EXHIBIT 10.24.2
Amended and Restated NCR Change
in Control Severance Plan
Introduction
The Board of Directors of NCR
Corporation (the “Company”) recognizes that, from time
to time, the Company may explore potential transactions that could
result in a Change in Control of the Company. This possibility and
the uncertainty it creates may result in the loss or distraction of
certain key employees of the Company to the detriment of the
Company and its shareholders.
The Board considers the avoidance of
such loss and distraction to be essential to protecting and
enhancing the best interests of the Company and its shareholders.
The Board also believes that when a Change in Control is perceived
as imminent, or is occurring, the Board should be able to receive
and rely on disinterested service from employees regarding the best
interests of the Company and its shareholders without concern that
employees might be distracted or concerned by the personal
uncertainties and risks created by the perception of an imminent or
occurring Change in Control.
In addition, the Board believes that
it is consistent with the Company’s employment practices and
policies and in the best interests of the Company and its
shareholders to treat fairly its employees whose employment
terminates in connection with or following a Change in
Control.
Accordingly, the Board has
determined that appropriate steps should be taken to assure the
Company of the continued employment and attention and dedication to
duty of its employees and to seek to ensure the availability of
their continued service, notwithstanding the possibility or
occurrence of a Change in Control.
Therefore, in order to fulfill the
above purposes, the Board has caused the Company to adopt this NCR
Change in Control Severance Plan (the
“Plan”).
The Plan is intended to comply with
the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”), and other applicable laws.
The Plan is a sub-plan of the NCR
Workforce Redeployment Plan, which is a component of the NCR Group
Benefits Plan for Active Associates, plan number 502. To the extent
the separation pay portion of the plan is a pension plan, it
qualifies for exemption from Parts II, III and IV of ERISA as a
plan maintained primarily for the purpose of providing deferred
compensation for a select group of management or highly compensated
employees under Sections 201(2), 301(a)(3) and 401(a)(1) of
ERISA.
On December 31, 2008, the Plan
was amended and restated in its entirety, as set forth herein, to
comply with the final regulations issued under Section 409A of
the Internal Revenue Code of 1986, as amended.
ARTICLE I
ESTABLISHMENT OF
PLAN
As of the Effective Date, the
Company established the NCR Corporation Change in Control Severance
Plan. On December 31, 2008, the Plan was amended and restated
in its entirety, as set forth in this document, to comply with the
final regulations issued under Section 409A of the Internal
Revenue Code of 1986, as amended.
ARTICLE II
DEFINITIONS
As used herein, the following words
and phrases shall have the following respective
meanings:
(a) Base Salary . The amount
a Participant is entitled to receive as wages or salary on an
annualized basis, excluding all bonus, overtime, health additive
and incentive compensation, payable by the Company as consideration
for the Participant’s services.
(b) Board . The Board of
Directors of NCR Corporation.
(c) Cause . A termination for
“Cause” shall have occurred where a Participant is
terminated because of (A) the willful and continued failure of
the Participant to perform substantially the Participant’s
duties with the Company or any of its affiliates (other than any
such failure resulting from incapacity due to physical or mental
illness) for a period of at least thirty (30) days after a
written demand for substantial performance is delivered to the
Participant by the Board or the Chief Executive Officer of the
Company, specifically identifying the manner in which the Board or
the Chief Executive Officer believes that the Participant has not
substantially performed the Participant’s duties; or
(B) the willful engaging by the Participant in illegal conduct
or gross misconduct which is materially and demonstrably injurious
to the Company. For purposes of this provision, no act or failure
to act, on the part of the Participant, shall be considered
“willful” unless it is done, or omitted to be done, by
the Participant in bad faith or without reasonable belief that the
Participant’s action or omission was in the best interests of
the Company. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or upon the
instructions of the Chief Executive Officer (except if the
Participant is the Chief Executive Officer) or based upon the
advice of counsel for the Company shall be conclusively presumed to
be done, or omitted to be done, by the Participant in good faith
and in the best interests of the Company. The termination of
employment of the Participant shall not be deemed to be for Cause
unless and until there shall have been delivered to the Participant
a copy of a resolution duly adopted by the affirmative vote of a
majority of the entire membership of the Board at a meeting of the
Board called and held for such purpose (after reasonable notice is
provided to the Participant and the Participant is given an
opportunity, together with counsel, to be heard before the Board),
finding that, in the good faith opinion of the Board, the
Participant is guilty of the conduct described in subsection
(A) or (B) above, and specifying the particulars thereof
in detail.
(d) Change in Control . The
occurrence of any of the following events:
(i) The acquisition by any
individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)) (a
“Person”) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of thirty percent
(30%) or more of either (a) the then outstanding shares
of common stock of the Company (the “Outstanding Company
Common Stock”) or (b) the combined voting power of the
then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the “Outstanding
Company Voting Securities”); provided, however, that for
purposes of this subsection (i), the following acquisitions shall
not constitute a Change in Control: (A) any acquisition
directly from the Company, (B) any acquisition by the Company,
(C) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation
controlled by the Company, or (d) any acquisition pursuant to
a transaction which complies with clauses (A), (B) and
(C) of subsection (iii) of this Section 2(c);
or
(ii) Individuals
who, as of the date of this Plan, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute
at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date of this Plan
whose election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least two-thirds
( 2 / 3 ) of the directors then
comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of
office occurs as a result of an actual or threatened election
contest with respect to the election or removal of directors or
other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board; or
(iii) Consummation of a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the
Company or the acquisition of assets of another entity (a
“Corporate Transaction”), in each case, unless,
following such Corporate Transaction, (A) all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
Corporate Transaction beneficially own, directly or indirectly,
more than fifty percent (50%) of, respectively, the then
outstanding shares of common stock and the combined voting power of
the then outstanding voting securities entitled to vote generally
in the election of directors, as the case may be, of the
corporation resulting from such Corporate Transaction (including,
without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the
Company’s assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Corporate Transaction of the
Outstanding Company Common Stock and Outstanding Company Voting
Securities, as the case may be; (B) no Person (excluding any
employee benefit plan (or related trust) of the Company or such
corporation resulting from such Corporate Transaction) beneficially
owns, directly or indirectly, thirty percent (30%) or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such Corporate Transaction or the
combined voting power of the then outstanding voting securities of
such corporation except to the extent that such ownership existed
prior to the Corporate Transaction; and (C) at least a
majority of the members of the board of directors of the
corporation resulting from such Corporate Transaction were members
of the
Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for
such Corporate Transaction; or
(iv) Approval by the shareholders of
the Company of a complete liquidation or dissolution of the
Company.
(e) Code . The Internal
Revenue Code of 1986, as amended from time to time.
(f) Company . NCR Corporation
and any successor thereto.
(g) Compensation Committee .
The Compensation and Human Resource Committee of the
Board.
(h) Date of Termination . The
date on which a Participant has a “separation from
service” with the Company and its subsidiaries within the
meaning of Section 409A of the Code.
(i) Disability . The absence
of the Participant from the Participant’s duties with the
Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness that is
determined to be total and permanent by a physician selected by the
Company or its insurers and acceptable to the Participant or the
Participant’s legal representative.
(j) Effective Date .
January 1, 2006.
(k) Employee . Any regular,
full-time or part-time employee of the Company or its
subsidiaries.
(l) Good Reason . With
respect to any Participant, the occurrence of any of the following
events without the Participant’s prior written
consent:
(i) the assignment to the
Participant of any duties inconsistent in any respect with the
Participant’s position (including status, offices, titles and
reporting requirements), authority, duties or responsibilities, as
in effect immediately prior to a Change in Control or any other
diminution in such position, authority, duties or responsibilities,
excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by
the Company promptly after receipt of notice thereof given by the
Participant, provided that, with the exception of the Participant
who is the Chief Executive Officer of the Company immediately prior
to the Change in Control, a change in the individual(s) or
position(s) to whom the Participant reports shall not by itself
constitute Good Reason;
(ii) any reduction in the
Participant’s Base Salary below the Required Base
Salary,
(iii) the failure to pay incentive
compensation to which the Participant is otherwise entitled under
the terms of the Company’s Management Incentive Plan for
Executive Officers (“MIP”) or Long Term Incentive
Program (“LTIP”), or any successor
incentive compensation plans, at the time at
which such awards are usually paid or as soon thereafter as
administratively feasible;
(iv) the reduction in Target Bonus
or Maximum Bonus for a Participant under the MIP or any successor
plan or the reduction in any LTIP Target Award or LTIP Maximum
Award under the LTIP or any successor incentive compensation plan,
other than in the case of a reduction in any LTIP Target Award or
LTIP Maximum Award, such reduction is pursuant to an
across-the-board reduction applicable to similarly situated
executives of the Company;
(v) the failure by the Company to
continue in effect any equity compensation plan in which the
Participant participates immediately prior to the Change in
Control, unless a substantially equivalent alternative compensation
arrangement (embodied in an ongoing substitute or alternative plan)
has been provided to the Participant, or the failure by the Company
to continue the Participant’s participation in any such
equity compensation plan on substantially the same basis, in terms
of the level of such Participant’s participation relative to
other participants, as existed immediately prior to the Change in
Control excluding for this purpose an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by
the Company promptly after receipt of notice thereof given by the
Participant;
(vi) Except as required by law, the
failure by the Company to continue to provide to the Participant
employee benefits substantially equivalent, in the aggregate, to
those enjoyed by the Participant under the qualified and
nonqualified employee benefit and welfare plans of the Company,
including, without limitation, the pension, life insurance,
medical, dental, health and accident, disability retirement, and
savings plans, in which the Participant was eligible to participate
immediately prior to the Change in Control, or the failure by the
Company to provide the Participant with the number of paid vacation
days to which such Participant is entitled under the
Company’s vacation policy immediately prior to the Change in
Control;
(vii) the Company’s requiring
the Participant to be based at any office or location other than
the principal place of the Participant’s employment in effect
immediately prior to the Change in Control that is more than forty
(40) miles distant from the location of such principal place
of employment, or the Company’s requiring the Participant to
travel on Company business to a substantially greater extent than
required immediately prior to the Change in Control; or
(viii) any failure by the Company to
comply with Article V.
(m) LTIP Maximum Award . With
respect to any Participant, the higher of (x) the
Participant’s maximum award under the LTIP or any successor
plan for the year immediately prior to the Change in Control,
provided that if no maximum award has been established for such
year under such plan, the most recent year preceding the Change in
Control in which such an award has been established or (y) the
Participant’s maximum award under the LTIP or any successor
plan in effect at any time after the Change in Control. As used in
this definition, the reference to “maximum award” shall
mean the maximum level under the performance metrics the
Compensation Committee may set in its exercise of downward
discretion as provided in the LTIP.
(n) LTIP Target Award . With
respect to any Participant, the higher of (x) the
Participant’s target award under the LTIP or any successor
plan for the year immediately prior to the Change in Control,
provided that if no target award has been established for such year
under such plan, the most recent year preceding the Change in
Control in which such an award has been established or (y) the
Participant’s target award under the LTIP or any successor
plan in effect at any time after the Change in Control. As used in
this definition, the reference to “target award” shall
mean the target level under the performance metrics the
Compensation Committee may set in its exercise of downward
discretion as provided in the LTIP.
(o) Maximum Bonus . With
respect to any Participant, the higher of (x) the
Participant’s maximum bonus under the annual bonus plan
applicable to the Participant immediately prior to the Change in
Control, provided that if no maximum bonus has been established for
such year under such plan, the year immediately preceding the year
in which the Change in Control occurs or (y) the
Participant’s maximum bonus under the annual bonus plan
applicable to the Participant in effect at any time after the
Change in Control. As used in this definition, the reference to
“maximum bonus” shall mean the maximum level under the
“Management Incentive Objectives” (or any successor
objectives) the Compensation Committee may set in its exercise of
downward discretion as provided in the MIP.
(p) Participant . An Employee
who meets the eligibility requirements of
Section 3.1.
(q) Plan . The NCR
Corporation Change in Control Severance Plan.
(r) Plan Committee . The
committee which shall have full power and authority to administer
the Plan and may delegate to one or more officers and/or employees
of the Company such duties in connection with the administration of
the Plan as it may deem necessary, advisable or appropriate. Prior
to a Change in Control, the Plan Committee shall consist of the
members of the Compensation Committee; provided, however, that any
time prior to a Change in Control, the Plan Committee may designate
Incumbent Board members or individuals who were officers of the
Company as of immediately prior to the Change in Control
(“Incumbent Members”) to serve as the Plan Committee
following the Change in Control. Once designated by the Plan
Committee prior to a Change in Control to serve following a Change
in Control, Incumbent Members may not be removed from the Plan
Committee following the Change in Control.
(s) Release Deadline . The
60th day immediately following the Date of Termination.
(t) Required Base Salary .
With respect to any Participant, the higher of (x) the
Participant’s Base Salary as in effect immediately prior to
the Change in Control and (y) the Participant’s highest
Base Salary in effect at any time thereafter.
(u) Separation Benefit . The
benefits payable in accordance with Section 4.2 of the
Plan.
(v) Target Bonu s. With
respect to any Participant, the higher of (x) the
Participant’s target bonus under the annual bonus plan
applicable to the Participant immediately
prior to the Change in Control, provided that if
no target bonus has been established for such year under such
plans, the year immediately preceding the year in which the Change
in Control occurs or (y) the Participant’s target bonus
under the annual bonus plan applicable to the Participant in effect
at any time after the Change in Control. As used in this
definition, the reference to “target bonus” shall mean
the target level under the “Management Incentive
Objectives” (or any successor objectives) the Compensation
Committee may set in its exercise of downward discretion as
provided in the MIP.
(w) Tier Level . As defined
in Section 3.1.
ARTICLE III
ELIGIBILITY
3.1 Participation . Each
Employee who is designated by the Board as a “Section 16
officer” shall be eligible to be a Participant in the Plan.
The Plan Committee may also designate any other Employee as a
Participant. In the event the Plan Committee designates certain
Participants by job title, position, function or responsibilities,
an Employee who is appointed to such a position after the Effective
Date of this Plan shall be eligible as a Participant upon the date
he or she begins his or her duties in such position, unless
otherwise determined by the Plan Committee. The Plan Committee
shall designate each Participant in the Plan as a member of a
specific tier for the purposes of calculating the
Participants’ Separation Benefit under this Plan (“Tier
Level”). Exhibit A , attached hereto and made a part
hereof, sets forth the initial Participants and their respective
Tier Levels, which may be amended from time to time in accordance
with the terms of the Plan.
3.2 Duration of Participation
. Subject to Article VI, an Employee shall cease to be a
Participant in the Plan when he or she (i) ceases to be an
Employee or (ii) ceases to be designated by the Board as a
“Section 16 officer” or (iii) ceases to be
designated by the Board as a Participant (unless, in the case of
clause (ii), the Plan Committee specifically determines that the
Employee shall remain a Participant). Notwithstanding the
foregoing, a Participant who is entitled, as a result of ceasing to
be an Employee under the circumstances set forth in
Section 4.1, to payment of a Separation Benefit or any other
amounts under the Plan shall remain a Participant in the Plan until
the full amount of the Separation Benefit and any other amounts
payable under the Plan have been paid to the
Participant.
ARTICLE IV
SEPARATION
BENEFITS
4.1 Right to Separation
Benefit . Except as otherwise provided in Section 4.4 with
respect to the benefits thereunder, which shall be provided
regardless of whether a Participant incurs a termination of
employment, and subject to the restrictions of Section 4.6, a
Participant shall be entitled to receive from the Company a
Separation Benefit in the amount provided in Section 4.2 if,
within the two year period following the Change in Control,
(i) a Participant’s employment is terminated by the
Company without Cause (other than by reason of the
Participant’s death or Disability) or (ii) a
Participant’s employment is terminated by the Participant for
Good Reason; provided , that if the termination described in
clause (i), or the event constituting Good Reason giving rise to
the termination described in clause (ii), as applicable,
occurs within the six-month period ending on the
date of such Change in Control but the Participant can reasonably
demonstrate that such termination or event, as applicable, occurred
at the request of a third party who had taken steps reasonably
calculated to effect a Change in Control, the termination or event,
as applicable, will be treated for all purposes of this Plan,
except for purposes of Section 4.2(c), as having occurred
immediately following the Change in Control. Notwithstanding the
foregoing, in no event shall any benefits be provided to a
Participant under this Plan unless the Participant has executed a
restrictive covenant and release agreement in the form attached
hereto as Exhibit B (the “Release”), the
Participant has not revoked the Release, and the Release has become
effective and irrevocable in accordance with its terms by the
Release Deadline.
4.2 Separation Benefits
.
(a) In General . If a
Participant’s employment is terminated in circumstances
entitling him or her to a Separation Benefit as provided in
Section 4.1, the Company shall pay such Participant a lump sum
in cash, on the first business day after the date that is six
(6) months after the Date of Termination, a Separation Benefit
equal to the product of (a) the sum of the Participant’s
Required Base Salary and the Participant’s Target Bonus and
(b) the Separation Multiplier shown in Table 1 as determined
by the Participant’s designated Tier Level, together with
interest from the Date of Termination to the date of payment at the
applicable federal rate under Section 7872(f)(2)(A) of the
Code in effect on the Date of Termination.
Table 1
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Separation
Multiplier
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I
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300
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%
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II
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200
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%
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III
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100
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%
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(b) Accrued Incentive Pay .
In addition, if a Participant’s employment is terminated in
circumstances entitling him or her to a Separation Benefit as
provided in Section 4.1, the Company shall pay such
Participant a lump sum in cash, in an amount equal to the sum
of:
(i) the amount of any unpaid annual
bonus under the MIP or any successor plan or award under the LTIP
or any successor plan for any completed performance period, which
amount shall be paid in accordance with the applicable award
agreement, but in no event later than two and one-half months after
the end of the calendar year next following the calendar year for
which the annual bonus is awarded;
(ii) the product of (x) the
Target Bonus and (y) a fraction, the numerator of which is the
number of days in the bonus year in which the Date of
Termination
occurs through the Date of Termination and the
denominator of which is 365, which amount shall be paid on the
first business day after the date that is six (6) months after
the Date of Termination, together with interest from the Date of
Termination to the date of payment at the applicable federal rate
under Section 7872(f)(2)(A) of the Code in effect on the Date
of Termination; and
(iii) an award under the LTIP for
each applicable performance cycle that includes the year in which
the Date of Termination occurs to the extent provided in the LTIP
or the applicable award agreement, which amount shall be paid in
accordance with the LTIP or the applicable award
agreement.
(c) Time of Payment of Certain
Benefits. Notwithstanding the foregoing and subject to the
restrictions of Section 4.6, in the event that a
Participant’s Date of Termination occurs within two
(2) years after a Change in Control as defined herein that is
also a “change in ownership”, a “change in
effective control”, or a “change in the ownership of a
substantial portion of the assets” of the Company (within the
meaning of Section 409A of the Code) and the Participant is
not a “specified employee” (within the meaning of
Section 409A of the Code) on the Date of Termination, any
benefits payable to the Participant pursuant to Section 4.2(a)
and 4.2(b)(ii) shall be paid within thirty (30) days following
the Release Deadline.
(d) Welfare and Other
Benefits.
(i) In addition, during the Welfare
Benefit Period or such longer period as may be provided by the
terms of the appropriate plan, program, practice or policy, the
Company shall provide to a Participant entitled to a Separation
Benefit, continued health care, dental and life insurance for the
Participant and/or the Participant’s family at least equal
to, and at the same cost to the Participant and/or the
Participant’s family, a