Exhibit 10.4
ANALOGIC CORPORATION
SEVERANCE PLAN FOR MANAGEMENT
EMPLOYEES
As Amended and Restated, Effective
As Of
December 31, 2008
ANALOGIC CORPORATION
SEVERANCE PLAN FOR MANAGEMENT
EMPLOYEES
TABLE OF CONTENTS
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Page
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ARTICLE I - PURPOSE
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1
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ARTICLE II - DEFINITIONS
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1
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2.1
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“C
OMPENSATION ”
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1
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2.2
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“C
AUSE ” OR “F OR C
AUSE ”
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1
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2.3
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“C
ODE ”
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2
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2.4
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“E
LIGIBLE M ANAGEMENT E MPLOYEE ”
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2
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2.5
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“E
MPLOYEE ”
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2
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2.6
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“E
MPLOYER ”
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2
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2.7
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“ERISA”
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2
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2.8
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“J
OB E LIMINATION ”
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2
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2.9
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“N
OTICE OF J
OB E LIMINATION ”
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3
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2.10
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“N
OTICE P ERIOD ”
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3
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2.11
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“N
OTICE P ERIOD D ATE ”
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3
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2.12
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“P
ARTICIPANT ”
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3
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2.13
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“P
ARTICIPATING E MPLOYER ”
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3
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2.14
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“P
AYMENT COMMENCEMENT DATE ”
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3
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2.15
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“P
LAN ”
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3
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2.16
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“P
LAN A DMINISTRATOR ”
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4
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2.17
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“P
LAN Y EAR ”
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4
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2.18
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“R
ETURN D ATE ”
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4
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2.19
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“R
EVOCATION P ERIOD ”
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4
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2.20
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“S
EVERANCE A GREEMENT ”
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5
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2.21
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“S
EVERANCE B ENEFITS ”
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5
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2.22
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“S
EVERANCE P ERIOD ”
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5
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2.23
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“T
ERMINATION D ATE ”
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5
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2.24
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“V
OLUNTARY S EPARATION P ROGRAM ”
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5
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2.25
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“WARN” OR “WARN A CT ”
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5
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ARTICLE III - PARTICIPATION
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5
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ARTICLE IV- EFFECT ON OTHER
BENEFITS
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6
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ARTICLE V – NOTICE PERIOD, SEVERANCE
PERIOD, AND ACCELERATIONS OF TERMINATION DATE
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6
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5.1
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N
OTICE P ERIOD
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6
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5.2
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A
CCELERATION OF T
ERMINATION D ATE
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6
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5.3
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S
EVERANCE P ERIOD
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6
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ARTICLE VI - BENEFITS
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7
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6.1
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R
ETURNING S EVERANCE A GREEMENT
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7
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6.2
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S
EVERANCE B ENEFIT
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7
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6.3
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A
DDITIONAL P ROVISIONS R ELATED TO S
EVERANCE B ENEFITS
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8
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6.4
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P
AYMENTS SUBJECT TO S
ECTION 409A
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8
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ARTICLE VII – WARN
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9
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ARTICLE VIII - FUNDING
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9
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ARTICLE IX – PLAN ADMINISTRATION AND
FIDUCIARY
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10
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9.1
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N
AMED F IDUCIARY
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10
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9.2
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P
LAN A DMINISTRATION
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10
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9.3
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D
ELEGATION OF D
UTIES
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11
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9.4
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I
NDEMNIFICATION
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11
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9.5
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F
IDUCIARY D UTIES AND R ESPONSIBILITIES
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11
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ARTICLE X – CLAIMS
PROCEDURE
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11
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10.1
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C
LAIMS P ROCEDURE
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11
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10.2
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R
EVIEW OF D
ENIED C LAIM
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12
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10.3
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D
ECISION ON R
EVIEW
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12
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10.4
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N
OTIFICATION OF D
ECISION ON R
EVIEW
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12
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ARTICLE XI – AMENDMENT AND
TERMIANTION
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13
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11.1
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A
MENDMENT
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13
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11.2
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T
ERMINATION
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13
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ARTICLE XII –
MISCELLANEOUS
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13
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12.1
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E
XCLUSIVE B ENEFIT
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13
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12.2
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N
ON -A LIENATION OF B
ENEFITS
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13
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12.3
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L
IMITATION OF R
IGHTS
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14
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12.4
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G
OVERNING L AWS AND J URISDICTION AND V ENUE
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14
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12.5
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S
EVERABILITY
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14
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12.6
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C
ONSTRUCTION
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14
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12.7
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T
ITLES
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14
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12.8
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E
XPENSES
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14
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ARTICLE XIII – EFFECTIVE
DATE
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14
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ii
ANALOGIC CORPORATION
SEVERANCE PLAN FOR MANAGEMENT
EMPLOYEES
Analogic Corporation (the
“Employer”) hereby adopts the Analogic Corporation
Severance Plan for Management Employees (the “Plan”),
effective as of January 1, 2006 as amended and restated
effective December 31, 2008. All prior existing severance pay
plans, programs or practices applicable to Eligible Management
Employees, whether formal or informal, are hereby expressly
superseded by this Plan as applicable to Eligible Management
Employees.
ARTICLE I
Purpose
The purpose of the Plan is to grant
severance benefits to Eligible Management Employees of the Employer
whose employment with the Employer is terminated under the
circumstances described herein. This Plan is intended to constitute
an employee welfare benefit plan within the meaning of
Section 3(1) of ERISA, and is intended to be exempt from the
requirements under Section 409A of the Code.
This Plan is a “Welfare
Program” as defined in the Analogic Corporation Welfare
Benefit Plan (the “Welfare Benefit Plan”).
ARTICLE II
Definitions
2.1 “Compensation” means
the Participant’s rate of regular annual base pay, determined
as of the date of the Eligible Management Employee’s Notice
of Job Elimination. Compensation does not include bonuses,
overtime, commissions, shift differential pay, incentive pay, and
the value of any employee benefits.
2.2 “Cause” or
“For Cause” means:
(a) the Eligible Management Employee
is convicted of a felony or misdemeanor involving fraud, dishonesty
or moral turpitude, or
(b) the Eligible Management
Employee, in carrying out his duties, acts or fails to act in such
a manner which is determined in the sole discretion of the
Employer’s Board of Directors to be:
(i) willful gross neglect,
and/or
1
(ii) willful gross
misconduct
resulting, in either case, in harm
to the Employer unless such act, or failure to act, was believed by
the Eligible Management Employee, in reasonable good faith, to be
in the best interest of the Employer.
2.3 “Code” means the
Internal Revenue Code of 1986, as amended from time to
time.
2.4 “Eligible Management
Employee” means any one of the following:
(a) the President and Chief
Executive Officer of the Employer,
(b) a designated corporate officer
of the Employer, or
(c) other designated officers of the
Employer to include:
(i) divisional, operations,
technical and administrative officers of the Employer,
and
(ii) presidents/general managers of
subsidiary corporations of the Employer.
All of the above Eligible Management
Employees will occupy a position with an executive salary grade
above E08.
2.5 “Employee” means
each individual who is a common law employee of the Employer. The
term Employee does not include temporary employees as defined in
the Analogic 401(k) Plan, independent contractors (even if the
Internal Revenue Service characterizes or recharacterizes such
person as an employee), leased employees within the meaning of
Section 414(n)(2) or Section 414(o)(2) of the Code, or
non-resident aliens.
2.6 “Employer” means
Analogic Corporation, a Massachusetts corporation, and any entity
which succeeds to the business and assumes the obligations of the
Employer hereunder.
2.7 “ERISA” means the
Employee Retirement Income Security Act of 1974, as amended from
time to time.
2.8 “Job Elimination”
means an involuntary termination of employment including, but not
limited to, termination of employment on account of changes in the
Employer’s operations or organization, reorganizations,
staffing changes, job elimination, or job force reductions, as
determined by the Employer in its sole discretion.
Notwithstanding anything to the
contrary contained herein, Job Elimination shall not
result:
(a) from an Eligible Management
Employee’s termination of employment on account of voluntary
resignation, retirement or death prior to provision of a Notice of
Job Elimination;
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(b) if the Employer or a
Participating Employer has offered the Eligible Management Employee
a comparable replacement position (as determined by the Employer,
in its sole and absolute discretion, taking into account the
similarity of duties, similarity of exempt status and salary range;
provided that a new position will not be considered
“comparable” if it is not within reasonable commuting
distance from the Eligible Management Employee’s home, offers
a salary significantly less than the Eligible Management
Employee’s former position, or is of a grade more than one
grade below the Eligible Management Employee’s former
position);
(c) if the Eligible Management
Employee’s employment is terminated For Cause;
(d) if, following the sale or
outsourcing of any portion of the Employer, an Eligible Management
Employee is offered by the successor organization a position at a
base compensation rate not significantly lower than that for the
Eligible Management Employee’s former position, or of a grade
not more than one grade lower than the Eligible Management
Employee’s former position;
(e) from the Eligible Management
Employee’s failure to return to work within the time required
following an approved leave of absence;
(f) from a change in employment that
results from a natural disaster, unforeseeable governmental action,
act of war, or other similar unanticipated business disaster;
or
(g) from a voluntary transfer of
employment between the Employer and any Participating
Employer.
2.9 “Notice of Job
Elimination” means a written notice provided by the Employer
to an Eligible Management Employee informing that employee of a Job
Elimination.
2.10 “Notice Period”
means the sixty (60) day period beginning on the day
immediately following the date the Employer provides a Notice of
Job Elimination, or on such other date as the Employer shall
determine in its sole discretion. In no event may the Notice Period
end prior to the Return Date. In the event of any material change
in the Notice of Job Elimination, a new Notice Period must begin on
the day immediately following the date the Employer provides a
revised Notice of Job Elimination reflecting the material change.
However, if the Employer and the Eligible Management Employee
agree, the prior Notice Period may continue to apply.
2.11 “Notice Period
Date” means the first day of any Notice Period.
2.12 “Participant” means
any Eligible Management Employee who has been provided a Notice of
Job Elimination and who satisfies the requirements of
Section 6.1.
2.13 “Participating
Employer” means the term as it is defined in the Welfare
Benefit Plan.
2.14 “Payment Commencement
Date” means the first payroll date following the later of
(i) the Return Date and (ii) the end of the Revocation
Period, if applicable.
2.15 “Plan” means the
Analogic Corporation Severance Plan for Management Employees as set
forth herein and as it may be amended from time to time.
3
2.16 “Plan
Administrator” means the Employer or such other individual,
committee or firm as the Employer shall designate from time to
time.
2.17 “Plan Year” means
the twelve (12) consecutive month period beginning
January 1 and ending December 31.
2.18 “Return Date” means
the date by which an Eligible Management Employee must sign and
return a Severance Agreement including a release of claims in order
to obtain Severance Benefits. Except as otherwise determined by the
Employer in its sole discretion, or otherwise required by law, the
Return Date is the date twenty one (21) calendar days
following the date the Participant is provided with a Notice of Job
Elimination; provided however that:
(a) if the twenty-first calendar day
is not a business day, the Return Date will be on the next business
day;
(b) if the Eligible Management
Employee is at least forty years old, and the Job Elimination
and/or the Voluntary Separation Program affects two or more
Eligible Management Employees, the Return Date will be on the
forty-fifth (45) calendar day following the date the Eligible
Management Employee is provided with a Notice of Job Elimination
(or the next business day if the forty-fifth calendar day is not a
business day);
(c) if the Eligible Management
Employee is under forty years old and is otherwise entitled, under
applicable state or local fair employment practice law, to more
than twenty-one (21) calendar days in which to consider
whether to execute a Severance Agreement, the Return Date will be a
date determined by reference to applicable state or local fair
employment practices law; and
(d) if the WARN Act applies, the
Return Date will be on the sixtieth (60) calendar day
following the date the Participant is provided with a Notice of Job
Elimination (or the next business day if the sixtieth
(60) calendar day is not a business day).
A Severance Agreement returned to
the Employer that is signed and physically received by the Return
Date, or, if mailed, is addressed properly for delivery, postmarked
by the United States Postal Service no later than the Return Date,
and actually received by the Employer no later than 10 calendar
days from the Return Date, will be considered timely. Severance
Agreements which are not timely signed and/or returned as provided
herein will not be accepted by the Employer, unless the Employer
decides to accept it on a case-by-case basis, in its sole
discretion.
2.19 “Revocation Period”
means the seven calendar day (or other longer legally required
calendar day) period immediately following the date the Eligible
Management Employee signs the Severance Agreement during which an
Eligible Management Employee who is either: (i) at least forty
(40) years old; or (ii) is under forty (40) years
old and is employed in a state that requires a specific Revocation
Period, may revoke his or her signed Severance Agreement. To be
effective, a written request to revoke must be received by the
Employer (as defined by applicable law) no later than 5:00 p.m. EST
on the seventh calendar day (or other longer period required by
law) from the date the Eligible Management Employee signed the
Severance Agreement or, if mailed, be postmarked no later than the
seventh calendar day (or other longer period required by law) from
the date the Eligible Management Employee signed the Severance
Agreement.
4
2.20 “Severance
Agreement” means a written agreement in a form provided by
the Employer, in its sole discretion, by which an Eligible
Management Employee agrees to waive and release the Employer from
all legal claims the Eligible Management Employee may have against
the Employer in exchange for payment of Severance Benefits. To be
effective, a Severance Agreement must be signed and returned to the
Employer by the Return Date (and not be revoked during any
applicable Revocation Period). Severance Agreements are not
required to be identical among Eligible Management
Employees.
2.21 “Severance
Benefits” means benefits provided for in this Plan pursuant
to Section 6.2. The Severance Benefits that a Participant may
receive are net amounts from which applicable taxes, withholding
and appropriate deductions have been taken, and including but not
limited to deduction of any outstanding amount owed to the Employer
by the Participant regardless of the reason for or source of the
amount due.
2.22 “Severance Period”
means the period of time commencing on the Payment Commencement
Date during which a Participant receives Severance Benefits
pursuant to Section 6.2.
2.23 “Termination Date”
means the last day that the Eligible Management Employee is
employed by the Employer which day is the last day of the Notice
Period, except as otherwise provided in
Section 5.2.
2.24 “Voluntary Separation
Program” means a program of limited time duration under which
an Eligible Management Employee is permitted to voluntarily
separate from employment wit