or for a total of eight (8) months (whether or not consecutive) in any twelve (12) month period during the term of this Agreement, as reasonably determined date specified by the Board Company that is not more than six months after Executive’s notice is received by the Company or (B) Executive is not offered the position of Directors, in good faith, after examination of Chief Executive by an independent physician reasonably acceptable to Executive.
(c) For the purposes hereof, the term "justifiable cause" shall mean: (i) Executive's repeated failure or refusal to attempt to perform his duties pursuant to, or Executive's breach of, this Agreement where such conduct or breach shall not have ceased or been remedied within 15 days following written warning from the Company; (ii) Executive's performance of any act or his failure to act, for which if Executive were prosecuted and convicted, a crime or offense involving money or property Officer of the US Shipping Group, or which would constitute a felony in the jurisdiction involved, would have occurred; (iii) Executive's performance of any act or his failure to act which constitutes, in the reasonable good faith determination of the Board of Directors, dishonesty, fraud or a breach of a fiduciary trust, including without limitation misappropriation of funds; (iv) any intentional unauthorized disclosure by Executive to any person, firm or corporation other than the members of the US Shipping Group and their respective directors, managers, officers and employees, of any confidential information or trade secret of the US Shipping Group; (v) any attempt by Executive to secure any personal profit (other than through his ownership of Units of Parent) in connection with the business of the US Shipping Group (for example, without limitation, using US Shipping Group assets to pursue other interests, diverting any business opportunity belonging to US Shipping Group to himself or to a third party, ▇Company within thirty days after ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or taking bribes or kickbacks); (vi) Executive's engagement in a fraudulent act to is no longer the material damage Chief Executive Officer of the US Shipping Group; (vii) Executive's illegal use Company and, within thirty days after the end of controlled substances; (viii) any act or omission by Executive involving malfeasance or gross negligence in the performance of Executive's duties to the material detriment of the US Shipping Group, as determined in reasonable good faith by the Board of Directors; or (ix) the entry of any order of a court that remains in effect and is not discharged for a period of at least sixty (60) days, which enjoins or otherwise limits or restricts the performance by Executive under this Agreement, relating to any contract, agreement or commitment made by or applicable to Executive in favor of any former employer or any other person. Upon termination of Executive's employment for justifiable causesuch thirty-day period, Executive shall not be entitled notifies the Company in writing of his desire to any amounts or benefits hereunder other than such portion of Executive's annual salary and reimbursement of expenses pursuant to Section 4 hereof as has been accrued through voluntarily terminate his employment, the date of his termination of employment shall be the date specified by the Company that is not more than three months after Executive’s notice is received by the Company. The Company shall provide its notice under clause (A) or (B) of the proviso in the preceding sentence to Executive within thirty days after Executive’s notice is received by the Company”.
(b) Insert the following prior to the end of the first sentence of Section 6(f): “; provided, however, that Section 6(i) shall apply in the event Executive’s employment is terminated as a result of the events set forth therein”.
(c) Insert the following prior to the end of Section 6(h): “, and Executive agrees to immediately resign as a director of the Company (if he is then serving as a director)”.
(d) A new Section 6(i) is hereby added to the Employment Agreement:
(i) (A) The Executive will receive the severance payments and benefits described this Section 6(i) if a Change in Control occurs during the Term and thereafter (1) the Company terminates the Executive’s employment without justifiable cause or (2) the Executive terminates the Executive’s employment for good reason within three months after the occurrence of the event giving rise to such good reason. For the purposes of this Agreement, the term “Company” shall be deemed to include the Company, any subsidiary of the Company and, following a Change in Control, any direct or indirect successor to the Company.
(i) (B) If a severance event described in clause (A) of this Section 6(i) occurs, then the Executive will receive the following severance payments and benefits:
(1) an amount equal to 2.0 times the sum of (a) the Executive’s highest annual rate of salary in effect during the one-year period preceding the date of the Executive’s employment terminates, plus (b) the average annual cash bonus earned by the Executive during the two fiscal years preceding the fiscal year in which the Executive’s employment terminates, which amount will be payable in equal periodic installments during the 24-month period following the termination of the Executive’s employment in accordance with normal payroll practices (for purposes of Section 409A of the Internal Revenue Code (the “Code”), this series of installment payments is treated as a right to a series of separate payments); provided, however, that for the purposes of clause (b) above, the Executive’s bonus for each of the years ended January 31, 2008 and 2009 shall be deemed to be $1,200,000; and
(2) If, immediately before the termination of the Executive’s employment, the Executive and/or the Executive’s spouse and/or any of the Executive’s dependents participates (other than via COBRA) in a Company group health plan, then, for the 24 months following the date of such termination (or, if sooner, until corresponding coverage is obtained under a successor employer’s plan), the Executive and/or such spouse and/or dependents may elect to continue participating in the Company’s plan at the same benefit and contribution levels and on the same basis as if the Executive’s employment had continued (which continuing participation will be deemed to be in addition to and not in lieu of COBRA), or, if such coverage is not permitted by the plan or by applicable law, then, in lieu of such coverage, the Company will provide COBRA continuation coverage to the Executive, and the Executive’s spouse and/or dependents, at the Company’s sole expense, if and to the extent any of such persons elects and is entitled to receive COBRA continuation coverage.
Appears in 1 contract
Sources: Employment Agreement (G Iii Apparel Group LTD /De/)
TERMINATION OF EMPLOYMENT; EFFECT OF TERMINATION. (a) The Executive's employment hereunder shall terminate may be terminated at any time upon written notice by the Company, upon the first to occur occurrence of any of the followingfollowing events during the term of this agreement:
(i) upon thirty (30) days' prior written notice to Executive upon the determination by the Board of Directors that Executive's performance of his duties has not been fully satisfactory for any reason which would not constitute "justifiable cause" (as hereinafter defined);
(ii) upon three (3) days' prior written notice to Executive upon the determination by the Board of Directors that there is justifiable cause for such termination;
(iii) automatically and without notice upon the death of Executive;
(ivii) in accordance with the terms disability of subsection (e) hereof upon the "disability" (as hereinafter defined) of Executive;
(v) upon written notice by the Executive to the Company of a termination for good reason (as defined in subsection (f) below) within ninety (90) days after the event that constitutes good reason; or
(vi) upon 30 days' prior written notice by Executive to the Company of the Executive's voluntary termination of employment without good reason.
paragraph (b) ); For the purposes of this Agreementhereof, the term "disability" shall mean the inability of Executive, due to illness, accident or any other physical or mental incapacity, substantially to perform the material functions of his duties in a normal manner for a period of six (6) consecutive months or for a total of eight (8) months (whether or not consecutive) in any twelve (12) month period during the term of this Agreement, as reasonably determined by the Board of Directors, in good faith, after examination of Executive by an independent physician reasonably acceptable to Executive.. or
(ciii) the determination that there is cause (as hereinafter defined) for such termination. For the purposes hereof, the term "justifiable cause" shall mean: mean and be limited to, if one of the following events should occur during the employment term:
(A) Executive is convicted in a court of law of a (i) Executive's repeated failure felony or refusal to attempt to perform his duties pursuant to, or Executive's breach of, this Agreement where such conduct or breach shall not have ceased or been remedied within 15 days following written warning from the Company; (ii) Executive's performance of any act or his failure to act, for which if Executive were prosecuted and convicted, a crime or offense involving material misuse or misappropriation of money or other property of the US Shipping Group, or which would constitute Company; or
(B) Executive breaches a felony in the jurisdiction involved, would have occurred; (iii) Executive's performance material provision of any act or his failure to act which constitutes, in the reasonable good faith determination of the Board of Directors, dishonesty, fraud or a this Agreement and such breach of a fiduciary trust, including without limitation misappropriation of funds; (iv) any intentional unauthorized disclosure by Executive to any person, firm or corporation other than the members of the US Shipping Group and their respective directors, managers, officers and employees, of any confidential information or trade secret of the US Shipping Group; (v) any attempt by Executive to secure any personal profit (other than through his ownership of Units of Parent) in connection with the business of the US Shipping Group (for example, without limitation, using US Shipping Group assets to pursue other interests, diverting any business opportunity belonging to US Shipping Group to himself or to a third party, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ or taking bribes or kickbacks); (vi) Executive's engagement in a fraudulent act to the material damage of the US Shipping Group; (vii) Executive's illegal use of controlled substances; (viii) any act or omission by Executive involving malfeasance or gross negligence in the performance of Executive's duties to the material detriment of the US Shipping Group, as determined in reasonable good faith by the Board of Directors; or (ix) the entry of any order of a court that remains in effect and is not discharged continues for a period of thirty (30) days after written notice of such breach is given to Executive by Company.
(b) Executive may resign from his employment without good reason by notice to the Company at least sixty (60) daysdays prior to the date of termination.
(c) Executive shall have the right to terminate Executive's employment hereunder at any time for good reason. For purposes hereof, which enjoins or otherwise limits or restricts the performance “good reason” shall mean, a reasonable determination by Executive under that any of the following has occurred:
(i) A material breach by the Company of the terms of this Agreement, relating which breach is not cured promptly after notice thereof from Executive; or
(ii) A change in control which shall mean (a) any person becomes the beneficial owner (as term is defined in the Securities Exchange Act of 1934) directly or indirectly, of securities representing more than fifty percent (50%) of the total voting power of Company’s shares; or (b) a change in the composition of the Board of Directors as a result of which fewer than a majority of the directors are Incumbent Directors. Incumbent Directors shall mean directors who are either directors of the Company on the date hereof or are elected by the Board of Directors with the affirmative vote of a majority of the Incumbent Directors at the time of election or (c) the Company merges with another corporation after which a majority of the shares of the resulting entity are not held by shareholders of the Company prior to any contract, agreement or commitment made by or applicable the merger.
(iii) An assignment to Executive in favor of any former employer duties inconsistent with Executive’s position (including status, office, title, and reporting requirements) authority, duties or any other person. Upon termination responsibilities as contemplated by Section 3 hereof which results in diminution in such position, authority, duties or responsibilities, excluding for this purpose an isolated and insubstantial action not taken in bad faith which is remedied by the Company after receipt of notice thereof given by Executive.
(d) In the event that Executive's employment is terminated by Executive for justifiable causeany reason other than good reason, Executive shall not will be entitled to any amounts or benefits hereunder other than such portion of Executive's annual only his accrued salary and reimbursement of expenses pursuant to Section 4 hereof as has been accrued through the date of his termination and nothing more.
(e) In the event that Executive's employment is terminated by Executive for good reason, the Company shall (i) pay to Executive, within thirty (30) days after the date of employmenttermination, any accrued base salary, bonus, vacation pay, expense reimbursement and any other entitlements under this Agreement to the extent not previously paid for an additional one year period and (ii) continue to provide benefits to Executive at least equal to those which would have been provided to him in accordance with the plans, programs, practices and policies which are applicable to other senior executives.
(f) If Executive’s employment is terminated by reason of Executive’s death, this Agreement shall terminate without further obligation other than payment of accrued obligations. If Executive’s employment is terminated by reason of Executive’s disability, this Agreement shall terminate without further obligation other than payment of (i) accrued obligations (ii) Welfare Benefit Continuation and (iii) Executive’s base salary for a period of six months following termination.
Appears in 1 contract