EXHIBIT 10.4
CHEMED CORPORATION
SENIOR EXECUTIVE SEVERANCE
POLICY
AS AMENDED JULY 9, 2009
Chemed
Corporation hereby establishes the Chemed Corporation Senior
Executive Severance Policy (“the Policy”).
1.
PARTICIPATION. Participants in the Policy shall
consist of those officers designated from time to time on
Attachment A to this Policy by the Compensation/Incentive Committee
of the Board of Directors, as may be approved by the Board of
Directors. The Compensation/Incentive Committee and/or
the Board shall have the ability to add or remove Participants at
its discretion.
2.
TERMINATION OF EMPLOYMENT .
§2.1 Termination of
Employment . The employment of a Participant shall
terminate upon the occurrence of any of the following:
(a) The
death of the Participant;
(b) The
termination of the Participant's employment due to the
Participant's disability pursuant to §2.2;
(c) The
termination by the Company of the Participant's employment for
Cause pursuant to §2.3;
(d) The
retirement of the Participant under a retirement plan of the
Company; or
(e) The
resignation of the Participant.
The termination
by the Company of the Participant's employment for any reason other
than those specified in this §2.1 shall hereinafter be
referred to as a termination "Without Cause".
§2.2 Disability
. If, by reason of physical or mental disability, the
Participant is unable to carry out his or her duties pursuant to
this Policy for four (4) consecutive months, the
Participant’s may be terminated by the Company upon two (2)
months' written notice to be given to the Participant at any time
after the period of four (4) continuous months of disability and
while such disability continues. If, prior to the
expiration of the two (2) months after the giving of such notice,
the Participant shall recover from such disability and return to
the active discharge of his or her duties, then such notice shall
be of no further force and effect and the Participant's employment
shall continue as if such disability had not occurred. If the
Participant shall not so recover from his or her disability and
return to his or her duties, then the Participant’s services
shall terminate at the expiration date of such two (2) months'
notice. In the event a dispute arises between the
Participant and the Company concerning the Participant's physical
or mental ability to continue or return to the performance of his
or her duties as aforesaid, the Participant shall submit to
examination by a competent physician mutually agreeable to both
parties, and such physician's opinion as to the Participant's
ability to so perform will be final and binding.
§2.3 For Cause
. The Company may, at any time by written notice to the
Participant, terminate his or her services for
Cause. Such notice shall specify the event or events and
the actions or failure to act constituting
Cause. “ ACause ” shall mean, with
respect to a Participant’s termination of employment: (a) the
willful and repeated failure of the
Participant to perform substantially the
Participant’s duties with Company (other than any such
failure resulting from incapacity due to physical or mental
illness); (b) the Participant’s conviction of, or plea of
guilty or nolo contendere to, which through lapse of time or
otherwise is not subject to appeal, a felony which is materially
and demonstrably injurious to Company; or (c) the
Participant’s engagement in willful gross misconduct or gross
negligence in connection with his or her employment.
If the basis for
discharge is pursuant to paragraph (c) above, the Participant shall
have thirty (30) days from receipt of the notice of termination for
Cause to cure, if curable, the actions or failure to act specified
in such notice and, in the event of any such cure within such
period, such conduct shall not constitute Cause
hereunder.
§2.4 Consequences of
Termination .
(a) If the
Participant's employment shall terminate pursuant to any of the
provisions of this Article 2, the Participant’s base salary
and all incentive compensation shall cease to accrue
forthwith.
(b) If the Company shall terminate the
Participant's employment Without Cause, the Company shall pay the
Participant within 10 days of termination but in no event later
than the following March 15 a lump sum amount in cash equal to one
and one-half times the Participant’s then annual base salary
plus a lump sum amount in cash equal to the product of: (i) the
average amount of the Participant’s annual incentives under
the Company’s annual incentive plan paid or payable for the
last three full fiscal years prior to termination; and (ii) a
fraction, the numerator of which is the number of days in the
fiscal year through the date of termination and the denominator of
which is 365. The Participant shall also be eligible to
participate in the Company’s welfare benefits plans such as
health insurance, life insurance, long-term care insurance, and
long-term disability benefits plans for twelve months following
termination, at the then current employee contribution rates;
provided that if the Participant is precluded from continuing his
or her participation in any applicable plan, program, or
arrangement, the Participant shall be provided with the after-tax
cost of continuation of such coverage, including premiums under the
Consolidated Omnibus Budget Reconciliation Act of 1985, as amended,
(“COBRA Premiums”), for the Participant with respect to
the benefits provided under such plan, program, or arrangement,
paid as a lump sum within 10 days of termination, but in no event
later than the following March 15. If the Participant
becomes reemployed with another employer and is eligible to receive
health insurance, life insurance, long-term care
insurance or long-term disability coverage under another
employer-provided plan (regardless of whether the Participant
elects such coverage), the welfare benefits provided pursuant to
this Policy shall be secondary to those provided under such other
plan.
(c) In the event
that the Participant’s employment shall terminate pursuant to
any of the provisions of this Article 2, the rights of the
Participant under any incentive compensation plan of the Company,
under any executive or employee benefit plans or arrangements, or
otherwise shall be determined, subject to this Article 2, in
accordance with the terms and provisions
