Exhibit 10.4
NEENAH FOUNDRY COMPANY AMENDED AND RESTATED
2003 SEVERANCE AND CHANGE OF CONTROL PLAN
1.
Purpose.
This plan shall be known as the
Neenah Foundry Company Amended and Restated 2003 Severance and
Change of Control Plan (the “Plan”). The purpose of the
Plan shall be to set forth payments and other benefits, if any, to
which an executive of Neenah Foundry Company (the
“Company”) or any of its Subsidiaries will be entitled
upon termination of such person’s employment. This Plan
document supersedes, in all respects, the prior version of the
Plan, (as previously amended) as of the Effective Date.
2.
Definitions. For purposes of this Plan, except when the context
clearly indicates otherwise, the following terms shall have the
meanings set forth below.
“Affiliate” means, in
respect of any Person, any other Person who, directly, or
indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with such Person. For
purposes of this definition, “control” (including the
terms “controlled by” and “under common control
with”) when used in respect of any Person means the power to
direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by
contract, or otherwise.
“Base Salary” means, with
respect to any Plan Participant, “Base Salary” as
defined in such Plan Participant’s Employment
Agreement.
“Board of Directors” and
“Board” mean the board of directors of the
Company.
“Cause” means, with
respect to a Plan Participant, the occurrence of one or more of the
following events: (i) such Plan Participant’s willful
and material breach of, or gross negligence or malfeasance in the
performance of, the Plan Participant’s duties under such Plan
Participant’s Employment Agreement; (ii) any material
insubordination by the Plan Participant with respect to carrying
out the reasonable instructions of the Board; (iii) the
conviction for, or the entering of a guilty plea or plea of nolo
contendere with respect to, a felony, the equivalent thereof or
other crime with respect to which imprisonment of more than one
year is a possible punishment or that is expected to result in
Significant Injury; (iv) a Plan Participant’s breach of
a fiduciary obligation to the Company Group or breach of any
confidentiality or non-competition obligation set forth herein;
(v) any act of moral turpitude or willful misconduct by the
Plan Participant that (1) is intended to result in personal
enrichment of the Plan Participant or any related person at the
expense of the Company Group or (2) is reasonably expected to
result in Significant Injury; provided, however, that the Plan
Participant shall have 21 days (or such longer period as is
reasonable under the circumstances) after written notice by the
Company of any such event constituting “Cause”
hereunder in which to cure any failure or default under subsections
(i) and (ii) that is curable.
“Change of Control” means
the consummation of any transaction or series of related
transactions, the result of which is that: (i) any Person or
group (within the meaning of Rule 13d-5 of the Exchange Act), other
than Tontine together with its Affiliates, shall own directly
or
indirectly, beneficially or of record, greater than 50% of the
equity securities of NEI or the Company on a fully diluted basis;
(ii) substantially all of the assets of NEI and its
Subsidiaries taken as a whole are sold or NEI is merged or
recapitalized and the stockholders of NEI do not own a majority of
the voting stock of the surviving corporation, or (iii) after
the first fully distributed public offering of voting stock of any
member of the Company Group (1) any Person or group (within
the meaning of Rule 13d-5 of the Exchange Act), shall own
directly or indirectly, beneficially or of record, a percentage of
the issued and outstanding voting stock of NEI or the Company on a
fully diluted basis, having ordinary voting power in excess of 35%
and in excess of the percentage then owned, directly or indirectly,
beneficially and of record, on a fully diluted basis, by Tontine
together with its Affiliates, or (2) a majority of the seats
on the boards of directors of NEI or the Company (except in the
case of any vacancy for 30 days or less resulting from the
death or resignation of any director) is replaced during a
twelve-month period by persons who were neither (i) nominated
by Tontine nor (ii) appointed by directors so nominated, in
each case, whether as the result of the purchase, issuance or sale
of securities of any member of the Company Group or any merger,
consolidation, liquidation, dissolution, recapitalization or
similar transaction involving any member of the Company Group.
Notwithstanding the foregoing, no Change of Control shall have
occurred unless the transaction or series of transactions results
in a change in control within the meaning of Code Section 409A
and the regulations thereunder. This Change of Control definition
shall be interpreted in a manner which is consistent with Code
Section 409A and the regulations thereunder.
“Change of Control
Multiple” means, with respect to any Plan Participant,
“Change of Control Multiple” as defined in such Plan
Participant’s Employment Agreement.
“Change of Control
Payment” has the meaning given to such term in Section 4(b)
hereof.
“COBRA” means Part 6
of Subtitle B of Title I of the Employee Retirement Income Security
Act of 1974, as amended and Section 4980B of the Code.
“Code” means the Internal
Revenue Code of 1986, as amended.
“Committee” means the
Compensation Committee of the Board or such other committee that
consists solely of two or more individuals, each of whom is a
Non-Employee Director and an “outside director” within
the meaning of Treasury
Regulation Section 1.162-27(e)(3).
“Company” has the meaning
set forth in Section 1 hereof.
“Company Group” means
NEI, the Company and their respective Subsidiaries.
“Effective Date” means
, 2008.
“Employment Agreement”
means the written agreement between any Plan Participant and the
Company or any of its Subsidiaries pursuant to which such Plan
Participant is entitled to the benefits under the Plan.
“Employment Period”
means, with respect to a Plan Participant’s employment, the
period from the effective date of the Employment Agreement until
the date the Plan Participant is no longer employed with the
Company.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Excise Taxes” has the
meaning given to such term in Section 4(b) hereof.
“Good Reason” means with
respect to any Plan Participant, the termination of such Plan
Participant’s employment within a year following a material
diminution in Participant’s Base Salary, a material
diminution in the Participant’s authority, duties and
responsibilities or a material change in the geographic location at
which the Plan Participant must perform services and, solely with
respect to Robert E. Ostendorf, either: (i) the failure of the
Company Group to nominate Mr. Ostendorf to the Board of
Directors of NEI and each of its subsidiaries; or (ii) the
Board repeatedly overrides, supersedes or disregards reasonable
decisions by Mr. Ostendorf or reasonable recommendations made
by Mr. Ostendorf to the Board such that the Board materially
interfered with Mr. Ostendorf’s ability to effectively
function as President and Chief Executive Officer. A Participant
may not terminate for Good Reason unless he provides the Company
Group with notice of the condition constituting the Good Reason
within 90 days of the existence of the condition and the
Company Group fails to remedy the condition within 30 days of
such notice.
“Gross-Up Amount” has the
meaning given to such term in Section 4(b) hereof.
“NEI” means Neenah
Enterprises, Inc. a Delaware corporation (formerly known as ACP
Holding Company).
“Non-Employee Director”
has the meaning given to such term in Rule 16b-3 under the
Exchange Act and any successor thereto.
“Payout Period” means,
with respe
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