EXHIBIT 10.43
CHANGE IN CONTROL AGREEMENT
AGREEMENT (this
“Agreement”) by and between USEC Inc., a Delaware
corporation (the “Company”) and
(the “Executive”) dated as of
,
, effective January 1, 2008.
WHEREAS, the Executive is currently
an employee of the Company;
WHEREAS, the Board of Directors of
the Company (the “Board”) has determined that it is
essential to the best interests of the Company and its shareholders
to foster the continued employment of the Executive,
notwithstanding the possibility, threat or occurrence of a Change
in Control (as defined in Section 1 hereof) of the
Company;
WHEREAS, the Board has determined
that appropriate steps should be taken to reinforce and encourage
the continued attention and dedication of the Executive in the
Executive’s assigned duties without distraction in the face
of potentially disturbing circumstances arising from any possible
Change in Control of the Company; and
WHEREAS, the Board has concluded that
the interests of the Company described above can be best satisfied
by agreeing to make certain payments to the Executive if the
Executive’s employment is terminated following a Change in
Control;
NOW, THEREFORE, the parties hereto
hereby agree as follows:
1.
Definitions . As used in this Agreement, the following terms
shall have the meanings set forth below:
“Affiliate” shall mean
(i) any entity that, directly or indirectly, is controlled by
the Company, (ii) any entity in which the Company has a
significant equity interest and (iii) an affiliate of the
Company, as defined in Rule 12b-2 promulgated under
Section 12 of the Exchange Act, in each case as determined by
the Committee.
“Cause” shall mean any of
the following:
(i) the engaging by the Executive in
willful misconduct that is injurious to the Company or its
Affiliates;
(ii) the embezzlement or
misappropriation of funds or property of the Company or its
Affiliates by the Executive, or the conviction of the Executive of
a felony or the entrance of a plea of guilty or nolo contendere by
the Executive to a felony; or
(iii) the willful failure or refusal
by the Executive to substantially perform his or her duties or
responsibilities that continues after demand for substantial
performance is delivered by the Company to the Executive that
specifically identifies the manner in which the Company believes
the Executive has not substantially performed his or her
duties (other
than (a) any such failure resulting from the Executive’s
incapacity due to Disability, or (b) any such actual or
anticipated failure after the issuance of a Notice of Termination
by the Executive for Good Reason).
For
purposes of this definition, no act, or failure to act, on the
Executive’s part shall be considered “willful”
unless done, or omitted to be done, by him or her not in good faith
and without reasonable belief that his or her action or omission
was in the best interest of the Company. Notwithstanding the
foregoing, the Executive’s employment shall not be deemed to
have been terminated for Cause unless (A) a reasonable notice
shall have been given to him or her setting forth in reasonable
detail the reasons for the Company’s intentions to terminate
for Cause, and if such termination is pursuant to clause
(i) or (iii) above, and the damage to the Company is
curable, only if the Executive has been provided a period of ten
business days from receipt of such notice to cease the actions or
inactions, and he or she has not done so; (B) an opportunity
shall have been provided for the Executive together with his or her
counsel, to be heard before the Board; and (C) if such
termination is pursuant to clause (i) or (iii) above,
delivery shall have been made to the Executive of a Notice of
Termination from the Board finding that in the good faith opinion
of a majority of the non-management members of the Board he or she
was guilty of conduct set forth in clause (i) or
(iii) above, and specifying the particulars thereof in
reasonable detail. Any determination of Cause made by the Company
in accordance with the foregoing procedure shall be made by the
Company, in its sole discretion. Any such determination shall be
final and binding on the Executive.
“Change in Control” shall
mean the following and shall be deemed to have occurred if any of
the following events shall have occurred:
(i) any
“Person,” as such term is used in Sections 13(d) and
14(d) of the Exchange Act or Persons acting as a group (other than
(A) the Company, (B) any trustee or other fiduciary
holding securities under an employee benefit plan of the Company,
and (C) any corporation owned, directly or indirectly, by the
shareholders of the Company in substantially the same proportions
as their ownership of Shares), is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange
Act), directly or indirectly, of securities of the Company by
reason of having acquired such securities during the 12-month
period ending on the date of the most recent acquisition (not
including any securities acquired directly from the Company or its
Affiliates) representing thirty percent (30%) or more of the total
voting power of the Company’s then outstanding voting
securities;
(ii)
the majority of members of the Company’s Board of Directors
is replaced during any 12-month period by directors whose
appointment or election is not endorsed by a majority of the
members of the Company’s Board of Directors before the date
of the appointment;
(iii)
there is consummated a merger or consolidation of the Company or
any direct or indirect subsidiary of the Company with any other
corporation, resulting in a change described in (i), (ii),
(iv) or (v) of this definition, other than (A) a
merger or consolidation that would result in the voting securities
of the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by
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being converted
into voting securities of the surviving or parent entity) more than
sixty percent (60%) of the total voting power of the voting
securities of the Company or such surviving or parent entity
outstanding immediately after such merger or consolidation or
(B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which
no Person, directly or indirectly, acquired forty percent (40%) or
more of the total voting power of the Company’s then
outstanding securities (not including any securities acquired
directly from the Company or its Affiliates);
(iv) a
complete liquidation of the Company involving the sale to any
Person or group of at least forty percent (40%) of the total gross
fair market value of all of the assets of the Company immediately
before the liquidation; or
(v) the
sale or disposition by the Company to any Person or group of all or
substantially all of the Company’s assets, but in no event
less than forty percent (40%) of the total gross fair market value
of all of the assets of the Company immediately before such sale or
disposition (or any transaction having a similar effect), other
than a sale or disposition by the Company of all or substantially
all of the Company’s assets to an entity, at least sixty
percent (60%) of the total voting power of the voting securities of
which is owned by shareholders of the Company in substantially the
same proportions as their ownership of the Company immediately
prior to such sale.
“Code” shall mean the
Internal Revenue Code of 1986, as amended.
“Committee” shall mean
the Compensation Committee of the Company’s Board of
Directors.
“Disability” shall mean
that the Executive has become totally and permanently disabled as
defined or described in the Company’s long term disability
benefit plan applicable to executive officers as in effect at the
time the Executive’s disability is incurred.
“Exchange Act” shall mean
the Securities Exchange Act of 1934, as amended.
“Good Reason” shall mean,
without the Executive’s express written consent, any of the
following, unless such act or failure to act is corrected prior to
the Date of Termination specified in the Notice of Termination
given in respect thereof:
(i) the
Executive is removed from the Executive’s position as in
effect immediately prior to the Change in Control for any reason
other than (A) by reason of death, Disability or Retirement or
(B) for Cause; provided that such action results in a material
diminution of Executive’s authority, duties or
responsibilities;
(ii)
the Executive is assigned any duties inconsistent in a material
respect with the Executive’s position (including status,
offices, titles and reporting relationships), authority, duties or
responsibilities as in effect immediately prior to the Change in
Control if such assignment results in a material 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
following notice thereof given by the Executive);
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(iii)
the Company materially breaches any agreement under which the
Executive provides services;
(iv)
the Executive’s annual base salary or annual bonus
opportunity as in effect immediately prior to the Change in Control
(or thereafter if higher) is reduced (except for across-the-board
reductions similarly affecting all senior executives of the Company
and all senior executives of any Person in control of the Company);
provided such reduction is a material diminution of
Executive’s base compensation or a material breach of any
agreement under which the Executive provides services;
(v) the
failure by the Company to continue to provide the Executive with
benefits at least as favorable in the aggregate as those enjoyed by
the Executive under the Company’s pension, life insurance,
medical, health and accident, disability, travel, deferred
compensation and savings plans in which the Executive was
participating at the time of the Change in Control, the taking of
any action by the Company that would directly or indirectly
materially reduce such benefits in the aggregate or deprive the
Executive of any material fringe benefit enjoyed by the Executive
at the time of the Change in Control unless such material fringe
benefit is replaced with a comparable benefit, or the failure by
the Company to continue to provide the Executive with the number of
paid vacation days to which the Executive is entitled; provided
such reduction in benefits and compensation is a material breach of
any agreement under which the Executive provides services;
(vi)
the failure of the Company to obtain a satisfactory agreement from
any successor to assume and agree to perform this Agreement, as
contemplated in Section 9 hereof;
(vii)
any relocation of the Executive’s principal place of business
from its location as of the date immediately preceding a Change in
Control, by more than fifty(50) miles; or
(viii)
any purported termination of the Executive’s employment that
is not effected pursuant to a Notice of Termination satisfying the
requirements of Section 3(b) hereof, which termination for purposes
of this Agreement shall be ineffective.
Notwithstanding the foregoing, a termination shall not be treated
as a termination for Good Reason unless the Executive shall have
delivered a Notice of Termination stating that the Executive
intends to terminate employment for Good Reason within ninety
(90) days, and such Termination must occur within two years,
of the Executive’s having actual knowledge of the initial
occurrence of one or more of such events, provided, in each such
event, the Company fails to cure within thirty (30) days of receipt
of such Notice of Termination. For purposes of this Agreement, any
good faith determination of “Good Reason” or good faith
determination of the Company’s failure to cure within the
thirty (30) day period made by the Executive shall be
conclusive.
“Retirement” shall mean
the Executive’s Separation from Service initiated by the
Executive after attainment by the Executive of age sixty-five
(65).
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“Section 409A
Penalties” shall have the meaning set forth in
Section 14 of this Agreement.
“Specified Employee”
shall mean any person described in Section 409A(a)(2)(B)(i) of
the Code and Treasury Regulation Section 1.409A-1(i) as
determined from time to time by the Committee in its
discretion.
“Shares” shall mean
shares of common stock, $0.10 par value, of the Company, or such
other securities of the Company as may be designated by the
Committee from time to time.
“Termination of
Employment” shall mean and be interpreted in a manner
consistent with the definition of “separation from
service” within the meaning of Section 409A(a)(2)(A)(i)
of the Code and Treasury Regulation Section 1.409A-1(h).
The Company retains the right and discretion to specify, and may
specify, whether a Termination of Employment occurs for individuals
providing services to the Company immediately prior to an asset
purchase transaction in which the Company is the seller, who
provide services to a buyer after and in connection with such asset
purchase transaction; provided, such specification is made in
accordance with the requirements of Treasury
Regulation Section 1.409A-1(h)(4).
2.
Term of Agreement . The term of this Agreement will commence
as of the date hereof (the “Effective Date”) and shall
continue in effect until the third anniversary of the Effective
Date, unless further extended or sooner terminated as hereinafter
provided. Commencing on the first anniversary of the Effective
Date, and on each anniversary of such date thereafter (each, an
“Anniversary Date”), the term shall automatically be
extended for one additional year unless the Board of Directors of
the Company (the “Board”) gives notice to the
Executive, at least two months prior to such Anniversary Date, that
it does not wish to extend the term. Notwithstanding the foregoing,
upon the occurrence of a Change in Control during the term of this
Agreement, this Agreement shall continue in effect for a period of
three years from the date of such Change in Control, unless sooner
terminated as hereinafter provided.
3.
Termination Following Change in Control .
(a) If a Change in Control shall
have occurred, upon a Termination of Employment during the term of
this Agreement by the Company without Cause, or by the Executive
for Good Reason, the Executive shall be entitled to the benefits
provided in Section 4 hereof.
(b) Notice of
Termination . Following a Change in Control, any purported
Termination of Employment by the Company or by the Executive shall
be communicated by written Notice of Termination to the other party
hereto in accordance with Section 10 hereof. For purposes of
this Agreement, a “Notice of Termination” shall mean a
notice which shall indicate the specific termination provision in
this Agreement relied upon, shall set forth in reasonable detail
the facts and circumstances claimed to provide a basis for
termination of the Executive’s employment under the provision
so indicated, and shall specify the Date of Termination. The
failure by the Executive or the Company to set forth in the Notice
of Termination any fact or circumstance that contributes to a
showing of Good Reason or Cause shall not waive any right of the
Executive or the Company under this Agreement or preclude the
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Executive or the Company from asserting such fact or circumstance
in enforcing the Executive’s or the Company’s rights
under this Agreement.
(c) Date of Termination
. Following a Change in Control, “Date of Termination”
shall mean the date within the term of the Agreement specifi
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