Item 5.02 Departure of Directors or Certain Executives; Election of Directors;
Appointment of Certain Executives; Compensatory Arrangements of Certain Executives.
Rafael Santana President and Chief Executive Officer
Each of Messrs. Santana, Olin, and DeNinno previously entered into a
Continuation Agreement with the Company providing for potential severance
payments for termination of employment in connection with a change in control of
the Company. In addition,
The Continuation Agreements, which have an indefinite term, provide that each Executive will receive severance payments and certain benefits in the event of the Executive's termination by the Company without cause (as defined in the Continuation Agreements) or by the Executive for good reason (as defined in the Continuation Agreements). The severance payments and benefits payable to each Executive upon such termination of employment will vary based on whether or not the termination of employment occurs during the period from the date of a change in control (as defined in the Continuation Agreements) through the second anniversary of such date (the "Change in Control Period").
If such termination of employment does not occur during a Change in Control Period, the severance payments and benefits will be as follows:
• a lump sum cash severance payment equal to: (A) for
sum of his base salary and target annual bonus; and (B) for each of the other Executives, the sum of (1) the Executive's base salary plus 1/52 of the Executive's base salary for each full year of the Executive's service with the Company and (2) the Executive's target annual bonus; provided that the amount in clause (1) will not exceed one and one-half times the Executive's base salary (the "Cash Severance Payment");
• a lump sum payment equal to: (A) for
monthly premium cost to the Company of group medical, dental, vision, life, and long-term disability coverage forMr. Santana ; and (B) for each of the other Executives, the Company's portion of the monthly premium cost of the Executive's medical, dental and vision coverage multiplied by the number of full months of base salary that is represented by the base salary in the Severance Payment described above (the "Benefits Payment");
• a pro rata portion of the Executive's annual bonus for the year in which the
termination date occurs based on actual performance of the Company and the number of days the Executive is employed during such year, payable at the same time and on the same terms as annual bonuses paid to other executives of the Company (the "Pro-Rated Annual Bonus");
• a lump sum payment equal to: (A)
each of the other Executives, for transition cost assistance (the "Transition Payment"); and
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• certain minimum equity vesting requirements as follows: for
vesting, and for each of the other Executives, pro rata vesting (based on the
portion of the vesting period that has elapsed as of the termination date of
all Post-2021 Equity Grants (as defined in the Continuation Agreements)),
subject to actual performance results for the full performance period for any
awards with performance-based vesting conditions, and provided that any such
vested grants that are options or stock appreciation rights will remain
exercisable for three years or until the end of the applicable term, if
earlier.
If such termination of employment occurs during a Change in Control Period, the severance payments and benefits will be similar to those described above but in some cases in larger amounts, as follows:
• the Cash Severance Payment will be equal to the sum of the Executive's base
salary and target annual bonus multiplied by (A) forMr. Santana , three; and (B) for each of the other Executives, two;
• the Benefits Payment will be equal to the applicable monthly benefits cost
described above multiplied by (A) forMr. Santana , thirty-six; and (B) for each of the other Executives, twenty-four;
• the Pro-Rated Annual Bonus;
• the Transition Payment; and
• the minimum equity vesting provisions described above for Post-2021 Equity
Grants, except the vesting for bothMr. Santana and the other Executives will be full, rather than prorated, performance-vesting awards will have performance goals deemed achieved at maximum levels, and the awards in all cases will be subject to the provisions of the Company's Stock Incentive Plan regarding treatment of awards upon a change in control of the Company (i.e., depending on whether awards are assumed or replaced by the buyer in the transaction).
The severance payments and benefits are conditioned on the Executive signing and not revoking a general release of claims.
In the event of any termination of employment, the Executive will receive any earned and unpaid base salary through the date of termination, any unpaid annual incentive bonus payable with respect to a prior fiscal year, any unpaid reimbursements due to the Executive, any accrued but unused personal time off days, and any vested and non-forfeitable employee benefits payable under the terms and conditions of the applicable plan or award agreement (the "Accrued Obligations"). If, at any time, the Executive's employment is terminated by the Company for cause, due to death or disability, or by the Executive's voluntary resignation other than for good reason, the Executive will receive only the Accrued Obligations, except that in case of termination due to death or disability, the Executive will also receive the Pro-Rated Annual Bonus and full vesting of equity awards (subject to performance results for any performance-vesting awards).
Any amounts paid to an Executive under a Continuation Agreement will be reduced to the maximum amount that can be paid without being considered an excess parachute payment under Internal Revenue Code Section 280G and subject to the excise tax under Internal Revenue Code Section 4999, but only if the net after-tax benefit of the reduced amount to the Executive is higher than the net after-tax benefit of the unreduced amount.
The Continuation Agreements contain restrictive covenants, including non-competition and non-solicitation covenants during the Executive's employment and for the one-year period following the Executive's termination date, and confidentiality and non-disparagement covenants.
The foregoing summary of the Continuation Agreements does not purport to be
complete and is qualified in its entirety by reference to the Continuation
Agreements. A copy of the form of Continuation Agreement for
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Item 9.01 Exhibits. (d) Exhibits Exhibit No. Description
10.1 Form of Continuation Agreement forRafael Santana 10.2 Form of Continuation Agreement for Executives other thanRafael Santana
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