Exhibit 10.33
CAPELLA EDUCATION
COMPANY
SENIOR EXECUTIVE SEVERANCE
PLAN
(As Originally Effective
September 11, 2006,
and as Amended December 13,
2007 and August 14, 2008)
Capella Education Company
(“CEC”) has established the Capella Education Company
Senior Executive Severance Plan (the “Plan”) to provide
severance pay and other benefits to eligible employees of CEC and
its subsidiaries whose employment terminates under certain covered
circumstances. CEC, in its complete and sole discretion, will
determine who is an eligible employee, the requirements to receive
severance benefits, and the amount of any benefits.
The Plan was originally effective
September 11, 2006. Prior to that date, severance benefits for
certain eligible employees were provided under the Capella
Education Company Executive Severance Plan. The Plan was amended
effective December 13, 2007. The Plan, as amended in this
document, is effective for eligible employees who terminate on or
after August 14, 2008. This Plan supersedes and replaces any
policy, plan or practice that may have existed in the past
regarding the payment of severance benefits to eligible employees,
with the exception of the Capella Education Company Executive
Severance Plan. However, any individual written employment contract
or agreement between CEC (or a subsidiary) and an eligible employee
that specifically provides for the payment of severance benefits
remains in force, as detailed below.
This document is both the
“Plan document” and the “Summary Plan
Description” for the Plan.
Any reference in this Plan to
“Capella” includes CEC and its subsidiaries.
Only those employees who have been
designated in writing by CEC’s Chief Executive Officer
(“CEO”) as eligible to participate in the Plan are
eligible to become participants in the Plan. However, any employee
who was designated as a Level 2 Participant under the Capella
Education Company Executive Severance Plan as of September 11,
2006 shall automatically become a Participant in this Plan on such
date.
The terms of the written designation
by the CEO, not the employee’s job title or classification
for other purposes, determine whether an employee is eligible for
benefits under the Plan. The written designation for a particular
employee may be changed from time to time at the discretion of the
CEO.
However, the Plan is intended to
cover only employees who are in a select group of management or
highly compensated employees within the meaning of ERISA
§§ 201(2), 301(a)(3) and 401(a)(1); and, accordingly, if
any interpretation is issued by the Department of Labor that would
exclude any employee from satisfying that requirement, such
employee immediately will cease to be a participant in this Plan
and will instead become a participant in the Capella Education
Company Executive Severance Plan.
If you are designated as an eligible
employee under this Plan, you must also complete 90 days of service
with Capella, measured from your most recent date of hire, prior to
becoming a participant in the Plan.
You will cease to be a participant
in this Plan when you cease to be designated by CEC as an eligible
employee.
In general, if you are an eligible
participant in this Plan, and you comply with all provisions and
requirements of the Plan, you will receive severance benefits if
your employment with Capella is involuntarily terminated at the
initiative of Capella other than for Cause. A termination by you
for Good Reason within 24 months following a qualified Change in
Control is also a severance eligible event. These concepts are
described in detail below.
“For
Cause”. You will
not be eligible for benefits under this Plan if your employment is
terminated by Capella “for Cause.” “Cause”
means 1) employee’s commission of a crime or other act that
could materially damage the reputation of Capella; 2)
employee’s theft, misappropriation, or embezzlement of
Capella property; 3) employee’s falsification of records
maintained by Capella; 4) employee’s failure substantially to
comply with the written policies and procedures of Capella as they
may be published or revised from time to time (in writing, on the
Faculty Center website, or on the Stella intranet); 5)
employee’s misconduct directed toward learners, employees, or
adjunct faculty; or 6) employee’s failure substantially to
perform the material duties of employee’s Capella employment,
which failure is not cured within 30 days after written notice from
Capella specifying the act of non-performance.
“Good
Reason”. If you
initiate the termination of your employment with Capella, you will
be eligible for Plan benefits only if you terminated with Good
Reason following a qualified Change in Control, as defined below.
“Good Reason” means 1) the material reduction of
your job responsibilities upon or after a Change in Control; 2) the
material diminution of your base compensation; or 3) a
reassignment of your principal place of work, without your consent,
to a location more than 50 miles from your principal place of work
upon or after a Change of Control.
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To be eligible for Plan benefits,
you must terminate employment for Good Reason within 24 months
after the date of the qualified Change in Control. In addition, you
must have provided written notice to CEC of the asserted Good
Reason not later than 30 days after the occurrence of the event on
which Good Reason is based and at least 30 days prior to your
proposed termination date. CEC may take action to cure your stated
Good Reason within this 30-day period. If CEC does so, you will not
be eligible for Plan benefits if you voluntarily
terminate.
Notwithstanding any individual
agreement you may have with CEC to the contrary, a termination of
employment for Good Reason under this Plan will be limited to such
terminations as would qualify as an involuntary separation from
service for good reason under Code Section 409A and the
regulations thereunder.
“Change in
Control”. For
purposes of this Plan, a qualifying “Change in Control”
of CEC shall be deemed to occur if any of the following
occur:
(1) Any “person” (as
such term is used in Section 13(d) and 14(d) of the Securities
Exchange Act of 1934 (the “Exchange Act”)) acquires or
becomes a “beneficial owner” (as defined in Rule 13d-3
or any successor rule under the Exchange Act), directly or
indirectly, of securities of CEC representing the following:
(i) 50% or more of the combined voting power of CEC’s
then outstanding securities entitled to vote generally in the
election of directors (“Voting Securities”) at any time
prior to CEC selling any of its shares in a public offering
pursuant to a registration statement filed under the Securities Act
of 1933, as amended (the “Securities Act”), or
(ii) 35% or more of the combined voting power of CEC’s
then outstanding Voting Securities at any time after CEC sells any
of its shares in a public offering pursuant to a registration
statement filed under the Securities Act. Provided, however, that
the following shall not constitute a Change in Control:
(A) any acquisition or beneficial
ownership by CEC or a subsidiary;
(B) any acquisition or beneficial
ownership by any employee benefit plan (or related trust) sponsored
or maintained by CEC or one or more of its subsidiaries;
(C) any acquisition or beneficial
ownership by any corporation with respect to which, immediately
following such acquisition, more than 50% of both the combined
voting power of CEC’s then outstanding Voting Securities and
the Shares of CEC is then beneficially owned, directly or
indirectly, by all or substantially all of the persons who
beneficially owned Voting Securities and Shares of CEC immediately
prior to such acquisition in substantially the same proportions as
their ownership of such Voting Securities and Shares, as the case
may be, immediately prior to such acquisitions;
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(D) any acquisition of Shares or
Voting Securities in CEC’s initial public offering pursuant
to a registration statement filed under the Securities
Act.
(2) A majority of the members of the
Board of Directors of CEC shall not be Continuing Directors.
“Continuing Directors” shall mean: (A) individuals
who, on the date hereof, are directors of CEC, (B) individuals
elected as directors of CEC subsequent to the date hereof for whose
election proxies shall have been solicited by the Board of
Directors of CEC or (C) any individual elected or appointed by
the Board of Directors of CEC to fill vacancies on the Board of
Directors of CEC caused by death or resignation (but not by
removal) or to fill newly-created directorships;
(3) Approval by the stockholders of
CEC of a reorganization, merger or consolidation of CEC or a
statutory exchange of outstanding Voting Securities of CEC, unless,
immediately following such reorganization, merger, consolidation or
exchange, all or substantially all of the persons who were the
beneficial owners, respectively, of Voting Securities and Shares of
CEC immediately prior to such reorganization, merger, consolidation
or exchange beneficially own, directly or indirectly, more than 50%
of, respectively, the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of
directors and the then outstanding shares of common stock, as the
case may be, of the corporation resulting from such reorganization,
merger, consolidation or exchange in substantially the same
proportions as their ownership, immediately prior to such
reorganization, merger, consolidation or exchange, of the Voting
Securities and Shares of CEC as the case may be; or
(4) Approval by the stockholders of
CEC of (x) a complete liquidation or dissolution of CEC or
(y) the sale or other disposition of all or substantially all
of the assets of CEC (in one or a series of transactions), other
than to a corporation with respect to which, immediately following
such sale or other disposition, more than 50% of, respectively, the
combined voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election of
directors and the then outstanding shares of common stock of such
corporation is then beneficially owned, directly or indirectly, by
all or substantially all of the persons who were the beneficial
owners, respectively, of the Voting Securities and Shares of CEC
immediately prior to such sale or other disposition in
substantially the same proportions as their ownership, immediately
prior to such sale or other disposition, of the Voting Securities
and Shares of CEC, as the case may be.
At all times after CEC sells any of
its shares in a public offering pursuant to a registration
statement filed under the Securities Act, the references to 50% in
subsections (1)(C), (3) and (4) above shall be changed to
65%.
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Timely Release
Required. Regardless of
the reason for your termination, you will not be eligible for Plan
benefits unless you sign an approved release form after your
employment with CEC or a subsidiary actually terminates and timely
deliver such signed release form to CEC. You may obtain a copy of
the current release form at any time by contacting the CEC Human
Resources Department. However, CEC will determine the contents of
the release form, and may revise it from time to time as
appropriate to deal with particular severance situations. As such,
the release form you will be required to sign to receive benefits
under the Plan may differ from any release form you previously
received.
The release will generally include
provisions regarding noncompetition with Capella for a period of
time after your employment terminates, confidentiality, return of
Capella property and other topics, including a release of all
claims against Capella, its employees and its representatives. The
release may also include other topics in a given situation,
including non-solicitation of clients and/or employees and
compliance with CEC policies (such as code of conduct, business
ethics and insider trading, as applicable). Severance benefits will
be paid only after any period for rescinding the release has
expired. If you violate any provisions of the release, CEC will no
longer be required to pay you any remaining severance benefits due
to you under the Plan.
Ineligibility for
Benefits. Severance
benefits will not be paid under this Plan in any of the following
circumstances:
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You are offered
another position with Capella (or the successor/ purchasing entity)
and you refuse to accept that position, other than for Good Reason
in connection with a qualified Change in Control.
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You voluntarily
terminate your employment with Capella (or the successor/purchasing
entity), other than for Good Reason in connection with a qualified
Change in Control.
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Your
termination of employment does not qualify as a “separation
from service” under Internal Revenue Code Section 409A
or any guidance issued thereunder.
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Your employment
is terminated by Capella (or the successor/ purchasing entity) for
Cause, whether or not in connection with a Change in
Control.
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You are placed
on a temporary layoff.
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Your employment
terminates due to death, disability, or failure to return to work
for Capella following a leave of absence, layoff or any other
period of authorized absence from Capella.
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You refuse to
sign the release form prepared b
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