Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, the Employee’s employment with the Company is terminated by the Company without Cause or due to the Employee’s Disability, or by the Employee for Good Reason, then the Company shall: (a) continue to pay the Employee his base salary in effect on the date of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation; (b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365; (c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and (d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer. 2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2. 2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 4 contracts
Sources: Severance and Change in Control Agreement (Aveo Pharmaceuticals Inc), Severance and Change in Control Agreement (Aveo Pharmaceuticals Inc), Severance and Change in Control Agreement (Aveo Pharmaceuticals Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the EmployeeExecutive’s employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, Death) or by the Employee Executive for Good ReasonReason within 24 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive the following amounts:
(1) in a lump sum, in cash, within 30 days after the Date of Termination, the sum of (A) the Executive’s base salary in effect on through the date Date of terminationTermination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (xB) the date twelve a pro rata current year bonus amount (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied calculated by a fraction, the numerator of which shall equal dividing the number of days full and partial months of the Employee was employed by the Company during the Company current fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used Executive is employed through the date Date of terminationTermination by 12, and multiplying this fraction by the highest annual bonus payment amount paid to Executive in the preceding three years), and (iiC) within thirty any accrued vacation pay, in each case to the extent not previously paid (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies sum of the Company then amounts described in effectclauses (A), (B), and (C) shall be hereinafter referred to as the “Accrued Obligations”); and
(d2) in a lump sum, in cash, within 30 days after the Date of Termination, the sum of (A) three times the Executive’s highest annual base salary at the Company during the three-year period prior to the Change in Control Date and (B) three times the Executive’s highest annual bonus amount at the Company during the three-year period prior to the Change in Control Date;
(ii) for 36 months after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, each month the Company shall continue to provide benefits to the Executive and the Executive’s family at least equal to those which would have been provided to them if the Executive’s employment had not been terminated, in accordance with the applicable Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and his or her family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies; provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer on terms at least as favorable to the Executive and his or her family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and his or her family; and
(iii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive’s termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60) days following the date of termination (such other amounts and benefits shall be hereinafter referred to as the “Release PeriodOther Benefits”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 4 contracts
Sources: Executive Retention Agreement (Myriad Genetics Inc), Executive Retention Agreement (Myriad Genetics Inc), Executive Retention Agreement (Myriad Genetics Inc)
Termination Without Cause or for Good Reason. 2.1 Other than The Company may terminate Executive’s employment without Cause (as set forth in Section 3 defined below, if, ) at any timetime during the Employment Period upon ten (10) days’ written notice provided to Executive in accordance with Section 8 below or, in the EmployeeCompany’s sole discretion, payment of Executive’s Base Salary for such period in lieu of notice. In addition, Executive may terminate his employment for Good Reason (as defined below) at any time during the Employment Period in accordance with the Company is terminated terms of Section 7(i)(ii) hereof. If Executive experiences a “separation from service” (within the meaning of Section 409A(a)(2)(A)(i) of the Code, and Treasury Regulation Section 1.409A-1(h)) (“Separation from Service”) due to a termination by the Company without Cause or due to the Employee’s Disability, or by the Employee Executive for Good Reason, then the Company shall:
shall promptly or, in the case of obligations described in clause (aiv) continue below, as such obligations become due, pay or provide to pay the Employee his base salary in effect on Executive, (i) Executive’s earned but unpaid Base Salary accrued through the date of terminationsuch Separation from Service (the “Termination Date”), (ii) accrued but unpaid vacation time through the Termination Date, (iii) reimbursement of any unreimbursed business expenses incurred by Executive prior to be paid in accordance with the Termination Date that are reimbursable under Section 6 above, (iv) any vested benefits and other amounts due to Executive under any plan, program or policy of the Company’s customary payroll practices as are established or modified from time , (v) if the Termination Date occurs after the end of a fiscal quarter but before the Bonus Payment Date in respect of such quarter, the quarterly bonus that would have been paid pursuant to time, Section 3(b)(i) had Executive remained employed until the earlier Bonus Payment Date, and (vi) any payment in lieu of notice of termination under this Section 7(a) (xtogether, the “Accrued Obligations”). In addition, subject to Section 7(f) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the below and Executive’s execution and non-revocation of the Release (as defined a binding release in accordance with Section 7(g) below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the EmployeeExecutive’s employment in by the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein Company without Cause or by Executive for Good Reason, the Company shall pay or provide to Executive the contrary, all benefits under this Section 2 shall terminate immediately if following (the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.“Severance”):
Appears in 4 contracts
Sources: Employment Agreement (Chanticleer Holdings, Inc.), Employment Agreement (Chanticleer Holdings, Inc.), Employment Agreement (Chanticleer Holdings, Inc.)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employeeevent of the Executive’s termination of employment with the Company is terminated by the Company without Cause or due pursuant to the Employee’s Disability, Section 4(a)(iv) or by the Employee Executive for Good ReasonReason pursuant to Section 4(a)(v), then in addition to the payments and benefits described in Section 5(a) above, the Company shall:, subject to Section 20 and Section 5(c) and subject to the Executive’s execution and non-revocation of a waiver and release of claims agreement in the Company’s customary form (a “Release”), as of the Release Expiration Date, in accordance with Section 20(c):
(ai) continue Continue to pay to the Employee his base salary in effect Executive Annual Base Salary during the period beginning on the date Date of terminationTermination and ending on the first anniversary of the Date of Termination (such period, to be paid the “Severance Period”) in accordance with the Company’s customary regular payroll practices practice as are established or modified from time of the Date of Termination;
(ii) Pay to time, until the earlier Executive an amount equal to the product of (A) the amount of the Annual Bonus that would have been payable to the Executive pursuant to Section 3(b) if the Executive was still employed as of the applicable bonus payment date in respect of the fiscal year in which the Date of Termination occurs based on actual individual and Company performance goals in such year and (B) the ratio of (x) the date number of full months elapsed during the fiscal year during which such termination of employment occurs on or prior to the Date of Termination, to (y) twelve (12). Any amount payable pursuant to this Section 5(b)(ii) months shall, subject to Section 20 and Section 5(c), be paid to Executive in accordance with Section 3(b) as if the Executive was still employed on the applicable bonus payment date, but in no event earlier than January 1, or later than December 31, of the calendar year immediately following the date of termination, or (y) the date on calendar year in which the Employee commences employment or a consulting relationship with substantially equivalent compensationDate of Termination occurs;
(biii) within thirty (30) days following Accelerate the execution and non-revocation vesting of a pro rata amount of the Release (as defined below), pay Annual Equity Award that otherwise would vest at the Employee’s target bonus on end of the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator Date of which shall equal 365;
(c) pay Termination occurs, such amount to the Employee (i) based on the date number of terminationfull (not partial) fiscal months elapsed during such fiscal year (for example, any base salary earned but not paid and any vacation accrued but not used through if Executive’s Date of Termination is June 30, 2014, fifty percent (50%) of the date Annual Equity Award that otherwise would vest at the end of terminationfiscal 2014 shall immediately vest, and Executive shall forfeit the remaining fifty percent (ii50%) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then Annual Equity Award scheduled to vest in effectfiscal 2014 as well as the remainder of the Annual Equity Award that otherwise would vest in subsequent fiscal years); and
(div) During the Severance Period, if the Executive elects to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit continue coverage under Section 4980B the Company’s group health plan in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), continue coverage for the Executive and continues any eligible dependents under the Company group health benefit plans in which the Executive and any dependents were entitled to be eligible for such benefitsparticipate immediately prior to the Date of Termination. In the event Executive elects to continue with COBRA coverage, provided, that Employee timely submits to the Company evidence of Executive’s payments made to the COBRA administrator, the Company shall provide payments to will reimburse Executive for the Employee for such benefits Company’s share of the premiums associated therewith in an amount equal to what the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility Company pays for the Employee and each qualified beneficiary continues) from health insurance premiums of other executive level employees at the date such benefits would otherwise end Company. The COBRA health continuation period under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor 4980B of the Company within sixty (60) days following Code shall run concurrently with the date period of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances continued coverage set forth in this Section 2.
2.3 Notwithstanding anything herein to 5(b)(iv); provided, however, that in the contraryevent Employee obtains other employment that offers group health benefits, all benefits such continuation of COBRA coverage by the Company under this Section 2 5(b)(iv) shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Companycease.
Appears in 4 contracts
Sources: Employment Agreement (Shake Shack Inc.), Employment Agreement (Shake Shack Inc.), Employment Agreement (Shake Shack Inc.)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the Employee’s employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, death) or by the Employee for Good ReasonReason within 12 full calendar months following the Change in Control Date, then the Company shallEmployee shall be entitled to the following benefits:
(a) continue a. the Company shall pay to pay the Employee his base salary either in effect a lump sum in cash within 30 days after the Date of Termination, or, if the Employee so elects in writing within 15 days after the Date of Termination, in 24 bi-monthly installments, without interest, beginning on the date of terminationthe first normal employee payroll of the Company which occurs more than 30 days after the Date of Termination, to be paid in accordance with the Companyaggregate of the following amounts:
i. the sum of (A) the Employee’s customary payroll practices as are established or modified from time to time, until annual base salary for the earlier current year through the Date of Termination and (B) the product of (x) the date twelve Employee’s total on target semi-annual and annual bonuses for the current fiscal year (12including any merit bonuses and any bonuses under the Company’s 2008 Performance-Based Incentive Plan) months following (the date of termination, or “Target Bonus”) and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company current fiscal year in which through the termination occurs Date of Termination, and the denominator of which is 365 less (C) the amount of any compensation previously paid for the current year, whether in quarterly bonus payments, or otherwise, (the sum of the amounts described in clauses (A) and (B), less the amount previously paid in (C), shall equal 365;be referred to as the “Accrued Obligations”); and
ii. the sum of (cA) pay the Employee’s annual base salary as of the date immediately before the Date of Termination; and (B) the Employee’s Target Bonus for the current fiscal year.
b. for 12 full calendar months after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Employee (iother than any benefits under the executive bonus plan, the Company 401(k) Savings Plan, the 2005 Long Term Retention Plan or the 2008 Performance-Based Incentive Plan) and the Employee’s family at least equal to those which would have been provided to them if the Employee’s employment had not been terminated, in accordance with the applicable Benefit Plans in effect on the date Measurement Date or, if more favorable to the Employee and his or her family, in effect generally at any time thereafter with respect to other peer employees of terminationthe Company; provided, any base salary earned but not paid however, that if the Employee becomes reemployed with another employer and any vacation accrued but not used through the date of terminationis eligible to receive comparable life, medical, dental, health, and accident or disability insurance benefits under another employer-provided plan, on terms at least as favorable to the Employee and his or her family, then the benefits described in this clause (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) shall be reduced to the extent such other benefits are available to the Employee and any qualified beneficiary with respect his or her family;
c. to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsextent not previously paid or provided, the Company shall timely pay or provide payments to the Employee for any other amounts or benefits required to be paid or provided or which the Employee is eligible to receive following the Employee’s termination of employment under any plan, program, policy, practice, contract or agreement of the Company (such other amounts and benefits equal shall be referred to as the “Other Benefits”);
d. The Company shall pay the commercially reasonable fees of one executive outplacement firm’s services provided to the amount contributed for active employees with similar benefits and similar participating beneficiaries until Employee, such firm to be chosen by the earlier of (x) twelve (12) months (or as long as such eligibility for Employee, not to exceed $10,000.
e. Any outstanding stock options granted to the Employee pursuant to the Company’s Amended and each qualified beneficiary continues) from Restated 1993 Stock Incentive Plan or the date such benefits would otherwise end under the applicable plan terms or (y) the date Company’s 2003 Stock Option Plan, and any outstanding stock options granted to the Employee becomes eligible for group health coverage through another employerafter the Effective Date and prior to a Change in Control, shall immediately vest upon the Date of Termination.
2.2 The payments and benefits f. Notwithstanding any provision of this Agreement, (A) awards (“LTRP Awards”) that have been granted to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims Company’s 2005 Long Term Retention Plan (the “ReleaseLTRP”) that have not been paid in favor accordance with the terms of the Company within sixty LTRP shall not be considered Accrued Obligations, Target Bonus or benefits to be provided in accordance with Benefit Plans for purposes of determining amounts to be paid under this Section 4.1(a) or Section 4.1(b) and (60B) days following the date of termination (the “Release Period”), in a form LTRP Awards are Other Benefits that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications paid or not paid, as the Company case may make be, in its sole discretion to reflect changes in law or accordance with the circumstances terms of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2LTRP.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 4 contracts
Sources: Retention Agreement (Icu Medical Inc/De), Retention Agreement (Icu Medical Inc/De), Retention Agreement (Icu Medical Inc/De)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 belowIf, if, at any timeprior to the expiration of the Term, the EmployeeExecutive resigns from his employment hereunder for Good Reason or the Company terminates the Executive’s employment with the Company is terminated by the Company hereunder without Cause (other than a termination by reason of death or due to the Employee’s Disability), or by the Employee for Good Reasonand Section 5.4.3 does not apply, then the Company shallshall pay or provide the Executive the Amounts and Benefits and, subject to Section 5.4.8:
(ai) continue Subject to pay Section 9.9.2, an amount equal to the Employee his base salary in effect on the date of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier sum of (x) the date twelve balance of the Base Salary due under this Agreement or one and one half times the Base Salary as then in effect (12) months following without taking into account any reduction therein that constitutes a basis for Good Reason), whichever is the date of terminationgreater, or plus (y) an amount equal to one and one half times the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation average of the Release Target Bonus the Executive received from the Company for all fiscal years completed during the Term, with the aggregate amount due paid in equal installments on the Company’s normal payroll dates for a period of 12 months from the Date of Termination in accordance with the normal payroll practices of the Company, with each such payment deemed to be a separate payment for the purposes of Code Section 409A (as defined below);
(ii) in the event such resignation or termination occurs following the Company’s first fiscal quarter of any year, pay a pro rata portion of the EmployeeExecutive’s target bonus Target Bonus for the fiscal year in which the Executive’s termination occurs based on actual results for such year (determined by multiplying the date amount of termination multiplied such Target Bonus which would be due for the full fiscal year, as determined in good faith by the Board, by a fraction, the numerator of which shall equal is the number of days during the Employee was fiscal year of termination that the Executive is employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal is 365;
), paid in accordance with Section 2.2 (c) pay to the Employee (i) on the date of terminationincluding payment timing, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect“Pro Rata Bonus”); and
(diii) the continuation of all benefits for 24 months from the Date of Termination. In addition, subject to Section 5.4.8, the vesting of all unvested stock options and restricted stock previously granted to the extent the Employee Executive shall be accelerated by 12 months, and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986stock options, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments notwithstanding any provision to the Employee contrary in the option or the plan pursuant to which the option was granted, shall remain exercisable for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier a period of (x) twelve (12) 12 months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date Date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2Termination.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 3 contracts
Sources: Employment Agreement (Impax Laboratories Inc), Employment Agreement (Impax Laboratories Inc), Employment Agreement (Impax Laboratories Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Subject to the terms and conditions of this Section 3 below5, if, at any time, if the Employee’s employment with the Company Employment Period is terminated by the Company without Cause or due to the Employee’s Disability, or by the Employee for Good ReasonReason at any time, then Employee shall be entitled to receive, during the Company shall:
Severance Period, Employee’s Base Salary payable in the same manner and in the same installments as previously paid (athe “Severance Payments”), and, except as set forth in this Section 5(a) continue to pay the Employee his base salary or in effect on the date of terminationSection 5(c), to be paid in accordance with the Company’s customary payroll practices obligation to make any other payments or provide any other benefits under this Agreement shall cease as are established or modified from time to timeof the Termination Date. When used herein, until the “Severance Period” means the earlier of (x) the date period ending on the twelve (12) months following 12)-month anniversary of the date of termination, or Termination Date and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following Employment Period would have expired had the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed Employment Period not been terminated earlier by the Company during without Cause. Employee shall forfeit the Company fiscal year in compensation and other benefits otherwise payable to Employee pursuant to this Section 5(a) unless, prior to the date on which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination first payment would otherwise be payable pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall 5(a) (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company any event within sixty (60) days following after receipt of such Separation Document (as hereinafter defined)), Employee executes and delivers to the date Company (and does not revoke or breach), a complete mutual release in favor of termination (each member of the “Release Period”)Company Group and their affiliates, and their respective equityholders, officers, managers, directors, employees, lenders, principals and attorneys, in a form that will be provided by reasonably acceptable to the Company and substantially identical to (the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination“Separation Document”); provided provided, however, that if the Release does not become effective during sixty (60)-day period (together with any applicable consideration and revocation periods) begins in one (1) calendar year and ends in a second calendar year, then regardless of the Release Perioddate on which the Separation Document is actually executed, the payments and benefits described Severance Payments (if owed) will be paid in Sections 2.1(asuch second calendar year no later than ten (10) and 2.1(d) days after the last day of this Agreement that commenced following such sixty (60)-day period (or, if later, upon the date of termination shall cease following the Release Period and (ii) constitute the sole remedy expiration of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contraryapplicable consideration and revocation periods), all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation subject to the Company, or any other continuing obligation ’s ability to accelerate such payments to the Companyextent it would not result in a violation of Code Section 409A. If Employee breaches or revokes the Separation Document provided pursuant to the previous sentence, then Employee shall promptly repay to the Company all amounts paid to Employee pursuant to this Section 5(a) prior to such revocation.
Appears in 3 contracts
Sources: Employment Agreement (Castellum, Inc.), Employment Agreement (Castellum, Inc.), Employment Agreement (Castellum, Inc.)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, The Employment Term and the Employee’s Executive's employment with hereunder may be terminated by the Company is terminated Executive for Good Reason or by the Company without Cause or due Cause. In the event of such termination, the Executive shall be entitled to receive the Accrued Amounts and subject to the Employee’s DisabilityExecutive's compliance with Section 6, or Section 7, Section 8, and Section 9 of this Agreement and his execution of a release of claims in favor of the Company, its affiliates and their respective officers and directors in a form provided by the Employee for Good ReasonCompany (the "Release") and such Release becoming effective within 30 days following the Termination Date (such 30 day period, then the Company shall"Release Execution Period")], the Executive shall be entitled to receive the following:
(a) continue to pay the Employee his base salary in effect on the date of termination, to be paid equal installment payments payable in accordance with the Company’s customary 's normal payroll practices as practices, but no less frequently than monthly, which are established or modified from time in the aggregate equal to timetwo (2) times the sum of the Executive's Base Salary, until the earlier for a period of (x) the date twelve (12) months three months, which shall begin within 2 days following the Termination Date; provided that, the first installment payment shall include all amounts that would otherwise have been paid to the Executive during the period beginning on the Termination Date and ending on the first payment date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensationif no delay had been imposed;
(b) within thirty a payment equal to the product of (30i) days following the execution and non-revocation Annual Bonus, if any, that the Executive would have earned for the fiscal year in which the Termination Date (as determined in accordance with Section 5.6) occurs based on achievement of the Release applicable performance goals for such year and (as defined below), pay the Employee’s target bonus on the date of termination multiplied by ii) a fraction, the numerator of which shall equal is the number of days the Employee Executive was employed by the Company during the Company year of termination and the denominator of which is the number of days in such year (the "Pro-Rata Bonus"). This amount shall be paid on the date that annual bonuses are paid to similarly situated executives, but in no event later than two-and-a-half (2 1/2) months following the end of the fiscal year in which the termination occurs and the denominator of which shall equal 365Termination Date occurs;
(c) pay to The treatment of any outstanding equity awards, that have not already vested, shall be determined in accordance with the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies terms of the Company then in effect; andNodechain Employee Equity Awards and the applicable award agreements.
(d) Notwithstanding the terms of the Nodechain Employee Equity Award plan or any applicable award agreements:
(i) all outstanding unvested stock options/stock appreciation rights granted to the extent Executive during the Employee Employment Term shall become fully vested and any qualified beneficiary with respect exercisable for the remainder of their full term;
(ii) all outstanding equity-based compensation awards that are not intended to such Employee elects continuation of health benefit coverage qualify as performance-based compensation under Section 4980B (“COBRA”162(m)(4)(C) of the Internal Revenue Code of 1986, as amended (the “"Code”"), shall become fully vested and continues to be eligible for such benefits, the Company restrictions thereon shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination)lapse; provided that if the Release does not become effective during the Release Periodthat, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee any delays in the event settlement or payment of a termination of the Employee’s employment in the circumstances such awards that are set forth in this the applicable award agreement and that are required under Section 2.
2.3 Notwithstanding anything herein to 409A of the contrary, all benefits under this Code ("Section 2 409A") shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.remain in effect;
Appears in 3 contracts
Sources: Employment Agreement (Nodechain, Inc.), Employment Agreement (Nodechain, Inc.), Employment Agreement (Nodechain, Inc.)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employee’s employment with event that Executive incurs a “separation from service” from the Company is terminated by (within the Company without Cause or due to the Employee’s Disability, or by the Employee for Good Reason, then the Company shall:
(a) continue to pay the Employee his base salary in effect on the date meaning of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”409A(a)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, Treasury Regulation Section 1.409A-1(h)) (“Separation from Service”)
(1) by the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of without Cause (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms defined herein), or (y2) the date the Employee becomes eligible by Executive for group health coverage through another employer.
2.2 The payments and benefits Good Reason (as defined herein), then, subject to the Employee under this Section 2 shall (i) be contingent upon the Executive’s execution and non-revocation by the Employee of a release Release substantially in the form attached as Exhibit A within 30 days after such Separation from Service, Executive shall be entitled to the benefits set forth below in this Section 5(a). Each payment under this Section 5(a) shall be treated as a separate payment for purposes of claims Section 409A (as defined below).
(i) The Company shall pay Executive an amount equal to one times Executive’s Base Salary plus one times Executive’s Target Bonus (as in effect on the “Releasedate of Executive’s termination). The severance amount described in the previous sentence shall be paid as follows, subject to Section 19 below: (A) the continuation of Base Salary shall be paid in favor substantially equal installments over a period of one year from Executive’s Separation from Service in accordance with the payroll practices of the Company in effect from time to time, beginning on the first payroll date occurring on or after the thirtieth day following Executive’s Separation from Service (such payroll date, the “First Payroll Date”) (with amounts otherwise payable prior to the First Payroll Date paid on the First Payroll Date) and (B) the Target Bonus shall be paid on the date that executive bonuses are paid generally for the fiscal year in which the date of termination took place, which shall, in any event, be no earlier than the First Payroll Date and no later than two and one-half months after the end of such fiscal year;
(ii) Any outstanding equity awards held by Executive shall be governed by the terms of the applicable award agreements.
(iii) Executive shall be entitled to benefits mandated under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), under Section 4980B of the Code, or any replacement or successor provision of United States tax law, subject to Executive’s valid election to receive COBRA benefits, with the premium paid at the Company’s expense until the first to occur of (A) eighteen months from the date of termination, (B) the expiration of the period of time during which Executive is entitled to continuation coverage under the Company’s group health plan under COBRA, or (C) such date that Executive becomes eligible for coverage under the group health plan of another employer, provided, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the period of continuation coverage to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), then an amount equal to each remaining premium payment shall thereafter be paid to Executive as currently taxable compensation in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). In addition, if Executive’s employment terminates pursuant to this Section 5(a), the Company shall pay Executive the amounts described in Section 5(d)(i), (ii) and (iii) within sixty (60) 30 days following of the date of termination (or such earlier date as may be mandated by applicable law) and shall pay or provide the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and other benefits described in Sections 2.1(aSection 5(d) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2accordance therewith.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 3 contracts
Sources: Employment Agreement (Rentech Inc /Co/), Employment Agreement (Rentech Nitrogen Partners, L.P.), Employment Agreement (Rentech Inc /Co/)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the EmployeeExecutive’s employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, Death) or by the Employee Executive for Good ReasonReason within 24 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive the following amounts:
(1) in a lump sum, in cash, within 30 days after the Date of Termination, the sum of (A) the Executive’s base salary in effect on through the date Date of terminationTermination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (xB) the date twelve a pro rata current year bonus amount (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied calculated by a fraction, the numerator of which shall equal dividing the number of days full and partial months of the Employee was employed by the Company during the Company current fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used Executive is employed through the date Date of terminationTermination by 12, and multiplying this fraction by the highest annual bonus payment amount paid to Executive in the preceding three years), and (iiC) within thirty (30) days after the date amount of termination, any reimbursable business expenses incurred compensation previously deferred by the Employee through Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the date of termination pursuant to any expense reimbursement policies extent not previously paid (the sum of the Company then amounts described in effectclauses (A), (B), and (C) shall be hereinafter referred to as the “Accrued Obligations”); and
(d2) in a lump sum, in cash, within 30 days after the Date of Termination, the sum of (A) three times the Executive’s highest annual base salary at the Company during the three-year period prior to the Change in Control Date and (B) three times the Executive’s highest annual bonus amount at the Company during the three-year period prior to the Change in Control Date;
(ii) for 36 months after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Executive and the Executive’s family at least equal to those which would have been provided to them if the Executive’s employment had not been terminated, in accordance with the applicable Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and his or her family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies; provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer on terms at least as favorable to the Executive and his or her family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and his or her family; and
(iii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive’s termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60) days following the date of termination (such other amounts and benefits shall be hereinafter referred to as the “Release PeriodOther Benefits”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 3 contracts
Sources: Executive Retention Agreement (Myriad Genetics Inc), Executive Retention Agreement (Myriad Genetics Inc), Executive Retention Agreement (Myriad Genetics Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employeeevent of Executive’s termination of employment with the Company is terminated (i) by the Company without Cause (as defined herein) or due to the Employee’s Disability, or (ii) by the Employee Executive for Good ReasonReason (as defined herein), then the Company shall:
(a) continue subject to pay the Employee his base salary in effect on the date of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of a Release substantially in the Release form attached as Exhibit B, Executive shall be entitled to the benefits set forth below in this Section 5(a).
(as defined below), i) The Company shall pay Executive an amount equal to (x) one times Executive’s Annual Bonus for the Employeeyear prior to termination of employment plus (y) the greater of (1) two times Executive’s target bonus on Base Salary or (2) Executive’s base salary for the remaining term of this Agreement if longer than two years. The severance amount described in the previous sentence shall be paid within fourteen days of the date of termination multiplied by (the “Bonus Payment Date”); provided, however, that, in the event that Executive is considered a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year “Specified Employee” as defined in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage proposed or final Treasury Regulations promulgated under Section 4980B 409A (“COBRASection 409A”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitspayments under this Section 5(a) are considered “deferred compensation” under Section 409A, the Company Bonus Payment Date shall provide payments be delayed to the Employee for such benefits date that is six months and one day after the date of termination, and shall be paid along with interest at a floating rate equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) LIBOR from the date such benefits would payments were otherwise end under the applicable plan terms or (y) due to the date the Employee becomes eligible for group health coverage through another employerof payment.
2.2 (ii) The payments and benefits to the Employee under this Section 2 Company shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of pay Executive any unpaid Performances Bonuses if the Company achieves the related performance criteria within sixty (60) days following one year of the date of termination of Executive.
(iii) The Company shall pay Executive the amounts described in Section 5(e) within 30 days of the date of termination.
(iv) Executive shall be entitled to benefits mandated under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“Release PeriodCOBRA”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances under Section 4980B of the termination); provided that if Code, or any replacement or successor provision of United States tax law, with the Release does not become effective during premium paid at the Release Period, Company’s expense until the payments and benefits described in Sections 2.1(afirst to occur of (A) and 2.1(d) of this Agreement that commenced following eighteen months from the date of termination shall cease following the Release Period and or (iiB) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2such date that Executive becomes covered by successor group health coverage.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 3 contracts
Sources: Employment Agreement, Employment Agreement (Diametrics Medical Inc), Employment Agreement (Diametrics Medical Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the Employee’s Executive's employment with the Company is terminated by the Company (other than for Cause, Disability or Death), including without Cause or due to limitation a termination occurring by reason of the Employee’s Disabilityprevention by the Company of the renewal of the Executive's employment contract, or by the Employee Executive for Good ReasonReason within 36 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
(1) the sum of (A) the Executive's base salary in effect on through the date Date of terminationTermination, to be paid in accordance with (B) the Company’s customary payroll practices as are established or modified from time to time, until the earlier product of (x) the date twelve annual bonus paid or payable (12including any bonus or portion thereof which has been earned but deferred) months following for the date of termination, or most recently completed fiscal year and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company current fiscal year in which through the termination occurs Date of Termination, and the denominator of which shall equal 365;
is 365 and (cC) pay the amount of any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the Employee extent not previously paid (i) on the date sum of terminationthe amounts described in clauses (A), any base salary earned but not paid and any vacation accrued but not used through the date of termination(B), and (iiC) within thirty (30) days after shall be hereinafter referred to as the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect"Accrued Obligations"); and
(d2) the amount equal to (A) three multiplied by (B) the sum of (x) the Executive's highest annual base salary during the five-year period prior to the Change in Control Date and (y) the Executive's highest annual bonus during the five-year period prior to the Change in Control Date.
(ii) for 36 months after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Executive and the Executive's family at least equal to those which would have been provided to them if the Executive's employment had not been terminated, in accordance with the applicable Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and his family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies; provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer on terms at least as favorable to the Executive and his family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and his family;
(iii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive's termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(iv) days following for purposes of determining eligibility (but not the date time of termination (commencement of benefits) of the “Release Period”)Executive for retiree benefits to which the Executive is entitled, in a form that will the Executive shall be provided considered to have remained employed by the Company and substantially identical to until 36 months after the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances Date of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2Termination.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 2 contracts
Sources: Executive Retention Agreement (Saucony Inc), Executive Retention Agreement (Saucony Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the Employee’s Executive's employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, Death) or by the Employee Executive for Good ReasonReason within 24 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
(1) the sum of (A) the Executive's base salary in effect on through the date Date of terminationTermination, to be paid in accordance with (B) the Company’s customary payroll practices as are established or modified from time to time, until the earlier product of (x) the date twelve annual bonus paid or payable (12including any bonus or portion thereof which has been earned but deferred) months following for the date of termination, or most recently completed fiscal year and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company current fiscal year in which through the termination occurs Date of Termination, and the denominator of which shall equal 365;
is 365 and (cC) pay the amount of any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation or compensatory time off pay, in each case to the Employee extent not previously paid (i) on the date sum of terminationthe amounts described in clauses (A), any base salary earned but not paid and any vacation accrued but not used through the date of termination(B), and (iiC) within thirty (30) days after shall be hereinafter referred to as the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect"Accrued Obligations"); and
(d2) the amount equal to (A) two and one-half multiplied by (B) the sum of (x) the Executive's highest annual base salary from the Company during the five-year period prior to the Change in Control Date and (y) the Executive's highest annual bonus from the Company during the five-year period prior to the Change in Control Date.
(ii) for 30 months after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Executive and the Executive's family at least equal to those which would have been provided to them if the Executive's employment had not been terminated, in accordance with the applicable Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and his family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies; PROVIDED, however, that if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer on terms at least as favorable to the Executive and his family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and his family;
(iii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive outplacement assistance commensurate with the Executive's position as well as any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive's termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(iv) days following for purposes of determining eligibility (but not the date time of termination (commencement of benefits) of the “Release Period”)Executive for retiree benefits to which the Executive is entitled, in a form that will the Executive shall be provided considered to have remained employed by the Company and substantially identical to until 30 months after the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances Date of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2Termination.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 2 contracts
Sources: Executive Retention Agreement (Centennial Technologies Inc), Executive Retention Agreement (Centennial Technologies Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employee’s employment with the Company is terminated by the Company without event of a Termination -------------------------------------------- Without Cause or due to the Employee’s Disability, or by the Employee Termination for Good Reason, then to the Company shallmaximum extent permitted by law, Executive shall become fully vested under all plans and programs sponsored by the Company, and the Executive shall receive the following:
(a) continue Immediately after the Date of Termination, a lump-sum amount in immediately available funds equal to pay the Employee his base salary sum of Executive's Accrued Base Salary, Accrued Annual Bonus and Prorate Annual Bonus;
(b) Immediately after the Date of Termination, a lump-sum amount in effect immediately available funds equal to the product of the number of whole and fractional years included in the Severance Period multiplied by Executive's Annualized Total Compensation;
(c) Immediately after the Date of Termination, a lump-sum amount in immediately available funds equal to the total amount (if any) of Executive's unvested benefits under any plan or program sponsored by the Company which is forfeited on account of Executive's employment being terminated.
(d) The continuation of the date benefits (or, if such benefits are not available, the after-tax economic equivalent thereof) specified in Sections 6.1, 6.2 and 6.3 to which Executive is entitled as of terminationthe Date of Termination for the entire duration of the Severance Period or, at the election of Executive, an immediate lump-sum cash payment equal to the value of such benefits; provided that with respect to any benefit to be provided on an insured basis, such value shall be the present value of the premium expected to be paid for such coverage, and with respect to other benefits, such value shall be the present value of the expected net cost to the Company of providing such benefits.
(e) Immediately after the Date of Termination, a lump-sum amount in accordance with the Company’s customary payroll practices as are established or modified from time immediately available funds of any amount then payable to time, until the earlier Executive pursuant to Section 6.7; and
(f) For a period of (x) the date twelve (12) months following from the date Date of terminationTermination, or (y) but no later than the date on point at which the Employee commences employment or Executive is employed on a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below)substantively full time basis, pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employerOutplacement Services.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 2 contracts
Sources: Employment Agreement (Carnegie International Corp), Employment Agreement (Carnegie International Corp)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, The Company may terminate Executive's employment hereunder without Cause at any time, . Such notice shall specify the Employee’s effective date of the termination of Executive's employment. The Executive may terminate his employment with for Good Reason by providing 30 days' prior written notice to the Company is terminated by Company. In the Company event of the termination of Executive's employment under this Section 6(c) without Cause or due to the Employee’s Disability, or by the Employee Executive for Good Reason, in each case prior to or more than 24 months following a Material Change (as defined in the Everest Reinsurance Group, Ltd. Senior Executive Change of Control Plan, as amended and restated effective January 1, 2009), then the Company shallExecutive shall be entitled to:
(ai) continue to pay payment of the Employee his base salary Accrued Payments;
(ii) a separation allowance, payable in effect on the date of termination, to be paid equal installments in accordance with the Company’s customary normal payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months over a 12 month period beginning immediately following the date of termination, or equal to (y2) times the date on which sum of the Employee commences employment or a consulting relationship with substantially equivalent compensationExecutive's then Base Salary;
(biii) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company any annual incentive bonuses earned but not yet paid for any completed full fiscal year in which immediately preceding the employment termination occurs and the denominator of which shall equal 365date;
(civ) pay except for outstanding and unvested Performance Stock Unit Awards addressed in Section 4(c), all of Executive's then unvested restricted stock or restricted stock units granted to Executive will continue to vest and restrictions lapse in accordance with their respective terms over the Employee (i) 12 month period immediately following such termination date, conditioned on the date Company receiving from Executive the release of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (iiclaims referred to in Section 6(h) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; andbelow;
(dv) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments arrange for the Executive to continue to participate on substantially the same terms and conditions as in effect for the Executive (including any required contribution) immediately prior to such termination, in the disability and life insurance programs provided to the Employee for such benefits equal Executive pursuant to the amount contributed for active employees with similar benefits and similar participating beneficiaries Section 5(a) hereof until the earlier of (xi) twelve the end of the 12 month period beginning on the effective date of the termination of Executive's employment hereunder, or (12ii) months such time as the Executive is eligible to be covered by comparable benefit(s) of a subsequent employer. The foregoing of this Section 6(c)(v) is referred to as "Benefits Continuation". In addition, the Company agrees to pay Executive a lump sum cash payment in order to enable Executive to pay for medical and dental coverage (through COBRA or as long as otherwise) that is comparable to the medical and dental coverage in effect for Executive (and his dependents, if any) immediately prior to his termination of employment, with such eligibility cash amount equal to the cost of the premiums for such coverage that would apply if Executive were to elect COBRA continuation coverage under the Company's medical and dental plans following his termination of employment and continue such coverage for the Employee and each qualified beneficiary continues) from 12 month period beginning on the date such benefits would otherwise end under of Executive's termination of employment. The Executive agrees to notify the applicable plan terms or (y) the date the Employee Company promptly if and when he begins employment with another employer and if and when he becomes eligible for group health coverage through to participate in any benefit or other welfare plans, programs or arrangements of another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 2 contracts
Sources: Employment Agreement (Everest Re Group LTD), Employment Agreement (Everest Re Group LTD)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the Employee’s Executive's employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, death) or by the Employee Executive for Good ReasonReason within 18 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
(1) the sum of (A) the Executive's base salary in effect on through the date Date of terminationTermination, to be paid in accordance with (B) the Company’s customary payroll practices as are established or modified from time to time, until the earlier product of (x) the date twelve (12) months following higher of the date of termination, Executive’s target bonus as in effect immediately prior to the Measurement Date or the Termination Date and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company current fiscal year in which through the termination occurs Date of Termination, and the denominator of which shall equal 365;
is 365 and (cC) pay the amount of any accrued vacation pay, to the Employee extent not previously paid (i) on the date sum of terminationthe amounts described in clauses (A), any base salary earned but not paid and any vacation accrued but not used through the date of termination(B), and (iiC) within thirty (30) days after shall be hereinafter referred to as the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect“Accrued Obligations”); and
(d2) an amount equal to (a) two multiplied by (b) the sum of (x) the higher of the Executive’s annual base salary as in effect immediately prior to the Measurement Date or the Termination Date and (y) the higher of the Executive’s target bonus as in effect immediately prior to the Measurement Date or the Termination Date.
(ii) for two years after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide medical, dental and life insurance benefits to the Executive and the Executive's family at least equal to those which would have been provided to them if the Executive's employment had not been terminated, in accordance with the applicable medical, dental and life insurance Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and the Executive’s family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies; provided, however, that (A) if the terms of a medical, dental or life insurance Benefit Plan do not permit continued participation therein by a former employee, then an equitable arrangement shall be made by the Company (such as a substitute or alternative plan) to provide as substantially equivalent a benefit as is reasonably possible and (B) if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., medical insurance benefits) from such employer on terms at least as favorable to the Executive and the Executive’s family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and the Executive’s family; and
(iii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive's termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60other than severance benefits) days following the date of termination (such other amounts and benefits shall be hereinafter referred to as the “Release PeriodOther Benefits”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 2 contracts
Sources: Executive Change in Control Retention Agreement (Thermo Fisher Scientific Inc.), Executive Change in Control Retention Agreement (Thermo Fisher Scientific Inc.)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employeeevent the Executive’s employment with the Company is terminated by the Company without Cause or due to the Employee’s Disability, or by the Employee Executive for Good Reason, then at any time, and, provided no Change in Control shall have occurred, the Company shall:
shall pay the Executive, in cash, aggregate severance payments equal to the Severance. The Company shall pay to the Executive any such severance payments due hereunder in twenty four (24) equal monthly payments on the first day of each month following such termination. In addition, (a) continue the Executive shall have the right to pay the Employee his base salary in effect on the date of terminationexercise any stock options, to be paid long-term incentive awards or other similar awards held by him in accordance with the Company’s customary payroll practices as are established relevant plan documents or modified from time grant letter; provided, however, that to time, until the earlier of extent any option or award would expire by its terms within six (x) the date twelve (126) months following the date of termination, then the Executive may exercise said option or award until the earliest of (i) six (6) months following the Date of Termination, (ii) ten (10) years following the date of grant or (yiii) the date on which end of the Employee commences original term of the option grant had the Executive continued employment or a consulting relationship with substantially equivalent compensation;
the Company; and (b) within thirty (30) days following the execution Company shall provide the Executive with continuing coverage under the life, disability, accident and non-revocation health insurance programs for employees of the Release Company generally and under any supplemental programs covering executives of the Company, as from time to time in effect, for the twenty four (24) month period from such termination or until the Executive becomes eligible for substantially similar coverage under the employee plans of a new employer, whichever occurs earlier, provided that the Executive’s right to elect continued medical coverage after termination of employment under Part 6 of Title I of the Employee Retirement Income Security Act of 1974, as defined belowamended, shall be deemed satisfied by the coverage provided in this clause (b). The Executive shall also be entitled to a continuation of all other benefits and reimbursements in effect at the time of termination for the twenty four (24) month period following such termination or until the Executive becomes eligible for substantially similar benefits from a new employer, pay whichever is earlier. In addition, all stock options, restricted stock and other long-term awards held by the Employee’s target bonus Executive on the date of termination multiplied by under any of the Company’s long-term incentive plans that would vest or become exercisable within the twenty four (24) months following such termination of employment had the Executive stayed in the employ of the Company shall vest and become immediately exercisable, as applicable. Any part of the foregoing benefits that are attributable to participation in a fractionplan in which the Executive can no longer participate under applicable law, the numerator of which shall equal the number of days the Employee was employed be paid by the Company from other sources such that the Executive receives substantially similar benefits to those provided for under the plan. All amounts payable hereunder shall be paid monthly during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
such twenty four (c24) pay to the Employee (i) on the date of termination, any base salary earned but not paid month period and any vacation accrued but amounts payable hereunder are in lieu of, not used through the date of terminationin addition to, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage amounts payable under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer4.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 2 contracts
Sources: Change in Control and Severance Agreement (Terex Corp), Change in Control and Severance Agreement (Terex Corp)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, the Employee’s (a) If (1) Executive's employment with the Company is terminated by the Company without or Castlewood (US) for any reason other than Cause or due to the Employee’s Disabilitydeath or disability of Executive, or (2) Executive's employment is terminated by the Employee Executive for Good Reason, then the Company shall:Reason (as defined herein):
(ai) Castlewood (US) shall pay Executive any amounts (including salary, bonuses, expense reimbursement, etc.) that have been fully earned by, but not yet paid to, Executive under this Agreement as of the date of such termination;
(ii) Castlewood (US) shall pay Executive a lump sum amount equal to three times the Base Salary payable to him on the 10th day following the date of such termination or if Executive is at such time a "specified employee" for purposes of Section 409A, on the first business day following the six month anniversary of such termination;
(iii) Executive shall be entitled to continue to pay receive medical benefits coverage (as described in Section 3.3) for Executive and Executive's spouse and dependents (if any) at Castlewood (US)'s expense for a period ending on December 31 of the Employee his base salary in effect second calendar year commencing on the date of termination;
(iv) Anything to the contrary in any other agreement or document notwithstanding, each outstanding equity incentive award granted to be paid Executive before, on or within three years after the Closing Date shall become immediately vested and exercisable on the date of such termination; and
(v) In addition, if, for the year in which Executive is terminated, Company achieves the performance goals established in accordance with any incentive plan in which Executive participates, Castlewood (US) shall pay an amount equal to the Company’s customary payroll practices as are established bonus that Executive would have received had he been employed by Company or modified from time to time, until Castlewood (US) for the earlier of (x) full year; such amount shall be paid on the date twelve (12) months following set forth in such bonus plan or, if later and if required to comply with Section 409A, on the date first business day after the six month anniversary of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;such termination of employment.
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, Upon making the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein 4.4, Company and Castlewood (US) shall have no further obligation to the contrary, all benefits Executive under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the CompanyAgreement.
Appears in 2 contracts
Sources: Employment Agreement (Castlewood Holdings LTD), Employment Agreement (Castlewood Holdings LTD)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, the EmployeeIf Executive’s employment with the Company is terminated by the Company without Cause or due pursuant to the Employee’s DisabilitySection 3(a)(iv), by Executive for Good Reason pursuant to Section 3(a)(vi), or by Executive upon expiration of the Employee for Good Reason, then Term following notice of nonrenewal by the Company shall:pursuant to Section 1(b), then, subject to Executive signing on or before the 50th day following Executive’s Separation from Service (as defined below), and not revoking, a release of claims substantially in the form attached hereto as Exhibit A (which form the Company may revise to reflect changes in applicable law if such changes are reasonably necessary in order for the Company to obtain a valid release of claims in favor of the Company and its Affiliates (the “Release”)), and Executive’s continued compliance with Section 5 and Section 6 and all applicable Policies (other than non-compliance that is de minimis and inconsequential or inadvertent and cured within five (5) business days of notice thereof from the Company), Executive shall receive, in addition to payments and benefits set forth in Section 3(c), the following benefits (the “Termination Payments”):
(ai) continue a cash payment in an amount equal to pay two (2) times the Employee his base salary sum of the Base Salary and the Target Bonus payable over eighteen (18) months immediately following the Date of Termination in effect on the date of termination, to be paid equal installments in accordance with the Company’s customary regular payroll practices following the Date of Termination;
(ii) if the Date of Termination occurs on or after July 1 in a given calendar year, an amount equal to a pro rata portion of the Target Bonus;
(iii) a lump sum amount equal to the Company’s estimate of the premiums under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) for the 18-month period following the Date of Termination if Executive, for Executive and Executive’s eligible dependents, continued on COBRA for such period;
(iv) the services of an outplacement agency of Executive’s choosing for a period of up to one year and with a maximum value of $50,000, provided that any payments pursuant to this Section 4(b)(iv) shall be made directly to the outplacement firm for services rendered upon receipt of satisfactory documentation;
(v) if the Date of Termination occurs on or after October 1 in a given calendar year, an amount equal to the Company’s 401(k) retirement contribution that Executive would have received for the year in which the Date of Termination occurs if Executive had remained employed through the last working day of that year; and
(vi) any equity incentive compensation award granted Executive on or after January 1, 2019 shall pro-rata vest based on the number of full and partial months actively employed during either the vesting period or performance period, as are established or modified from time to timeapplicable, until whereby (A) in the case of any award with a service-vesting component only starting with the date of grant of the award and ending with the Date of Termination and (B) in the case of any award with a performance-vesting component starting with the date of the beginning of the applicable performance period and ending with the earlier of the Date of Termination or the last day of the performance period. Any award with a service-vesting component only shall vest effective as if the Date of Termination was the last day of the service-vesting period and any award with a performance-vesting component shall remain subject to actual performance attainment during the full performance period with the payment of any such performance award otherwise made at such time and under such other circumstances as would have applied without regard to Executive’s employment termination. Subject to execution and nonrevocation of the Release, the cash lump sum amounts payable pursuant to Section 4(b)(ii), (xiii) the date twelve and (12v) months following the date of termination, or shall be paid sixty (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (3060) days following after Executive’s Date of Termination. Executive agrees that in the execution and non-revocation event Executive materially breaches any of the Release Restrictive Covenants (as defined below), pay Executive shall be required to immediately repay the Employee’s target bonus full amount of the Termination Payments, which repayment shall be in addition to, and not in lieu of, all other legal and equitable remedies available to the Company, and Executive agrees further that if Executive contests any nonpayment of Termination Payments based on non-compliance with Section 5 or Section 6 or any Policy which Executive claims is de minimis and inconsequential or inadvertent and cured within five (5) business days of notice thereof from the date Company, all Termination Payments will be tolled until final resolution of termination multiplied by the matter. For the purposes of clause (ii) above, “pro rata” means a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company fiscal calendar year in which the termination occurs that have elapsed to, and including, termination, and the denominator of which shall equal is 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 2 contracts
Sources: Employment Agreement, Employment Agreement (TransUnion)
Termination Without Cause or for Good Reason. 2.1 Other than In the event that Executive incurs a “separation from service” (within the meaning of Section 409A (as set forth in Section 3 defined below, if, at any time, the Employee’s ) (a “Separation from Service”) due to a termination of employment with the Company is terminated (i) by the Company without Cause (as defined below), or due (ii) by Executive for Good Reason (as defined below), then, in addition to the EmployeeAccrued Obligations, subject to Executive’s Disabilitytimely execution and non-revocation of a release substantially in the form attached as Exhibit A (the “Release”) , or by Executive shall be entitled to the Employee benefits set forth below in this Section 4(a). Each payment under this Section 4(a) shall be treated as a separate payment for Good Reason, then the Company shall:purposes of Section 409A.
(ai) continue The Company shall pay Executive an amount equal to pay the Employee his base salary twelve (12) months of Executive’s Base Salary (as in effect on the date of Executive’s termination), to be paid payable in substantially equal installments in accordance with the Company’s customary normal payroll practices as are established or modified from time to time, until procedures during the earlier of (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus period commencing on the date of termination multiplied by a fractionand ending on the twelve (12)-month anniversary of the date of termination; provided, that no payments under this Section 4(a)(i) shall be made prior to the first payroll date occurring on or after the thirtieth (30th) day following the date of termination (such payroll date, the numerator “First Payroll Date”) (with amounts otherwise payable prior to the First Payroll Date paid on the First Payroll Date without interest thereon).
(ii) The Company shall pay Executive an amount equal to Executive’s Target Bonus for the year in which the date of termination occurs, payable in a single lump-sum payment on the date on which shall equal annual bonuses are paid to the number Company’s senior executives generally for such fiscal year, but in no event prior to the First Payroll Date or later than the fifteenth (15th) day of days the Employee was employed by third (3rd) month following the Company during end of the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; andoccurs.
(diii) Executive shall be entitled to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage receive benefits mandated under Section 4980B of the Code, as amended (“COBRA”) or any replacement or successor provision of the Internal Revenue Code of 1986United States tax law, as amended (the “Code”), and continues subject to be eligible for such Executive’s valid election to receive COBRA benefits, at the Company shall provide payments same levels as in effect for Executive and Executive’s dependents immediately prior to Executive’s termination of employment, with the Employee for such benefits equal to premium paid at the amount contributed for active employees with similar benefits and similar participating beneficiaries Company’s expense until the earlier first to occur of (xA) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end of termination, (B) the expiration of the period of time during which Executive is entitled to continuation coverage under the applicable Company’s group health plan terms under COBRA, or (yC) the such date the Employee that Executive becomes eligible for coverage under the group health coverage through plan of another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall employer (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (in any case, the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Continuation Period”), in a form provided, that will be if (I) any plan pursuant to which such benefits are provided by is not, or ceases prior to the expiration of the Continuation Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (II) the Company and cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), or (III) the Company is otherwise unable to continue to cover Executive or Executive’s dependents under its group health plans, then, in any such case, an amount equal to each remaining premium payment shall thereafter be paid to Executive as currently taxable compensation in substantially identical equal monthly installments over the Continuation Period (or the remaining portion thereof) . After the Continuation Period, any COBRA continuation (to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its extent permitted under applicable law) shall be at Executive’s sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2expense.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 2 contracts
Sources: Employment Agreement (Rentech Nitrogen Partners, L.P.), Employment Agreement (Rentech Nitrogen Partners, L.P.)
Termination Without Cause or for Good Reason. 2.1 Other than In the event that Executive incurs a “separation from service” (within the meaning of Section 409A (as set forth in Section 3 defined below, if, at any time, the Employee’s ) (a “Separation from Service”) due to a termination of employment with the Company is terminated (i) by the Company without Cause (as defined below), or due (ii) by Executive for Good Reason (as defined below), then, in addition to the EmployeeAccrued Obligations, subject to Executive’s Disabilitytimely execution and non-revocation of a release substantially in the form attached as Exhibit A (the “Release”), or by Executive shall be entitled to the Employee benefits set forth below in this Section 4(a). Each payment under this Section 4(a) shall be treated as a separate payment for Good Reason, then the Company shall:purposes of Section 409A.
(ai) continue The Company shall pay Executive an amount equal to pay the Employee his base salary twelve (12) months of Executive’s Base Salary (as in effect on the date of Executive’s termination), to be paid payable in substantially equal installments in accordance with the Company’s customary normal payroll practices as are established or modified from time to time, until procedures during the earlier of (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus period commencing on the date of termination multiplied by a fractionand ending on the twelve (12)-month anniversary of the date of termination; provided, that no payments under this Section 4(a)(i) shall be made prior to the first payroll date occurring on or after the thirtieth (30th) day following the date of termination (such payroll date, the numerator “First Payroll Date”) (with amounts otherwise payable prior to the First Payroll Date paid on the First Payroll Date without interest thereon).
(ii) The Company shall pay Executive, in addition to the continuation payments described in Section 4(a)(i) above, an amount equal to one hundred percent (100%) of Executive’s Base Salary (at the annual rate in effect at the start of the fiscal year), payable in a single lump-sum payment on the date on which shall equal annual bonuses are paid to the number Company’s senior executives generally for such fiscal year, but in no event prior to the First Payroll Date or later than the fifteenth (15th) day of days the Employee was employed by third (3rd) month following the Company during end of the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; andoccurs.
(diii) Executive shall be entitled to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage receive benefits mandated under Section 4980B of the Code, as amended (“COBRA”) or any replacement or successor provision of the Internal Revenue Code of 1986United States tax law, as amended (the “Code”), and continues subject to be eligible for such Executive’s valid election to receive COBRA benefits, at the Company shall provide payments same levels as in effect for Executive and Executive’s dependents immediately prior to Executive’s termination of employment, with the Employee for such benefits equal to premium paid at the amount contributed for active employees with similar benefits and similar participating beneficiaries Company’s expense until the earlier first to occur of (xA) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end of termination, (B) the expiration of the period of time during which Executive is entitled to continuation coverage under the applicable Company’s group health plan terms under COBRA, or (yC) the such date the Employee that Executive becomes eligible for coverage under the group health coverage through plan of another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall employer (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (in any case, the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Continuation Period”), in a form provided, that will be if (I) any plan pursuant to which such benefits are provided by is not, or ceases prior to the expiration of the Continuation Period to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), (II) the Company and cannot provide the benefit without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), or (III) the Company is otherwise unable to continue to cover Executive or Executive’s dependents under its group health plans, then, in any such case, an amount equal to each remaining premium payment shall thereafter be paid to Executive as currently taxable compensation in substantially identical equal monthly installments over the Continuation Period (or the remaining portion thereof) . After the Continuation Period, any COBRA continuation (to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its extent permitted under applicable law) shall be at Executive’s sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2expense.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Employment Agreement (Rentech Nitrogen Partners, L.P.)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employee’s employment with event that Executive incurs a “separation from service” from the Company is terminated by (within the Company without Cause or due to the Employee’s Disability, or by the Employee for Good Reason, then the Company shall:
(a) continue to pay the Employee his base salary in effect on the date meaning of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”409A(a)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the “Code”) and Treasury Regulation Section 1.409A-1(h)) (“Separation from Service”)
(1) by the Company without Cause (as defined herein), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y2) the date the Employee becomes eligible by Executive for group health coverage through another employer.
2.2 The payments and benefits Good Reason (as defined herein), then, subject to the Employee under this Section 2 shall (i) be contingent upon the Executive’s execution and non-revocation by the Employee of a release Release substantially in the form attached as Exhibit B within 30 days after such Separation from Service, Executive shall be entitled to the benefits set forth below in this Section 5(a). Each payment under this Section 5(a) shall be treated as a separate payment for purposes of claims Section 409A (as defined below).
(i) The Company shall pay Executive an amount equal to one times Executive’s Base Salary plus one times Executive’s Target Bonus (as in effect on the “Releasedate of Executive’s termination). The severance amount described in the previous sentence shall be paid as follows, subject to Section 19 below: (A) the continuation of Base Salary shall be paid in favor substantially equal installments over a period of one year from Executive’s Separation from Service in accordance with the payroll practices of the Company in effect from time to time, beginning on the first payroll date occurring on or after the thirtieth day following Executive’s Separation from Service (such payroll date, the “First Payroll Date”) (with amounts otherwise payable prior to the First Payroll Date paid on the First Payroll Date) and (B) the Target Bonus shall be paid on the date that executive bonuses are paid generally for the fiscal year in which the date of termination took place, which shall, in any event, be no earlier than the First Payroll Date and no later than two and one-half months after the end of such fiscal year.
(ii) All stock options, restricted stock, restricted stock units (including the Executive LTIP, as defined below) and other similar equity awards shall be governed by the terms of any applicable equity plans and award agreements.
(iii) Executive shall be entitled to benefits mandated under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), under Section 4980B of the Code, or any replacement or successor provision of United States tax law, subject to Executive’s valid election to receive COBRA benefits, with the premium paid at the Company’s expense until the first to occur of (A) eighteen months from the date of termination, (B) the expiration of the period of time during which Executive is entitled to continuation coverage under the Company’s group health plan under COBRA, or (C) such date that Executive becomes eligible for coverage under the group health plan of another employer, provided, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the period of continuation coverage to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), then an amount equal to each remaining premium payment shall thereafter be paid to Executive as currently taxable compensation in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). In addition, if Executive’s employment terminates pursuant to this Section 5(a), the Company shall pay Executive the amounts described in Section 5(d)(i), (ii) and (iii) within sixty (60) 30 days following of the date of termination (or such earlier date as may be mandated by applicable law) and shall pay or provide the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and other benefits described in Sections 2.1(aSection 5(d) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2accordance therewith.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, The Company may terminate Executive's employment hereunder without Cause at any time, by providing Executive thirty (30) days' prior written notice of such termination. Such notice shall specify the Employee’s effective date of the termination of Executive's employment. The Executive may terminate her employment with for Good Reason by providing thirty (30) days' prior written notice to the Company is terminated by pursuant to Section 5(c). In the Company event of the termination of Executive's employment under this Section 6(c) without Cause or due to the Employee’s Disability, or by the Employee Executive for Good Reason, then the Company shall:
(a) continue in each case prior to pay the Employee his base salary in effect on the date of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (x) the date more than twelve (12) months following the date of terminationa Change- in-Control, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation then Executive shall be entitled to payment of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) Executive's Accrued Payments within thirty (30) days after the date of terminationsuch termination and, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) subject to the extent the Employee and any qualified beneficiary Executive's compliance with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”6(g), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described below:
(i) a separation allowance, payable in Sections 2.1(aequal installments in accordance with normal payroll practices over a twelve (12) and 2.1(d) of this Agreement that commenced month period beginning immediately following the date of termination shall cease following termination, equal to one (1) times the Release Period sum of (x) Executive's then Base Salary and (y) the Executive's then Target Bonus;
(ii) constitute any annual incentive bonuses earned but not yet paid for any completed full fiscal year immediately preceding the sole remedy employment termination date, due and payable in lump sum within seventy-five (75) days after the termination date;
(iii) if employment termination occurs prior to the end of any fiscal year, a pro rata annual incentive bonus for such fiscal year in which employment termination occurs (based on actual business days in such fiscal year prior to such employment termination, divided by the total annual business days in such fiscal year) determined and paid based on actual performance achieved for such fiscal year against the performance goals for that fiscal year no later than March 15 of the Employee fiscal year following the fiscal year in which Executive's termination occurred;
(iv) the Company shall arrange for the Executive to continue to participate (through COBRA or otherwise), on substantially the same terms and conditions as in effect for the Executive (including any required contribution) immediately prior to such termination, in the event medical, dental, disability and life insurance programs provided to the Executive pursuant to Section 3(c) hereof until the earlier of (i) the end of the 12 month period beginning on the effective date of the termination of Executive's employment hereunder, or (ii) such time as the Executive is eligible to be covered by comparable benefit(s) of a termination subsequent employer. The foregoing of this Section 6(c)(iv) is referred to as "Benefits Continuation". The Executive agrees to notify the Company promptly if and when she begins employment with another employer and if and when she becomes eligible to participate in any welfare plans, programs or arrangements of another employer; and
(v) upon the sixtieth (60th) day following the date on which Executive's employment pursuant to this Agreement is terminated (the "Termination Date"), a portion of any unvested stock option, restricted stock shares, granted to Executive pursuant to Section 4 herein shall vest, which portion shall be the number of shares equal to the number of shares that would have vested per the applicable award as of the Employee’s employment in one-year anniversary of the circumstances set forth in this Section 2Termination Date had Executive remained continuously employed by Company through such date.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Executive Employment Agreement (Capital Senior Living Corp)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 belowIn Connection with a Change of Control. If, if, at any timeduring the Term of Employment, the EmployeeExecutive’s employment with the Company is terminated by the Company without Cause or (and not due to the Employee’s death or Disability, ) or by the Employee Executive for Good Reason, in either case, (A) upon or within 24 months following a Change of Control or (B) within 60 days prior to a Change of Control, then the Company shall:
Executive shall be entitled to receive the Accrued Benefits and, subject to Section 4.2.5: (ai) continue to pay the Employee his base salary in effect on the date of terminationUnpaid Prior Year Bonus, with such amount to be paid payable in accordance with cash and/or fully vested shares of the Company’s customary payroll practices common stock (as are established or modified from determined by the Company in its sole discretion) at the same time to timeas if no such termination had occurred; (ii) the Annual Bonus for the year in which the Termination Date occurs, until the earlier of but multiplied by a fraction (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days the Employee Executive was employed as the Company’s Senior Vice President, Clinical Development (or, with respect to the year ending December 31, 2023, as the Senior Vice President, Clinical Development, of EIP Pharma, Inc.), during the fiscal year of such termination and (y) the denominator of which is the number of days in such fiscal year (to be paid in cash and/or fully vested shares of the Company’s common stock (as determined by the Company in its sole discretion) at the same time as if no such termination had occurred); (iii) a lump sum payment equal to 1.5 times the sum of Executive’s Base Salary (at the highest rate in effect during the Company 24 month period commencing on the date of such Change of Control) and the higher of Executive’s target Annual Bonus opportunity and the Annual Bonus paid to Executive with respect to the fiscal year immediately preceding the fiscal year in which the such termination occurs and the denominator of which shall equal 365;
(c) pay occurred, with such payment to the Employee (i) be paid in cash on the first payroll date after the effective date of the release (as described in Section 4.2.5) and in all events no later than 70 days after such termination and (iv) a payment equal to 18 times the monthly COBRA premium for Executive and Executive’s eligible dependents (at the rate in effect for Executive’s coverage at the time of Executive’s termination, any base salary earned but not regardless of whether Executive elects COBRA coverage), with one-third of such payment to be paid and any vacation accrued but not used through in cash on the first payroll date after the effective date of the release (as described in Section 4.2.5) and in all events no later than 70 days after such termination, and with the remaining two-thirds to be paid according to the same schedule as the COBRA Benefit is provided in clause (iiiv) within thirty of Section 4.2.3 (30i.e., in installments over 12 months immediately following the Termination Date). Notwithstanding the foregoing, in the event that a termination described in clause (B) days after of this Section 4.2.4 occurs, then the date payments described in clauses (iii) and (iv) of terminationthis Section 4.2.4 shall be paid over the same nine-month period (or the same 12-month period, any reimbursable business expenses incurred as applicable) and in the same manner as set forth in clauses (iii) and (iv) of Section 4.2.3, respectively, rather than being paid in a lump sum. In addition, if (and only if), during the Term of Employment, the Executive’s employment is terminated by the Employee through the date Company without Cause (and not due to death or Disability) or by Executive for Good Reason, in either case, upon or within 24 months following a Change of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) Control, then, to the extent the Employee following will not result in a violation of Section 409A, the Executive shall be entitled to, in addition to the Accrued Benefits and the payments set forth in the foregoing clauses through (iv), and subject to Section 4.2.5, immediate and full accelerated vesting of all equity awards received by Executive from the Company or any qualified beneficiary of its direct or indirect parent companies that are outstanding as of the Termination Date without regard for the vesting schedule set forth in any applicable plan or agreement governing such equity awards; provided that, any equity awards that are subject to the satisfaction of performance goals shall be deemed earned at not less than target performance; and provided, further, that, with respect to such Employee elects continuation any equity award that is in the form of health benefit coverage under Section 4980B a stock option or stock appreciation right, the option or stock appreciation right shall remain outstanding and exercisable for 24 months following the Termination Date (“COBRA”) but in no event beyond the expiration date of the Internal Revenue Code of 1986, as amended (applicable option or stock appreciation right). All other rights the “Code”), Executive may have to compensation and continues to be eligible for such benefits, employee benefits from the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier or any of (x) twelve (12) months (or its Affiliates, other than as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 24.2.4, shall immediately terminate upon the Termination Date.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Employment Agreement (CervoMed Inc.)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the Employee’s Executive's employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, death) or by the Employee Executive for Good ReasonReason within 18 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
(1) the sum of (A) the Executive's base salary in effect on through the date Date of terminationTermination, to be paid in accordance with (B) the Company’s customary payroll practices as are established or modified from time to time, until the earlier product of (x) the date twelve annual bonus paid or payable (12including any bonus or portion thereof which has been earned but deferred) months following for the date of termination, or most recently completed fiscal year and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company current fiscal year in which through the termination occurs Date of Termination, and the denominator of which shall equal 365;
is 365 and (cC) pay the amount of any accrued vacation pay, to the Employee extent not previously paid (i) on the date sum of terminationthe amounts described in clauses (A), any base salary earned but not paid and any vacation accrued but not used through the date of termination(B), and (iiC) within thirty (30) days after shall be hereinafter referred to as the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect"Accrued Obligations"); and
(d2) the amount equal to (a) two multiplied by (b) the sum of (x) the Executive's highest annual base salary in any twelve-month period (on a rolling basis) during the five-year period prior to the Change in Control Date and (y) the Executive's highest annual bonus in any twelve-month period (on a rolling basis) during the five-year period prior to the Change in Control Date.
(ii) for two years after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide medical, dental and life insurance benefits to the Executive and the Executive's family at least equal to those which would have been provided to them if the Executive's employment had not been terminated, in accordance with the applicable medical, dental and life insurance Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and the Executive's family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies; provided, however, that (A) if the terms of a medical, dental or life insurance Benefit Plan do not permit continued participation therein by a former employee, then an equitable arrangement shall be made by the Company (such as a substitute or alternative plan) to provide as substantially equivalent a benefit as is reasonably possible and (B) if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., medical insurance benefits) from such employer on terms at least as favorable to the Executive and the Executive's family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and the Executive's family; and
(iii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive's termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60other than severance benefits) days following the date of termination (the “Release Period”), in a form that will such other amounts and benefits shall be provided by the Company and substantially identical hereinafter referred to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination"Other Benefits"); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Executive Change in Control Retention Agreement (Thermo Electron Corp)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the event of the Employee’s termination of employment with the Company is terminated by the Company without Cause or due pursuant to the Employee’s Disability, Section 4(a)(iv) or by the Employee for Good ReasonReason pursuant to Section 4(a)(v), then in addition to the payments and benefits described in Section 5(a) above, the Company shall:, subject to Section 20 and Section 5(c) and subject to the Employee’s execution and non-revocation of a waiver and release of claims agreement in the Company’s customary form (a “Release”), as of the Release Expiration Date, in accordance with Section 20(c):
(ai) continue Continue to pay to the Employee his base salary in effect Annual Base Salary during the period beginning on the date Date of terminationTermination and ending on the first anniversary of the Date of Termination (such period, to be paid the “Severance Period”) in accordance with the Company’s customary regular payroll practices practice as are established or modified from time of the Date of Termination;
(ii) Pay to time, until the earlier Employee an amount equal to the product of (A) the amount of the Annual Bonus that would have been payable to the Employee pursuant to Section 3(b) if the Employee was still employed as of the applicable bonus payment date in respect of the fiscal year in which the Date of Termination occurs based on actual individual and Company performance goals in such year and (B) the ratio of (x) the date number of full months elapsed during the fiscal year during which such termination of employment occurs on or prior to the Date of Termination, to (y) twelve (12). Any amount payable pursuant to this Section 5(b)(ii) months following the date of terminationshall, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution subject to Section 20 and non-revocation of the Release (as defined belowSection 5(c), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days be paid to Employee in accordance with Section 3(b) as if the Employee was still employed by on the Company during applicable bonus payment date, but in no event earlier than January 1, or later than December 31, of the Company fiscal calendar year immediately following the calendar year in which the termination occurs and the denominator Date of which shall equal 365Termination occurs;
(ciii) pay Accelerate the vesting of a pro rata amount of the Annual Equity Award and/or the Signing Restricted Stock Unit Award that would next vest following the Date of Termination, such amount to the Employee (i) based on the number of full (not partial) fiscal months elapsed during the twelve (12)-month period between the previous vesting date of terminationor, any base salary earned but not paid and any vacation accrued but not used through if none, the date of terminationaward date, and the Date of Termination (iifor example, if a pro rata amount of an Annual Equity Award vests on April 30, 2019, and Employee’s Date of Termination is June 30, 2018, sixteen and sixty-seven percent (16.67%) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effectAnnual Equity Award that otherwise would vest on April 30, 2019 shall immediately vest, and Employee shall forfeit the remaining eighty-three and thirty-three percent (83.33%) of the Annual Equity Award scheduled to vest on April 30, 2019 as well as the remainder of the Annual Equity Award that otherwise would vest subsequently); and
(div) During the Severance Period, if the Employee elects to continue coverage under the extent Company’s group health plan in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), continue coverage for the Employee and any qualified beneficiary with respect eligible dependents under the Company group health benefit plans in which the Employee and any dependents were entitled to such participate immediately prior to the Date of Termination. In the event Employee elects to continue with COBRA coverage, provided that Employee timely submits to the Company evidence of Employee’s payments made to the COBRA administrator, the Company will reimburse Employee for the Company’s share of the premiums associated therewith in an amount equal to what the Company pays for the health insurance premiums of other executive level employees at the Company. The COBRA health continuation of health benefit coverage period under Section 4980B (“COBRA”) of the Internal Revenue Code shall run concurrently with the period of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health continued coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to 5(b)(iv); provided, however, that in the contraryevent Employee obtains other employment that offers group health benefits, all benefits such continuation of COBRA coverage by the Company under this Section 2 5(b)(iv) shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Companycease.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any timeon or after July 9, 2015, the Employee’s employment with the Company is terminated by the Company without Cause or due to the Employee’s Disability, or by the Employee for Good Reason, then the Company shall:
(a) continue to pay the Employee his base salary in effect on the date of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to timetime as follows for the period of time set forth below (the “Severance Period”):
(i) if the termination occurs on or after July 9, 2015 and prior to January 9, 2016, then Company shall pay the Employee his base salary until the earlier of (x) the final date of the Initial Severance Period or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(ii) if the termination occurs on or after January 9, 2016, then the Company shall pay the Employee his base salary until the earlier of (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;; For purposes of this Section 2.1, the “Initial Severance Period” shall mean a period having a number of days equal to the number of days that the Employee has been employed by the Company prior to the date of termination (i.e., January 9, 2015 through his date of termination).
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months the Severance Period (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms ), or (y) the date the Employee becomes eligible for group health coverage through another employer. For the avoidance of doubt, if the Employee’s employment terminates for any reason or no reason before July 9, 2015, the Employee shall not be entitled to any severance payments but shall be entitled to the amounts set forth in Section 2.1(c) above, payable at the time set forth in such Section.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release”) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Severance and Change in Control Agreement (Aveo Pharmaceuticals Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the EmployeeExecutive’s employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, Death) or by the Employee Executive for Good ReasonReason within 24 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive the following amounts:
(1) in a lump sum, in cash, within 30 days after the Date of Termination, the sum of (A) the Executive’s base salary through the Date of Termination, (B) any bonus amounts with respect to periods ending prior to the Date of Termination which the Executive is entitled to and (C) the amount of any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in effect each case to the extent not previously paid (the sum of the amounts described in clauses (A), (B), and (C) shall be hereinafter referred to as the “Accrued Obligations”); and
(2) on the date of terminationa monthly basis, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time standard practice prior to timethe Date of Termination, until the earlier for a period of (x) the date twelve (12) 12 months following the date Date of terminationTermination, or an amount equal to the sum of (yA) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and nonone-revocation twelfth of the Release (as defined below), pay the EmployeeExecutive’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by highest annual base salary at the Company during the Company fiscal three-year in which the termination occurs and the denominator of which shall equal 365;
(c) pay period prior to the Employee Change in Control Date and (iB) on one-twelfth of the Executive’s highest annual target bonus amount at the Company during the three-year period prior to the Change in Control Date; provided, however, that the Company shall not be obligated to make any payments under this Section 4.2(a)(i)(2) from and after the date of termination, any base salary earned but not paid and any vacation accrued but not used through that the date of termination, and Executive becomes engaged in a Competitive Activity (as defined in Section 4.2(a)(iv)); Iomega Confidential
(ii) within thirty (30) days for 12 months after the date Date of terminationTermination, any reimbursable business expenses incurred or such longer period as may be provided by the Employee through terms of the date of termination pursuant appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Executive and the Executive’s family at least equal to those which would have been provided to them if the Executive’s employment had not been terminated, in accordance with the applicable Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and his or her family, in effect generally at any expense reimbursement policies time thereafter with respect to other peer executives of the Company and its affiliated companies; provided, however, that if the Executive either (1) becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer on terms at least as favorable to the Executive and his or her family as those being provided by the Company or (2) becomes engaged in a Competitive Activity, then the Company shall no longer be required to provide those particular benefits (or in effectthe case of clause (2), any benefits) to the Executive and his or her family; and
(diii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive’s termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60) days following the date of termination (such other amounts and benefits shall be hereinafter referred to as the “Release PeriodOther Benefits”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employee’s employment with the Company is terminated by the Company without event of a Termination Without Cause or due to the Employee’s Disability, or by the Employee a Termination for Good ReasonReason (in either case occurring during the Employment Period), then Executive shall be entitled to receive the Company shallfollowing:
(a) continue promptly after the Date of Termination (but in no event later than ten business days after the Date of Termination) a lump sum amount equal to pay the Employee sum of Executive’s Accrued Base Salary, Accrued Annual Bonus and, subject to compliance with Section 162(m) of the Code, Prorata Annual Bonus;
(b) six months after the Date of Termination a lump sum amount equal to the product of (i) the sum of Base Salary plus Target Annual Bonus for the Fiscal Year during which the Date of Termination occurs (provided that no effect shall be given to any reduction in Target Annual Bonus that would qualify as Good Reason if Executive were to terminate his base salary in effect employment on the date of terminationaccount thereof), to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, and multiplied by (ii) 2;
(c) until the earlier of (xi) the 18 month anniversary of the Date of Termination or (ii) the date twelve (12) months following the date Executive becomes eligible to participate in any plan, program or arrangement providing benefits of termination, or (y) the date on which the Employee commences a similar nature by reason of his employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following other provision of services, the execution and non-revocation life insurance benefit specified in Section 5.1 to which Executive is entitled as of Date of Termination, subject to the Release (as defined below)terms of applicable plans, programs or policies; provided that the Executive shall pay the Employee’s target bonus on the date same amount for such benefits as covered members of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was Senior Management who are actively employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365would pay;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) if the Date of Termination occurs prior to the extent Executive’s 57th birthday, (1) for the Employee six-month period following the Date of Termination, the Companies shall provide Executive and any qualified beneficiary with respect his eligible dependants the same medical benefits (on the same terms and conditions) as would have applied had Executive continued to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) be an employee of the Internal Revenue Code of 1986, as amended (the “Code”)Companies for such period, and continues (2) monthly after such six month period, for the remainder of the life of Executive, benefits equivalent to those payable under the Principal Welfare Benefit Plan for Employees calculated under the terms of such plan as if the Date of Termination occurred after Executive’s 57th birthday, reduced by amounts actually payable under such plan, provided that, if either Executive or the Company reasonably believes it is likely that the benefits under subclause (2) cannot be eligible for such benefitsprovided on a tax-favored basis, the Company shall provide payments to pay the Employee cost of the insurance premium for such benefits equal to on the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or same monthly basis as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end have been provided;
(e) if the Date of Termination occurs prior to Executive’s 57th birthday, for purposes of calculating the retirement benefits payable to Executive under the applicable plan terms or (y) the date the Employee becomes eligible Supplemental Executive Retirement Plan for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”)Employees, in a form that Executive will be provided treated as though the Date of Termination occurred after Executive’s 57th birthday;
(f) key executive level outplacement services, the provider of which shall be selected by the Company and substantially identical Executive, up to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances a maximum of the termination)$10,000; provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) no event shall any amount be payable to Executive in lieu of this Agreement that commenced following the date his receipt of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 such services. Notwithstanding anything herein to the contrary, all the benefits under provided in Section 6.3 shall be provided only upon Executive’s execution of a release and waiver as described in Section 6.5. For the avoidance of doubt, Executive’s rights and entitlements with respect to any equity-based or other long-term incentive compensation awards (including any LTIP Award) outstanding as of the Date of Termination shall be determined in accordance with the terms of such awards and the governing plan documents and shall not be enhanced or otherwise modified by the terms of this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the CompanyAgreement.
Appears in 1 contract
Sources: Employment Agreement (Principal Financial Group Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the Employee’s Executive's employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, Death) or by the Employee Executive for Good ReasonReason within 18 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
(1) the sum of (A) the Executive's base salary in effect on through the date Date of terminationTermination, to be paid in accordance with (B) the Company’s customary payroll practices as are established or modified from time to time, until the earlier product of (x) the date twelve annual bonus paid or payable (12including any bonus or portion thereof which has been earned but deferred) months following for the date of termination, or most recently completed fiscal year and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company current fiscal year in which through the termination occurs Date of Termination, and the denominator of which shall equal 365;
is 365 and (cC) pay the amount of any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the Employee extent not previously paid (i) on the date sum of terminationthe amounts described in clauses (A), any base salary earned but not paid and any vacation accrued but not used through the date of termination(B), and (iiC) within thirty (30) days after shall be hereinafter referred to as the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect"Accrued Obligations"); and
(d2) the amount equal to [(A) two multiplied by (b)] the sum of (x) the Executive's highest annual base salary in any twelve-month period (on a rolling basis) during the five-year period prior to the Change in Control Date and (y) the Executive's highest annual bonus in any twelve-month period (on a rolling basis) during the five-year period prior to the Change in Control Date.
(ii) for [one year] [two years] after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Executive and the Executive's family at least equal to those which would have been provided to them if the Executive's employment had not been terminated, in accordance with the applicable Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and the Executive's family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies; PROVIDED, HOWEVER, that if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer on terms at least as favorable to the Executive and the Executive's family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and the Executive's family;
(iii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive's termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(iv) days following for purposes of determining eligibility (but not the date time of termination (commencement of benefits) of the “Release Period”)Executive for retiree benefits to which the Executive is entitled, in a form that will the Executive shall be provided considered to have remained employed by the Company and substantially identical to until [one year] [two years] after the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances Date of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2Termination.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Executive Retention Agreement (Viasys Healthcare Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the EmployeeExecutive’s employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, death) or by the Employee Executive for Good ReasonReason within 18 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
(1) the sum of (A) the Executive’s base salary in effect on through the date Date of terminationTermination, to be paid in accordance with (B) the Company’s customary payroll practices as are established or modified from time to time, until the earlier product of (x) the date twelve (12) months following higher of the date Executive’s target bonus as in effect immediately prior to the Change in Control Date or the Date of termination, or Termination and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company current fiscal year in which through the termination occurs Date of Termination, and the denominator of which shall equal 365;
is 365 and (cC) pay the amount of any accrued vacation pay, to the Employee extent not previously paid (i) on the date sum of terminationthe amounts described in clauses (A), any base salary earned but not paid and any vacation accrued but not used through the date of termination(B), and (iiC) within thirty (30) days after shall be hereinafter referred to as the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect“Accrued Obligations”); and
(d2) an amount equal to (a) two multiplied by (b) the sum of (x) the higher of the Executive’s annual base salary as in effect immediately prior to the Change in Control Date or the Date of Termination and (y) the higher of the Executive’s target bonus as in effect immediately prior to the Change in Control Date or the Date of Termination .
(ii) for two years after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide medical, dental and life insurance benefits to the Executive and the Executive’s family at least equal to those which would have been provided to them if the Executive’s employment had not been terminated, in accordance with the applicable medical, dental and life insurance Benefit Plans in effect immediately prior to the Change in Control Date or, if more favorable to the Executive and the Executive’s family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies; provided, however, that (A) if the terms of a medical, dental or life insurance Benefit Plan do not permit continued participation therein by a former employee, then an equitable arrangement shall be made by the Company (such as a substitute or alternative plan) to provide as substantially equivalent a benefit as is reasonably possible and (B) if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., medical insurance benefits) from such employer on terms at least as favorable to the Executive and the Executive’s family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and the Executive’s family; and
(iii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive’s termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60other than severance benefits) days following the date of termination (such other amounts and benefits shall be hereinafter referred to as the “Release PeriodOther Benefits”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Executive Change in Control Retention Agreement (Thermo Fisher Scientific Inc.)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the EmployeeExecutive’s employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, death) or by the Employee Executive for Good ReasonReason within 18 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
(1) the sum of (A) the Executive’s base salary in effect on through the date Date of terminationTermination, to be paid in accordance with (B) the Company’s customary payroll practices as are established or modified from time to time, until the earlier product of (x) the date twelve annual bonus paid or payable (12including any bonus or portion thereof which has been earned but deferred) months following for the date of termination, or most recently completed fiscal year and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company current fiscal year in which through the termination occurs Date of Termination, and the denominator of which shall equal 365;
is 365 and (cC) pay the amount of any accrued vacation pay, to the Employee extent not previously paid (i) on the date sum of terminationthe amounts described in clauses (A), any base salary earned but not paid and any vacation accrued but not used through the date of termination(B), and (iiC) within thirty (30) days after shall be hereinafter referred to as the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect“Accrued Obligations”); and
(d2) the amount equal to (a) two multiplied by (b) the sum of (x) the Executive’s highest annual base salary in any twelve-month period (on a rolling basis) during the five-year period prior to the Change in Control Date and (y) the Executive’s highest annual bonus in any twelve-month period (on a rolling basis) during the five-year period prior to the Change in Control Date.
(ii) for two years after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide medical, dental and life insurance benefits to the Executive and the Executive’s family at least equal to those which would have been provided to them if the Executive’s employment had not been terminated, in accordance with the applicable medical, dental and life insurance Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and the Executive’s family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies; provided, however, that (A) if the terms of a medical, dental or life insurance Benefit Plan do not permit continued participation therein by a former employee, then an equitable arrangement shall be made by the Company (such as a substitute or alternative plan) to provide as substantially equivalent a benefit as is reasonably possible and (B) if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., medical insurance benefits) from such employer on terms at least as favorable to the Executive and the Executive’s family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and the Executive’s family; and
(iii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive’s termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60other than severance benefits) days following the date of termination (such other amounts and benefits shall be hereinafter referred to as the “Release PeriodOther Benefits”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Executive Change in Control Retention Agreement (Thermo Fisher Scientific Inc.)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the event of Employee’s termination of employment with the Company is terminated by the Company without Cause or due pursuant to the Employee’s Disability, Section 4(a)(iv) or by the Employee for Good ReasonReason pursuant to Section 4(a)(v), then in addition to the Accrued Obligations described in Section 5(a) above, the Company shall:, subject to Section 20 and Section 5(c) and subject to Employee’s execution and non-revocation of a waiver and release of claims agreement in the Company’s customary form (a “Release”), as of the Release Expiration Date, in accordance with Section 20(c):
(ai) continue Continue to pay to Employee Annual Base Salary during the Employee his base salary in effect on the date of termination, to be paid Severance Period in accordance with the Company’s customary regular payroll practices practice as are established of the Date of Termination;
(ii) Pay to Employee an amount equal to (A) the amount of the Bonus or modified from time 2024 Semi-Annual Bonus, as applicable, that would have been payable to timeEmployee pursuant to Section 3(b) if Employee was still employed as of the applicable bonus payment date in respect of the fiscal year in which the Date of Termination occurs and without duplication of any amounts previously paid to Employee in respect of such Bonus or 2024 Semi-Annual Bonus for the fiscal year of Employee’s termination, until the earlier of except that (x) Employee shall receive only a portion of the date twelve Bonus or 2024 Semi-Annual Bonus that Employee otherwise would have been entitled to pursuant to Section 3(b) that is attributable to achievement of Company performance goals only (12and excluding individual performance goals) months following the date of termination, or in such year and (y) the date on which Bonus or 2024 Semi-Annual Bonus shall in no event exceed the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation portion of the Release Target Bonus Opportunity set forth in Section 3(b) relating to achievement of the Company’s performance goals only (as defined below)and excluding individual performance goals) in such year, pay the Employee’s target bonus on the date of termination multiplied by (B) a fraction, the numerator of which shall equal is the number of days the Employee was employed by the Company full fiscal months elapsed during the Company fiscal year in which prior to the termination occurs Date of Termination and the denominator of which is the number of full fiscal months in the applicable fiscal year. Any amount payable pursuant to this Section 5(b)(ii) shall, subject to Section 20 and Section 5(c), be paid to Employee in accordance with Section 3(b) as if Employee was still employed on the applicable bonus payment date, but in no event earlier than January 1, or later than December 31, of the calendar year immediately following the calendar year in which the Date of Termination occurs. In the event the Date of Termination occurs prior to the applicable bonus payment date for any Bonus or the 2024 Semi-Annual Bonus, as the case may be, earned in the prior fiscal year, Employee shall equal 365be entitled to receive such Bonus or 2024 Semi-Annual Bonus, as the case may be, in accordance with the terms set forth in Section 3(b) as if Employee was still employed on the applicable bonus payment date, but in no event prior to the applicable bonus payment date therefor;
(ciii) pay to If, during the Employee (i) on the date of terminationSeverance Period, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit to continue coverage under Section 4980B the Company’s group health plan in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), continue coverage for Employee and continues any eligible dependents under the Company group health benefit plans in which Employee and any dependents were entitled to be eligible for such benefitsparticipate immediately prior to the Date of Termination. In the event Employee elects to continue with COBRA coverage, provided, that Employee timely submits to the Company evidence of Employee’s payments made to the COBRA administrator, the Company shall provide payments to the will reimburse Employee for such benefits the Company’s share of the premiums associated therewith in an amount equal to what the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility Company pays for the Employee and each qualified beneficiary continues) from health insurance premiums of other senior executive officers at the date such benefits would otherwise end Company. The COBRA health continuation period under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor 4980B of the Company within sixty (60) days following Code shall run concurrently with the date period of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances continued coverage set forth in this Section 2.
2.3 Notwithstanding anything herein to 5(b)(iii); provided, however, that in the contraryevent Employee obtains other employment that offers group health benefits, all benefits such continuation of COBRA coverage by the Company under this Section 2 5(b)(iii) shall terminate immediately if cease.
(iv) As of the EmployeeDate of Termination, the Company shall, at any timeits expense, violates any proprietary informationprovide Employee with outplacement services from one or more organizations that are then offered by the Company from time to time for up to six (6) months from the Date of Termination or until employment is obtained, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Companywhichever occurs first.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employeeevent of the Executive’s termination of employment with the Company is terminated by the Company without Cause or due pursuant to the Employee’s Disability, Section 4(a)(iv) or by the Employee Executive for Good ReasonReason pursuant to Section 4(a)(v), then in addition to the payments and benefits described in Section 5(a) above, the Company shall:
(a, subject to Section 20 and Section 5(c) continue and subject to pay the Employee his base salary in effect on the date of termination, to be paid in accordance with the CompanyExecutive’s customary payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of a waiver and release of claims agreement in the Company’s customary form (a “Release”), as of the Release Expiration Date, in accordance with Section 20(c):
(as defined below), i) Continue to pay to the Employee’s target bonus Executive Annual Base Salary and related Gross-up Payment during the period beginning on the Date of Termination and ending on date that is eighteen (18) months following the Date of termination multiplied by a fractionTermination (such period, the numerator “Severance Period”) in accordance with the customary payroll practices of the Company (currently, weekly) as of the Date of Termination, even if after the conclusion of the Severance Period;
(ii) Pay to the Executive an amount equal to the product of (A) the amount of the Annual Bonus that would have been payable to the Executive pursuant to Section 3(b) if the Executive was still employed as of the applicable bonus payment date in respect of the Fiscal Year in which shall equal the Date of Termination occurs based on actual individual and Company performance goals in such year and (B) the ratio of (x) the number of days the Employee was employed by the Company full months elapsed during the Company fiscal Fiscal Year during which such termination of employment occurs on or prior to the Date of Termination, to (y) twelve (12). Any amount payable pursuant to this Section 5(b)(ii) shall, subject to Section 20 and Section 5(c), be paid to Executive in accordance with Section 3(b) as if the Executive was still employed on the applicable bonus payment date, but in no event earlier than January 1, or later than December 31, of the calendar year immediately following the calendar year in which the termination occurs and the denominator Date of which shall equal 365Termination occurs;
(ciii) pay Accelerate the vesting of the amount of any Annual Equity Awards that would vest within eighteen (18) months following the Date of Termination. All vested but unexercised Annual Equity Awards shall be exercisable consistent with the time periods set forth in the applicable equity award agreement; and
(iv) During the Severance Period, if the Executive is then participating in and elects to continue coverage under the Company’s group health plan in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), continue coverage for the Executive and any eligible dependents under the Company group health benefit plans in which the Executive and any dependents were entitled to participate immediately prior to the Date of Termination. In the event Executive elects to continue with COBRA coverage, provided, that Employee timely submits to the Company (to the Senior Vice President of People Resources, P▇▇▇▇ ▇▇▇▇▇▇▇▇, 2▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇, ▇▇ 10014) evidence of Executive’s payments made to the COBRA administrator, the Company will reimburse Executive for the Company’s share of the premiums associated therewith in an amount equal to what the Company pays for the health insurance premiums of other executive level employees at the Company. The COBRA health continuation period under Section 4980B of the Code shall run concurrently with the period of continued coverage set forth in this Section 5(b)(iv); provided, however, that in the event Executive obtains other employment that offers group health benefits, such continuation of COBRA coverage by the Company under this Section 5(b)(iv) shall immediately cease. During the Severance Period, if the Executive is ineligible for COBRA as of the Date of Termination as a result of the Executive’s status as a partner in the Partnership, the Company will reimburse Executive for the equivalent of the Company’s share of the premiums associated therewith in an amount equal to what the Company pays for the health insurance premiums of other executive level employees at the Company. Such payments will be timely made to Executive on a monthly basis during the Severance Period until the earlier of: (i) on the date conclusion of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, Severance Period; and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee time that Executive becomes eligible for group health coverage through benefits via another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employeeevent of the Executive’s termination of employment with the Company is terminated by the Company without Cause or due pursuant to the Employee’s Disability, Section 4(a)(iv) or by the Employee Executive for Good ReasonReason pursuant to Section 4(a)(v), then in addition to the payments and benefits described in Section 5(a) above, the Company shall:, subject to Section 23 and Section 5(d) and subject to Executive’s execution and non-revocation of a waiver and release of claims agreement in substantially in the form attached hereto as Exhibit A in accordance with Section 23(c) (a “Release”):
(ai) continue Continue to pay to the Employee his base salary in effect Executive Annual Base Salary during the period beginning on the date Date of termination, to be paid Termination and ending on the eighteen (18)-month anniversary of the Date of Termination in accordance with the Company’s customary regular payroll practices practice as are established or modified from time of the Date of Termination; provided that, notwithstanding anything to timethe contrary in this Section 5(b)(i), until if such termination of employment occurs within the earlier twelve (12)-month period immediately following a Change in Control (and such Change in Control constitutes a “change in control event” as defined in Treasury Regulations Section 1.409A-3(i)(5)), then, in lieu of the foregoing payments set forth in this Section 5(b)(i), the Company shall pay to the Executive an aggregate amount equal to 200% of his Annual Base Salary during the period beginning on the Date of Termination and ending on the twenty-four (24)-month anniversary of the Date of Termination in installments in accordance with the Company’s regular payroll practice as of the Date of Termination;
(ii) Pay to the Executive an amount equal to the product of (A) the amount of the Annual Bonus that would have been payable to the Executive pursuant to Section 3(c) if the Executive was still employed as of the applicable Bonus Vesting Date in respect of the fiscal year in which the Date of Termination occurs based on actual individual and Company performance goals in such year and (B) the ratio of (x) the date twelve (12) months following number of days elapsed during the date fiscal year during which such termination of terminationemployment occurs on or prior to the Date of Termination, or to (y) 365. Any amount payable pursuant to this Section 5(b)(ii) shall, subject to Section 23 and Section 5(d), be paid to Executive in accordance with Section 3(c) as if the date Executive was still employed on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days applicable Bonus Vesting Date, but in no event later than the 15th day of the third month of the fiscal year immediately following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator Date of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effectTermination occurs; and
(diii) Notwithstanding any provision to the extent the Employee and contrary in any qualified beneficiary equity plan or award agreement with respect to such Employee elects continuation of health benefit coverage under Section 4980B equity awards, cause (“COBRA”A) with respect to the Promotion RSUs which are not vested as of the Internal Revenue Code Date of 1986Termination and all Annual Equity Awards subject to service-based vesting, as amended (each such award to become vested with respect to a prorated portion thereof based on the “Code”)ratio of the number of days of employment of the Executive during the applicable service-based vesting period to the total number of days of such service-based vesting period, and continues (B) with respect to all Annual Equity Awards subject to performance-based vesting, each such award to shall continue to be eligible for to become vested in accordance with its terms based on actual performance with respect to a prorated portion of such benefitsaward based on the ratio of the number of days of employment of the Executive during the applicable performance period to the total number of days of such performance period; provided that, notwithstanding anything to the contrary in this Section 5(b)(iii), (x) if such termination of employment occurs during any period when the Executive is unable to engage in substantial gainful activity that may reasonably be expected to result in Disability, the Company shall provide payments shall, on the Date of Termination, cause (I) the Promotion RSUs and all Annual Equity Awards subject to the Employee for such benefits equal service-based vesting, to the amount contributed for active employees become fully vested and (II) all Annual Equity Awards subject to performance-based vesting to continue to be eligible to become vested in accordance with similar benefits their terms based on actual performance, and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) if such termination of employment occurs within the date twelve (12)-month period immediately following a Change in Control, the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to Company shall, on the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation Date of Termination, cause all equity awards held by the Employee of a release of claims Executive (including, without limitation, the “ReleaseAnnual Equity Awards) in favor which are not vested as of the Company within sixty (60) days following Date of Termination to become vested for the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances purposes of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, 2010 Incentive Award Plan or any other continuing obligation applicable equity plan, and any applicable award agreement(s), deeming, for purposes of awards subject to performance-based vesting, that the CompanyCompany will attain “target” performance levels.
Appears in 1 contract
Sources: Employment Agreement (Novanta Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the EmployeeExecutive’s employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, death) or by the Employee Executive for Good Reason, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive the following amounts:
(1) in a lump sum, in cash, within 30 days after the Date of Termination, the sum of (A) the Executive’s base salary through the Date of Termination, (B) a pro rata portion of his then current fiscal year target bonus amount (calculated by dividing the number of full and partial months of the current fiscal year in effect on which the date Executive is employed through the Date of terminationTermination by 12, and multiplying this fraction by the target bonus amount to be paid to Executive for the current fiscal year), and (C) any accrued vacation pay to the extent not previously paid (the sum of the amounts described in accordance with clauses (A), (B), and (C) shall be hereinafter referred to as the “Accrued Obligations”); and
(2) in a lump sum, in cash, within 30 days after the Date of Termination, the sum of (A) one times the Executive’s then current annual base salary and (B) one times the Executive’s then current fiscal year target bonus amount;
(ii) if the Executive is covered under the Company’s customary payroll practices as are established or modified from time group health plan immediately prior to timethe Date of Termination, then if the Executive timely elects to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company will pay the premium for the Executive’s COBRA coverage until the earlier of (xA) twelve months from the Date of Termination and (B) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effectExecutive becomes covered under another group health plan; and
(diii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive’s termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60) days following the date of termination (such other amounts and benefits shall be hereinafter referred to as the “Release PeriodOther Benefits”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Executive Severance and Change in Control Agreement (Myriad Pharmaceuticals, Inc.)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the Employee’s Executive's employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, death) or by the Employee Executive for Good ReasonReason within (i) eighteen (18) months following or (ii) six (6) months prior to the Change in Control Date, and it is reasonably demonstrated by the Executive that such termination of employment (A) was at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (B) otherwise arose in connection with or in anticipation of a Change of Control, then the Company shallExecutive shall be entitled to the following benefits:
(a) continue to pay the Employee his base salary in effect on the date of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (xi) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which Company shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) Executive in a lump sum in cash within thirty (30) days after the date Date of terminationTermination the aggregate of the following amounts:
(1) the sum of (A) the Executive's base salary through the Date of Termination, (B) the product of (x) the annual bonus paid or payable (including any reimbursable business expenses incurred bonus or portion thereof which has been earned but deferred) for the most recently completed fiscal year and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination, and the denominator of which is 365 and (C) the amount of any compensation previously deferred by the Employee through Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the date of termination pursuant to any expense reimbursement policies extent not previously paid (the sum of the Company then amounts described in effectclauses (A), (B), and (C) shall be hereinafter referred to as the "Accrued Obligations"); and
(d2) an amount equal to (A) three multiplied by (B) the sum of (x) the Executive's highest annual base salary in any twelve-month period (on a rolling basis) during the five-year period prior to the Change in Control Date and (y) the Executive's highest annual bonus in any twelve-month period (on a rolling basis) during the five-year period prior to the Change in Control Date.
(ii) for three years after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Executive and the Executive's family at least equal to those which would have been provided to them if the Executive's employment had not been terminated, in accordance with the applicable Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and his family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies; provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer on terms at least as favorable to the Executive and his family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and his family.
(iii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive's termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(iv) days following for purposes of determining eligibility (but not the date time of termination (commencement of benefits) of the “Release Period”)Executive for retiree benefits to which the Executive is entitled, in a form that will the Executive shall be provided considered to have remained employed by the Company and substantially identical to until three years after the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances Date of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2Termination.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Executive Retention Agreement (Viasys Healthcare Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the event of the Employee’s termination of employment with the Company is terminated by the Company without Cause or due pursuant to the Employee’s Disability, Section 4(a)(iv) or by the Employee for Good ReasonReason pursuant to Section 4(a)(v), then in addition to the payments and benefits described in Section 5(a) above, the Company shall:, subject to Section 20 and Section 5(c) and subject to the Employee’s execution and non-revocation of a waiver and release of claims agreement in the Company’s customary form (a “Release”), as of the Release Expiration Date, in accordance with Section 20(c):
(ai) continue Continue to pay to the Employee his base salary in effect Annual Base Salary during the period beginning on the date Date of terminationTermination and ending on the first anniversary of the Date of Termination (such period, to be paid the “Severance Period”) in accordance with the Company’s customary regular payroll practices practice as are established or modified from time of the Date of Termination;
(ii) Pay to time, until the earlier Employee an amount equal to the product of (A) the amount of the Annual Bonus that would have been payable to the Employee pursuant to Section 3(b) if the Employee was still employed as of the applicable bonus payment date in respect of the fiscal year in which the Date of Termination occurs based on actual individual and Company performance goals in such year and (B) the ratio of (x) the date number of full months elapsed during the fiscal year during which such termination of employment occurs on or prior to the Date of Termination, to (y) twelve (12). Any amount payable pursuant to this Section 5(b)(ii) months following the date of terminationshall, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution subject to Section 20 and non-revocation of the Release (as defined belowSection 5(c), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days be paid to Employee in accordance with Section 3(b) as if the Employee was still employed by on the Company during applicable bonus payment date, but in no event earlier than January 1, or later than December 31, of the Company fiscal calendar year immediately following the calendar year in which the termination occurs and the denominator Date of which shall equal 365Termination occurs;
(ciii) pay Accelerate the vesting of a pro rata amount of the Annual Equity Award that would next vest following the Date of Termination, such amount to the Employee (i) based on the number of full (not partial) fiscal months elapsed during the twelve (12)-month period between the previous vesting date of terminationor, any base salary earned but not paid and any vacation accrued but not used through if none, the date of terminationaward date, and the Date of Termination (iifor example, if a pro rata amount of an Annual Equity Award vests on April 30, 2017, and Employee’s Date of Termination is June 30, 2016, sixteen and sixty-seven percent (16.67%) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effectAnnual Equity Award that otherwise would vest on April 30, 2017 shall immediately vest, and Employee shall forfeit the remaining eighty-three and thirty-three percent (83.33%) of the Annual Equity Award scheduled to vest on April 28, 2017 as well as the remainder of the Annual Equity Award that otherwise would vest subsequently); and
(div) During the Severance Period, if the Employee elects to continue coverage under the extent Company’s group health plan in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), continue coverage for the Employee and any qualified beneficiary with respect eligible dependents under the Company group health benefit plans in which the Employee and any dependents were entitled to such participate immediately prior to the Date of Termination. In the event Employee elects to continue with COBRA coverage, provided that Employee timely submits to the Company evidence of Employee’s payments made to the COBRA administrator, the Company will reimburse Employee for the Company’s share of the premiums associated therewith in an amount equal to what the Company pays for the health insurance premiums of other Employee level employees at the Company. The COBRA health continuation of health benefit coverage period under Section 4980B (“COBRA”) of the Internal Revenue Code shall run concurrently with the period of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health continued coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to 5(b)(iv); provided, however, that in the contraryevent Employee obtains other employment that offers group health benefits, all benefits such continuation of COBRA coverage by the Company under this Section 2 5(b)(iv) shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Companycease.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, the Employee’s Upon termination of Executive's employment with the Company is terminated (x) by the Company without Trust other than for Cause or due to the Employee’s Disability, upon Executive's death or permanent disability or (y) by the Employee Executive for Good Reason, then Executive will be entitled to the Company shallbenefits provide below:
(ai) continue to the Trust will pay the Employee Executive his base salary in effect on Base Salary through the date of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of ;
(xii) the date twelve (12) months Trust will pay as severance pay to Executive, not later than the 30th day following the date of termination, a lump sum severance payment (the "Severance Payment") equal to the greater of (x) the aggregate of all compensation due to Executive hereunder during the balance of the Term or (y) 1.99 times the date on which "base amount" within the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(bmeaning of Sections 280G(b)(3) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”280G(d) of the Internal Revenue Code of 1986, as amended (the “"Code”"), and continues to be eligible for such benefitsany applicable temporary or final regulations promulgated thereunder, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or its equivalent as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms provided in any successor statute or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this regulation. If Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor 280G of the Company within sixty Code (60and any successor provisions thereto) days following is repealed or otherwise inapplicable, then the Severance Payment will equal 1.99 times $185,000 if the date of termination is prior to December 31, 2002, and thereafter 1.99 times $100,000;
(iii) if in the opinion of tax counsel elected by Executive and reasonably acceptable to the Trust, any portion of any payment made to Executive, including, without limitation, the Severance Payment, constitutes an excess "parachute payment" within the meaning of Section 280G(b)(1) of the Code, the Trust will pay Executive an additional amount (the “Release Period”), in a form that will be provided by the Company and substantially identical "Additional Amount") equal to the form attached to this Plan as Exhibit A sum of (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances i) all taxes payable by Executive under Section 4999 of the termination); provided that if Code with respect to the Release does not become effective during Severance Payment and the Release PeriodAdditional Amount, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and plus (ii) constitute all federal, state or local income taxes payable by Executive with respect to the sole remedy Additional Amount;
(iv) Notwithstanding the foregoing, if, during the first three years of the Employee in the event Term, this Agreement is terminated by reason of a change of control, other than by virtue of a transaction commonly referred to as a leveraged buy out or a management buy out in which Executive has the option to participate, and if the Employment Agreement - Joe▇ ▇▇▇▇▇▇▇▇▇▇ Severance Payment multiple to Den▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ greater than 1.99, the multiple applicable to Executive shall be adjusted accordingly; and
(v) Other than a termination by virtue of a transaction described in paragraph 6c(iv) as one that Executive has the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein option to participate in, Executive will be entitled to the contrary, all full amount of medical benefits under as if Executive was employed by the Trust for the full Term of this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the CompanyAgreement.
Appears in 1 contract
Sources: Employment Agreement (Ramco Gershenson Properties Trust)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employeeevent of the Executive’s termination of employment with the Company is terminated by the Company without Cause or due pursuant to the Employee’s Disability, Section 4(a)(iv) or by the Employee Executive for Good ReasonReason pursuant to Section 4(a)(v), then in addition to the payments and benefits described in Section 5(a) above, the Company shall:, subject to Section 22 and Section 5(d) and subject to Executive’s execution and non-revocation of a waiver and release of claims agreement in substantially in the form attached hereto as Exhibit C in accordance with Section 22(c) (a “Release”):
(ai) continue Continue to pay to the Employee his base salary in effect Executive Annual Base Salary during the period beginning on the date Date of termination, to be paid Termination and ending on the eighteen (18)-month anniversary of the Date of Termination in accordance with the Company’s customary regular payroll practices practice as are established or modified from time of the Date of Termination; provided that, notwithstanding anything to timethe contrary in this Section 5(b)(i), until if such termination of employment occurs within the earlier twelve (12)-month period immediately following a Change in Control (and such Change in Control constitutes a “change in control event” as defined in Treasury Regulations Section 1.409A-3(i)(5)), then, in lieu of the foregoing payments set forth in this Section 5(b)(i), the Company shall pay in a lump sum to the Executive an amount equal to 200% of his Annual Base Salary;
(ii) Pay to the Executive an amount equal to the product of (A) the amount of the Annual Bonus that would have been payable to the Executive pursuant to Section 3(c) if the Executive was still employed as of the applicable Bonus Vesting Date in respect of the fiscal year in which the Date of Termination occurs based on actual individual and Company performance goals in such year (provided, however, that, if the Date of Termination occurs in the fiscal year 2011 and the 2011 Guaranteed Bonus is higher than the Annual Bonus based on the performance goals, the 2011 Guaranteed Bonus shall be used in place of the Annual Bonus for purposes of this clause (A)) and (B) the ratio of (x) the date twelve (12) months following number of days elapsed during the date fiscal year during which such termination of terminationemployment occurs on or prior to the Date of Termination, or to (y) 365. Any amount payable pursuant to this Section 5(b)(ii) shall, subject to Section 22 and Section 5(d), be paid to Executive in accordance with Section 3(c)(i) as if the date Executive was still employed on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days applicable Bonus Vesting Date, but in no event later than the 15th day of the third month of the fiscal year immediately following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination Date of Termination occurs (provided that if the Date of Termination is in fiscal year 2011, any amount payable under this Section 5(b)(ii) shall be paid at the Date of Termination and computed based on the 2011 Guaranteed Bonus, and, if the Annual Bonus for 2011 is determined, based on any applicable Company goals achieved, to be higher than the 2011 Guaranteed Bonus, the amount due under this Section 5(b)(ii) shall be recomputed and the denominator of which appropriate additional amount due shall equal 365;
(c) pay be paid to the Employee (i) on the date of terminationExecutive no later than March 15, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect2012); and
(diii) Notwithstanding any provision to the extent the Employee and contrary in any qualified beneficiary equity plan or award agreement with respect to such Employee elects continuation of health benefit coverage under Section 4980B equity awards, cause (“COBRA”A) the Sign-On RSUs which are not vested as of the Internal Revenue Code Date of 1986, as amended (Termination to become vested in accordance with the “Code”)terms and conditions of the applicable award agreement, and continues (B) with respect to the award of the 2011 RSUs, and all Annual Equity Awards subject to service-based vesting, each such award to become vested with respect to a prorated portion thereof based on the ratio of the number of days of employment of the Executive during the applicable service-based vesting period to the total number of days of such service-based vesting period, and (C) with respect to all Annual Equity Awards subject to performance-based vesting, each such award to shall continue to be eligible for to become vested in accordance with its terms based on actual performance with respect to a prorated portion of such benefitsaward based on the ratio of the number of days of employment of the Executive during the applicable performance period to the total number of days of such performance period; provided that, notwithstanding anything to the contrary in this Section 5(b)(iii), if such termination of employment occurs during any period when the Executive is unable to engage in substantial gainful activity that may reasonably be expected to result in Disability, the Company shall provide payments to shall, on the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier Date of Termination, cause (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (yI) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and nonSign-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release PeriodOn RSUs, the payments 2011 RSUs, and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period all Annual Equity Awards subject to service-based vesting, to become fully vested and (iiII) constitute the sole remedy of the Employee all Annual Equity Awards subject to performance-based vesting to continue to be eligible to become vested in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2accordance with their terms based on actual performance.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Employment Agreement (Gsi Group Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If (A) the EmployeeCompany shall terminate Executive’s employment with the Company is terminated by the Company without Cause (including by providing notice of non-extension per Section 2(a)) or due to the Employee(B) Executive shall terminate Executive’s Disability, or by the Employee employment for Good Reason, then in each case, during the Employment Period, the Company shall:
shall pay or provide to Executive: (aA) continue to any accrued and unpaid Base Salary and vacation earned through the Date of Termination (including any pay the Employee his base salary in effect lieu of notice), which shall be paid on the date tenth day after the Date of terminationTermination (or, to if such day is not a business day, the next business day after such day); plus (B) as liquidated damages in respect of claims based on provisions of this Agreement and provided that Executive executes and delivers (and does not revoke) a general release of all claims in the form attached as Exhibit A hereto within 60 days following the Date of Termination: (I) eighteen months’ Base Salary which shall be paid in periodic installments on the Company’s regular payroll dates, beginning with the next payroll date immediately following the expiration of the 60th day following the Date of Termination; plus (II) if the applicable performance targets have been achieved in accordance with the Company’s customary payroll practices Bonus Plan for the year of termination (as are established determined by the Board (or modified from time applicable committee thereof) following the end of such year), a prorated bonus under the Bonus Plan for the year of termination in an amount equal to time, until the earlier of (xA) the date twelve (12) months following bonus Executive would have otherwise received under the date Bonus Plan for the year of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by (B) a fraction, the numerator of which shall equal is the number of days the Employee Executive was employed by the Company during the Company fiscal such calendar year in which the termination occurs and the denominator of which shall equal is 365;
, payable in accordance with the Bonus Plan; plus (cIII) pay to full vesting of all equity awards, including, without limitation, the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination Restricted Stock Units granted pursuant to any expense reimbursement policies of the Company then Section 4(b) above, in effect; and
(d) each case, to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under not yet vested (collectively, Section 4980B 7(f)(i)(B)(I) through (“COBRA”) of the Internal Revenue Code of 1986III), as amended (the “CodeSeverance”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Employment Agreement (Eos Energy Enterprises, Inc.)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the EmployeeExecutive’s employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, death) or by the Employee Executive for Good ReasonReason within the period from 60 days prior to the Change in Control Date to 24 months following the Change in Control Date, then then, subject to Section 4.2(a)(v) below, the Company shallExecutive shall be entitled to the following benefits:
(ai) continue The Company shall pay to pay the Employee his Executive in cash the aggregate of the following amounts:
(1) The Company shall make a lump sum cash payment to the Executive equal to (A) the Executive’s base salary in effect on through the date Date of terminationTermination, to be paid in accordance with (B) the Company’s customary payroll practices as are established or modified from time to time, until the earlier product of (x) the date twelve greater of (12i) months following Executive’s largest annual bonus for the date most recently completed three (3) fiscal years and (ii) the Executive’s target annual bonus at time of termination, or termination and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company current fiscal year in which through the termination occurs Date of Termination, and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, is 365 and (iiC) within thirty (30) days after the date of terminationany accrued vacation pay, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) each case to the extent not previously paid (the Employee sum of the amounts described in clauses (A) and any qualified beneficiary with respect (C) shall be hereinafter referred to such Employee elects continuation as the “Accrued Obligations” and the dollar amount described in clause (B) shall be hereinafter referred to as the “Pro-Rata Bonus” ). Payment of health benefit coverage under Section 4980B the Accrued Obligations shall be made on the Date of Termination, and the payment of the Pro-Rata Bonus shall be made on the 30th day following the later of the Executive’s Separation from Service or the Change in Control Date (the “COBRAApplicable Date”) or as soon as administratively practicable following such scheduled payment date, but in no event later than the close of the calendar year in which the Applicable Date occurs or (if later) the 15th day of the third calendar month following that date.
(2) Any compensation deferred on behalf of the Executive on the Date of Termination or the Change in Control Date under any deferred compensation plan subject to Section 409A of the Internal Revenue Code of 1986Code, as amended (the “Code”), and continues to shall be eligible paid at the time or times specified for such benefits, the Company shall provide payments payment pursuant to the Employee for provisions of such benefits plan.
(3) The Company shall, in a series of eighteen (18) successive equal monthly installments pursuant to the Company’s normal payment practices, pay in cash to the Executive an amount equal to (A) 1.5 multiplied by (B) the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier sum of (x) twelve the greater of (12i) months (or as long as such eligibility the Executive’s annual base salary for the Employee most recently completed fiscal year or (ii) the Executive’s current annual base salary at the time of termination and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall greater of (i) be contingent upon Executive’s largest annual bonus for the execution and non-revocation by the Employee of a release of claims most recently completed three (the “Release3) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period fiscal years and (ii) constitute the sole remedy Executive’s target annual bonus at time of termination. The first such installment shall be paid on the 30th day following the Applicable Date or as soon as administratively practicable following such scheduled payment date, but in no event later than the close of the Employee calendar year in which the Applicable Date occurs or (if later) the 15th day of the third calendar month following that date.
(4) The Company shall make a lump sum cash payment, not to exceed $15,000, to cover the cost to obtain post-employment continued coverage under life and accidental death or dismemberment insurance and disability insurance plans for a period of eighteen (18) months following such termination date. Such payment shall be made to the Executive on the 30th day following the Applicable Date or as soon as administratively practicable following such scheduled payment date, but in no event later than the close of the calendar year in which the Applicable Date occurs or (if later) the 15th day of the third calendar month following that date.
(ii) For a period not to exceed eighteen (18) months measured from the Applicable Date, the Company shall, if the Executive elects under Code Section 4980B to continue health care coverage under the Company’s group health plan for himself, his spouse and his eligible dependents following the Date of Termination, provide such continued health care coverage at the Company’s expense; provided, however, that such coverage at the Company’s expense shall immediately terminate on the date the Executive is first covered under another employer’s heath benefit program which provides substantially the same level of benefits without exclusion for pre-existing medical conditions (the period of coverage as so terminated shall be referred to as the “Coverage Period”). Such health care coverage shall be at the same level and provide the same type of benefits as would have been provided to them if the Executive’s employment had not been terminated and they had continued to be covered under the applicable Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and his family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies. Such continued health care coverage shall be provided pursuant to the provisions of this subparagraph (ii) even if such coverage extends beyond the period of statutorily-required coverage under Code Section 4980B, but subject to earlier termination in accordance with the above proviso relating to coverage under another employer’s plan. In the event the Company’s provision of such continued health care coverage results in the event recognition of a termination taxable income (whether for federal, state or local income tax purposes) by the Executive, then the Company shall report such taxable income as taxable W-2 wages and collect the applicable withholding taxes, and the Executive shall be responsible for the payment of any additional income and employment tax liability resulting from such coverage. To the Employee’s employment in extent the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits health coverage under this Section 2 4.2(a)(ii) is to be provided through a self-funded program maintained by the Company, the Executive shall terminate immediately directly pay for the costs to obtain such health coverage and the Company shall reimburse the Executive for such costs incurred during the Coverage Period. The Executive shall, within 30 days after each periodic payment for a reimbursable health or medical care expense under this Section 4.2(a)(ii), submit appropriate evidence of such payment to the Company for reimbursement, and the Company shall pay such reimbursement on the 30th day following receipt of the submission. In the event such reimbursement of health care coverage during the Coverage Period results in the recognition of taxable income (whether for federal, state, or local income tax purposes) by the Executive, then the Company shall make an additional payment (the “Health Care Gross-Up Payment”) to the Executive in a dollar amount to fully cover all taxes payable by the Executive on the income recognized with respect to the reimbursed health care coverage, including taxes imposed upon the Health Care Gross-Up Payment. The Heath Care Gross-Up Payment shall be paid to the Executive at the time the related taxes are remitted to the tax authorities. In the event that the Executive’s Date of Termination occurs prior to the Change in Control Date, then the Coverage Period hereunder shall be reduced by the period from the Executive’s Date of Termination to the Change in Control Date (the “Interim Period”) and the Company shall reimburse the Executive for the cost of such coverage paid by the Executive during the Interim Period. The Executive shall, within 30 days after the Change in Control Date, submit appropriate evidence of such costs to the Company for reimbursement, and the Company shall pay such reimbursement on the 30th day following receipt of submission. During the period health care coverage remains in effect hereunder, the following provisions shall govern the arrangement: (i) the amount of the health care costs eligible for reimbursement in any one calendar year of such coverage shall not affect the amount of such costs eligible for reimbursement in any other calendar year for which such reimbursement is to be provided hereunder; (ii) no costs shall be reimbursed after the close of the calendar year following the calendar year in which those costs were incurred; and (iii) the Executive’s right to the reimbursement of such costs cannot be liquidated or exchanged for any other benefit. For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits to which the Executive is entitled, the Executive shall be considered to have remained employed by the Company until 18 months after the Date of Termination.
(iii) Notwithstanding the foregoing, if the EmployeeExecutive breaches any ongoing obligation with the Company (by way of example and not by way of limitation, at any time, violates any proprietary information, assignment breach of inventions agreement, confidentiality, a non-competition or non-solicitation obligation to provision with the Company), and such breach is not cured within 30 days of written notice of such breach received by the Executive from the Company, or then the Company shall no longer be required to provide any other continuing obligation to of the Companybenefits set forth in this Section 4.2(a).
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employeeevent the Executive’s employment with the Company is terminated by the Company without Cause or due to the Employee’s Disability, or by the Employee Executive for Good Reason, then at any time, and, provided no Change in Control shall have occurred, the Company shall:
shall pay the Executive, in cash, aggregate severance payments equal to the Severance. The Company shall pay to the Executive any such severance payments due hereunder in twenty four (24) equal monthly payments on the first day of each month following such termination. In addition, (a) continue the Executive shall have the right to pay the Employee his base salary in effect on the date of terminationexercise any stock options, to be paid long-term incentive awards or other similar awards held by him in accordance with the Company’s customary payroll practices as are established relevant plan documents or modified from time grant letter; provided, however, that to time, until the earlier of extent any option or award would expire by its terms within six (x) the date twelve (126) months following the date of termination, then the Executive may exercise said option or award until the earliest of (i) six (6) months following the Date of Termination, (ii) ten (10) years following the date of grant or (yiii) the date on which end of the Employee commences original term of the option grant had the Executive continued employment or a consulting relationship with substantially equivalent compensation;
the Company; and (b) within thirty (30) days following the execution Company shall provide theExecutive with continuing coverage under the life, disability, accident and non-revocation health insurance programs for employees of the Release Company generally and under any supplemental programs covering executives of the Company, as from time to time in effect, for the twenty four (24) month period from such termination or until the Executive becomes eligible for substantially similar coverage under the employee plans of a new employer, whichever occurs earlier, provided that the Executive’s right to elect continued medical coverage after termination of employment under Part 6 of Title I of the Employee Retirement Income Security Act of 1974, as defined belowamended, shall be deemed satisfied by the coverage provided in this clause (b). The Executive shall also be entitled to a continuation of all other benefits and reimbursements in effect at the time of termination for the twenty four (24) month period following such termination or until the Executive becomes eligible for substantially similar benefits from a new employer, pay whichever is earlier. In addition, all stock options and restricted stock held by the Employee’s target bonus Executive on the date of termination multiplied by under any of the Company’s equity plans that would become exercisable within the twenty four (24) months following such termination of employment had the Executive stayed in the employ of the Company shall become immediately exercisable. Any part of the foregoing benefits that are attributable to participation in a fractionplan in which the Executive can no longer participate under applicable law, the numerator of which shall equal the number of days the Employee was employed be paid by the Company from other sources such that the Executive receives substantially similar benefits to those provided for under the plan. All amounts payable hereunder shall be paid monthly during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
such twenty four (c24) pay to the Employee (i) on the date of termination, any base salary earned but not paid month period and any vacation accrued but amounts payable hereunder are in lieu of, not used through the date of terminationin addition to, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage amounts payable under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer4.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Change in Control and Severance Agreement (Terex Corp)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the EmployeeExecutive’s employment with by the Company is terminated by the Company without other than for Cause or (other than a termination due to the Employee’s Disability, Disability or death) or by the Employee Executive for Good Reason, then the Company shall:shall pay or provide the Executive with
(a) continue to pay the Employee his base salary in effect on the date of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (xi) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensationAccrued Amounts;
(bii) a pro-rata portion of the Executive’s Bonus for the performance year in which the Executive’s termination occurs, which shall be paid at the time that annual Bonuses are paid to other senior executives, but in any event within thirty seventy-five (3075) days following after the execution and non-revocation conclusion of the Release Fiscal Year to which such Bonus relates (determined by multiplying the amount the Executive would have received based upon actual performance had employment continued through the end of the performance year (but, as defined below)to any performance year that begins on or prior to January 1, pay 2009, in no event less than the Employee’s amount for target bonus on the date of termination multiplied performance for that year) by a fraction, the numerator of which shall equal is the number of days during the Employee was performance year of termination that the Executive is employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal is 365);
(ciii) pay $5 million if the last day of the Executive’s employment by the Company occurs in 2007 or $3.5 million if the last day of the Executive’s employment by the Company occurs on or after January 1, 2008 but before December 31, 2012 (for purposes of clarity, the Company shall have no obligation to the Employee Executive pursuant to this clause (iiii) if the last day of the Executive’s employment by the Company occurs on or after December 31, 2012);
(iv) an amount equal to the date product of termination, any base salary earned but not paid and any vacation accrued but not used through (A) the date sum of termination, (1) the Executive’s Base Salary and (ii2) within thirty the then Target Bonus multiplied by (30B) days after the date of terminationthree (3), any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then payable in effecta single lump-sum; and
(dv) two (2) years of additional service credit and age for benefit accrual, early retirement reduction and vesting purposes under the Guess?, Inc. Supplemental Executive Retirement Plan. Subject to Section 21(a), the payments provided for in this Section 8(d)(iii) and 8(d)(iv) (to the extent provided therein) shall be paid to the Employee and any qualified beneficiary with respect to such Employee elects continuation Executive in the month immediately following the month in which the Executive’s termination of health benefit coverage under Section 4980B (“COBRA”) employment occurs, provided that the date of the Internal Revenue Code Executive’s termination of 1986employment occurs on the same date as the Executive’s “separation from service” (within the meaning of Section 409A and after giving effect to the presumptions set forth in Treasury Regulations Section 1.409A-1(h)(1)(ii)) from the Company and its subsidiaries, as amended (otherwise such amounts shall be paid to the Executive in the month immediately following the month in which the Executive incurs such a “Code”), and continues separation from service.” Notwithstanding anything to be eligible for such benefitsthe contrary contained herein, the Company shall have no obligation to provide any of the monetary payments to the Employee and/or benefits provided for such benefits equal to the amount contributed for active employees with similar benefits in this Section 8(d) (other than Accrued Amounts) unless and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a Executive executes an effective general release of all claims (the “Release) in favor of the Company in a form acceptable to the Company (the “Release”) and delivers such executed Release to the Company within sixty twenty-one (6021) days following the date of termination (his “separation from service.” For the “avoidance of doubt, the Executive’s execution of the Release Period”), in is a form that will be provided by condition precedent to any obligation of the Company and substantially identical to provide the form attached to monetary payments and/or benefits provided for in this Plan as Exhibit A Section 8(d) (except for such modifications as other than Accrued Amounts). In addition, the Company may make Company, at its election, shall have the option in its sole full and absolute discretion to reflect changes enter into a two-year consulting agreement with the Executive in law or substantially the circumstances of same form and on substantially the termination); provided that same conditions as set forth in Appendix A below, with the consulting period (if any) to commence on the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced first day following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a Executive’s termination of the Employee’s employment in the circumstances set forth in this Section 2employment.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at In the event of any time, the Employee’s employment with the Company is terminated by the Company without Cause termination of this Agreement pursuant to Sections 7.4 or due to the Employee’s Disability, or by the Employee for Good Reason, then the Company shall7.5 hereof:
(a) The Orchard shall continue to pay Executive his Base Salary under Section 6.1 hereof at Executive’s then-current salary and maintain his benefits under Section 6.2 hereof (i) through the Employee his base salary in effect remaining term of this Agreement which ends on the date third anniversary of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of terminationEffective Date, or (yii) for six (6) months, whichever period is shorter. If such benefits contemplated under Section 6.2 hereof cannot be maintained under the date on which provisions and eligibility of the Employee commences employment or a consulting relationship with substantially specific plans (see Section 8.6 below), then The Orchard shall pay during the post-termination period the cash equivalent compensationof the company’s cost of benefits under any such company plan;
(b) within thirty (30) days following the execution The Orchard will pay unreimbursed expenses and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any accrued vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies Sections 6.4 and 6.5 of this Agreement;
(c) For the fiscal year of termination, The Orchard shall pay the pro rata portion of the Company then annual incentive bonus otherwise due to Executive pursuant to Section 6.3 hereof, such pro rata bonus amount to be determined at the sole discretion of the Compensation Committee of the Board of Directors based upon the targets, milestones, performance objectives and measurement criteria established for the fiscal year and The Orchard’s and Executive’s, as the case may be, actual performance against such targets, milestones, performance objectives and measurement criteria. Notwithstanding the forgoing, in effect; andthe event of termination of this Agreement pursuant to Section 7.5, this subsection (c) will not be applicable unless Executive and The Orchard mutually determine that the Executive’s termination meets the requirements for Good Reason as set forth in Section 7.5.
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) The vesting of the Internal Revenue Code of 1986, as amended (Restricted Stock Award Agreement and the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees Stock Option Agreement that Executive enters into with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility The Orchard for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this equity incentive awards set forth in Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”)6.6 hereof shall, in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of employment pursuant to Sections 7.4 or 7.5 hereof, be accelerated by six (6) months pursuant to Section 6.6. Notwithstanding the Employee’s employment forgoing, in the circumstances event of termination of this Agreement pursuant to Section 7.5, this subsection (d) will not be applicable unless Executive and The Orchard mutually determine that the Executive’s termination meets the requirements for Good Reason as set forth in this Section 27.5.
2.3 Notwithstanding anything herein (e) In all cases, post-termination payments to Executive will be reduced for applicable withholding taxes and will be payable on The Orchard’s normal payroll dates or bonus payment dates during the contraryperiods; provided, all however, that if the total amount of the benefits available to Executive under this Section 2 shall terminate immediately if 8.4, either alone or together with other payments which Executive has the Employeeright to receive from The Orchard, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.would constitute a
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employeeevent of the Executive’s termination of employment with the Company is terminated by the Company without Cause or due pursuant to the Employee’s Disability, Section 4(a)(iv) or by the Employee Executive for Good ReasonReason pursuant to Section 4(a)(v), then in addition to the payments and benefits described in Section 5(a) above, the Company shall:, subject to Section 23 and Section 5(d) and subject to Executive’s execution and non-revocation of a waiver and release of claims agreement in substantially in the form attached hereto as Exhibit A in accordance with Section 23(c) (a “Release”):
(ai) continue Pay to pay the Employee his base salary Executive an amount equal to 150% of the sum of (A) Annual Base Salary and (B) Target Bonus, in effect substantially equal installments during the period beginning on the date Date of termination, to be paid Termination and ending on the eighteen (18)-month anniversary of the Date of Termination in accordance with the Company’s customary regular payroll practices practice as are established or modified from time of the Date of Termination; provided that, notwithstanding anything to timethe contrary in this Section 5(b)(i), until if such termination of employment occurs within the earlier twelve (12)-month period immediately following a Change in Control (and such Change in Control constitutes a “change in control event” as defined in Treasury Regulations Section 1.409A-3(i)(5)), then, in lieu of the foregoing payments set forth in this Section 5(b)(i), the Company shall pay to the Executive an aggregate amount equal to 200% of the sum of (A) Annual Base Salary and (B) Target Bonus, in substantially equal installments during the period beginning on the Date of Termination and ending on the twenty-four (24)-month anniversary of the Date of Termination in accordance with the Company’s regular payroll practice as of the Date of Termination;
(ii) Pay to the Executive an amount equal to the product of (A) the amount of the Annual Bonus that would have been payable to the Executive pursuant to Section 3(b) if the Executive was still employed as of the applicable Bonus Vesting Date in respect of the fiscal year in which the Date of Termination occurs based on actual individual and Company performance goals in such year and (B) the ratio of (x) the date twelve (12) months following number of days elapsed during the date fiscal year during which such termination of terminationemployment occurs on or prior to the Date of Termination, or to (y) 365. Any amount payable pursuant to this Section 5(b)(ii) shall, subject to Section 23 and Section 5(d), be paid to Executive in accordance with Section 3(b) as if the date Executive was still employed on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days applicable Bonus Vesting Date, but in no event later than the 15th day of the third month of the fiscal year immediately following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator Date of which shall equal 365Termination occurs;
(ciii) pay Continue to provide, subject to the Employee (i) Executive’s valid election to continue healthcare coverage under COBRA, the Executive and the Executive’s eligible dependents with coverage under its group health plans during the period commencing on the date Date of terminationTermination and ending on the earlier of (A) the eighteen (18)-month anniversary of the Date of Termination (if such termination of employment occurs within the twelve (12)-month period immediately following a Change in Control, any base salary earned but not paid and any vacation accrued but not used through the date twenty-four (24)-month anniversary of termination, the Date of Termination) and (iiB) within thirty the first date on which the Executive is eligible for group health plan coverage from another employer or otherwise at the same levels and the same cost to the Executive as would have applied if the Executive’s employment had not been terminated based on the Executive’s elections in effect on the Date of Termination, provided, however, that (30A) days after the date of termination, if any reimbursable business expenses incurred by the Employee through the date of termination plan pursuant to any expense reimbursement policies which such benefits are provided is not, or ceases prior to the expiration of the period of continuation coverage to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), or (B) the Company then is otherwise unable to continue to cover the Executive under its group health plans without incurring penalties (including without limitation, pursuant to Section 2716 of the Public Health Service Act), then, in effecteither case, an amount equal to each remaining Company subsidy shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof); and
(div) Notwithstanding any provision to the extent the Employee and contrary in any qualified beneficiary equity plan or award agreement with respect to equity awards, cause (A) with respect to the Retention RSUs and all Annual Equity Awards subject to service-based vesting, each such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) award to become vested with respect to a prorated portion thereof based on the ratio of the Internal Revenue Code number of 1986, as amended (days of employment of the “Code”)Executive during the applicable service-based vesting period to the total number of days of such service-based vesting period, and continues (B) with respect to all Annual Equity Awards subject to performance-based vesting, each such award to shall continue to be eligible for to become vested in accordance with its terms based on actual performance with respect to a prorated portion of such benefitsaward based on the ratio of the number of days of employment of the Executive during the applicable performance period to the total number of days of such performance period; provided that, notwithstanding anything to the contrary in this Section 5(b)(iv), (x) if such termination of employment occurs during any period when the Executive is unable to engage in substantial gainful activity that may reasonably be expected to result in Disability, the Company shall provide payments shall, on the Date of Termination, cause (I) the Retention RSUs and all Annual Equity Awards subject to the Employee for such benefits equal service-based vesting, to the amount contributed for active employees become fully vested and (II) all Annual Equity Awards subject to performance-based vesting to continue to be eligible to become vested in accordance with similar benefits their terms based on actual performance, and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) if such termination of employment occurs within the date twelve (12)-month period immediately following a Change in Control, the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits Company shall, on the Date of Termination, cause all then-outstanding equity awards granted to the Employee under this Section 2 shall Executive (iincluding, without limitation, the Annual Equity Awards) be contingent upon which are not vested as of the execution Date of Termination to become vested for the purposes of the 2010 Incentive Award Plan or any other applicable equity plan, and nonany applicable award agreement(s), deeming, for purposes of awards subject to performance-revocation based vesting, that the Company will attain “target” performance levels (or such higher performance level as expressly contemplated by the Employee applicable award agreement in the event of such a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if . For the Release does not become effective during the Release Periodavoidance of doubt, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination described in subsection (y) that results in accelerated vesting of the Employee’s employment performance stock units granted under the 2017 PSU Agreement, (I) the Company will be deemed to have attained the “target” performance level with respect to the EPS Performance Stock Units (as defined in the circumstances set forth 2017 PSU Agreement) and (II) the Company will be deemed to have attained the higher of (1) the “target” performance level and (2) the actual performance level calculated under the 2017 PSU Agreement (taking into account the Change in this Section 2Control and any effects thereof on the calculation of total stockholder return) for purposes of the TSR Performance Stock Units (as defined in the 2017 PSU Agreement).
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Employment Agreement (Novanta Inc)
Termination Without Cause or for Good Reason. 2.1 Other than (a) If this Agreement (1) expires as set forth a result of the Company’s provision of written notice to Executive of its election not to renew the Employment Term in accordance with Section 3 below, if, at any time, the Employee’s employment with the Company 1.2 hereof or (2) is terminated (x) by the Company without other than (i) for Cause (as defined in Section 4.4 hereof) or due to the Employee(ii) as a result of Executive’s Disabilitydeath or Permanent Disability (as defined in Section 4.2 hereof), or (y) by the Employee Executive for Good ReasonReason (as defined in Section 4.1(b) hereof) (each of (1), then (2)(x) or (2)(y), a “Qualifying Termination”), Executive shall receive payment in respect of compensation earned but not yet paid (the Company shall:
“Compensation Payment”) which amount shall be paid in a cash lump-sum within ten (a10) continue to pay the Employee his base salary in effect on days of the date of termination. Further, to be paid provided the Executive timely executes a general release of all claims against the Company in accordance with the Company’s customary payroll practices as are established or modified from time to time, until form provided by the earlier of Company (xa “Release”) and the Release becomes effective within 60 days following the date of Executive’s termination, Executive shall receive or commence receiving on the next regularly scheduled payroll date following the effective date of the Release:
(i) a severance payment (the “Severance Payment”) in an amount equal to twelve (12) months of Executive’s Base Salary (and disregarding any reduction to Executive’s Base Salary that may give rise to a termination by Executive for Good Reason), which amount shall be paid in substantially equal installments at the same time Base Salary would be paid over the twelve (12) month period following termination if Executive had remained employed with the Company; provided, however, that if the 60-day period for the Release to become effective begins in one calendar year and ends in a second calendar year, the first installment of the Severance Payment shall not be paid until the second calendar year and shall include all amounts that would have been paid prior to such date if such delay had not applied;
(ii) immediate vesting of all unvested stock options and the extension of the exercise period of such options to the earlier of (i) the expiration of the original term of the such options, and (ii) 10 years following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;; and
(biii) within thirty (30) days following the execution and non-revocation payment of the Release full cost of comprehensive medical insurance for Executive under the Consolidated Omnibus Budget Reconciliation Act (as defined below), pay “COBRA”) until the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee earliest of: (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and twelve (ii12) within thirty (30) days months after the date of termination, any reimbursable business expenses incurred by the Employee through Executive’s termination of employment; (ii) the date Executive is no longer eligible for benefits under COBRA; or (iii) the date Executive obtains other employment that offers substantially comparable medical insurance coverage. Notwithstanding the foregoing, in the event that the Company’s payment of termination pursuant the COBRA premium contributions as described under this Section 4.1(a)(iii), would subject the Company to any expense reimbursement policies of tax or penalty under the Company then in effect; and
(d) to the extent the Employee Patient Protection and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Affordable Care Act, Section 4980B (“COBRA”105(h) of the Internal Revenue Code of 1986, as amended (the “Code”)) or applicable regulations or guidance issued thereunder, Executive and continues to be eligible for such benefits, the Company shall provide payments agree to work together in good faith to restructure such benefit. Failure to execute and return the Employee for such benefits equal to Release or revocation within the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days 60 day period following the date of termination (the “of Executive’s employment shall be a waiver by Executive of Executive’s right to severance, provided that such Release Period”), in a form that will be provided by the Company and substantially identical is delivered to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances Executive within ten days of the termination); provided that if the Release termination of employment and does not become effective during deviate materially from the Release Period, the payments and benefits described in Sections 2.1(aCompany’s customary form.
(b) and 2.1(d) For purposes of this Agreement that commenced following the date of termination Agreement, “Good Reason” shall cease following the Release Period and (ii) constitute the sole remedy mean any of the Employee in the event of a termination of the Employeefollowing (without Executive’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.express prior written consent):
Appears in 1 contract
Sources: Executive Employment Agreement (Synergy Pharmaceuticals, Inc.)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the Employee’s Executive's employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, Death) or by the Employee Executive for Good ReasonReason within 18 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
(1) the sum of (A) the Executive's base salary in effect on through the date Date of terminationTermination, to be paid in accordance with (B) the Company’s customary payroll practices as are established or modified from time to time, until the earlier product of (x) the date twelve annual bonus paid or payable (12including any bonus or portion thereof which has been earned but deferred) months following for the date of termination, or most recently completed fiscal year and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company current fiscal year in which through the termination occurs Date of Termination, and the denominator of which shall equal 365;
is 365 and (cC) pay the amount of any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the Employee extent not previously paid (i) on the date sum of terminationthe amounts described in clauses (A), any base salary earned but not paid and any vacation accrued but not used through the date of termination(B), and (iiC) within thirty (30) days after shall be hereinafter referred to as the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect"Accrued Obligations"); and
(d2) the amount equal to (A) three multiplied by (B) the sum of (x) the Executive's highest annual base salary in any twelve-month period (on a rolling basis) during the five-year period prior to the Change in Control Date and (y) the Executive's highest annual bonus in any twelve-month period (on a rolling basis) during the five-year period prior to the Change in Control Date.
(ii) for three years after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Executive and the Executive's family at least equal to those which would have been provided to them if the Executive's employment had not been terminated, in accordance with the applicable Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and his family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies; PROVIDED, HOWEVER, that if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer on terms at least as favorable to the Executive and his family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and his family;
(iii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive's termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60such other amounts and benefits shall be hereinafter referred to as the "Other Benefits"); and
(iv) days following for purposes of determining eligibility (but not the date time of termination (commencement of benefits) of the “Release Period”)Executive for retiree benefits to which the Executive is entitled, in a form that will the Executive shall be provided considered to have remained employed by the Company and substantially identical to until three years after the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances Date of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2Termination.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Executive Retention Agreement (Viasys Healthcare Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employee’s employment with event that Executive incurs a “separation from service” from the Company is terminated by (within the Company without Cause or due to the Employee’s Disability, or by the Employee for Good Reason, then the Company shall:
(a) continue to pay the Employee his base salary in effect on the date meaning of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”409A(a)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, Treasury Regulation Section 1.409A-1(h)) (“Separation from Service”)
(1) by the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of without Cause (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms defined herein), or (y2) the date the Employee becomes eligible by Executive for group health coverage through another employer.
2.2 The payments and benefits Good Reason (as defined herein), then, subject to the Employee under this Section 2 shall (i) be contingent upon the Executive’s execution and non-revocation by the Employee of a release Release substantially in the form attached as Exhibit D within 30 days after such Separation from Service, Executive shall be entitled to the benefits set forth below in this Section 5(a). Each payment under this Section 5(a) shall be treated as a separate payment for purposes of claims Section 409A (as defined below).
(i) The Company shall pay Executive an amount equal to one times Executive’s Base Salary plus one times Executive’s Target Bonus (as in effect on the “Releasedate of Executive’s termination). The severance amount described in the previous sentence shall be paid as follows, subject to Section 19 below: (A) the continuation of Base Salary shall be paid in favor substantially equal installments over a period of one year from Executive’s Separation from Service in accordance with the payroll practices of the Company in effect from time to time and (B) the Target Bonus shall be paid on the date that executive bonuses are paid generally for the fiscal year in which the date of termination took place, which shall, in any event, be no later than two and one-half months after the end of such fiscal year;
(ii) The RSUs and Performance Shares shall be governed by the terms of the applicable award agreements.
(iii) Executive shall be entitled to benefits mandated under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), under Section 4980B of the Code, or any replacement or successor provision of United States tax law, subject to Executive’s valid election to receive COBRA benefits, with the premium paid at the Company’s expense until the first to occur of (A) eighteen months from the date of termination, (B) the expiration of the period of time during which Executive is entitled to continuation coverage under the Company’s group health plan under COBRA, or (C) such date that Executive becomes eligible for coverage under the group health plan of another employer. In addition, if Executive’s employment terminates pursuant to this Section 5(a), the Company shall pay Executive the amounts described in Section 5(d)(i), (ii) and (iii) within sixty (60) 30 days following of the date of termination (or such earlier date as may be mandated by applicable law) and shall pay or provide the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and other benefits described in Sections 2.1(aSection 5(d) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2accordance therewith.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other The Company shall have the right at any time during the Term to terminate the Executive's employment hereunder without Cause. Upon such a termination, or the termination by the Executive for Good Reason, the Company's sole obligation hereunder, except as otherwise provided in Section 3.3, shall be to pay to the Executive (i) an amount equal to any Annual Salary accrued and due and payable to the Executive hereunder on the date of termination (to be paid in a lump sum within 10 days of the termination), (ii) thereafter all Annual Salary for the remainder of the Term, to be paid in a lump sum within 10 days of the termination, (iii) in a lump sum payment (to be paid as promptly as practicable, but no later than 10 days after the determination thereof; it being understood that the Executive shall make the determination whether the calculation and payment of the bonus shall be made immediately after the effective date of the termination or after the end of the fiscal year of the termination), the greater of (A) a portion of the Executive's Annual Bonus as set forth in Section 3 below3.2 computed on a pro-rated basis, if, at any time, based on the Employee’s employment with performance of the Company is terminated by from the Company without Cause or due to the Employee’s Disability, or by the Employee for Good Reason, then the Company shall:
(a) continue to pay the Employee his base salary in effect on the date of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation beginning of the Release (as defined below), pay the Employee’s target bonus on period to the date of termination multiplied by a fraction, and (B) an amount equal to the numerator amount of which shall equal the number of days Annual Bonus for the Employee was employed by fiscal year preceding the Company during the Company fiscal year in which the date of termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) occurs, pro-rated based on the date number of termination, any base salary earned but not paid and any vacation accrued but not used through days elapsed in the date year of termination, and (iiiv) within thirty in a lump sum payment (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitspaid as promptly as practicable, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) but no later than 10 days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.after
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 belowIf, if, at any timeprior to the expiration of the Term, the EmployeeExecutive resigns from his employment hereunder for Good Reason or the Company terminates the Executive’s employment with the Company is terminated by the Company hereunder without Cause (other than a termination by reason of death or due to the Employee’s Disability), or by the Employee for Good Reasonand Section 5.4.3 does not apply, then the Company shall:shall pay or provide the Executive the Amounts and Benefits and, subject to Section 5.4.8: SV\1807016.4
(ai) continue Subject to pay Section 9.10.2, an amount equal to the Employee his base salary sum of (x) one and a half times the Base Salary as then in effect (without taking into account any reduction therein that constitutes a basis for Good Reason), whichever is the greater, plus (y) one and a half times the average of the Incentive Bonus the Executive received from the Company for all fiscal years completed during the Term, with the aggregate amount due paid in equal installments on the date Company’s normal payroll dates for a period of termination, to be paid 12 months from the Date of Termination in accordance with the Company’s customary normal payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release Company, with each such payment deemed to be a separate payment for the purposes of Code Section 409A (as defined below);
(ii) in the event such resignation or termination occurs following the Company’s first fiscal quarter of any year, pay a pro rata portion of the EmployeeExecutive’s target bonus Incentive Bonus for the fiscal year in which the Executive’s termination occurs based on actual results for such year (determined by multiplying the date amount of termination multiplied such Incentive Bonus which would be due for the full fiscal year, as determined in good faith by the Board, by a fraction, the numerator of which shall equal is the number of days during the Employee was fiscal year of termination that the Executive is employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal is 365;
), paid in accordance with Section 2.2 (c) pay to the Employee (i) on the date of terminationincluding payment timing, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect“Pro Rata Bonus”); and
(diii) the continuation of all benefits for 24 months from the Date of Termination. In addition, subject to Section 5.4.8, the vesting of all unvested stock options and restricted stock previously granted to the extent the Employee Executive shall be accelerated by 12 months, and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986stock options, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments notwithstanding any provision to the Employee for such benefits equal contrary in the option or the plan pursuant to which the amount contributed for active employees with similar benefits and similar participating beneficiaries option was granted, shall remain exercisable until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor first anniversary of the Company within sixty (60) days following Date of Termination or the original expiration date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.option. SV\1807016.4
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the EmployeeExecutive’s employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, death) or by the Employee Executive for Good ReasonReason within the period from 60 days prior to the Change in Control Date to 24 months following the Change in Control Date, then then, subject to Section 4.2(a)(v) below, the Company shallExecutive shall be entitled to the following benefits:
(ai) continue The Company shall pay to pay the Employee his Executive in cash the aggregate of the following amounts:
(1) The Company shall make a lump sum cash payment to the Executive equal to (A) the Executive’s base salary in effect on through the date Date of terminationTermination, to be paid in accordance with (B) the Company’s customary payroll practices as are established or modified from time to time, until the earlier product of (x) the date twelve greater of (12i) months following Executive’s largest annual bonus for the date most recently completed three (3) fiscal years and (ii) the Executive’s target annual bonus at time of termination, or termination and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company current fiscal year in which through the termination occurs Date of Termination, and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, is 365 and (iiC) within thirty (30) days after the date of terminationany accrued vacation pay, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) each case to the extent not previously paid (the Employee sum of the amounts described in clauses (A) and any qualified beneficiary with respect (C) shall be hereinafter referred to such Employee elects continuation as the “Accrued Obligations” and the dollar amount described in clause (B) shall be hereinafter referred to as the “Pro-Rata Bonus” ). Payment of health benefit coverage under Section 4980B the Accrued Obligations shall be made on the Date of Termination, and the payment of the Pro-Rata Bonus shall be made on the 30th day following the later of the Executive’s Separation from Service or the Change in Control Date (the “COBRAApplicable Date”) or as soon as administratively practicable following such scheduled payment date, but in no event later than the close of the calendar year in which the Applicable Date occurs or (if later) the 15th day of the third calendar month following that date.
(2) Any compensation deferred on behalf of the Executive on the Date of Termination or the Change in Control Date under any deferred compensation plan subject to Section 409A of the Internal Revenue Code of 1986Code, as amended (the “Code”), shall be paid at the time or times specified for payment pursuant to the provisions of such plan.
(3) The Company shall, in a series of 18 successive equal monthly installments pursuant to the Company’s normal payroll practices, pay in cash to the Executive an amount equal to (A) 1.5 multiplied by (B) the sum of (x) the greater of (i) the Executive’s annual base salary for the most recently completed fiscal year or (ii) the Executive’s current annual base salary at the time of termination and continues (y) the greater of (i) Executive’s largest annual bonus for the most recently completed three (3) fiscal years and (ii) the Executive’s target annual bonus at time of termination. The first such installment shall be paid on the 30th day following the Applicable Date or as soon as administratively practicable following such scheduled payment date, but in no event later than the close of the calendar year in which the Applicable Date occurs or (if later) the 15th day of the third calendar month following that date.
(ii) For a period not to exceed 18 months measured from the Applicable Date, the Company shall, if the Executive elects under Code Section 4980B to continue health care coverage under the Company’s group health plan for himself, his spouse and his eligible dependents following the Date of Termination, provide such continued health care coverage at the Company’s expense; provided, however, that such coverage at the Company’s expense shall immediately terminate on the date the Executive is first covered under another employer’s heath benefit program which provides substantially the same level of benefits without exclusion for pre-existing medical conditions. Such health care coverage shall be at the same level and provide the same type of benefits as would have been provided to them if the Executive’s employment had not been terminated and they had continued to be covered under the applicable Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and his family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies. Such continued health care coverage shall be provided pursuant to the provisions of this subparagraph (ii) even if such coverage extends beyond the period of statutorily-required coverage under Code Section 4980B, but subject to earlier termination in accordance with the above proviso relating to coverage under another employer’s plan. In the event the Company’s provision of such continued health care coverage results in the recognition of taxable income (whether for federal, state or local income tax purposes) by the Executive or his spouse or other eligible dependent, then the Executive and his spouse and dependents shall each be responsible for the payment of the income and employment tax liability resulting from such coverage, and the Company will not provide any tax gross-up payments to the Executive (or any other person) with respect to such income and employment tax liability. To the extent the health coverage under this Subparagraph (ii) is to be provided through a self-funded program maintained by the Company, the Executive shall directly pay for the costs to obtain such health coverage and shall, within 30 days after each periodic payment for a reimbursable health care expense under this Section 4.2, submit appropriate evidence of such payment to the Company for reimbursement, and the Company shall pay such reimbursement on the 30th day following receipt of the submission. During the period such health care coverage remains in effect hereunder, the following provisions shall govern the arrangement: (a) the amount of the costs eligible for reimbursement in any one calendar year of such benefitscoverage shall not affect the amount of the costs eligible for reimbursement in any other calendar year for which such reimbursement is to be provided hereunder; (ii) no costs shall be reimbursed after the close of the calendar year following the calendar year in which those costs were incurred; and (iii) the Executive’s right to the reimbursement of such costs cannot be liquidated or exchanged for any other benefit. To the extent the reimbursed heath care costs constitute taxable income to the Executive, the Company shall provide payments report the reimbursement as taxable W-2 wages and collect the applicable withholding taxes, and any remaining tax liability shall be the Executive’s sole responsibility. In the event that the Executive’s Date of Termination occurs prior to the Employee for such benefits equal Change in Control Date, then the period of coverage hereunder shall be reduced by the period from the Executive’s Date of Termination to the amount contributed for active employees with similar Change in Control Date.
(iii) To the extent not previously paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive following the Executive’s termination of employment under any plan, program, policy, practice, contract or agreement of the Company and similar participating beneficiaries until its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the earlier “Other Benefits”). Each of (x) twelve (12) months (the Other Benefits shall be paid or provided as long as such eligibility for the Employee they become due and each qualified beneficiary continues) from the date such benefits would otherwise end payable in one or more installments under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employerarrangement.
2.2 The payments and (iv) For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits to which the Employee under this Section 2 Executive is entitled, the Executive shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided considered to have remained employed by the Company and substantially identical to until 18 months after the form attached to this Plan as Exhibit A Date of Termination.
(except for such modifications as v) Notwithstanding the foregoing, if the Executive breaches any ongoing obligation with the Company may make in its sole discretion to reflect changes in law or the circumstances (by way of the termination); provided that if the Release does example and not become effective during the Release Periodby way of limitation, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event any breach of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to provision with the Company), and such breach is not cured within 30 days of written notice of such breach received by the Executive from the Company, or then the Company shall no longer be required to provide any other continuing obligation to of the Companybenefits set forth in this Section 4.2(a) above.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, (i) If the Employee’s employment with the Company Executive is involuntarily terminated by the Company without Cause or due to the Employee’s Disability, or by the Employee terminates his employment for Good Reason, then the Company shall:
(a) continue Executive shall be entitled to pay the Employee his base salary in effect on all previously earned and accrued but unpaid Base Salary up to the date of such termination. Provided the Executive has executed a release of claims in a form satisfactory to the Company within 21 days after his involuntary termination of employment without Cause or termination for Good Reason, the Executive shall also be entitled to severance pay equal to 2.99 times his annual Base Salary. Such severance payments will be made in equal installments over a 36 month period payable on the dates on which the Executive’s Base Salary would have otherwise been paid if Executive’s employment had continued. All payments shall be subject to deductions for customary withholdings, including, without limitation, federal and state withholding taxes and social security taxes. Notwithstanding anything herein to the contrary, the Executive shall not be entitled to such severance pay hereunder if he becomes entitled to any termination payments or other severance payments under the Change of Control Agreement.
(ii) In the event that the Executive is determined to be paid a specified employee in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) 409A of the Internal Revenue Code of 1986, as amended amended, and the regulations and other guidance issued thereunder for purposes of any severance pay payment under this subsection (the “Code”c), and continues to be eligible for such benefits, severance payments shall begin on the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) first payroll date that is more than six months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”)separation from service, in a form that will be provided by the Company and substantially identical but only to the form attached extent that such payments do not satisfy either the short term deferral exception to Code Section 409A described in 26 CFR
§1. 409A-1(b)(4) (“Short Term Deferral Exception”) or, to the extent such payments do not satisfy the Short Term Deferral Exception, the involuntary termination exception to Code Section 409A described in 26 CFR §1.409A-1(b)(9). At all times, the right to all such installment payments made under this Plan as Exhibit A subsection (except for such modifications c) shall be treated as the Company may make in its sole discretion right to reflect changes in law a series of separate payments within the meaning of 26 CFR §1.409A-2(b)(2)(iii). In the event that a termination of employment occurs on or after December 1st of a calendar year that would entitle the circumstances of Executive to severance under Section 2.4(c) above, and severance payments are payable prior to the termination); provided first payroll date that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced is more than six months following the date of termination separation from service, such severance benefits shall cease following commence no earlier than the Release Period and (ii) constitute the sole remedy of the Employee first payroll date in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2following calendar year and within 90 days after such separation from service.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Executive Employment Agreement (Sigma Aldrich Corp)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, The Company may terminate Executive's employment hereunder without Cause at any time, . Such notice shall specify the Employee’s effective date of the termination of Executive's employment. The Executive may terminate his employment with for Good Reason by providing 90 days' prior written notice to the Company is terminated by Company. In the Company event of the termination of Executive's employment under this Section 6(c) without Cause or due to the Employee’s Disability, or by the Employee Executive for Good Reason, in each case prior to or more than 24 months following a Material Change (as defined in the Everest Reinsurance Group, Ltd. Senior Executive Change of Control Plan, as amended and restated effective January 1, 2009), then the Company shallExecutive shall be entitled to:
(ai) continue to pay payment of the Employee his base salary Accrued Payments;
(ii) a separation allowance, payable in effect on the date of termination, to be paid equal installments in accordance with the Company’s customary normal payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months over a 12 month period beginning immediately following the date of termination, or equal to (y2) times the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensationsum of Executive's then Base Salary;
(biii) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company any annual incentive bonuses earned but not yet paid for any completed full fiscal year in which immediately preceding the employment termination occurs and the denominator of which shall equal 365date;
(civ) pay except for outstanding and unvested Performance Stock Unit Awards addressed in Section 4(c), all of Executive's then unvested restricted stock or restricted stock units will continue to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) vest to the extent any such equity award would have vested in accordance with its terms in the Employee and any qualified beneficiary with respect 12 month period immediately following such termination date, conditioned on the Company receiving from Executive the release of claims referred to such Employee elects continuation of health benefit coverage under in Section 4980B 6(h) below;
(“COBRA”v) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments arrange for the Executive to continue to participate on substantially the same terms and conditions as in effect for the Executive (including any required contribution) immediately prior to such termination, in the disability and life insurance programs provided to the Employee for such benefits equal Executive pursuant to the amount contributed for active employees with similar benefits and similar participating beneficiaries Section 5(a) hereof until the earlier of (xi) twelve the end of the 12 month period beginning on the effective date of the termination of Executive's employment hereunder, or (12ii) months such time as the Executive is eligible to be covered by comparable benefit(s) of a subsequent employer. The foregoing of this Section 6(c)(v) is referred to as "Benefits Continuation". In addition, the Company agrees to pay Executive a lump sum cash payment in order to enable Executive to pay for medical and dental coverage (through COBRA or as long as otherwise) that is comparable to the medical and dental coverage in effect for Executive (and his dependents, if any) immediately prior to his termination of employment, with such eligibility cash amount equal to the cost of the premiums for such coverage that would apply if Executive were to elect COBRA continuation coverage under the Company's medical and dental plans following his termination of employment and continue such coverage for the Employee and each qualified beneficiary continues) from 12 month period beginning on the date such benefits would otherwise end under of Executive's termination of employment. The Executive agrees to notify the applicable plan terms or (y) the date the Employee Company promptly if and when he begins employment with another employer and if and when he becomes eligible for group health coverage through to participate in any benefit or other welfare plans, programs or arrangements of another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than If (A) the Company shall terminate Executive’s employment without Cause as set forth in Section 3 below7(b) or (B) Executive shall terminate Executive’s employment for Good Reason as set forth in Section 7(c), ifin each case, at any timeduring the Employment Period, the Employee’s employment with the Company is terminated by the Company without Cause shall pay or due provide to the Employee’s Disability, or by the Employee for Good Reason, then the Company shallExecutive:
(aA) continue to any accrued and unpaid Base Salary and vacation earned through the Date of Termination (including any pay the Employee his base salary in effect lieu of notice), which shall be paid on the date tenth day after the Date of terminationTermination (or, to if such day is not a business day, the next business day after such day); plus
(B) as liquidated damages in respect of claims based on provisions of this Agreement and provided that Executive executes and delivers (and does not revoke) a general release of all claims in the form attached as Exhibit A hereto within 60 days following the Date of Termination:
(I) twelve months’ Base Salary which shall be paid in periodic installments on the Company’s regular payroll dates, beginning with the next payroll date immediately following the expiration of the 60th day following the Date of Termination; plus
(II) if the applicable performance targets have been achieved in accordance with the Company’s customary payroll practices Bonus Plan for the year of termination (as are established determined by the Board (or modified from time applicable committee thereof) following the end of such year), a prorated bonus under the Bonus Plan for the year of termination in an amount equal to time, until the earlier of (xA) the date twelve (12) months following bonus Executive would have otherwise received under the date Bonus Plan for the year of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by (B) a fraction, the numerator of which shall equal is the number of days the Employee Executive was employed by the Company during the Company fiscal such calendar year in which the termination occurs and the denominator of which shall equal is 365;, payable in accordance with the Bonus Plan; plus
(cIII) pay full vesting of all equity awards (other than any awards subject to performance-based vesting), including, without limitation, the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination Restricted Stock Units granted pursuant to any expense reimbursement policies of the Company then Section 4(b) above, in effect; and
(d) each case, to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under not yet vested (collectively, Section 4980B 7(f)(i)(B)(I) through (“COBRA”) of the Internal Revenue Code of 1986III), as amended (the “CodeSeverance”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Employment Agreement (Eos Energy Enterprises, Inc.)
Termination Without Cause or for Good Reason. 2.1 Other than If (A) the Company shall terminate Executive’s employment without Cause as set forth in Section 3 below7(b) or (B) Executive shall terminate Executive’s employment for Good Reason as set forth in Section 7(c), ifin each case, at any timeduring the Employment Period, the EmployeeCompany shall pay or provide to Executive: (A) any accrued and unpaid Base Salary and vacation earned through the Date of Termination (including any pay in lieu of notice), which shall be paid on the tenth day after the Date of Termination (or, if such day is not a business day, the next business day after such day); plus (B) as liquidated damages in respect of claims based on provisions of this Agreement and provided that Executive executes and delivers (and does not revoke) a general release of all claims in the form attached as Exhibit A hereto within 60 days following the Date of Termination: (I) twelve months’ Base Salary which shall be paid in periodic installments on the Company’s employment regular payroll dates, beginning with the Company is terminated by next payroll date immediately following the Company without Cause or due to expiration of the Employee’s Disability, or by 60th day following the Employee for Good Reason, then Date of Termination; plus (II) if the Company shall:
(a) continue to pay the Employee his base salary in effect on the date of termination, to be paid applicable performance targets have been achieved in accordance with the Company’s customary payroll practices Bonus Plan for the year of termination (as are established determined by the Board (or modified from time applicable committee thereof) following the end of such year), a prorated bonus under the Bonus Plan for the year of termination in an amount equal to time, until the earlier of (xA) the date twelve (12) months following bonus Executive would have otherwise received under the date Bonus Plan for the year of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by (B) a fraction, the numerator of which shall equal is the number of days the Employee Executive was employed by the Company during the Company fiscal such calendar year in which the termination occurs and the denominator of which shall equal is 365;
, payable in accordance with the Bonus Plan; plus (cIII) pay full vesting of all equity awards (other than any awards subject to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”performance-based vesting), and continues to be eligible for such benefitsincluding, without limitation, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.Restricted Stock Units
Appears in 1 contract
Sources: Employment Agreement (Eos Energy Enterprises, Inc.)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 belowIf (w) there is an Anticipatory Termination, if, at any time, (x) the EmployeeExecutive is not offered continued employment by the Acquiring Corporation or (y) the Executive’s employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, Death) or by the Employee Executive for Good ReasonReason on or within 12 months following the consummation of the Change in Control, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive the following amounts:
(1) in a lump sum, in cash, within 30 days after the Date of Termination, the sum of (A) any unpaid portion of the Executive’s base salary in effect on through the date Date of terminationTermination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (xB) the date twelve a pro rata current year bonus amount (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied calculated by a fraction, the numerator of which shall equal dividing the number of days full and partial months of the Employee was employed by the Company during the Company current fiscal year in which the termination occurs Executive is employed through the Date of Termination by 12, and multiplying this fraction by the denominator amount of which shall equal 365;
(c) pay the current annual bonus target, or if not yet set, the amount of the annual bonus payment paid to the Employee (i) on Executive in the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of terminationpreceding year), and (iiC) within thirty the amount of any accrued vacation pay, in each case to the extent not previously paid (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies sum of the Company then amounts described in effectclauses (A), (B), and (C) shall be hereinafter referred to as the “Accrued Obligations”); and
(d2) in a lump sum, in cash, within 30 days after the Date of Termination, the sum of (A) the Executive’s current base salary for the Severance Term; and (B) (i) the amount of the current annual bonus target, or if not yet set, the amount of the annual bonus payment paid to the extent Executive in the Employee and any qualified beneficiary with respect to preceding year multiplied by (ii) the quotient of the number of months in the Severance Term divided by twelve (12); and
(ii) for the Severance Term after the Date of Termination or such Employee elects longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall provide health insurance continuation benefits under the Consolidated Omnibus Budget Reconciliation Act of health benefit coverage under Section 4980B 1985 (“COBRA”) of at the Internal Revenue Code of 1986Company’s cost to the Executive and the Executive’s family at least equal to those which would have been provided to them if the Executive’s employment had not been terminated, in accordance with the applicable Benefit Plans in effect on the Measurement Date and upon the Executive’s valid COBRA election; provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive health insurance benefits from such employer on terms at least as amended favorable to the Executive and his or her family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and his or her family; and
(iii) to the “Code”), and continues to be eligible for such benefitsextent not previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive’s termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60) days following the date of termination (such other amounts and benefits shall be hereinafter referred to as the “Release PeriodOther Benefits”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the EmployeeExecutive’s employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, Death) or by the Employee Executive for Good ReasonReason at any time, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive the following amounts:
(1) in cash within 30 days after the Date of Termination the aggregate of the lump sum of (A) the Executive’s unpaid base salary in effect on through the date Date of terminationTermination, to be paid in accordance with (B) the Company’s customary payroll practices as are established or modified from time to time, until the earlier product of (x) the date twelve annual bonus paid or payable (12including any bonus or portion thereof which has been earned but deferred or which the Executive forewent, including specifically for 2002 such bonus that the Executive would otherwise have been eligible to receive but for the reduction or elimination of bonuses payable to executives of the Company) months following for the date of termination, or most recently completed fiscal year and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company current fiscal year in which through the termination occurs Date of Termination, and the denominator of which is 365 and (C) the amount of any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not previously paid (the sum of the amounts described in clauses (A), (B), and (C) shall equal 365be hereinafter referred to as the “Accrued Obligations”);
(c2) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) in a lump sum in cash within thirty (30) 30 days after the date Date of termination, any reimbursable business expenses incurred by Termination an amount equal to (a) the Employee through Executive’s highest annual bonus during the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) five-year period prior to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation Date of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee Termination in the event of a termination by the Company without Cause and (b) fifty percent of the EmployeeExecutive’s highest annual bonus during the five-year period prior to the Date of Termination in the event of a termination by the Executive for Good Reason; and
(3) an amount equal to (a) the Executive’s highest annual base salary during the five-year period prior to the Date of Termination in the event of a termination by the Company without Cause and (b) fifty percent of the Executive’s highest annual base salary during the five-year period prior to the Date of Termination in the event of a termination by the Executive for Good Reason. The payment of such amount shall, at the Company’s option, be paid either (x) in a lump sum in cash within 30 days after the Date of Termination or (y) in equal installments during the 12 month period (for a termination by the Company without Cause) or 6 month period (for a termination by the Executive for Good Reason) following the Date of Termination in accordance with the Company’s then current payroll practices (as such practices may be amended from time to time).
(ii) for 12 months after the Date of Termination (for a termination by the Company without Cause), 6 months after the Date of Termination (for a termination by the Executive for Good Reason), or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Executive and the Executive’s family at least equal to those which would have been provided to them if the Executive’s employment had not been terminated, in accordance with the circumstances set forth applicable Benefit Plans in this Section 2.
2.3 Notwithstanding anything herein effect on the Effective Date or, if more favorable to the contraryExecutive and his family, all benefits under this Section 2 shall terminate immediately in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies; provided, however, that if the EmployeeExecutive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer on terms at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation least as favorable to the Executive and his family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and his family;
(iii) to the extent not previously paid or provided, the Company shall timely pay or provide to the Executive any other continuing obligation amounts or benefits required to be paid or provided or which the CompanyExecutive is eligible to receive following the Executive’s termination of employment under any plan, program, policy, practice, contract or agreement of the Company and its affiliated companies (such other amounts and benefits shall be hereinafter referred to as the “Other Benefits”); and
(iv) for purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits to which the Executive is entitled, the Executive shall be considered to have remained employed by the Company until 12 months after the Date of Termination.
Appears in 1 contract
Sources: Executive Retention Agreement (Storagenetworks Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employeeevent of the Executive’s termination of employment with the Company is terminated by the Company without Cause or due pursuant to the Employee’s Disability, Section 4(a)(iv) or by the Employee Executive for Good ReasonReason pursuant to Section 4(a)(v), then in addition to the payments and benefits described in Section 5(a) above, the Company shall:, subject to Section 23 and Section 5(d) and subject to Executive’s execution and non-revocation of a waiver and release of claims agreement in substantially in the form attached hereto as Exhibit C in accordance with Section 23(c) (a “Release”):
(ai) continue Pay to pay the Employee his base salary Executive an amount equal to 150% of the sum of (A) Annual Base Salary and (B) Target Bonus, in effect substantially equal installments during the period beginning on the date Date of termination, to be paid Termination and ending on the eighteen (18)-month anniversary of the Date of Termination in accordance with the Company’s customary regular payroll practices practice as are established or modified from time of the Date of Termination; provided that, notwithstanding anything to timethe contrary in this Section 5(b)(i), until if such termination of employment occurs within the earlier twelve (12)-month period immediately following a Change in Control (and such Change in Control constitutes a “change in control event” as defined in Treasury Regulations Section 1.409A-3(i)(5)), then, in lieu of the foregoing payments set forth in this Section 5(b)(i), the Company shall pay in a lump sum to the Executive an amount equal to 200% of the sum of (A) Annual Base Salary and (B) Target Bonus;
(ii) Pay to the Executive an amount equal to the product of (A) the amount of the Annual Bonus that would have been payable to the Executive pursuant to Section 3(b) if the Executive was still employed as of the applicable Bonus Vesting Date in respect of the fiscal year in which the Date of Termination occurs based on actual individual and Company performance goals in such year and (B) the ratio of (x) the date twelve (12) months following number of days elapsed during the date fiscal year during which such termination of terminationemployment occurs on or prior to the Date of Termination, or to (y) 365. Any amount payable pursuant to this Section 5(b)(ii) shall, subject to Section 23 and Section 5(d), be paid to Executive in accordance with Section 3(b) as if the date Executive was still employed on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days applicable Bonus Vesting Date, but in no event later than the 15th day of the third month of the fiscal year immediately following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator Date of which shall equal 365Termination occurs;
(ciii) pay Continue to provide, subject to the Employee (i) Executive’s valid election to continue healthcare coverage under COBRA, the Executive and the Executive’s eligible dependents with coverage under its group health plans during the period commencing on the date Date of terminationTermination and ending on the earlier of (A) the eighteen (18)-month anniversary of the Date of Termination (if such termination of employment occurs within the twelve (12)-month period immediately following a Change in Control, any base salary earned but not paid and any vacation accrued but not used through the date twenty-four (24)-month anniversary of termination, the Date of Termination) and (iiB) within thirty the first date on which the Executive is eligible for group health plan coverage from another employer or otherwise at the same levels and the same cost to the Executive as would have applied if the Executive’s employment had not been terminated based on the Executive’s elections in effect on the Date of Termination, provided, however, that (30A) days after the date of termination, if any reimbursable business expenses incurred by the Employee through the date of termination plan pursuant to any expense reimbursement policies which such benefits are provided is not, or ceases prior to the expiration of the period of continuation coverage to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), or (B) the Company then is otherwise unable to continue to cover the Executive under its group health plans without incurring penalties (including without limitation, pursuant to Section 2716 of the Public Health Service Act), then, in effecteither case, an amount equal to each remaining Company subsidy shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof); and
(div) Notwithstanding any provision to the extent the Employee and contrary in any qualified beneficiary equity plan or award agreement with respect to equity awards, cause (A) with respect to the Retention RSUs and all Annual Equity Awards subject to service-based vesting, each such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) award to become vested with respect to a prorated portion thereof based on the ratio of the Internal Revenue Code number of 1986, as amended (days of employment of the “Code”)Executive during the applicable service-based vesting period to the total number of days of such service-based vesting period, and continues (B) with respect to all Annual Equity Awards subject to performance-based vesting, each such award to shall continue to be eligible for to become vested in accordance with its terms based on actual performance with respect to a prorated portion of such benefitsaward based on the ratio of the number of days of employment of the Executive during the applicable performance period to the total number of days of such performance period; provided that, notwithstanding anything to the contrary (except as otherwise noted below in this Section 5(b)(iv)), (x) if such termination of employment occurs during any period when the Executive is unable to engage in substantial gainful activity that may reasonably be expected to result in Disability, the Company shall provide payments shall, on the Date of Termination, cause (I) the Retention RSUs and all Annual Equity Awards subject to the Employee for such benefits equal service-based vesting, to the amount contributed for active employees become fully vested and (II) all Annual Equity Awards subject to performance-based vesting to continue to be eligible to become vested in accordance with similar benefits their terms based on actual performance, and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) if such termination of employment occurs within the date twelve (12)-month period immediately following a Change in Control, the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits Company shall, on the Date of Termination, cause all then-outstanding equity awards granted to the Employee under this Section 2 shall Executive (iincluding, without limitation, the Annual Equity Awards) be contingent upon which are not vested as of the execution Date of Termination to become vested for the purposes of the 2010 Incentive Award Plan or any other applicable equity plan, and nonany applicable award agreement(s), deeming, for purposes of awards subject to performance-revocation based vesting, that the Company will attain “target” performance levels (or such higher performance level as expressly contemplated by the Employee applicable award agreement in the event of such a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if . For the Release does not become effective during the Release Periodavoidance of doubt, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination described in subsection (y) that results in accelerated vesting of the Employee’s employment performance stock units granted under the 2017 PSU Agreement, (I) the Company will be deemed to have attained the “target” performance level with respect to the EPS Performance Stock Units (as defined in the circumstances set forth 2017 PSU Agreement) and (II) the Company will be deemed to have attained the higher of (1) the “target” performance level and (2) the actual performance level calculated under the 2017 PSU Agreement (taking into account the Change in this Section 2Control and any effects thereof on the calculation of total stockholder return) for purposes of the TSR Performance Stock Units (as defined in the 2017 PSU Agreement).
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Employment Agreement (Novanta Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, the Employee’s employment with the Company is terminated Upon termination of this Agreement by the Company without Cause or due to the Employee’s DisabilityCause, or by the Employee Executive for Good Reason, then and provided such termination constitutes a “separation from service” (as defined under Treasury Regulation Section 1.409A-1(h), without regard to any alternative definition thereunder), Executive, in addition to all Salary earned through the Company shallDate of Termination, plus unpaid and reimbursable expenses actually incurred prior to termination, if any, shall be entitled to receive:
(ai) continue to pay the Employee his base salary in effect on the date of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of Salary for (xA) the date twelve (12) month period following the effective Date of Termination or (B) if such termination is within twenty-four (24) months following the date a Change of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release Control (as defined below), pay for the Employee’s target bonus on twenty-four (24) month period following the date effective Date of Termination;
(ii) continuation of group health plan benefits for (A) the twelve (12) month period following the effective Date of Termination, or (B) if such termination multiplied is within twenty-four (24) months following a Change of Control, for the twenty-four (24) month period following the effective Date of Termination, in each case to the extent authorized by a fractionand consistent with the terms of such plans, with the numerator cost of which shall equal the number of days regular premium for such benefits shared in the Employee was employed same relative proportion by the Company during and Executive as in effect on the Company fiscal Date of Termination;
(iii) a lump sum cash payment equal to (A) one times his target Annual Bonus for the year in which the Executive is terminated or (B) if such termination occurs and is within twenty-four (24) months following a Change of Control, two times his target Annual Bonus for the denominator of year in which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effectExecutive is terminated; and
(div) an additional twelve (12) months of vesting with respect to the Board Member Options, the CEO Option, the New Award, the 2012 Award (to the extent subject to time based vesting as of the Employee date of such termination event) and any qualified beneficiary with respect other future awards (to the extent subject to time based vesting) granted to Executive; provided however that, if such termination is within twenty-four (24) months following a Change of Control, all unvested options granted to Executive prior to the date thereof, including, without limitation, the Board Member Options, the CEO Option, New Award, the 2012 Award and any other future awards granted to Executive, will immediately vest in full. The Executive’s right to receive such payments shall be conditioned upon Executive’s execution and delivery of a customary release and non-disparagement agreement in favor of the Company and the expiration of any revocation period within 60 days of the Date of Termination. Any severance payments due Executive hereunder shall commence within 60 days after the Date of Termination; provided, however, that if the 60-day period begins in one calendar year and ends in a second calendar year, the severance payments shall begin to be paid in the second calendar year. On the date that severance payments commence, the Company will pay Executive in a lump sum the severance payments that Executive would have received on or prior to such Employee elects continuation date but for the delay imposed by the immediately preceding sentence, with the balance of health benefit coverage under the severance payments to be paid as originally scheduled. Solely for purposes of Section 4980B (“COBRA”) 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employerinstallment payment is considered a separate payment.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 belowSubject to Sections 4.4 and 4.8, if, at any time, if the EmployeeExecutive’s employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, death) or by the Employee Executive for Good ReasonReason within 12 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive in a lump sum in cash the following amounts:
(1) the sum of (A) the Executive’s accrued but unpaid base salary in effect on through the date Date of terminationTermination, to be paid in accordance with (B) the Company’s customary payroll practices as are established or modified from time to time, until the earlier product of (x) the date twelve (12) months following Executive’s annual target bonus for the date year in which the Date of termination, or Termination occurs and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company fiscal year in which the termination Date of Termination occurs through the Date of Termination, and the denominator of which shall equal is 365;
, less the amount of any bonus actually paid for such fiscal year, (cC) pay to any amount of the Employee (i) on Executive’s annual bonus for the date of termination, any base salary most recently completed fiscal year that has been earned but not paid and any vacation accrued but not used through as of the date Date of terminationTermination, and (iiD) the amount of any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not previously paid (the sum of the amounts described in clauses (A), (B), (C) and (D) shall be hereinafter referred to as the “Accrued Obligations”), which Accrued Obligations shall be paid to the Executive in a lump sum within thirty (30) 30 days after the date Date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effectTermination; and
(d2) the amount equal to the sum of (A) the Executive’s annual base salary for the year during which the termination occurs and (B) the Executive’s target bonus for the year in which the Date of Termination occurs, which amount shall be paid to the Executive in a lump sum 60 days after the Date of Termination.
(ii) for 12 months after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Executive and the Executive’s family at least equal to those which would have been provided to them if the Executive’s employment had not been terminated, in accordance with the applicable Benefit Plans in effect on the Measurement Date; provided, however, (1) that if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer on terms at least as favorable to the Executive and his family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and his family and (2) to the extent such payments are taxable and/or extend beyond the Employee and any qualified beneficiary with respect period of time during which the Executive would be entitled (or would, but for this clause (2)) to such Employee elects COBRA continuation of health benefit coverage under Section 4980B a group health plan of the Company, such payments shall be made in accordance with the Company’s normal payroll practices for such benefits; and
(“COBRA”iii) for purposes of determining eligibility (but not the time of commencement of benefits) of the Internal Revenue Code of 1986, as amended (Executive for retiree benefits to which the “Code”), and continues to be eligible for such benefitsExecutive is entitled, the Company Executive shall provide payments be considered to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided have remained employed by the Company and substantially identical to until 12 months after the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances Date of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2Termination.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Executive Retention Agreement (Starent Networks, Corp.)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the EmployeeExecutive’s employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, death) or by the Employee Executive for Good ReasonReason within the period from 60 days prior to the Change in Control Date to 24 months following the Change in Control Date, then then, subject to Section 4.2(a)(v) below, the Company shallExecutive shall be entitled to the following benefits:
(ai) continue The Company shall pay to pay the Employee his Executive in cash the aggregate of the following amounts:
(1) The Company shall make a lump sum cash payment to the Executive equal to (A) the Executive’s base salary in effect on through the date Date of terminationTermination, to be paid in accordance with (B) the Company’s customary payroll practices as are established or modified from time to time, until the earlier product of (x) the date twelve greater of (12i) months following Executive’s largest annual bonus for the date most recently completed three (3) fiscal years and (ii) the Executive’s target annual bonus at time of termination, or termination and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company current fiscal year in which through the termination occurs Date of Termination, and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, is 365 and (iiC) within thirty (30) days after the date of terminationany accrued vacation pay, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) each case to the extent not previously paid (the Employee sum of the amounts described in clauses (A) and any qualified beneficiary with respect (C) shall be hereinafter referred to such Employee elects continuation as the “Accrued Obligations” and the dollar amount described in clause (B) shall be hereinafter referred to as the “Pro-Rata Bonus”). Payment of health benefit coverage under Section 4980B the Accrued Obligations shall be made on the Date of Termination, and the payment of the Pro-Rata Bonus shall be made on the 30th day following the later of the Date of Termination or the Change in Control Date (the “COBRAApplicable Date”) or as soon as administratively practicable following such scheduled payment date, but in no event later than the close of the calendar year in which the Applicable Date occurs or (if later) the 15th day of the third calendar month following that date.
(2) Any compensation deferred on behalf of the Executive on the Date of Termination or the Change in Control Date under any deferred compensation plan subject to Section 409A of the Internal Revenue Code of 1986Code, as amended (the “Code”), shall be paid at the time or times specified for payment pursuant to the provisions of such plan.
(3) The Company shall, in a series of 24 successive equal monthly installments pursuant to the Company’s normal payment practices, pay in cash to the Executive an amount equal to (A) 2.0 multiplied by (B) the sum of (x) the greater of (i) the Executive’s annual base salary for the most recently completed fiscal year or (ii) the Executive’s current annual base salary at the time of termination and continues (y) the greater of (i) Executive’s largest annual bonus for the most recently completed three (3) fiscal years and (ii) the Executive’s target annual bonus at time of termination. The first such installment shall be paid on the 30th day following the Applicable Date or as soon as administratively practicable following such scheduled payment date, but in no event later than the close of the calendar year in which the Applicable Date occurs or (if later) the 15th day of the third calendar month following that date.
(ii) For a period not to exceed 24 months measured from the Applicable Date, the Company shall, if the Executive elects under Code Section 4980B to continue health care coverage under the Company’s group health plan for himself, his spouse and his eligible dependents following the Applicable Date, provide such continued health care coverage at the Company’s expense; provided, however, that such coverage at the Company’s expense shall immediately terminate on the date the Executive is first covered under another employer’s heath benefit program which provides substantially the same level of benefits without exclusion for pre-existing medical conditions. Such health care coverage shall be at the same level and provide the same type of benefits as would have been provided to them if the Executive’s employment had not been terminated and they had continued to be covered under the applicable Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and his family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies. Such continued health care coverage shall be provided pursuant to the provisions of this subparagraph (ii) even if such coverage extends beyond the period of statutorily-required coverage under Code Section 4980B, but subject to earlier termination in accordance with the above proviso relating to coverage under another employer’s plan. In the event the Company’s provision of such continued health care coverage results in the recognition of taxable income (whether for federal, state or local income tax purposes) by the Executive or his spouse or other eligible dependent, then the Executive and his spouse and dependents shall each be responsible for the payment of the income and employment tax liability resulting from such benefitscoverage, and the Company will not provide any tax gross-up payments to the Executive (or any other person) with respect to such income and employment tax liability. To the extent the health coverage under this subparagraph (ii) is to be provided by an insured plan or insurance policy, the applicable insurance premiums shall be paid by the Company within 10 days after each due date, with such premium payment to be made in all events not later than the close of the calendar year in which those premiums become due and payable. To the extent such health coverage is to be provided through a self-funded reimbursement program maintained by the Company, the Executive shall, within 30 days after his receipt of each invoice for a reimbursable health or medical care expense under this Section 4.2, submit a copy of such invoice to the Company for reimbursement, and the Company shall pay such reimbursement on the 30th day following receipt of the submitted invoice or as soon after that scheduled payment date as administratively practicable, but in no event later than the close of the calendar year in which such invoice is received by the Company or (if later) the 15th day of the third the calendar month following the date of such receipt.
(iii) To the extent not previously paid or provided, the Company shall timely pay or provide payments to the Employee for Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive following the Executive’s termination of employment under any plan, program, policy, practice, contract or agreement of the Company and its affiliated companies (such other amounts and benefits equal shall be hereinafter referred to as the amount contributed for active employees with similar benefits “Other Benefits”). Each of the Other Benefits shall be paid or provided as they become due and similar participating beneficiaries until the earlier of (x) twelve (12) months (payable in one or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end more installments under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employerarrangement, but in no later than 10 business days after each such scheduled payment or due date.
2.2 The payments and (iv) For purposes of determining eligibility (but not the time of commencement of benefits) of the Executive for retiree benefits to which the Employee under this Section 2 Executive is entitled, the Executive shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided considered to have remained employed by the Company and substantially identical to until 18 months after the form attached to this Plan as Exhibit A Date of Termination.
(except for such modifications as v) Notwithstanding the foregoing, if the Executive breaches any ongoing obligation with the Company may make in its sole discretion to reflect changes in law or the circumstances (by way of the termination); provided that if the Release does example and not become effective during the Release Periodby way of limitation, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event any breach of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to provision with the Company), and such breach is not cured within 30 days of written notice of such breach received by the Executive from the Company, or then the Company shall no longer be required to provide any other continuing obligation to of the Companybenefits set forth in this Section 4.2(a).
Appears in 1 contract
Sources: Executive Retention Agreement (Bio Imaging Technologies Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, the Employee’s The Executive's employment with the Company is hereunder may be terminated by the Company without Cause or due by the Executive for Good Reason. If during the Term the Executive's employment shall be terminated by the Company without Cause (and other than pursuant to the Employee’s Disability, Section 4(b)) or by the Employee Executive for Good ReasonReason (each a "Section 4(d) Event"), then the Company shallfollowing provisions shall apply:
(ai) continue The Executive shall be entitled to receive severance pay equal to the Employee his base salary sum of the following amounts:
(A) an amount equal to all accrued but unpaid Salary owing by the Company as of the Termination Date;
(B) any accrued and unpaid Bonus to the Termination Date, including any Bonus for the year in effect on which the date Termination Date occurs, determined by the Board, in its sole discretion, after reviewing the Executive's and the Company's performance for such entire year and prorating any such Bonus for the number of terminationdays elapsed during such year prior to the Termination Date;
(C) subject to Section 5 hereof, an amount equal to the Executive's current annual Salary hereunder; and
(D) subject to Section 5 hereof, an amount equal to the average annual Bonus paid to the Executive pursuant to this Agreement for the two calendar years preceding the Termination Date (or, if the Executive has been employed hereunder for less than two full calendar years as of the Termination Date, the amount of the Bonus, if any, paid to the Executive for the prior calendar year).
(ii) The amounts payable by the Company pursuant to Section 4(d)(i) shall be paid as follows:
(A) The amount referred to in clause (A) of Section 4(d)(i) shall be paid in accordance with the Company’s customary 's existing payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensationpractices;
(bB) within thirty The amount of any Bonus payable pursuant to clause (30B) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which Section 4(d)(ii) shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not be paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) fifteen business days after the date release of termination, any reimbursable business expenses incurred the Company's annual audited financial statements for the year in respect of which such Bonus was awarded and the approval of such Bonus by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effectBoard; and
(dC) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided amounts payable by the Company pursuant to clauses (C) and substantially identical (D) of Section 4(d)(i) shall be paid as a lump sum cash payment within fifteen business days after the Termination Date.
(iii) Any options to purchase shares of Common Stock granted to the form attached Executive and any shares of restricted stock granted to this Plan the Executive that have not vested as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) Termination Date shall vest as of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2such date.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Employment Agreement (North Atlantic Trading Co Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the EmployeeExecutive’s employment with the Company is terminated by the Company without Cause other than for Cause, Disability or due to the Employee’s Disabilitydeath, or by the Employee Executive for Good Reason, then the Company shallExecutive shall be entitled to the following benefits:
(ai) the Company shall pay to the Executive in a lump sum in cash within 30 days after the Date of Termination the sum of (A) the Executive’s Base Salary through the Date of Termination as well as any Annual Bonus or portion thereof which has been earned for the most recently completed Fiscal Year, (B) the amount of any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and (C) any accrued vacation pay, in each case to the extent not previously paid (the sum of the amounts described in clauses (A), (B) and (C) shall be hereinafter referred to as the “Accrued Obligations”);
(ii) for 12 months after the Date of Termination, the Company shall continue to pay to the Employee Executive his base salary in effect on the date of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of terminationBase Salary distributed at regular pay period intervals, or (y) at the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies option of the Company then in effect; and
(d) and only if such payment of salary is not deemed to the extent the Employee and any qualified beneficiary with respect be deferred compensation subject to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to in a lump sum;
(iii) for 12 months after the Date of Termination, or such longer period as may be eligible for such benefitsprovided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide payments health benefits to the Employee for such benefits Executive and the Executive’s family at least equal to those which would have been provided to them if the amount contributed for active employees Executive’s employment had not been terminated, in accordance with similar benefits and similar participating beneficiaries the applicable Company employee benefit plans in effect on the Date of Termination;
(iv) outplacement services through one or more outside firms of the Company’s choosing, with such services to extend until the earlier of (xA) twelve (12) 12 months (or as long as such eligibility for following the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms Date of Termination, or (yii) the date the Employee becomes eligible for group health coverage through another employer.Executive secures full time employment; and
2.2 The payments and benefits (v) to the Employee extent not previously paid or provided, the Company shall timely pay or provide to the Executive any other amounts or benefits required to be paid or provided or which the Executive is eligible to receive following the Executive’s termination of employment under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor any plan, program, policy, practice, contract or agreement of the Company within sixty and its affiliated companies (60) days following the date of termination (such other amounts and benefits shall be hereinafter referred to as the “Release PeriodOther Benefits”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee . Notwithstanding any provision in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein Agreement to the contrary, all if the Executive becomes employed by any Competitor within the 12 month period following the Executive’s termination by the Company other than for Cause or Disability, or by the Executive for Good Reason, the Company shall be entitled to cease paying the Executive any compensation or benefits under Section 5.2(a)(ii), (iii) and (iv) above. For purposes of this Section 2 shall terminate immediately if Agreement, “Competitor” includes, but is not limited to, the Employeefollowing entities: Broadvision, at any Demandware, Digital River, Escalate, GSI Commerce, the IBM Websphere business unit and other companies that the Company may add to this list from time to time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the Employee’s Executive's employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, death) or by the Employee Executive for Good ReasonReason within 18 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
(1) the sum of (A) the Executive's base salary in effect on through the date Date of terminationTermination, to be paid in accordance with (B) the Company’s customary payroll practices as are established or modified from time to time, until the earlier product of (x) the date twelve (12) months following higher of the date of termination, Executive’s target bonus as in effect immediately prior to the Measurement Date or the Termination Date and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company current fiscal year in which through the termination occurs Date of Termination, and the denominator of which shall equal 365;
is 365 and (cC) pay the amount of any accrued vacation pay, in each of (A) through (C), to the Employee extent not previously paid (i) on the date sum of terminationthe amounts described in clauses (A), any base salary earned but not paid and any vacation accrued but not used through the date of termination(B), and (iiC) within thirty (30) days after shall be hereinafter referred to as the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect“Accrued Obligations”); and
(d2) an amount equal to (a) two and one half (2.5) multiplied by (b) the sum of (x) the higher of the Executive’s annual base salary as in effect immediately prior to the Measurement Date or the Termination Date and (y) the higher of the Executive’s target bonus as in effect immediately prior to the Measurement Date or the Termination Date.
(ii) for two years after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide medical, dental and life insurance benefits to the Executive and the Executive's family at least equal to those which would have been provided to them if the Executive's employment had not been terminated, in accordance with the applicable medical, dental and life insurance Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and the Executive’s family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies; provided, however, that (A) if the terms of a medical, dental or life insurance Benefit Plan do not permit continued participation therein by a former employee on a tax-favored basis, then an equitable arrangement shall be made by the Company (such as a substitute or alternative plan) to provide as substantially equivalent a benefit as is reasonably possible and (B) if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., medical insurance benefits) from such employer on terms at least as favorable to the Executive and the Executive’s family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and the Executive’s family; and
(iii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive's termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60other than severance benefits) days following the date of termination (such other amounts and benefits shall be hereinafter referred to as the “Release PeriodOther Benefits”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Executive Change in Control Retention Agreement (Thermo Fisher Scientific Inc.)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, the Employee(a) If (1) Executive’s employment with the Company is terminated by the Company without or Castlewood (US) for any reason other than Cause or due to the Employee’s Disabilitydeath or disability of Executive, or (2) Executive’s employment is terminated by the Employee Executive for Good Reason, then the Company shall:Reason (as defined herein):
(ai) Castlewood (US) shall pay Executive any amounts (including salary, bonuses, expense reimbursement, etc.) that have been fully earned by, but not yet paid to, Executive under this Agreement as of the date of such termination;
(ii) Castlewood (US) shall pay Executive a lump sum amount equal to three times the Base Salary payable to him on the 10th day following the date of such termination or if Executive is at such time a “specified employee” for purposes of Section 409A, on the first business day following the six month anniversary of such termination;
(iii) Executive shall be entitled to continue to pay receive medical benefits coverage (as described in Section 3.3) for Executive and Executive’s spouse and dependents (if any) at Castlewood (US)’s expense for a period ending on December 31 of the Employee his base salary in effect second calendar year commencing on the date of termination;
(iv) Anything to the contrary in any other agreement or document notwithstanding, each outstanding equity incentive award granted to be paid Executive before, on or within three years after the date hereof shall become immediately vested and exercisable on the date of such termination; and
(v) In addition, if, for the year in which Executive is terminated, Company achieves the performance goals established in accordance with any incentive plan in which Executive participates, Castlewood (US) shall pay an amount equal to the Company’s customary payroll practices as are established bonus that Executive would have received had he been employed by Company or modified from time to time, until Castlewood (US) for the earlier of (x) full year; such amount shall be paid on the date twelve (12) months following set forth in such bonus plan or, if later and if required to comply with Section 409A, on the date first business day after the six month anniversary of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;such termination of employment.
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, Upon making the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein 4.4, Company and Castlewood (US) shall have no further obligation to the contrary, all benefits Executive under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the CompanyAgreement.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the Employee’s Executive's employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, Death) or by the Employee Executive for Good ReasonReason within 24 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive the following amounts:
(1) in cash within 30 days after the Date of Termination the aggregate of the lump sum of (A) the Executive's base salary in effect on through the date Date of terminationTermination, to be paid in accordance with (B) the Company’s customary payroll practices as are established or modified from time to time, until the earlier product of (x) the date twelve annual bonus paid or payable (12including any bonus or portion thereof which has been earned but deferred) months following for the date of termination, or most recently completed fiscal year and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company current fiscal year in which through the termination occurs Date of Termination, and the denominator of which is 365 and (C) the amount of any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the extent not previously paid (the sum of the amounts described in clauses (A), (B), and (C) shall equal 365be hereinafter referred to as the "Accrued Obligations");
(c2) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) in a lump sum in cash within thirty (30) 30 days after the date Date of termination, any reimbursable business expenses incurred by Termination an amount equal to the Employee through Executive's highest annual bonus during the date of termination pursuant five-year period prior to any expense reimbursement policies of the Company then Change in effectControl Date; and
(d3) an amount equal to the Executive's highest annual base salary during the five-year period prior to the Date of Termination. The payment of such amount shall, at the Company's option, be paid either (x) in a lump sum in cash within 30 days after the Date of Termination or (y) in equal installments during the 12 month period following the Date of Termination in accordance with the Company's then current payroll practices (as such practices may be amended from time to time).
(ii) for 12 months after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Executive and the Executive's family at least equal to those which would have been provided to them if the Executive's employment had not been terminated, in accordance with the applicable Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and his family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies; provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer on terms at least as favorable to the Executive and his family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and his family;
(iii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive's termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60such other amounts and benefits shall be hereinafter referred to as the "Other Benefits");
(iv) days following for purposes of determining eligibility (but not the date time of termination commencement of benefits) of the Executive for retiree benefits to which the Executive is entitled, the Executive shall be considered to have remained employed by the Company until 12 months after the Date of Termination; and
(v) to the “Release Period”)extent not previously accelerated or vested pursuant to Section 4.1 or otherwise, (a) each outstanding option to purchase shares of Common Stock of the Company held by the Executive shall become immediately exercisable in full and shares of Common Stock of the Company received upon exercise of any options will no longer be subject to a form that right of repurchase by the Company, (b) each outstanding restricted stock award shall be deemed to be fully vested and will no longer be provided subject to a right of repurchase by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make c) notwithstanding any provision in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein any applicable option agreement to the contrary, all benefits under this Section 2 each such option shall terminate immediately if continue to be exercisable by the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation Executive (to the Company, or any other continuing obligation to extent such option was exercisable on the CompanyDate of Termination) for a period of twelve months following the Date of Termination.
Appears in 1 contract
Sources: Executive Retention Agreement (Storagenetworks Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the EmployeeExecutive’s employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, death) or by the Employee Executive for Good Reason, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive the following amounts:
(1) in a lump sum, in cash, within 30 days after the Date of Termination, the sum of (A) the Executive’s base salary through the Date of Termination, (B) a pro rata portion of his then current fiscal year target bonus amount (calculated by dividing the number of full and partial months of the current fiscal year in effect on which the date Executive is employed through the Date of terminationTermination by 12, and multiplying this fraction by the target bonus amount to be paid to Executive for the current fiscal year), and (C) any accrued vacation pay to the extent not previously paid (the sum of the amounts described in accordance with clauses (A), (B), and (C) shall be hereinafter referred to as the “Accrued Obligations”); and
(2) in a lump sum, in cash, within 30 days after the Date of Termination, the sum of (A) two times the Executive’s then current annual base salary and (B) two times the Executive’s then current fiscal year target bonus amount;
(ii) if the Executive is covered under the Company’s customary payroll practices as are established or modified from time group health plan immediately prior to timethe Date of Termination, then if the Executive timely elects to continue such coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Company will pay the premium for the Executive’s COBRA coverage until the earlier of (xA) twenty-four months from the Date of Termination and (B) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effectExecutive becomes covered under another group health plan; and
(diii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive’s termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60) days following the date of termination (such other amounts and benefits shall be hereinafter referred to as the “Release PeriodOther Benefits”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Executive Severance and Change in Control Agreement (Myriad Pharmaceuticals, Inc.)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at In the event of any time, the Employee’s employment with the Company is terminated by the Company without Cause termination of this Agreement pursuant to Sections 7.4 or due to the Employee’s Disability, or by the Employee for Good Reason, then the Company shall7.5 hereof:
(a) The Orchard shall continue to pay Executive his Base Salary under Section 6.1 hereof at Executive’s then-current salary and maintain his benefits under Section 6.2 hereof (i) through the Employee his base salary in effect remaining term of this Agreement which ends on the date third anniversary of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of terminationEffective Date, or (yii) for six (6) months, whichever period is shorter. If such benefits contemplated under Section 6.2 hereof cannot be maintained under the date on which provisions and eligibility of the Employee commences employment or a consulting relationship with substantially specific plans (see Section 8.6 below), then The Orchard shall pay during the post-termination period the cash equivalent compensationof the company’s cost of benefits under any such company plan;
(b) within thirty (30) days following the execution The Orchard will pay unreimbursed expenses and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any accrued vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies Sections 6.4 and 6.5 of this Agreement;
(c) For the fiscal year of termination, The Orchard shall pay the pro rata portion of the Company then annual incentive bonus otherwise due to Executive pursuant to Section 6.3 hereof, such pro rata bonus amount to be determined at the sole discretion of the Compensation Committee of the Board of Directors based upon the targets, milestones, performance objectives and measurement criteria established for the fiscal year and The Orchard’s and Executive’s, as the case may be, actual performance against such targets, milestones, performance objectives and measurement criteria. Notwithstanding the forgoing, in effect; andthe event of termination of this Agreement pursuant to Section 7.5, this subsection (c) will not be applicable unless The Orchard determines, in its reasonable judgment, that the Executive’s termination meets the requirements for Good Reason as set forth in Section 7.5.
(d) The vesting of the Restricted Stock Award Agreement and the Stock Option Agreement that Executive enters into with The Orchard for the equity incentive awards set forth in Section 6.6 hereof shall, in the event of a termination of employment pursuant to Sections 7.4 or 7.5 hereof, be accelerated by six (6) months pursuant to the extent next to last sentence of Section 6.6. Notwithstanding the Employee forgoing, in the event of termination of this Agreement pursuant to Section 7.5, this subsection (d) will not be applicable unless The Orchard determines, in its reasonable judgment, that the Executive’s termination meets the requirements for Good Reason as set forth in Section 7.5.
(e) In all cases, post-termination payments to Executive will be reduced for applicable withholding taxes and any qualified beneficiary will be payable on The Orchard’s normal payroll dates or bonus payment dates during the periods; provided, however, that if the total amount of the benefits available to Executive under this Section 8.4, either alone or together with respect other payments which Executive has the right to such Employee elects continuation of health benefit coverage under receive from The Orchard, would constitute a “parachute payment” as defined in Section 4980B (“COBRA”) 280G of the Internal Revenue Code of 1986, as amended (the “Code“ Code ”), then The Orchard shall pay to Executive at the time of termination an additional amount such that the net amount retained by Executive, after deduction of the excise tax imposed by Section 4999 of the Code and continues to any federal, state and local income tax and excise tax imposed on such additional amount, shall be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits payable to the Employee Executive under this Section 2 shall (i) be contingent upon 8.4 as originally determined prior to the execution and non-revocation by the Employee of a release of claims (the “Release) in favor deduction of the Company excise tax. All such amounts payable by The Orchard shall be paid within sixty thirty (6030) days of the Executive’s separation from service except as provided in Section 8.4(d). In the event of any termination of this Agreement pursuant to Sections 7.4 or 7.5, Executive shall have no duty or obligation whatsoever to seek similar or substitute employment or otherwise mitigate his damages.
(f) If upon termination Executive is a “specified employee” within the meaning of Code section 409A(a)(2)(B)(i) and the regulations promulgated thereunder, then the payments under Sections 8.4(a) and (c) will not begin sooner than the date that is six (6) months following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in . In the event of a termination of the Employee’s employment delay in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits payment provided under this Section 2 8.4(d), The Orchard shall, on the first day of the seventh month following such termination, pay Executive in a lump sum all amounts that would have been paid under Section 8.4(a) and (c) through such date if such six-month delay had not occurred; provided, further that all such amounts payable by The Orchard under Section 8.4(c) shall terminate immediately be paid by the end of the Executive’s taxable year next following the Executive’s taxable year in which the Executive remits the related taxes or, in the case of a tax audit or litigation addressing the existence or amount of a tax liability, by the end of the Executive’s taxable year following the Executive’s taxable year in which the taxes that are the subject of audit or litigation are remitted to the taxing authority (or where as a result of such audit or litigation no taxes are remitted, the end of the Executive’s taxable year following the Executive’s taxable year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation).
(g) Executive will only be deemed to have incurred a separation from service under Sections 8.2, 8.4 (a) and 8.4 (c) if it is reasonably anticipated that Executive will not provide significant services for The Orchard or an affiliate following such termination (a “Separation from Service”). Whether a termination of employment is considered a Separation from Service will be determined in accordance with Internal Revenue Code Section 409A, and such determination will be based upon the facts and circumstances surrounding the termination of employment. While Executive is on military leave, sick leave, or another bona fide leave of absence, the employment relationship is treated as continuing intact if the Employeeperiod of leave does not exceed six months, at or, if longer, so long as Executive has a guaranteed right to return to employment either by law or by contract.
(h) As a condition of receiving any timepayments described under Section 8.4, violates Executive agrees to execute, deliver and not to revoke (within the time period permitted by applicable law) a general release of The Orchard and its officers, directors, employees, and owners from any proprietary informationand all claims, assignment obligations and liabilities of inventions agreementany kind whatsoever arising from or in connection with the Executive’s employment or termination of employment with The Orchard or this Agreement (including without limitation civil rights claims), confidentialityin such form as requested by The Orchard (with the attached Exhibit A as an example of one such form), non-competition it being understood that such release shall not apply to Executive’s rights to any payments or non-solicitation obligation to the Company, benefits due under this Agreement or any other continuing obligation employee benefit plan or program in which the Executive is a participant, any rights Executive may have to the Companyindemnification and to coverage under directors’ and officers’ liability and similar insurance maintained by The Orchard.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the EmployeeExecutive’s employment with the Company and its affiliates is terminated (x) by the Company without other than for Cause or (and other than due to the Employee’s death or Disability, or by the Employee for Good Reason, then the Company shall:
(a) continue to pay the Employee his base salary in effect on the date of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of termination), or (y) by the date on which Executive for Good Reason, in each case, within the Employee commences employment twelve (12) month period following the occurrence of a Change in Control, the Company shall pay or a consulting relationship provide the Executive with substantially equivalent compensationthe following benefits, subject to the Executive’s continued compliance with the obligations in Sections 3 and 4 hereof:
(i) The Accrued Benefits;
(bii) An amount equal to [—], payable in a single lump sum within thirty five (305) days following the execution date the release described in Section 3 hereof becomes effective, subject to Section 2(a)(vi) below (to the extent applicable);
(iii) An amount equal to [—] times the Executive’s target annual bonus opportunity for the year of termination, as provided under the Company’s annual cash incentive compensation plan or program, any applicable employment agreement between the Executive and nonthe Company or as otherwise determined by the Board or the Committee, payable in a single lump sum within five (5) days following the date the release described in Section 3 hereof becomes effective, subject to Section 2(a)(vi) below (to the extent applicable);
(iv) A pro-revocation rata portion of the Release Executive’s annual bonus for the fiscal year in which the Executive’s termination occurs based on actual results for such year (as defined below), pay determined by multiplying the Employee’s target amount of such bonus on which would be due for the date of termination multiplied full fiscal year by a fraction, the numerator of which shall equal is the number of days during the Employee was fiscal year of termination that the Executive is employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal is 365;
(c) pay ), payable at the same time bonuses for such year are paid to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies other senior executives of the Company then but, in effectany event, during the calendar year following the year of termination; and
(dv) Subject to the Executive’s timely election and eligibility therefor, continued participation in the Company’s group health plan (to the extent permitted under applicable law and the Employee terms of such plan) which covers the Executive (and any qualified beneficiary with respect to such Employee elects continuation the Executive’s eligible dependents) for a period of health benefit coverage under Section 4980B eighteen (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (1218) months at the Company’s expense (or as long as such eligibility for together with the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to provided in Section 2(a)(ii)-(iv), collectively, the Employee “Severance Benefits”); provided that in the event that the Executive obtains other employment that offers group health benefits, such continuation of coverage by the Company under this Section 2 2(a)(v) shall immediately cease.
(ivi) be contingent upon Notwithstanding the execution foregoing, to the extent that the Executive is a U.S. taxpayer and non-revocation by the Employee of a release of claims (the “Release) in favor any of the Company within Severance Benefits constitutes “nonqualified deferred compensation” for purposes of Section 409A of the Code, any such payment scheduled to occur during the first sixty (60) days following such termination shall not be paid until the date sixtieth (60th) day following such termination and shall include payment of any amount that was otherwise scheduled to be paid prior thereto.
(vii) The impact of the Executive’s termination (of employment under this Section 2(a) with respect to any outstanding long-term incentive program awards shall be governed by all of the “Release Period”)terms and conditions of such program and the applicable award documentation thereunder. Notwithstanding the foregoing, in a form that will the Severance Benefits shall only be provided by the Company and substantially identical payable to the form attached to this Plan as Exhibit A (except for such modifications as extent that the Company may make in its sole discretion to reflect changes in law or the circumstances aggregate value of the termination); provided that if Severance Benefits exceeds any termination or severance payments or benefits, including any applicable notice period or payment in lieu thereof, for which the Release does not become effective during Executive may be eligible under (i) any of the Release Periodplans, policies or programs of the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and Company, (ii) constitute any employment or any such similar agreement between the sole remedy Executive and the Company or any of its subsidiaries or affiliates or (iii) applicable law; provided that, to the extent applicable, the Severance Benefits shall be reduced (offset) by any statutory entitlements of the Employee in Executive (including notice of termination, termination pay and/or severance pay, but excluding statutory unemployment benefits), and any payment related to an actual or potential liability under the event Worker Adjustment and Retraining Notification Act of a termination of the Employee’s employment in the circumstances set forth in this Section 21988 or similar state, local or foreign law.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Change in Control Severance Agreement (TAMINCO Corp)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, the EmployeeIf Executive’s employment with hereunder is terminated by Company without Cause or by Executive for Good Reason (it being understood that a termination of Executive’s employment on or prior to the applicable anniversary of the Effective Time after the Company is terminated gives Executive a Non-Renewal Notice shall be treated as a termination by the Company without Cause or due for purposes of this Agreement), then: (i) Company will pay the Accrued Obligations to Executive by Company’s regular payday immediately following the effective date of such termination; (ii) subject to the Employeeconditions of Section 5(d), Company will pay Executive an amount equal to twelve (12) months of Executive’s Disabilitythen-current Base Salary, or by less standard employment-related withholdings and deductions, with such payments to be made in twelve equal monthly installments in accordance with Company’s usual payroll practices and beginning on the Employee for Good Reason, then first regular pay date following the Company shall:
(aeffective date of the separation agreement set forth in Section 5(d) continue to pay below; provided that if the Employee his base salary 60th day following the Executive’s effective date of termination of employment falls in effect on the calendar year after the calendar year of the date of his termination of employment, such payments shall begin on the first regular pay date on or after January 1 of such subsequent calendar year; and (iii) the right to exercise any vested options held by Executive at the time of termination shall extend until (A) three months after such termination, to be paid in accordance with if such termination occurs on or after the date that is six months following the closing of the initial underwritten public offering of the Company’s customary payroll practices as are established common stock pursuant to a registration statement under the Securities Act of 1933 (an “IPO”), or modified from time to time(B) if such termination occurs when the Company is privately-held or on a date within six months following the closing of an IPO, until the earlier of (x) the date twelve (12) months following the date of termination, or two years after such termination and (y) nine months after the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation closing of the Release IPO (as defined belowbut in no event shall the exercise period extend beyond the maximum term of an option), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employee’s employment with event that Executive incurs a “separation from service” from the Company is terminated by (within the Company without Cause or due to the Employee’s Disability, or by the Employee for Good Reason, then the Company shall:
(a) continue to pay the Employee his base salary in effect on the date meaning of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”409A(a)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, Treasury Regulation Section 1.409A-1(h)) (“Separation from Service”)
(1) by the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of without Cause (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms defined herein), or (y2) the date the Employee becomes eligible by Executive for group health coverage through another employer.
2.2 The payments and benefits Good Reason (as defined herein), then, subject to the Employee under this Section 2 shall (i) be contingent upon the Executive’s execution and non-revocation by the Employee of a release Release substantially in the form attached as Exhibit A within 30 days after such Separation from Service, Executive shall be entitled to the benefits set forth below in this Section 5(a). Each payment under this Section 5(a) shall be treated as a separate payment for purposes of claims Section 409A (as defined below).
(i) The Company shall pay Executive an amount equal to one times Executive’s Base Salary plus one times Executive’s Target Bonus (as in effect on the “Releasedate of Executive’s termination). The severance amount described in the previous sentence shall be paid as follows, subject to Section 19 below: (A) the continuation of Base Salary shall be paid in favor substantially equal installments over a period of one year from Executive’s Separation from Service in accordance with the payroll practices of the Company in effect from time to time, beginning on the first payroll date occurring on or after the thirtieth day following Executive’s Separation from Service (such payroll date, the “First Payroll Date”) (with amounts otherwise payable prior to the First Payroll Date paid on the First Payroll Date) and (B) the Target Bonus shall be paid on the date that executive bonuses are paid generally for the fiscal year in which the date of termination took place, which shall, in any event, be no earlier than the First Payroll Date and no later than two and one-half months after the end of such fiscal year;
(ii) Any outstanding equity awards held by Executive, shall be governed by the terms of the applicable award agreements.
(iii) Executive shall be entitled to benefits mandated under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), under Section 4980B of the Code, or any replacement or successor provision of United States tax law, subject to Executive’s valid election to receive COBRA benefits, with the premium paid at the Company’s expense until the first to occur of (A) eighteen months from the date of termination, (B) the expiration of the period of time during which Executive is entitled to continuation coverage under the Company’s group health plan under COBRA, or (C) such date that Executive becomes eligible for coverage under the group health plan of another employer, provided, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the period of continuation coverage to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), then an amount equal to each remaining premium payment shall thereafter be paid to Executive as currently taxable compensation in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof). In addition, if Executive’s employment terminates pursuant to this Section 5(a), the Company shall pay Executive the amounts described in Section 5(d)(i), (ii) and (iii) within sixty (60) 30 days following of the date of termination (or such earlier date as may be mandated by applicable law) and shall pay or provide the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and other benefits described in Sections 2.1(aSection 5(d) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2accordance therewith.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employeeevent of the Executive’s termination of employment with the Company is terminated by the Company without Cause or due pursuant to the Employee’s Disability, Section 4(a)(iv) or by the Employee Executive’s resignation for Good ReasonReason pursuant to Section 4(a)(v), then in addition to the payments and benefits described in Section 5(a) above, the Company shall:, subject to Section 22 and Section 5(d) and subject to the Executive’s execution and non-revocation of a waiver and release of claims agreement in the Company’s customary form in accordance with Section 22(c) (a “Release”):
(ai) continue Except as provided in Section 5(b)(iv) below with respect to pay a termination of employment in connection with a Change in Control, during the Employee his base salary in effect period beginning on the date Date of terminationTermination and ending on the first (1st) anniversary of the Date of Termination (the “Severance Period”), pay to the Executive an amount (the “Severance Payment”) equal to the sum of (A) his Annual Base Salary and (B) his target Annual Bonus for the year in which the Date of Termination occurs. The Severance Payment shall, subject to Section 22 and Section 5(d), be paid to the Executive in equal installments over the Severance Period, in accordance with the Company’s customary regular payroll practices as are established or modified from time of the Date of Termination;
(ii) Pay to timethe Executive an amount equal to the product of (A) the amount of the Annual Bonus payable to the Executive in respect of the fiscal year immediately preceding the year in which the Date of Termination occurs (or, until if the earlier Date of Termination occurs during the fiscal year 2011, the target Annual Bonus for such fiscal year) and (B) the ratio of (x) the date twelve (12) months following number of days elapsed on or prior to the date Date of terminationTermination during the fiscal year during which such termination of employment occurs, or to (y) 365 (the date on “Pro Rata Bonus”). Any amount payable pursuant to this Section 5(b)(ii) shall, subject to Section 22 and Section 5(d), be paid to the Executive in equal installments over the Severance Period, in accordance with the Company’s regular payroll practices as of the Date of Termination; and
(iii) Provide the Executive, the Executive’s spouse and the Executive’s eligible dependents, during the Severance Period, with access to continued coverage in all group health plans in which the Employee commences Executive participated as of the last day of the Executive’s employment or with the Company upon terms substantially identical to those in effect on such last day of employment (“Continued Coverage”); provided that if such Continued Coverage would result in penalties under Section 4980D of the Code then the Company may in its sole discretion provide that (A) the Executive shall pay to the Company, on an after-tax basis, a consulting relationship monthly amount equal to the full premium cost of the Continued Coverage (determined in accordance with substantially equivalent compensation;
the methodology under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended) for such month and (bB) within thirty (30) days following of such premium payment, the execution and non-revocation Company shall reimburse the Executive in cash (less required withholding) an amount equal to the sum of (1) the excess of (x) the full premium cost of the Release Continued Coverage for such month over (as defined below), pay y) any premium amount that would have been payable by the Employee’s target bonus on Executive if the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was Executive had been actively employed by the Company during the Company fiscal year in which the termination occurs for such month and the denominator of which shall equal 365;
(c2) pay an additional tax “gross up” payment to the Employee (i) cover all estimated applicable local, state and federal income and payroll taxes imposed on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary Executive with respect to the Continued Coverage.
(iv) Notwithstanding anything to the contrary in this Section 5(b), if such Employee elects continuation termination of health benefit coverage under employment occurs within the twelve (12) month period immediately following a Change in Control (and such Change in Control constitutes a “change in control event” as defined in Treasury Regulations Section 4980B (“COBRA”) 1.409A-3(i)(5)), then, in lieu of the Internal Revenue Code of 1986, as amended (the “Code”payments set forth in Sections 5(b)(i) and 5(b)(ii), and continues to be eligible for such benefits, the Company shall provide payments (A) pay in a lump sum to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of Executive, within fifteen (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (6015) days following the date of termination (the “Release Period”)becomes effective, in a form that will be provided by the Company and substantially identical an amount equal to the form attached to this Plan as Exhibit A sum of (except for such modifications as x) the Company may make in its sole discretion to reflect changes in law or the circumstances amount of the termination); provided that if Severance Payment and (y) the Release does not become effective during amount of the Release PeriodPro Rata Bonus, and (B) provide Continued Coverage to the Executive, the payments Executive’s spouse and benefits described the Executive’s eligible dependents in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this accordance with Section 25(b)(iii).
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 belowIf, if, at any timeprior to the expiration of the Term, the EmployeeExecutive resigns from his employment hereunder for Good Reason or the Company terminates the Executive’s employment with the Company is terminated by the Company hereunder without Cause (other than a termination by reason of death or due to the Employee’s Disability), or by the Employee for Good Reasonand Section 4.4.3 does not apply, then the Company shallshall pay or provide the Executive the Amounts and Benefits and, subject to Section 4.4.8:
(ai) continue Subject to pay Section 8.9.2, an amount equal to the Employee his base salary in effect on the date of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier sum of (x) the date twelve balance of the Base Salary due under this Agreement or two times the Base Salary as then in effect (12) months following without taking into account any reduction therein that constitutes a basis for Good Reason), whichever is the date of terminationgreater, or plus (y) an amount equal to two times the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation average of the Release Incentive Bonus the Executive received from the Company for all fiscal years completed during the Term, with the aggregate amount due paid in equal installments on the Company’s normal payroll dates for a period of 12 months from the Date of Termination in accordance with the normal payroll practices of the Company, with each such payment deemed to be a separate payment for the purposes of Code Section 409A (as defined below);
(ii) in the event such resignation or termination occurs following the Company’s first fiscal quarter of any year, pay a pro rata portion of the EmployeeExecutive’s target bonus Incentive Bonus for the fiscal year in which the Executive’s termination occurs based on actual results for such year (determined by multiplying the date amount of termination multiplied such Incentive Bonus which would be due for the full fiscal year, as determined in good faith by the Board, by a fraction, the numerator of which shall equal is the number of days during the Employee was fiscal year of termination that the Executive is employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal is 365;
), paid in accordance with Section 2.2 (c) pay to the Employee (i) on the date of terminationincluding payment timing, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect“Pro Rata Bonus”); and
(diii) the continuation of all benefits for 24 months from the Date of Termination. In addition, subject to Section 4.4.8, the vesting of all unvested stock options and restricted stock previously granted to the extent the Employee Executive shall be accelerated by 12 months, and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986stock options, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments notwithstanding any provision to the Employee contrary in the option or the plan pursuant to which the option was granted, shall remain exercisable for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier a period of (x) twelve (12) 12 months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date Date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2Termination.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the event of the Employee’s termination of employment with the Company is terminated by the Company without Cause or due pursuant to the Employee’s Disability, Section 4(a)(iv) or by the Employee for Good ReasonReason pursuant to Section 4(a)(v), then in addition to the payments and benefits described in Section 5(a) above, the Company shall:, subject to Section 20 and Section 5(c) and subject to the Employee’s execution and non-revocation of a waiver and release of claims agreement in the Company’s customary form (a “Release”), as of the Release Expiration Date, in accordance with Section 20(c):
(ai) continue Continue to pay to the Employee his base salary in effect Annual Base Salary during the period beginning on the date Date of terminationTermination and ending on the first anniversary of the Date of Termination (such period, to be paid the “Severance Period”) in accordance with the Company’s customary regular payroll practices practice as are established or modified from time of the Date of Termination;
(ii) Pay to time, until the earlier Employee an amount equal to the product of (A) the amount of the Annual Bonus that would have been payable to the Employee pursuant to Section 3(b) if the Employee was still employed as of the applicable bonus payment date in respect of the fiscal year in which the Date of Termination occurs based on actual individual and Company performance goals in such year and (B) the ratio of (x) the date number of full months elapsed during the fiscal year during which such termination of employment occurs on or prior to the Date of Termination, to (y) twelve (12). Any amount payable pursuant to this Section 5(b)(ii) months following the date of terminationshall, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution subject to Section 20 and non-revocation of the Release (as defined belowSection 5(c), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days be paid to Employee in accordance with Section 3(b) as if the Employee was still employed by on the Company during applicable bonus payment date, but in no event earlier than January 1, or later than December 31, of the Company fiscal calendar year immediately following the calendar year in which the termination occurs and the denominator Date of which shall equal 365Termination occurs;
(ciii) pay Accelerate the vesting of a pro rata amount of the Annual Equity Award that would next vest following the Date of Termination, such amount to the Employee (i) based on the number of full (not partial) fiscal months elapsed during the twelve (12)-month period between the previous vesting date of terminationor, any base salary earned but not paid and any vacation accrued but not used through if none, the date of terminationaward date, and the Date of Termination (iifor example, if a pro rata amount of an Annual Equity Award vests on April 30, 2018, and Employee’s Date of Termination is June 30, 2017, sixteen and sixty-seven percent (16.67%) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effectAnnual Equity Award that otherwise would vest on April 30, 2018 shall immediately vest, and Employee shall forfeit the remaining eighty-three and thirty-three percent (83.33%) of the Annual Equity Award scheduled to vest on April 30, 2018 as well as the remainder of the Annual Equity Award that otherwise would vest subsequently); and
(div) During the Severance Period, if the Employee elects to continue coverage under the extent Company’s group health plan in accordance with the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), continue coverage for the Employee and any qualified beneficiary with respect eligible dependents under the Company group health benefit plans in which the Employee and any dependents were entitled to such participate immediately prior to the Date of Termination. In the event Employee elects to continue with COBRA coverage, provided that Employee timely submits to the Company evidence of Employee’s payments made to the COBRA administrator, the Company will reimburse Employee for the Company’s share of the premiums associated therewith in an amount equal to what the Company pays for the health insurance premiums of other executive level employees at the Company. The COBRA health continuation of health benefit coverage period under Section 4980B (“COBRA”) of the Internal Revenue Code shall run concurrently with the period of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health continued coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to 5(b)(iv); provided, however, that in the contraryevent Employee obtains other employment that offers group health benefits, all benefits such continuation of COBRA coverage by the Company under this Section 2 5(b)(iv) shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Companycease.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, The Company may terminate Executive's employment hereunder without Cause at any time, . Such notice shall specify the Employee’s effective date of the termination of Executive's employment. The Executive may terminate his employment with for Good Reason by providing 30 days' prior written notice to the Company is terminated by Company. In the Company event of the termination of Executive's employment under this Section 6(c) without Cause or due to the Employee’s Disability, or by the Employee Executive for Good Reason, in each case prior to or more than 24 months following a Material Change (as defined in the Everest Reinsurance Group, Ltd. Senior Executive Change of Control Plan, as amended and restated effective January 1, 2009), then the Company shallExecutive shall be entitled to:
(ai) continue to pay payment of the Employee his base salary Accrued Payments;
(ii) a separation allowance, payable in effect on the date of termination, to be paid equal installments in accordance with the Company’s customary normal payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months over a 12 month period beginning immediately following the date of termination, or equal to (y2) times the date on which sum of the Employee commences employment or a consulting relationship with substantially equivalent compensationExecutive's then Base Salary;
(biii) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company any annual incentive bonuses earned but not yet paid for any completed full fiscal year in which immediately preceding the employment termination occurs and the denominator of which shall equal 365date;
(civ) pay except for outstanding and unvested Performance Stock Unit Awards addressed in Section 4(c), all of Executive's then unvested restricted stock or restricted stock units will continue to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) vest to the extent any such equity award would have vested in accordance with its terms in the Employee and any qualified beneficiary with respect 12 month period immediately following such termination date, conditioned on the Company receiving from Executive the release of claims referred to such Employee elects continuation of health benefit coverage under in Section 4980B 6(h) below;
(“COBRA”v) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments arrange for the Executive to continue to participate on substantially the same terms and conditions as in effect for the Executive (including any required contribution) immediately prior to such termination, in the disability and life insurance programs provided to the Employee for such benefits equal Executive pursuant to the amount contributed for active employees with similar benefits and similar participating beneficiaries Section 5(a) hereof until the earlier of (xi) twelve the end of the 12 month period beginning on the effective date of the termination of Executive's employment hereunder, or (12ii) months such time as the Executive is eligible to be covered by comparable benefit(s) of a subsequent employer. The foregoing of this Section 6(c)(v) is referred to as "Benefits Continuation". In addition, the Company agrees to pay Executive a lump sum cash payment in order to enable Executive to pay for medical and dental coverage (through COBRA or as long as otherwise) that is comparable to the medical and dental coverage in effect for Executive (and his dependents, if any) immediately prior to his termination of employment, with such eligibility cash amount equal to the cost of the premiums for such coverage that would apply if Executive were to elect COBRA continuation coverage under the Company's medical and dental plans following his termination of employment and continue such coverage for the Employee and each qualified beneficiary continues) from 12 month period beginning on the date such benefits would otherwise end under of Executive's termination of employment. The Executive agrees to notify the applicable plan terms or (y) the date the Employee Company promptly if and when he begins employment with another employer and if and when he becomes eligible for group health coverage through to participate in any benefit or other welfare plans, programs or arrangements of another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the Employee’s Executive's employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, death) or by the Employee Executive for Good ReasonReason within 18 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive in a lump sum in cash within 30 days after the Date of Termination the aggregate of the following amounts:
(1) the sum of (A) the Executive's base salary in effect on through the date Date of terminationTermination, to be paid in accordance with (B) the Company’s customary payroll practices as are established or modified from time to time, until the earlier product of (x) the date twelve annual bonus paid or payable (12including any bonus or portion thereof which has been earned but deferred) months following for the date of termination, or most recently completed fiscal year and (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal is the number of days in the Employee was employed by the Company during the Company current fiscal year in which through the termination occurs Date of Termination, and the denominator of which shall equal 365;
is 365 and (cC) pay the amount of any accrued vacation pay, to the Employee extent not previously paid (i) on the date sum of terminationthe amounts described in clauses (A), any base salary earned but not paid and any vacation accrued but not used through the date of termination(B), and (iiC) within thirty (30) days after shall be hereinafter referred to as the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect“Accrued Obligations”); and
(d2) the amount equal to (a) two multiplied by (b) the sum of (x) the Executive's highest annual base salary in any twelve-month period (on a rolling basis) during the five-year period prior to the Change in Control Date and (y) the Executive's highest annual bonus in any twelve-month period (on a rolling basis) during the five-year period prior to the Change in Control Date.
(ii) for two years after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide medical, dental and life insurance benefits to the Executive and the Executive's family at least equal to those which would have been provided to them if the Executive's employment had not been terminated, in accordance with the applicable medical, dental and life insurance Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and the Executive’s family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies; provided, however, that (A) if the terms of a medical, dental or life insurance Benefit Plan do not permit continued participation therein by a former employee, then an equitable arrangement shall be made by the Company (such as a substitute or alternative plan) to provide as substantially equivalent a benefit as is reasonably possible and (B) if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., medical insurance benefits) from such employer on terms at least as favorable to the Executive and the Executive’s family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and the Executive’s family; and (iii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive's termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60other than severance benefits) days following the date of termination (such other amounts and benefits shall be hereinafter referred to as the “Release PeriodOther Benefits”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Executive Change in Control Retention Agreement (Thermo Fisher Scientific Inc.)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 belowIf, if, at any timeprior to the expiration of the Term, the EmployeeExecutive resigns from his employment hereunder for Good Reason or the Company terminates the Executive’s employment with the Company is terminated by the Company hereunder without Cause (other than a termination by reason of death or due to the Employee’s Disability), or by the Employee for Good Reasonand Section 5.4.3 does not apply, then the Company shallshall pay or provide the Executive the Amounts and Benefits and, subject to Section 5.4.8:
(ai) continue Subject to pay Section 9.9.2, an amount equal to the Employee his base salary in effect on the date of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier sum of (x) the date twelve balance of the Base Salary due under this Agreement or two times the Base Salary as then in effect (12) months following without taking into account any reduction therein that constitutes a basis for Good Reason), whichever is the date of terminationgreater, or plus (y) an amount equal to two times the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation average of the Release Target Bonus the Executive received from the Company for all fiscal years completed during the Term, with the aggregate amount due paid in equal installments on the Company’s normal payroll dates for a period of 12 months from the Date of Termination in accordance with the normal payroll practices of the Company, with each such payment deemed to be a separate payment for the purposes of Code Section 409A (as defined below);
(ii) in the event such resignation or termination occurs following the Company’s first fiscal quarter of any year, pay a pro rata portion of the EmployeeExecutive’s target bonus Target Bonus for the fiscal year in which the Executive’s termination occurs based on actual results for such year (determined by multiplying the date amount of termination multiplied such Target Bonus which would be due for the full fiscal year, as determined in good faith by the Board, by a fraction, the numerator of which shall equal is the number of days during the Employee was fiscal year of termination that the Executive is employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal is 365;
), paid in accordance with Section 2.2 (c) pay to the Employee (i) on the date of terminationincluding payment timing, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect“Pro Rata Bonus”); and
(diii) the continuation of all benefits for 24 months from the Date of Termination. In addition, subject to Section 5.4.8, the vesting of all unvested stock options and restricted stock previously granted to the extent the Employee Executive shall be accelerated by 12 months, and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986stock options, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments notwithstanding any provision to the Employee contrary in the option or the plan pursuant to which the option was granted, shall remain exercisable for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier a period of (x) twelve (12) 12 months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date Date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2Termination.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, the Employee’s If Executive's employment with the Company is terminated by the Company Heska (or by Heska's successor following a Change of Control) without Cause or due to the Employee’s DisabilityCause, or by the Employee Executive for Good Reason, then or is terminated due to the Company shalldeath or Disability (as defined in Section 9(e) below) of Executive, Executive will receive, subject to Section 8 and required withholding:
(ai) continue Accelerated payment of the Termination Payment within ten (10) days after his separation date (the "Separation Date");
(ii) Continued monthly payments of amounts equal to pay the Employee his base salary in effect installments of Base Salary otherwise payable if such termination had not occurred, for a period ending on the date earlier of termination(A) April 30, 2017, or (B) 24 months after the Separation Date.
(iii) Company-paid coverage for Executive and Executive's eligible dependents under Heska's Benefit Plans (as defined below) for the balance of the Term of Agreement, or if earlier, until Executive becomes employed by another employer who provides comparable benefits;
(iv) If the Separation Date occurs before December 31, 2014, a bonus, if any, that would have been received under the terms of Section 4(b) above, but pro-rated for the period beginning on January 1, 2014 and ending on the Separation Date, to be paid to Executive in accordance with the Company’s customary payroll practices as are established or modified from time to time, until next fiscal year on the earlier of (xA) the date twelve (12) months following the date of termination, March 15 or (y) the B)such earlier date on which payments are made to other participants in the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effectBonus Plan; and
(dv) to Accelerated vesting of equity awards held by Executive on the extent Separation Date only as follows:
(A) The Transition Award shall vest in full on the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B Separation Date.
(“COBRA”B) of If the Internal Revenue Code of 1986Separation Date occurs after April 30, as amended (the “Code”), and continues to be eligible for such benefits2015, the Company First In-Lieu Award shall provide payments to vest in full on the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employerSeparation Date.
2.2 (C) If the Separation Date occurs after April 30, 2016, the Second In-Lieu Award shall vest in full on the Separation Date.
(D) The payments and benefits to Third In-Lieu Award shall vest as follows:
(1) 5,000 shares shall vest on the Employee under this Section 2 Separation Date;
(2) 5,000 additional shares shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that vest if the Release does not become effective during the Release PeriodSeparation Date occurs after April 30, the payments and benefits described in Sections 2.1(a2015;
(3) and 2.1(d) of this Agreement that commenced following the date of termination 5,000 additional shares shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately vest if the EmployeeSeparation Date occurs after April 30, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company2016.
Appears in 1 contract
Sources: Employment Agreement (Heska Corp)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the EmployeeExecutive’s employment with by the Company is terminated by the Company without other than for Cause or (and other than a termination due to the Employee’s Disability, Disability or death) or by the Employee Executive for Good Reason, then the Company shallshall pay or provide the Executive with the following:
(a) continue to pay the Employee his base salary in effect on the date of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (xi) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensationAccrued Amounts;
(bii) a pro-rata portion of the Executive’s Bonus for the performance year in which the Executive’s termination occurs, which shall be paid at the time that annual Bonuses are paid to other senior executives, but in any event within thirty seventy-four (3074) days following after the execution and non-revocation conclusion of the Release Fiscal Year to which such Bonus relates (as defined below), pay determined by multiplying the Employee’s target bonus on amount the date Executive would have received based upon actual performance had employment continued through the end of termination multiplied the performance year by a fraction, the numerator of which shall equal is the number of days during the Employee was performance year of termination that the Executive is employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal is 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect); and
(diii) an amount equal to the product of (A) the sum of (1) the Executive’s Base Salary and (2) the then Target Bonus multiplied by (B) three (3), payable in a single lump-sum. Subject to Section 21(a), the payments provided for in this Section 8(d)(iii) (to the extent provided therein) shall be paid to the Employee and any qualified beneficiary with respect to such Employee elects continuation Executive in the month immediately following the month in which the Executive’s termination of health benefit coverage under Section 4980B (“COBRA”) employment occurs, provided that the date of the Internal Revenue Code Executive’s termination of 1986employment occurs on the same date as the Executive’s “separation from service” (within the meaning of Section 409A of the Code) and after giving effect to the presumptions set forth in Treasury Regulations Section 1.409A-1(h)(1)(ii)) from the Company and its subsidiaries, as amended (otherwise such amounts shall be paid to the Executive in the month immediately following the month in which the Executive incurs such a “Code”), and continues separation from service.” Notwithstanding anything to be eligible for such benefitsthe contrary contained herein, the Company shall have no obligation to provide any of the monetary payments to the Employee and/or benefits provided for such benefits equal to the amount contributed for active employees with similar benefits in this Section 8(d) (other than Accrued Amounts) unless and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a Executive executes an effective general release of all claims (the “Release) in favor of the Company in a form acceptable to the Company (the “Release”) and delivers such executed Release to the Company within sixty twenty-one (6021) days following the date of termination (his “separation from service.” For the “avoidance of doubt, the Executive’s execution of the Release Period”), in is a form that will be provided by condition precedent to any obligation of the Company and substantially identical to provide the form attached to this Plan as Exhibit A (except monetary payments and/or benefits provided for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 28(d) (other than Accrued Amounts).
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at In the event of any time, the Employee’s employment with the Company is terminated by the Company without Cause termination of this Agreement pursuant to Sections 7.4 or due to the Employee’s Disability, or by the Employee for Good Reason, then the Company shall7.5 hereof:
(a) DMGI shall continue to pay Executive his Base Salary under Section 6.1 hereof at Executive’s then-current salary and maintain his benefits under Section 6.2 hereof (i) through the Employee his base salary in effect remaining term of this Agreement which ends on the date third anniversary of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of terminationEffective Date, or (yii) for six (6) months, whichever period is shorter. If such benefits contemplated under Section 6.2 hereof cannot be maintained under the date on which provisions and eligibility of the Employee commences employment or a consulting relationship with substantially specific plans (see Section 8.6 below), then DMGI shall pay during the post-termination period the cash equivalent compensationof the company’s cost of benefits under any such company plan;
(b) within thirty (30) days following the execution DMGI will pay unreimbursed expenses and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any accrued vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies Sections 6.4 and 6.5 of this Agreement;
(c) For the fiscal year of termination, DMGI shall pay the pro rata portion of the Company then annual incentive bonus otherwise due to Executive pursuant to Section 6.3 hereof, such pro rata bonus amount to be determined at the sole discretion of the Compensation Committee of the Board of Directors based upon the targets, milestones, performance objectives and measurement criteria established for the fiscal year and DMGI’s and Executive’s, as the case may be, actual performance against such targets, milestones, performance objectives and measurement criteria. Notwithstanding the forgoing, in effect; andthe event of termination of this Agreement pursuant to Section 7.5, this subsection (c) will not be applicable unless DMGI determines, in its reasonable judgment, that the Executive’s termination meets the requirements for Good Reason as set forth in Section 7.5.
(d) The vesting of the Restricted Stock Award Agreement and the Stock Option Agreement that Executive enters into with DMGI for the equity incentive awards set forth in Section 6.6 hereof shall, in the event of a termination of employment pursuant to Sections 7.4 or 7.5 hereof, be accelerated by six (6) months pursuant to the extent next to last sentence of Section 6.6. Notwithstanding the Employee forgoing, in the event of termination of this Agreement pursuant to Section 7.5, this subsection (d) will not be applicable unless DMGI determines, in its reasonable judgment, that the Executive’s termination meets the requirements for Good Reason as set forth in Section 7.5.
(e) In all cases, post-termination payments to Executive will be reduced for applicable withholding taxes and any qualified beneficiary will be payable on DMGI’s normal payroll dates or bonus payment dates during the periods; provided, however, that if the total amount of the benefits available to Executive under this Section 8.4, either alone or together with respect other payments which Executive has the right to such Employee elects continuation of health benefit coverage under receive from DMGI, would constitute a “parachute payment” as defined in Section 4980B (“COBRA”) 280G of the Internal Revenue Code of 1986, as amended (the “Code“ Code ”), then DMGI shall pay to Executive at the time of termination an additional amount such that the net amount retained by Executive, after deduction of the excise tax imposed by Section 4999 of the Code and continues to any federal, state and local income tax and excise tax imposed on such additional amount, shall be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits payable to the Employee Executive under this Section 2 shall (i) be contingent upon 8.4 as originally determined prior to the execution and non-revocation by the Employee of a release of claims (the “Release) in favor deduction of the Company excise tax. All such amounts payable by DMGI shall be paid within sixty thirty (6030) days of the Executive’s separation from service except as provided in Section 8.4(d). In the event of any termination of this Agreement pursuant to Sections 7.4 or 7.5, Executive shall have no duty or obligation whatsoever to seek similar or substitute employment or otherwise mitigate his damages.
(f) If upon termination Executive is a “specified employee” within the meaning of Code section 409A(a)(2)(B)(i) and the regulations promulgated thereunder, then the payments under Sections 8.4(a) and (c) will not begin sooner than the date that is six (6) months following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in . In the event of a termination of the Employee’s employment delay in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits payment provided under this Section 2 8.4(d), DMGI shall, on the first day of the seventh month following such termination, pay Executive in a lump sum all amounts that would have been paid under Section 8.4(a) and (c) through such date if such six-month delay had not occurred; provided, further that all such amounts payable by DMGI under Section 8.4(c) shall terminate immediately be paid by the end of the Executive’s taxable year next following the Executive’s taxable year in which the Executive remits the related taxes or, in the case of a tax audit or litigation addressing the existence or amount of a tax liability, by the end of the Executive’s taxable year following the Executive’s taxable year in which the taxes that are the subject of audit or litigation are remitted to the taxing authority (or where as a result of such audit or litigation no taxes are remitted, the end of the Executive’s taxable year following the Executive’s taxable year in which the audit is completed or there is a final and nonappealable settlement or other resolution of the litigation).
(g) Executive will only be deemed to have incurred a separation from service under Sections 8.2, 8.4 (a) and 8.4 (c) if it is reasonably anticipated that Executive will not provide significant services for DMGI or an affiliate following such termination (a “Separation from Service”). Whether a termination of employment is considered a Separation from Service will be determined in accordance with Internal Revenue Code Section 409A, and such determination will be based upon the facts and circumstances surrounding the termination of employment. While Executive is on military leave, sick leave, or another bona fide leave of absence, the employment relationship is treated as continuing intact if the Employeeperiod of leave does not exceed six months, at or, if longer, so long as Executive has a guaranteed right to return to employment either by law or by contract.
(h) As a condition of receiving any timepayments described under Section 8.4, violates Executive agrees to execute, deliver and not to revoke (within the time period permitted by applicable law) a general release of DMGI and its officers, directors, employees, and owners from any proprietary informationand all claims, assignment obligations and liabilities of inventions agreementany kind whatsoever arising from or in connection with the Executive’s employment or termination of employment with DMGI or this Agreement (including without limitation civil rights claims), confidentialityin such form as requested by DMGI (with the attached Exhibit A as an example of one such form), non-competition it being understood that such release shall not apply to Executive’s rights to any payments or non-solicitation obligation to the Company, benefits due under this Agreement or any other continuing obligation employee benefit plan or program in which the Executive is a participant, any rights Executive may have to the Companyindemnification and to coverage under directors’ and officers’ liability and similar insurance maintained by DMGI.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, (i) Upon termination of the EmployeeExecutive’s employment with during the Company is terminated Term either by the Company without Cause or due to the Employee’s Disability, (as defined in Section 4(a)(ii)) or by the Employee Executive for Good Reason, then the Company shall:
(a) continue to pay the Employee his base salary in effect on the date of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release Reason (as defined belowin Section 4(a)(iii)), the Company shall pay the EmployeeExecutive (1) accrued but unpaid base salary and any annual bonus earned but unpaid for the fiscal year before the year in which the Executive’s target employment is terminated (the “Accrued Obligations”), payable by no later than three business days after termination of employment; (2) the annual bonus earned based on actual achievement of performance objectives for the date of termination fiscal year in which the Executive’s employment is terminated multiplied by a fraction, the numerator of which shall equal is the number of whole and partial days (rounded up) from the Employee was employed by beginning of that fiscal year until the Company during date of termination of employment, and the Company denominator of which is 365 or, for leap years, 366 (“Prorated Actual Bonus”), payable at the time annual bonuses are paid to active executives of the Company; and (3) the following severance payment (“Severance Payment”):
(1) If the Notice of Termination is given on or before the second anniversary of the Effective Date, the Severance Payment shall be an amount equal to the sum of the Executive’s annual base salary (“Base Salary”) and target annual bonus opportunity, each with respect to the fiscal year in which the termination occurs Executive’s employment is terminated and each as determined without regard to any reduction that constitutes Good Reason, which amount shall be paid in equal installments over a period of one year in accordance with the denominator of which shall equal 365;Company’s normal payroll schedule; or
(c2) pay to If the Employee (i) on the date Notice of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days Termination is given after the date of termination, any reimbursable business expenses incurred by second anniversary and on or before the Employee through the date of termination pursuant to any expense reimbursement policies third anniversary of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsEffective Date, the Company Severance Payment shall provide payments to the Employee for such benefits be an amount equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until sum of Base Salary plus the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor average of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee actual annual bonus paid in the event of a termination of two fiscal years before the Employeeyear in which the Executive’s employment is terminated, which amount shall be paid in the circumstances set forth equal installments over a period of one year in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to accordance with the Company, or any other continuing obligation to the Company’s normal payroll schedule.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employeeevent of the Executive’s termination of employment with the Company is terminated by the Company without Cause or due pursuant to the Employee’s Disability, Section 4(a)(iv) or by the Employee Executive for Good ReasonReason pursuant to Section 4(a)(v), then in addition to the payments and benefits described in Section 5(a) above, the Company shall:, subject to Section 24 and Section 5(d) and subject to Executive’s execution and non-revocation of a waiver and release of claims agreement in substantially in the form attached hereto as Exhibit C in accordance with Section 24(c) (a “Release”):
(ai) continue Continue to pay to the Employee his base salary in effect Executive Annual Base Salary during the period beginning on the date Date of termination, to be paid Termination and ending on the eighteen (18)-month anniversary of the Date of Termination in accordance with the Company’s customary regular payroll practices practice as are established or modified from time of the Date of Termination; provided that, notwithstanding anything to timethe contrary in this Section 5(b)(i), until if such termination of employment occurs within the earlier twelve (12)-month period immediately following a Change in Control (and such Change in Control constitutes a “change in control event” as defined in Treasury Regulations Section 1.409A-3(i)(5)), then, in lieu of the foregoing payments set forth in this Section 5(b)(i), the Company shall pay in a lump sum to the Executive an amount equal to 200% of his Annual Base Salary;
(ii) Pay to the Executive an amount equal to the product of (A) the amount of the Annual Bonus that would have been payable to the Executive pursuant to Section 3(e) if the Executive was still employed as of the applicable Bonus Vesting Date in respect of the fiscal year in which the Date of Termination occurs based on actual individual and Company performance goals in such year (provided, however, that, if the Date of Termination occurs in the fiscal year 2011 and the 2011 Guaranteed Bonus is higher than the Annual Bonus based on the performance goals, the 2011 Guaranteed Bonus shall be used in place of the Annual Bonus for purposes of this clause (A)) and (B) the ratio of (x) the date twelve (12) months following number of days elapsed during the date fiscal year during which such termination of terminationemployment occurs on or prior to the Date of Termination, or to (y) 365. Any amount payable pursuant to this Section 5(b)(ii) shall, subject to Section 24 and Section 5(d), be paid to Executive in accordance with Section 3(e)(i) as if the date Executive was still employed on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days applicable Bonus Vesting Date, but in no event later than the 15th day of the third month of the fiscal year immediately following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination Date of Termination occurs (provided that if the Date of Termination is in fiscal year 2011, any amount payable under this Section 5(b)(ii) shall be paid at the Date of Termination and computed based on the 2011 Guaranteed Bonus, and, if the Annual Bonus for 2011 is determined, based on any applicable Company goals achieved, to be higher than the 2011 Guaranteed Bonus, the amount due under this Section 5(b)(ii) shall be recomputed and the denominator of which appropriate additional amount due shall equal 365;
(c) pay be paid to the Employee (i) on the date of terminationExecutive no later than March 15, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect2012); and
(diii) Notwithstanding any provision to the extent the Employee and contrary in any qualified beneficiary equity plan or award agreement with respect to such Employee elects continuation of health benefit coverage under Section 4980B equity awards, cause (“COBRA”A) the Sign-On RSUs which are not vested as of the Internal Revenue Code Date of 1986, as amended (Termination to become vested in accordance with the “Code”)terms and conditions of the applicable award agreement, and continues (B) with respect to the award of the 2011 RSUs, and all Annual Equity Awards subject to service-based vesting, each such award to become vested with respect to a prorated portion thereof based on the ratio of the number of days of employment of the Executive during the applicable service-based vesting period to the total number of days of such service-based vesting period, and (C) with respect to all Annual Equity Awards subject to performance-based vesting, each such award to shall continue to be eligible for to become vested in accordance with its terms based on actual performance with respect to a prorated portion of such benefitsaward based on the ratio of the number of days of employment of the Executive during the applicable performance period to the total number of days of such performance period; provided that, notwithstanding anything to the contrary in this Section 5(b)(iii), (x) if such termination of employment occurs during any period when the Executive is unable to engage in substantial gainful activity that may reasonably be expected to result in Disability, the Company shall provide payments shall, on the Date of Termination, cause (I) the Sign-On RSUs, the 2011 RSUs, and all Annual Equity Awards subject to the Employee for such benefits equal service-based vesting, to the amount contributed for active employees become fully vested and (II) all Annual Equity Awards subject to performance-based vesting to continue to be eligible to become vested in accordance with similar benefits their terms based on actual performance, and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) if such termination of employment occurs within the date twelve (12)-month period immediately following a Change in Control, the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to Company shall, on the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation Date of Termination, cause all equity awards held by the Employee of a release of claims Executive (including, without limitation, the “ReleaseAnnual Equity Awards) in favor which are not vested as of the Company within sixty (60) days following Date of Termination to become vested for the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances purposes of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, 2010 Incentive Award Plan or any other continuing obligation applicable equity plan, and any applicable award agreement(s), deeming, for purposes of awards subject to performance-based vesting, that the CompanyCompany will attain “target” performance levels.
Appears in 1 contract
Sources: Employment Agreement (Gsi Group Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the Employee’s Executive's employment with the Company is -------------------------------------------- terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, Death) or by the Employee Executive for Good ReasonReason within 24 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive the following amounts:
(1) in a lump sum, in cash, within 30 days after the Date of Termination, the sum of (A) the Executive's base salary through the Date of Termination, (B) any bonus amounts with respect to periods ending prior to the Date of Termination which the Executive is entitled to and (C) the amount of any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in effect each case to the extent not previously paid (the sum of the amounts described in clauses (A), (B), and (C) shall be hereinafter referred to as the "Accrued Obligations"); and
(2) on the date of terminationa monthly basis, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time 's standard practice prior to timethe Date of Termination, until the earlier for a period of (x) the date twelve (12) 12 months following the date Date of terminationTermination, or an amount equal to the sum of (yA) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and nonone-revocation twelfth of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by Executive's highest annual base salary at the Company during the three-year period prior to the Change in Control Date and (B) one-twelfth of the Executive's highest annual target bonus amount at the Company fiscal during the three-year period prior to the Change in which Control Date; provided, however, that the termination occurs Company shall not be obligated -------- ------- to make any payments under this Section 4.2(a)(i)(2) from and after the denominator of which shall equal 365date that the Executive becomes engaged in a Competitive Activity (as defined in Section 4.2(a)(iv));
(cii) pay for 12 months after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Employee (i) Executive and the Executive's family at least equal to those which would have been provided to them if the Executive's employment had not been terminated, in accordance with the applicable Benefit Plans in effect on the date of terminationMeasurement Date or, if more favorable to the Executive and his or her family, in effect generally at any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant time thereafter with respect to any expense reimbursement policies other peer executives of the Company and its affiliated companies; provided, however, -------- ------- that if the Executive either (1) becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer on terms at least as favorable to the Executive and his or her family as those being provided by the Company or (2) becomes engaged in a Competitive Activity, then the Company shall no longer be required to provide those particular benefits (or in effectthe case of clause (2), any benefits) to the Executive and his or her family; and
(diii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive's termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60such other amounts and benefits shall be hereinafter referred to as the "Other Benefits").
(iv) days following The term "Competitive Activity" means any activity whereby the Executive is engaged, directly or indirectly, anywhere in the world, in any business or enterprise, or performs service for any entity, whether as owner, partner, officer, director, employee, consultant, investor, lender or otherwise, except as the holder of not more than 1% of the outstanding stock of a publicly-held company, that actually or potentially competes with the Company. For the purposes of this definition only and not for purposes of any antitrust related market definition or analysis, an entity (which includes but is not limited to a person, partnership, joint venture, or corporation) will be considered to compete with the Company if such entity (or in the case of a multi-billion dollar, multi-division corporation, the division thereof for which services are proposed to be performed by the Executive) or any of its affiliates engages directly or indirectly in the removable media storage device market segment as all or part of its business. Examples of such entities as of the date of termination (the “Release Period”), this Agreement are identified in a form that will be provided by letter of even date herewith from the Company and substantially identical to the form attached Executive, which the Executive hereby acknowledges receipt of. Such examples are provided for illustration purposes and are not intended to this Plan as Exhibit A (except for such modifications as be an all-inclusive list or to limit the Company may make preceding terms in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2any way.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the Employee’s Executive's employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, Death) or by the Employee Executive for Good ReasonReason within 24 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive the following amounts:
(1) in a lump sum, in cash, within 30 days after the Date of Termination, the sum of (A) the Executive's base salary in effect on through the date Date of terminationTermination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (xB) the date twelve a pro rata current year bonus amount (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied calculated by a fraction, the numerator of which shall equal dividing the number of days full and partial months of the Employee was employed by the Company during the Company current fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used Executive is employed through the date Date of terminationTermination by 12, and multiplying this fraction by the highest annual bonus payment amount paid to Executive in the preceding three years), and (iiC) within thirty (30) days after the date amount of termination, any reimbursable business expenses incurred compensation previously deferred by the Employee through Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in each case to the date of termination pursuant to any expense reimbursement policies extent not previously paid (the sum of the Company then amounts described in effectclauses (A), (B), and (C) shall be hereinafter referred to as the "Accrued Obligations"); and
(d2) in a lump sum, in cash, within 30 days after the Date of Termination, the sum of (A) three times the Executive's highest annual base salary at the Company during the three-year period prior to the Change in Control Date and (B) three times the Executive's highest annual bonus amount at the Company during the three-year period prior to the Change in Control Date;
(ii) for 36 months after the Date of Termination, or such longer period as may be provided by the terms of the appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Executive and the Executive's family at least equal to those which would have been provided to them if the Executive's employment had not been terminated, in accordance with the applicable Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and his or her family, in effect generally at any time thereafter with respect to other peer executives of the Company and its affiliated companies; provided, however, that if the Executive becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer on terms at least as favorable to the Executive and his or her family as those being provided by the Company, then the Company shall no longer be required to provide those particular benefits to the Executive and his or her family; and
(iii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive's termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60) days following the date of termination (the “Release Period”), in a form that will such other amounts and benefits shall be provided by the Company and substantially identical hereinafter referred to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination"Other Benefits"); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
Appears in 1 contract
Sources: Executive Retention Agreement (Myriad Genetics Inc)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employeeevent of the Executive’s termination of employment with the Company is terminated by the Company without Cause or due pursuant to the Employee’s Disability, Section 4(a)(iv) or by the Employee Executive for Good ReasonReason pursuant to Section 4(a)(v), then in addition to the payments and benefits described in Section 5(a) above, the Company shall:, subject to Section 23 and Section 5(d) and subject to Executive’s execution and non-revocation of a waiver and release of claims agreement in substantially in the form attached hereto as Exhibit A in accordance with Section 23(c) (a “Release”):
(ai) continue Pay to pay the Employee his base salary Executive an amount equal to 150% of the sum of (A) Annual Base Salary and (B) Target Bonus, in effect substantially equal installments during the period beginning on the date Date of termination, to be paid Termination and ending on the eighteen (18)-month anniversary of the Date of Termination in accordance with the Company’s customary regular payroll practices practice as are established or modified from time of the Date of Termination; provided that, notwithstanding anything to timethe contrary in this Section 5(b)(i), until if such termination of employment occurs within the earlier twelve (12)-month period immediately following a Change in Control (and such Change in Control constitutes a “change in control event” as defined in Treasury Regulations Section 1.409A-3(i)(5)), then, in lieu of the foregoing payments set forth in this Section 5(b)(i), the Company shall pay to the Executive an aggregate amount equal to 200% of the sum of (A) Annual Base Salary and (B) Target Bonus, in substantially equal installments during the period beginning on the Date of Termination and ending on the twenty-four (24)-month anniversary of the Date of Termination in accordance with the Company’s regular payroll practice as of the Date of Termination;
(ii) Pay to the Executive an amount equal to the product of (A) the amount of the Annual Bonus that would have been payable to the Executive pursuant to Section 3(b) if the Executive was still employed as of the applicable Bonus Vesting Date in respect of the fiscal year in which the Date of Termination occurs based on actual individual and Company performance goals in such year and (B) the ratio of (x) the date twelve (12) months following number of days elapsed during the date fiscal year during which such termination of terminationemployment occurs on or prior to the Date of Termination, or to (y) 365. Any amount payable pursuant to this Section 5(b)(ii) shall, subject to Section 23 and Section 5(d), be paid to Executive in accordance with Section 3(b) as if the date Executive was still employed on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days applicable Bonus Vesting Date, but in no event later than the 15th day of the third month of the fiscal year immediately following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator Date of which shall equal 365Termination occurs;
(ciii) pay Continue to provide, subject to the Employee (i) Executive’s valid election to continue healthcare coverage under COBRA, the Executive and the Executive’s eligible dependents with coverage under its group health plans during the period commencing on the date Date of terminationTermination and ending on the earlier of (A) the eighteen (18)-month anniversary of the Date of Termination (if such termination of employment occurs within the twelve (12)-month period immediately following a Change in Control, any base salary earned but not paid and any vacation accrued but not used through the date twenty-four (24)-month anniversary of termination, the Date of Termination) and (iiB) within thirty the first date on which the Executive is eligible for group health plan coverage from another employer or otherwise at the same levels and the same cost to the Executive as would have applied if the Executive’s employment had not been terminated based on the Executive’s elections in effect on the Date of Termination, provided, however, that (30A) days after the date of termination, if any reimbursable business expenses incurred by the Employee through the date of termination plan pursuant to any expense reimbursement policies which such benefits are provided is not, or ceases prior to the expiration of the period of continuation coverage to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), or (B) the Company then is otherwise unable to continue to cover the Executive under its group health plans without incurring penalties (including without limitation, pursuant to Section 2716 of the Public Health Service Act), then, in effecteither case, an amount equal to each remaining Company subsidy shall thereafter be paid to the Executive in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof); and
(div) Notwithstanding any provision to the extent the Employee and contrary in any qualified beneficiary equity plan or award agreement with respect to such Employee elects continuation of health benefit coverage under Section 4980B equity awards, cause (“COBRA”A) with respect to the Promotion RSUs which are not vested as of the Internal Revenue Code Date of 1986Termination and all Annual Equity Awards subject to service-based vesting, as amended (each such award to become vested with respect to a prorated portion thereof based on the “Code”)ratio of the number of days of employment of the Executive during the applicable service-based vesting period to the total number of days of such service-based vesting period, and continues (B) with respect to all Annual Equity Awards subject to performance-based vesting, each such award to shall continue to be eligible for to become vested in accordance with its terms based on actual performance with respect to a prorated portion of such benefitsaward based on the ratio of the number of days of employment of the Executive during the applicable performance period to the total number of days of such performance period; provided that, notwithstanding anything to the contrary in this Section 5(b)(iv), (x) if such termination of employment occurs during any period when the Executive is unable to engage in substantial gainful activity that may reasonably be expected to result in Disability, the Company shall provide payments shall, on the Date of Termination, cause (I) the Promotion RSUs and all Annual Equity Awards subject to the Employee for such benefits equal service-based vesting, to the amount contributed for active employees become fully vested and (II) all Annual Equity Awards subject to performance-based vesting to continue to be eligible to become vested in accordance with similar benefits their terms based on actual performance, and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) if such termination of employment occurs within the date twelve (12)-month period immediately following a Change in Control, the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits Company shall, on the Date of Termination, cause all then-outstanding equity awards granted to the Employee under this Section 2 shall Executive (iincluding, without limitation, the Annual Equity Awards) be contingent upon which are not vested as of the execution Date of Termination to become vested for the purposes of the 2010 Incentive Award Plan or any other applicable equity plan, and nonany applicable award agreement(s), deeming, for purposes of awards subject to performance-revocation based vesting, that the Company will attain “target” performance levels (or such higher performance level as expressly contemplated by the Employee applicable award agreement in the event of such a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if . For the Release does not become effective during the Release Periodavoidance of doubt, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination described in subsection (y) that results in accelerated vesting of the Employee’s employment performance stock units granted under the 2017 PSU Agreement, (I) the Company will be deemed to have attained the “target” performance level with respect to the EPS Performance Stock Units (as defined in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein 2017 PSU Agreement) and (II) the Company will be deemed to have attained the contrary, all benefits under this Section 2 shall terminate immediately if higher of (1) the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.“target” performance level and
Appears in 1 contract
Sources: Employment Agreement (Novanta Inc)
Termination Without Cause or for Good Reason. 2.1 Other BENEFITS. In the event there is a termination by the Company without Cause, or if Executive terminates for Good Reason (a "Termination Event"), this Agreement shall terminate and Executive shall be entitled to the following severance benefits:
(1) For a period of twelve (12) months after the Termination Date (unless the remainder of the Basic Term is less than twelve (12) months, in which case, for an amount of time equal to the remainder of the Basic Term), Base Salary (as set forth defined in Section 3 below, ifParagraph 3(a), at any timethe rate, the Employee’s employment with and payable quarterly unless such termination is by the Company without Cause, in which event such amount of Base Salary shall be paid in a lump sum within ten (10) days of the Termination Event.
(2) If there is terminated a Change of Control or if there is a termination by the Company without Cause or due by Executive for Good Reason, any stock options and other stock-related grants ("Stock Awards") which Executive has received under any of the HCC stock plans shall vest immediately; provided, however, that the right to the Employee’s Disabilityreceive options referenced in Paragraph 3(c)(2) above shall terminate upon termination from employment for any reason, and further, if there is a termination for Good Reason, or by the Employee Company other than for Good ReasonCause, then all options shall be exercisable for one year or the remainder of their term, whichever is less.
(3) To the extent not theretofore paid or provided, the Company shall:
(a) continue shall timely pay or provide to pay the Employee his base salary in effect on the date of termination, Executive any other amounts or benefits required to be paid in accordance with the Company’s customary payroll practices as are established or modified from time provided or which Executive is eligible to timereceive under any plan, until the earlier of (x) the date twelve (12) months following the date of terminationprogram, policy or practice, or (y) the date on which the Employee commences employment contract or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies agreement of the Company then in effect; and
and its affiliated companies for the period of time equal to the remainder of the Basic Term (dsuch other amounts and benefits shall be hereinafter referred to as the "Other Benefits"). Without limiting the preceding sentence, through December 31, 2002 the Company, at its sole expense, shall continue to provide (through its own plan and/or individual policies) Executive (and Executive's dependents) with health benefits no less favorable than the group health plan benefits provided during such period to any senior executive officer of the Company or any affiliated company (to the extent any such coverage or benefits are taxable to Executive by reason of being provided under a self-insured health plan of the Employee Company or an affiliate, the Company shall make Executive "whole" for the same on an after-tax basis). In any event the Other Benefits provided for pursuant to this Paragraph shall be secondary to any benefits and coverage Executive (or his dependents) receive from another employer.
(4) If Executive receives any qualified beneficiary with respect payments whether or not pursuant to such Employee elects continuation of health benefit coverage this Agreement which are subject to an excise tax imposed under Section 4980B (“COBRA”) 4999 of the Internal Revenue Code of 1986, as amended amended, or any similar tax imposed under federal, state, or local law (the “Code”collectively, "Excise Taxes"), and continues to be eligible for such benefits, the Company shall provide payments pay to Executive (on or before the date on which the Company is required to withhold such Excise Taxes), 1) an additional amount equal to all Excise Taxes then due and payable, and 2) the amount necessary to defray Executive's increased (federal, state, and local) tax liability arising due to payment of the amount specified in this Subsection (4) which shall include any costs and expenses, including penalties and interest incurred by Executive in connection with any audit, proceedings, etc. related to the Employee payment of such Excise Taxes or this payment. For purposes of calculating the amount payable to Executive under this Paragraph, the federal and state income tax rates used shall be the highest marginal federal and state rates applicable to ordinary income in Executive's state of residence, taking into account any federal income tax deductions or credits available to Executive for state income taxes. The Company shall cause its independent auditors to calculate such benefits equal amount and provide Executive a copy of such calculation at least ten (10) days prior to the amount contributed date specified above for active employees with similar benefits and similar participating beneficiaries until payment of such amount. It is the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor intent of the Company within sixty Parties that this Subsection (604) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee place Executive in the event of a termination of the Employee’s employment same net after-tax position Executive would have been in the circumstances set forth in this Section 2.
2.3 Notwithstanding had no payment been subject to an Excise Tax and, notwithstanding anything herein to the contrary, all benefits it shall be construed to effectuate said result;
(5) All accrued compensation and unreimbursed expenses through the Termination Date. Such amounts shall be paid to Executive in a lump sum in cash within thirty (30) days after the Termination Date; and
(6) Executive shall be free to accept other employment during such period, and there shall be no offset of any employment compensation earned by Executive in such other employment during such period against payments due Executive under this Section 2 Paragraph (4) and there shall terminate immediately if be not offset in any compensation received from such other employment against the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the CompanyBase Salary set forth above.
Appears in 1 contract
Sources: Employment Agreement (HCC Insurance Holdings Inc/De/)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, the Employee’s Upon termination of Executive's employment with the Company is terminated (x) by the Company without Trust other than for Cause or due to the Employee’s Disability, upon Executive's death or permanent disability or (y) by the Employee Executive for Good Reason, then Executive will be entitled to the Company shallbenefits provide below:
(ai) continue to the Trust will pay the Employee Executive his base salary in effect on Base Salary through the date of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of ;
(xii) the date twelve (12) months Trust will pay as severance pay to Executive, not later than the 30th day following the date of termination, a lump sum severance payment (the "Severance Payment") equal to the greater of (x) the aggregate of all compensation due to Executive hereunder during the balance of the Term or (y) 1.99 times the date on which "base amount" within the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(bmeaning of Sections 280G(b)(3) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”280G(d) of the Internal Revenue Code of 1986, as amended (the “"Code”"), and continues to be eligible for such benefitsany applicable temporary or final regulations promulgated thereunder, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or its equivalent as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms provided in any successor statute or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this regulation. If Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor 280G of the Company within sixty Code (60and any successor provisions thereto) days following is repealed or otherwise inapplicable, then the Severance Payment will equal 1.99 times $185,000 if the date of termination is prior to December 31, 2002, and thereafter 1.99 times $100,000;
(iii) if in the opinion of tax counsel elected by Executive and reasonably acceptable to the Trust, any portion of any payment made to Executive, including, without limitation, the Severance Payment, constitutes an excess "parachute payment" within the meaning of Section 280G(b)(1) of the Code, the Trust will pay Executive an additional amount (the “Release Period”), in a form that will be provided by the Company and substantially identical "Additional Amount") equal to the form attached to this Plan as Exhibit A sum of (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances i) all taxes payable by Executive under Section 4999 of the termination); provided that if Code with respect to the Release does not become effective during Severance Payment and the Release PeriodAdditional Amount, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and plus (ii) constitute all federal, state or local income taxes payable by Executive with respect to the sole remedy Additional Amount;
(iv) Notwithstanding the foregoing, if, during the first three years of the Employee in the event Term, this Agreement is terminated by reason of a change of control, other than by virtue of a transaction commonly referred to as a leveraged buy out or a management buy out in which Executive has the option to participate, and if the Severance Payment multiple to Den▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ greater than 1.99, the multiple applicable to Executive shall be adjusted accordingly; and
(v) Other than a termination by virtue of a transaction described in paragraph 6c(iv) as one that Executive has the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein option to participate in, Executive will be entitled to the contrary, all full amount of medical benefits under as if Executive was employed by the Trust for the full Term of this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the CompanyAgreement.
Appears in 1 contract
Sources: Employment Agreement (Ramco Gershenson Properties Trust)
Termination Without Cause or for Good Reason. 2.1 Other than Except as set forth otherwise provided in Section 3 below4(d), if, at any time, the Employeeif Executive’s employment with the Company is terminated by the Company without Cause pursuant to Section 3(a)(iv) or due by Executive for Good Reason pursuant to Section 3(a)(vi) then, subject to Executive signing on or before the 50th day following Executive’s Separation from Service (as defined below), and not revoking, a release of claims and separation agreement in the Company’s customary form, as may be updated from time to time (the “Release”), and Executive’s continued compliance with Sections 5 - 7, Executive shall receive, in addition to payments and benefits set forth in Section 3(c), the following benefits: (i) The Company shall pay to Executive an amount equal to the Employee’s Disabilitylesser of (x) one (1) times the sum of (A) the Annual Base Salary plus (B) the Target Bonus, or by each in the Employee for Good Reason, then the Company shall:
(a) continue to pay the Employee his base salary full amount as in effect on at such time, payable over twelve (12) months; or (y) the date sum of termination(A) the Annual Base Salary plus (B) the Target Bonus, to be paid each as in effect at such time and prorated for the number of remaining days of employment in the initial Term or any extended Term (measured from the commencement of such extended Term), as applicable, payable over the remainder of such Term; in each case in equal installments in accordance with the Company’s customary regular payroll practices as are established or modified from time to time, until practice; provided that the earlier of (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which first such payment shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company made within sixty (60) days following the Date of Termination on the first regularly scheduled payroll date of termination the Company following the date the Release becomes nonrevocable and shall include all payments that would have otherwise been made to Executive had the payments commenced on the Date of Termination; (ii) The Company shall pay to Executive a cash lump sum an amount equal to the premiums Executive would have been required to pay to continue Executive’s and Executive’s covered dependents’ medical, dental and vision coverage in effect on the Date of Termination under the Company’s group healthcare plans pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“Release PeriodCOBRA”), for the number of months following the Date of Termination over which the payments set forth in a form that will Section 4(c)(i) are made, which amount shall be provided by based on the premium for the first month of COBRA coverage and shall be paid, regardless of whether or not Executive elects COBRA continuation coverage, within sixty (60) days following the Date of Termination on the first regularly scheduled payroll date of the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period becomes nonrevocable; and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.6
Appears in 1 contract
Sources: Employment Agreement (Kemet Corp)
Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the EmployeeExecutive’s employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, Death) or by the Employee Executive for Good ReasonReason within 24 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive the following amounts:
(1) in a lump sum, in cash, within 30 days after the Date of Termination, the sum of (A) the Executive’s base salary through the Date of Termination, (B) any bonus amounts with respect to periods ending prior to the Date of Termination which the Executive is entitled to and (C) the amount of any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in effect each case to the extent not previously paid (the sum of the amounts described in clauses (A), (B), and (C) shall be hereinafter referred to as the “Accrued Obligations”); and
(2) on the date of terminationa monthly basis, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time standard practice prior to timethe Date of Termination, until the earlier for a period of (x) the date twelve (12) 24 months following the date Date of terminationTermination, or an amount equal to the sum of (yA) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and nonone-revocation twelfth of the Release (as defined below), pay the EmployeeExecutive’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by highest annual base salary at the Company during the Company fiscal three-year in which the termination occurs and the denominator of which shall equal 365;
(c) pay period prior to the Employee Change in Control Date and (iB) on one-twelfth of the Executive’s highest annual target bonus amount at the Company during the three-year period prior to the Change in Control Date; provided, however, that the Company shall not be obligated to make any payments under this Section 4.2(a)(i)(2) from and after the date of termination, any base salary earned but not paid and any vacation accrued but not used through that the date of termination, and Executive becomes engaged in a Competitive Activity (as defined in Section 4.2(a)(iv)); Iomega Confidential
(ii) within thirty (30) days for 24 months after the date Date of terminationTermination, any reimbursable business expenses incurred or such longer period as may be provided by the Employee through terms of the date of termination pursuant appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Executive and the Executive’s family at least equal to those which would have been provided to them if the Executive’s employment had not been terminated, in accordance with the applicable Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and his or her family, in effect generally at any expense reimbursement policies time thereafter with respect to other peer executives of the Company and its affiliated companies; provided, however, that if the Executive either (1) becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer on terms at least as favorable to the Executive and his or her family as those being provided by the Company or (2) becomes engaged in a Competitive Activity, then the Company shall no longer be required to provide those particular benefits (or in effectthe case of clause (2), any benefits) to the Executive and his or her family; and
(diii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive’s termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60) days following the date of termination (such other amounts and benefits shall be hereinafter referred to as the “Release PeriodOther Benefits”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
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Termination Without Cause or for Good Reason. 2.1 Other than as set forth in If the Executive's employment shall terminate without Cause pursuant to Subsection 6(a)(v) above, or for Good Reason pursuant to Section 3 below, if, at any time6(a)(iv) above, the Employee’s employment with the Company is terminated by the Company without Cause or due to the Employee’s Disability, or by the Employee for Good Reason, then the Company Bank shall:
(a) continue i. if within the initial three year term of this agreement, pay to pay the Employee Executive, following the Date of Termination, a severance amount equal to the Annual Base Salary that the Executive would have been entitled to receive for a period of two years had he continued his base salary employment hereunder. The Severance Period under this condition shall be two years. The severance amount shall be paid, at the Executive's election, either in effect on a lump sum within 30 days following the date Date of termination, to be paid Termination or over the duration of the Severance Period in accordance with the Company’s customary Bank's regular payroll practices as are established or modified from time practice for salaried employees.
ii. if subsequent to timethe initial three year term of this agreement, until pay to the earlier of (x) the date twelve (12) months Executive, following the date Date of terminationTermination, or (y) a severance amount equal to the date on which Annual Base Salary that the Employee commences Executive would have been entitled to receive for a period of one year had he continued his employment or hereunder. The Severance Period under this condition shall be one year. The severance amount shall be paid, at the Executive's election, either in a consulting relationship with substantially equivalent compensation;
(b) lump sum within thirty (30) 30 days following the execution and non-revocation Date of Termination or over the duration of the Release Severance Period in accordance with the Bank's regular payroll practice for salaried employees.
iii. if subsequent to the initial three year term of this agreement and due to a Corporate Transaction as described in Subsection 1(e)(i) and/or (as defined belowii) and under the conditions described in Subsection 6(a)(v), pay the Employee’s target bonus on the date of termination multiplied by a fractionto Executive, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor of the Company within sixty (60) days following the date of termination (the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.the
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Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, In the Employee’s employment with event that Executive incurs a “separation from service” from the Company is terminated by (within the Company without Cause or due to the Employee’s Disability, or by the Employee for Good Reason, then the Company shall:
(a) continue to pay the Employee his base salary in effect on the date meaning of termination, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time to time, until the earlier of (x) the date twelve (12) months following the date of termination, or (y) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and non-revocation of the Release (as defined below), pay the Employee’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by the Company during the Company fiscal year in which the termination occurs and the denominator of which shall equal 365;
(c) pay to the Employee (i) on the date of termination, any base salary earned but not paid and any vacation accrued but not used through the date of termination, and (ii) within thirty (30) days after the date of termination, any reimbursable business expenses incurred by the Employee through the date of termination pursuant to any expense reimbursement policies of the Company then in effect; and
(d) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”409A(a)(2)(A)(i) of the Internal Revenue Code of 1986, as amended (the “Code”) and Treasury Regulation Section 1.409A-1(h)) (“Separation from Service”)
(1) by the Company without Cause (as defined herein), and continues to be eligible for such benefits, the Company shall provide payments to the Employee for such benefits equal to the amount contributed for active employees with similar benefits and similar participating beneficiaries until the earlier of (x) twelve (12) months (or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y2) the date the Employee becomes eligible by Executive for group health coverage through another employer.
2.2 The payments and benefits Good Reason (as defined herein), then, subject to the Employee under this Section 2 shall (i) be contingent upon the Executive’s execution and non-revocation by the Employee of a release Release substantially in the form attached as Exhibit A within 30 days after such Separation from Service, Executive shall be entitled to the benefits set forth below in this Section 5(a). Each payment under this Section 5(a) shall be treated as a separate payment for purposes of claims Section 409A (as defined below).
(i) The Company shall pay Executive an amount equal to one times Executive’s Base Salary plus one times Executive’s Target Bonus (as in effect on the “Releasedate of Executive’s termination). The severance amount described in the previous sentence shall be paid as follows, subject to Section 19 below: (A) the continuation of Base Salary shall be paid in favor substantially equal installments over a period of one year from Executive’s Separation from Service in accordance with the payroll practices of the Company in effect from time to time, beginning on the first payroll date occurring on or after the thirtieth day following Executive’s Separation from Service (such payroll date, the “First Payroll Date”) (with amounts otherwise payable prior to the First Payroll Date paid on the First Payroll Date) and (B) the Target Bonus shall be paid on the date that executive bonuses are paid generally for the fiscal year in which the date of termination took place, which shall, in any event, be no earlier than the First Payroll Date and no later than two and one-half months after the end of such fiscal year.
(ii) All stock options, restricted stock, restricted stock units and other similar equity awards shall be governed by the terms of any applicable equity plans and award agreements.
(iii) Executive shall be entitled to benefits mandated under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), under Section 4980B of the Code, or any replacement or successor provision of United States tax law, subject to Executive’s valid election to receive COBRA benefits, with the premium paid at the Company’s expense until the first to occur of (A) eighteen months from the date of termination, (B) the expiration of the period of time during which Executive is entitled to continuation coverage under the Company’s group health plan under COBRA, or (C) such date that Executive becomes eligible for coverage under the group health plan of another employer, provided, that if any plan pursuant to which such benefits are provided is not, or ceases prior to the expiration of the period of continuation coverage to be, exempt from the application of Section 409A under Treasury Regulation Section 1.409A-1(a)(5), then an amount equal to each remaining premium payment shall thereafter be paid to Executive as currently taxable compensation in substantially equal monthly installments over the continuation coverage period (or the remaining portion thereof).
(iv) The Housing Allowance (as defined below) shall continue, subject to Section 19 below, to be paid in accordance with Section 23(e) below until the first to occur of (A) one year from the date of such termination, (B) the third anniversary of the Permanent Housing Date (as defined below), (C) the date that Executive accepts new employment or (D) the date the relevant home is sold or, if leased, the lease obligation is terminated; provided, however, that from and after Executive’s termination of employment, Executive shall use his reasonable efforts in good faith to satisfy either clause (B) or (C) of this Section 5(a)(iv) so as to mitigate the Company’s obligations under this Section 5(a)(iv). In addition, if Executive’s employment terminates pursuant to this Section 5(a), the Company shall pay Executive the amounts described in Section 5(d)(i), (ii) and (iii) within sixty (60) 30 days following of the date of termination (or such earlier date as may be mandated by applicable law) and shall pay or provide the “Release Period”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and other benefits described in Sections 2.1(aSection 5(d) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2accordance therewith.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
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Termination Without Cause or for Good Reason. 2.1 Other than as set forth in Section 3 below, if, at any time, If the EmployeeExecutive’s employment with the Company is terminated by the Company without Cause (other than for Cause, Disability or due to the Employee’s Disability, Death) or by the Employee Executive for Good ReasonReason within 24 months following the Change in Control Date, then the Company shallExecutive shall be entitled to the following benefits:
(ai) continue the Company shall pay to pay the Employee his Executive the following amounts:
(1) in a lump sum, in cash, within 30 days after the Date of Termination, the sum of (A) the Executive’s base salary through the Date of Termination, (B) any bonus amounts with respect to periods ending prior to the Date of Termination which the Executive is entitled to and (C) the amount of any compensation previously deferred by the Executive (together with any accrued interest or earnings thereon) and any accrued vacation pay, in effect each case to the extent not previously paid (the sum of the amounts described in clauses (A), (B), and (C) shall be hereinafter referred to as the “Accrued Obligations”); and
(2) on the date of terminationa monthly basis, to be paid in accordance with the Company’s customary payroll practices as are established or modified from time standard practice prior to timethe Date of Termination, until the earlier for a period of (x) the date twelve (12) 18 months following the date Date of terminationTermination, or an amount equal to the sum of (yA) the date on which the Employee commences employment or a consulting relationship with substantially equivalent compensation;
(b) within thirty (30) days following the execution and nonone-revocation twelfth of the Release (as defined below), pay the EmployeeExecutive’s target bonus on the date of termination multiplied by a fraction, the numerator of which shall equal the number of days the Employee was employed by highest annual base salary at the Company during the Company fiscal three-year in which the termination occurs and the denominator of which shall equal 365;
(c) pay period prior to the Employee Change in Control Date and (iB) on one-twelfth of the Executive’s highest annual target bonus amount at the Company during the three-year period prior to the Change in Control Date; provided, however, that the Company shall not be obligated to make any payments under this Section 4.2(a)(i)(2) from and after the date of termination, any base salary earned but not paid and any vacation accrued but not used through that the date of termination, and Executive becomes engaged in a Competitive Activity (as defined in Section 4.2(a)(iv)); Iomega Confidential (ii) within thirty (30) days for 18 months after the date Date of terminationTermination, any reimbursable business expenses incurred or such longer period as may be provided by the Employee through terms of the date of termination pursuant appropriate plan, program, practice or policy, the Company shall continue to provide benefits to the Executive and the Executive’s family at least equal to those which would have been provided to them if the Executive’s employment had not been terminated, in accordance with the applicable Benefit Plans in effect on the Measurement Date or, if more favorable to the Executive and his or her family, in effect generally at any expense reimbursement policies time thereafter with respect to other peer executives of the Company and its affiliated companies; provided, however, that if the Executive either (1) becomes reemployed with another employer and is eligible to receive a particular type of benefits (e.g., health insurance benefits) from such employer on terms at least as favorable to the Executive and his or her family as those being provided by the Company or (2) becomes engaged in a Competitive Activity, then the Company shall no longer be required to provide those particular benefits (or in effectthe case of clause (2), any benefits) to the Executive and his or her family; and
(diii) to the extent the Employee and any qualified beneficiary with respect to such Employee elects continuation of health benefit coverage under Section 4980B (“COBRA”) of the Internal Revenue Code of 1986, as amended (the “Code”), and continues to be eligible for such benefitsnot previously paid or provided, the Company shall timely pay or provide payments to the Employee for such Executive any other amounts or benefits equal required to be paid or provided or which the amount contributed for active employees with similar benefits and similar participating beneficiaries until Executive is eligible to receive following the earlier Executive’s termination of (x) twelve (12) months (employment under any plan, program, policy, practice, contract or as long as such eligibility for the Employee and each qualified beneficiary continues) from the date such benefits would otherwise end under the applicable plan terms or (y) the date the Employee becomes eligible for group health coverage through another employer.
2.2 The payments and benefits to the Employee under this Section 2 shall (i) be contingent upon the execution and non-revocation by the Employee of a release of claims (the “Release) in favor agreement of the Company within sixty and its affiliated companies (60) days following the date of termination (such other amounts and benefits shall be hereinafter referred to as the “Release PeriodOther Benefits”), in a form that will be provided by the Company and substantially identical to the form attached to this Plan as Exhibit A (except for such modifications as the Company may make in its sole discretion to reflect changes in law or the circumstances of the termination); provided that if the Release does not become effective during the Release Period, the payments and benefits described in Sections 2.1(a) and 2.1(d) of this Agreement that commenced following the date of termination shall cease following the Release Period and (ii) constitute the sole remedy of the Employee in the event of a termination of the Employee’s employment in the circumstances set forth in this Section 2.
2.3 Notwithstanding anything herein to the contrary, all benefits under this Section 2 shall terminate immediately if the Employee, at any time, violates any proprietary information, assignment of inventions agreement, confidentiality, non-competition or non-solicitation obligation to the Company, or any other continuing obligation to the Company.
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