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Exhibit 10.8
Bristol-Myers Squibb Company
Change In Control Separation
Benefits Plan
and
Summary Plan Description
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Separation Benefits Plan – Effective
September 12, 2006
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Bristol-Myers Squibb
Company
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Purpose
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1
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Section 1 – Eligibility to
Participate
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1
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Section 2 – Eligibility for Separation
Payments and Benefits
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1
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Section 3 – Separation Payments And
Benefits
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3
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Section 4 – Successors to the
Company
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6
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Section 5 – Duration, Amendment and
Plan Termination
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7
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Section 6 – Miscellaneous
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8
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Section 7 – Administrative Information
About Your Plan
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11
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Section 8 – Your Rights and Privileges
Under ERISA
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12
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Section 9 – Other Administrative
Facts
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14
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Separation Benefits Plan – Effective
September 12, 2006
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Bristol-Myers Squibb
Company
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Purpose
The Board of Directors of Bristol-Myers Squibb Company ("BMS" or
the "Company") has adopted the Bristol-Myers Squibb Company Change
In Control Separation Benefits Plan (the "Plan") for eligible
employees of the Company and its participating subsidiaries and
affiliates. The Board of Directors of the Company recognizes that
any prospect of a Change in Control (as defined on page 10 below)
may create uncertainties for employees with respect to their future
employment opportunities, compensation, benefits and conditions of
employment. Because of the value of the services that employees of
the Company render and the importance of their contributions to the
success and profitability of the Company, the Company believes that
it is essential and in the best interest of the Company and its
stockholders to adopt the Plan to provide eligible employees with
additional security to reduce adverse effects on employees’
performance and morale in the event of a Change in Control. The
Company further believes that the Plan will aid the Company in
attracting and retaining highly qualified individuals who are
essential to its success.
Section 1 – Eligibility to Participate
You are eligible to participate in the Plan if you are:
(i) an employee of the Company or a Participating Employer
employed in the United States or Puerto Rico or a U.S. "expatriate"
at a Company location abroad; (ii) you are below the E7 level;
and (iii) you are scheduled to work for the Company or a
Participating Employer at least fourteen (14) hours each week
(an "Eligible Employee").
Notwithstanding anything contained herein, you are not eligible
to participate in the Plan and are excluded from coverage under the
Plan if you are a party to an individual arrangement or a written
employment agreement containing a change-in-control provision that
provides for separation payments in connection with a change in
control or you are covered by the terms of a collective bargaining
agreement. In addition, if you are performing services for the
Company or a Participating Employer as a leased worker (employed
and paid by another company), independent contractor or consultant,
you are not eligible for payments or benefits under the Plan, even
if you are later deemed by a court or any government agency to be a
common law employee of the Company or a Participating Employer.
Section 2 – Eligibility for Separation Payments and
Benefits
Right to separation payments and benefits
You shall be eligible to receive from the Company separation
payments and benefits as set forth in Section 3 if:
(i) there has been a Change in Control; and (ii) within
three (3) years after the effective date of such Change in
Control, your employment by the Company, a Participating Employer,
a controlling entity or a successor entity is terminated,
voluntarily or involuntarily for any one or more of the following
reasons:
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(a)
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Your employment is terminated
involuntarily, other than for Cause, unless you are offered
employment for which you are qualified by reason of knowledge,
training or experience with a controlling entity or a successor
entity.
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1
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Separation Benefits Plan – Effective
September 12, 2006
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Bristol-Myers Squibb
Company
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(b)
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You voluntarily terminate your
employment within sixty (60) calendar days after the
occurrence of any one or more of the following events:
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(1)
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Your base salary that was in effect
immediately before the Change in Control is reduced.
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(2)
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Your annual cash bonus is decreased
below the amount which would have been payable under the bonus plan
in which you participated immediately prior to the Change in
Control had you continued in employment until the end of the fiscal
year of the Company, a controlling entity or successor entity, as
appropriate, and had bonuses been payable at target levels for such
year; provided that such reduction results in the aggregate of your
base salary and cash bonus being reduced below the level that was
in effect immediately prior to the Change in Control. However, a
reduction in bonus shall not include a change effected in the
ordinary course of business that is applicable to all similarly
situated employees of the controlling entity or successor entity
who are not former employees of BMS.
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(3)
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The location of your job or office
is changed, so that you will be based at a location which is more
than 50 miles further from your residence than was your work
location immediately before the Change in Control.
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(4)
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The overall benefits and perquisites
available to you immediately before the Change in Control are
reduced, including a material increase in the cost to you or your
dependents for such benefits or perquisites. Benefits include,
without limitation, qualified or nonqualified defined benefit or
defined contribution pension benefits; stock-based or annual
incentive compensation programs; outplacement services; medical or
dental coverages; disability or life insurance coverages; severance
benefits; or sick pay, vacation pay, paid holidays or paid leave of
absence allowances. Perquisites include, without limitation,
educational assistance, executive physical examinations, expatriate
income tax preparation services and car allowances. However, a
reduction in benefits or perquisites shall not include a change
effected in the ordinary course of business that is applicable to
all similarly situated employees of the controlling or successor
entity who are not former employees of BMS.
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(5)
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A controlling entity or a successor
entity fails or refuses to assume the Company’s obligations
under the Plan.
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Notwithstanding the above, if:
(i) (A) your employment is terminated by the Company or a
Participating Employer without Cause prior to the date of a Change
in Control or (B) an action is taken with respect to you prior
to the date of a Change in Control that would cause you to be
eligible for separation payment and benefits under Section 3
if taken after a Change in Control; and (ii) you reasonably
demonstrate that such termination or action (A) was at the
request of a third party that has indicated an intention or taken
steps reasonably calculated to effect a Change in Control, or
(B) otherwise arose in connection with, or in anticipation of,
a Change in Control that has been threatened or proposed, such
termination or action shall be deemed to have occurred after such
Change in Control for purposes of the Plan, so long as such Change
in Control actually occurs. If any such termination or action
occurs while an agreement is pending and the effective provisions
of such agreement provide for a transaction or transactions which
if consummated would constitute a Change in Control, then such
termination or action shall conclusively be presumed to have
occurred in connection with a Change in Control.
2
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Separation Benefits Plan – Effective
September 12, 2006
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Bristol-Myers Squibb
Company
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Ineligibility for separation payments and
benefits
You shall not be eligible for separation payments and benefits
if your termination of employment occurs by reason of death,
voluntary retirement other than for reasons specified above,
voluntary termination other than for reasons specified above,
disability (as defined in the Company’s long-term disability
plan as in effect immediately prior to a Change in Control), or for
Cause.
Cause
"Cause" shall mean:
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(i)
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refusal by you to substantially
perform your duties with the Company or a Participating Employer,
e.g., job abandonment, (other than any such failure resulting from
your incapacity due to physical or mental illness) for a period of
at least thirty (30) consecutive days after a written demand
for substantial performance is delivered to you by the Company or a
Participating Employer, which demand specifically identifies the
manner in which the Company believes that you have not
substantially performed your duties;
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(ii)
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engaging by you in conduct which is
demonstrably and materially injurious to the Company, its
affiliates or its subsidiaries, monetarily or otherwise;
or
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(iii)
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misconduct or activity deemed
detrimental to the interests of the Company. This may include, but
is not limited to, the following: acts involving dishonesty,
violation of Company policies (such as those related to alcohol or
drugs, etc.), violation of safety rules, disorderly conduct,
discriminatory harassment, unauthorized disclosure of Company
confidential information, or the entry of a plea of nolo contendere
to, or the conviction of, a crime.
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"Cause" shall be interpreted in such a way as to
be consistent with the manner in which such term was interpreted
and applied by the Company under its applicable severance plans in
effect prior to the Change in Control.
Section 3 – Separation Payments And Benefits
Separation payments for employees below E7
If you are an Eligible Employee and one of the events described
in Section 2 occurs, you shall be eligible to receive the
greater of either :
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(i)
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six (6) months of base salary
if you are below a "key executive" ( i.e. , below E4, E4M or
their respective equivalents as determined by the Company)
immediately prior to the Change in Control or twelve
(12) months of base salary if you are an E4, E4M, E5 or E6
employee or an employee at an equivalent executive level as
determined by the Company immediately prior to the Change in
Control; or
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(ii)
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the greater cash severance payable,
if any, under (A) the applicable severance plan of the
controlling entity or successor entity that is in effect at the
time you become eligible for separation payments hereunder,
(B) the applicable severance plan of the Company that is in
effect on the effective date of the Plan, or (C) the
applicable severance plan of the Company in effect immediately
prior to the Change in Control.
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3
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Separation Benefits Plan – Effective
September 12, 2006
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Bristol-Myers Squibb
Company
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Nothing in this Section 3 or the Plan or in
an offer letter from the Company shall entitle you to receive
duplicate benefits. For example, you are not eligible for payments
and benefits under both this Plan and the Company’s severance
plan in effect immediately prior to the Change in
Control.
The base salary used in calculating the separation payments
shall be the greater of: (i) the base salary in effect
immediately prior to the Change in Control; or (ii) the base
salary in effect immediately prior to your employment by the
Company being terminated for any reason specified in
Section 2.
In addition, you will receive an amount equal to the greater of:
(i) the amount which would have been payable under the bonus
plan in which you participated immediately prior to the Change in
Control had you continued in employment until the end of the fiscal
year of the Company, a controlling entity or successor entity, as
appropriate, and had bonuses been payable at target levels for such
year; or (ii) the amount which would have payable under the
bonus plan in which you participated on your termination date had
you continued in employment until the end of the fiscal year of the
Company, a controlling entity or successor entity, as appropriate,
in which your termination date occurs and had bonuses been payable
at target levels for such year, multiplied by a fraction the
numerator of which is the number of whole and partial months that
have elapsed in such fiscal year through your termination date
(counting any partial month as a whole month for this purpose) and
the denominator of which is twelve.
Pay in lieu of notice periods
The separation payments under the Plan shall not be reduced by
any cash payments to which you may be entitled under any federal,
state or local plant-closing or mass layoff law (or similar or
analogous) law, including, without limitation, pursuant to the U.S.
Worker Adjustment and Retraining Notification Act or any state or
local "pay in lieu of notice" law or regulation.
Offset
The separation payments under the Plan shall be reduced (but not
below zero) for employees in Puerto Rico by any payments under
Puerto Rico Act 80, as amended on October 7, 2005. The
separation payments under the Plan shall be reduced (but not below
zero) for "ex pats" with respect to any statutory payments of
severance in any country other than the U.S. and the payments and
benefits hereunder are conditioned upon statutory payments, if any,
being offset.
Period of separation payments
The separation payments you are eligible to receive shall be
paid to you by the Company or the controlling entity or successor
entity in substantially equal installments at regular payroll
intervals according to your pay schedule prior to termination,
unless you begin work with a new employer prior to the expiration
of your period of the separation payments. If you begin working for
a new employer before your separation pay period expires, you will
receive any remaining separation payments as a single lump sum. It
is your responsibility to advise the Company or controlling entity
or successor entity, in writing, if your new employment will begin
before the expiration of the separation pay period.
Payments will commence on the first such payroll date after the
Company receives your signed general release.
General release
The obligation of the Company, controlling entity or successor
entity to make payments hereunder shall be conditioned upon the
timely execution of a written general release of claims against the
Company or a Participating Employer or controlling entity or
successor entity in the form customarily used by the Company
immediately prior to the Change in Control, but with such changes
as may be necessary to
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Separation Benefits Plan – Effective
September 12, 2006
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Bristol-Myers Squibb
Company
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release the controlling entity, the successor
entity and their affiliates and to ensure compliance with legal
requirements. To be eligible to receive separation payments,
Company-subsidized medical, life and dental benefits and to the
extent applicable other benefits as set forth below, you must
execute and return a general release during the requisite time
period.
If you do not return the executed general release to the
Company, controlling entity or the successor entity during the
requisite time period, the Company or successor entity will
consider this a refusal to sign it, and you will not be eligible to
receive the separation payments and other benefits, as
applicable.
No mitigation
You shall not be required to mitigate the amount of any payment
provided for in the Plan by seeking other employment or otherwise
and no such payment shall be offset or reduced by the amount of any
compensation or benefits provided to you in any subsequent
employment.
Other separation benefits
Medical, Dental and Life Insurance Benefits
At termination of employment, you and your enrolled eligible
dependents will be given the opportunity to continue your life,
medical and dental benefits on a subsidized basis to the extent
provided in the Company’s applicable severance plan as in
effect immediately prior to the Change in Control.
Management Stock Options
All ou
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