DANA HOLDING CORPORATION
EXECUTIVE SEVERANCE PLAN
DANA HOLDING CORPORATION
EXECUTIVE SEVERANCE PLAN
INTRODUCTION
Dana
Holding Corporation, a Delaware corporation (the
“Company”) has adopted this Executive Severance Plan
(the “Plan”), effective as of June 18, 2008 for
the benefit of certain designated employees.
Designated Employees (each a “Designated Employee”) are
defined as those salaried employees of the Company or any
subsidiary or division of the Company who are: (i) Salary
Grade 18 or above, based on the compensation structure in place on
the Effective Date; and (2) identified on a list, which may be
amended from time to time prior to an event constituting a Change
in Control (subject to the provisions of Article III),
maintained by the Chief Administrative Officer.
The Plan
provides regular severance benefits to Designated Employees whose
employment is terminated prior to a Change in Control (as defined
in Section 1.7) for any reason other than “Cause”
(as defined in Section 1.5), death, disability or voluntary
resignation. Regular severance benefits are covered in
Section 3.3 of this Plan.
The Plan
also provides severance pay benefits to Designated Employees
(a) who are active employees of Dana Corporation or one of its
subsidiaries or divisions on the date immediately preceding the
date on which a Change in Control occurs and (b) whose
employment is terminated in a Qualifying Termination (as defined in
Section 1.17).
The
Company considers it to be in the best interests of its
stockholders to take reasonable steps to retain its key management
personnel. Further, the Board of Directors of the Company (the
“Board”) recognizes that the uncertainty and questions
that arise after a change in the executive leadership of the
Company could result in the departure or distraction of management
personnel to the detriment of the Company and its
stockholders.
The
Board has determined, therefore, that appropriate steps should be
taken to reinforce and encourage the continued attention and
dedication of key management team to their assigned duties without
distraction.
ARTICLE I
DEFINITIONS
As used herein the following words
and phrases shall have the following respective meanings unless the
context clearly indicates otherwise.
1.1 “Accounting Firm”
shall mean PricewaterhouseCoopers or, if such firm is unable or
unwilling to perform the calculations required under this Plan,
such other national accounting firm as shall be designated by
agreement between the Designed Employee and the Company.
1.2 “Affiliate” shall
mean a corporation or other entity which is not a subsidiary of the
Company and which directly, or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common
control with, the Company. For the purpose of this definition, the
terms “control”, “controls” and
“controlled” mean the possession, direct or indirect,
of the power to direct or cause the direction of the management and
policies of a corporation or other entity, whether through the
ownership of voting securities, by contract, or otherwise.
1.3 “Beneficial Owner” or
“Beneficially Owned” shall have the meaning set forth
in Rule 13d-3 under the Exchange Act.
1.4 “Board” shall mean
the board of directors of the Company.
1.5 “Cause” shall mean a
Designated Employee’s (i) willful and continued failure
to perform substantially the duties owed to the Company or its
affiliates (other than a failure resulting from the Designated
Employee’s incapacity due to physical or mental illness)
after a written demand for substantial performance is delivered
specifically identifying the nature of such unacceptable
performance; (ii) conviction of, or plea of guilty, or nolo
contendere, to the charge of having committed a felony or any
other criminal charge involving fraud, moral turpitude,
embezzlement or theft (whether or not such conviction is later
reversed for any reason); (iii) material violation of the
Company’s standards of business conduct or other Company
policies applicable to Company employees that warrants termination;
(iv) abuse of alcohol or either prescription or illegal drugs
substantially affecting work performance; (v) conduct that
constitutes gross misconduct in the performance of his employment
duties, including, but not limited to any act of dishonesty or
knowing or willful breach of fiduciary duty that is intended to
result in personal enrichment or gain at the expense of the Company
or any of its affiliates or subsidiaries; or (vi) deliberate,
willful or intentional act that causes substantial harm, loss or
injury to the Company or any Affiliate.
The
Committee, as hereinafter defined, shall make the determination as
to whether the termination is for Cause and such determination
shall be binding, final and conclusive on all concerned.
1.6 “Centerbridge” means
Centerbridge Capital Partners, L.P., a Delaware limited
partnership, and its affiliated investment funds.
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1.7 “Change in Control”
except as may be otherwise prescribed by the Committee in an
Evidence of Award, shall mean the first to occur of any of the
following events:
(a) any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) (a “Person”) other than as a result of
Centerbridge’s conversion of preferred to common becomes the
beneficial owner (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of thirty percent (30%) or more of the
combined voting power of the then-outstanding Voting Stock of the
Company; except , that:
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i. |
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for purposes of this Section 1.7(a), the following
acquisitions shall not constitute a Change in Control: (1) any
acquisition of Voting Stock of the Company directly from the
Company that is approved by a majority of the Incumbent Directors,
(2) any acquisition of Voting Stock of the Company by the
Company or any Affiliate, (3) any acquisition of Voting Stock
of the Company by the trustee or other fiduciary holding securities
under any employee benefit plan (or related trust) sponsored or
maintained by the Company or any Affiliate, and (4) any
acquisition of Voting Stock of the Company by any Person pursuant
to a transaction described in clauses (i), (ii) and
(iii) of Section 1.7(a); |
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ii. |
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if any Person becomes the beneficial owner of thirty percent
(30%) or more of combined voting power of the then-outstanding
Voting Stock of the Company as a result of a transaction or series
of transactions described in clause (1) of
Section 1.7(a)(i) above and such Person thereafter becomes the
beneficial owner of any additional shares of Voting Stock of the
Company representing one percent (1%) or more of the
then-outstanding Voting Stock of the Company, other than as a
result of (x) a transaction described in clause (1) of
Section 1.7(a)(i) above, or (y) a stock dividend, stock
split or similar transaction effected by the Company in which all
holders of Voting Stock are treated equally, then such subsequent
acquisition shall be treated as a Change in Control; |
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iii. |
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a Change in Control will not be deemed to have occurred if a
Person other than as a result of Centerbridge’s conversion of
preferred to common becomes the beneficial owner of thirty percent
(30%) or more of the Voting Stock of the Company as a result of a
reduction in the number of shares of Voting Stock of the Company
outstanding pursuant to a transaction or series of transactions
that is approved by a majority of the Incumbent Directors unless
and until such Person thereafter becomes the beneficial owner of
additional shares of Voting Stock of the Company representing one
percent (1%) or more of the then-outstanding Voting Stock of the
Company, other than as a result of a stock dividend, stock split or
similar transaction effected by the Company in which all holders of
Voting Stock are treated equally; and |
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iv. |
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if at least a majority of the Incumbent Directors determine in
good faith that a Person has acquired beneficial ownership of
thirty percent (30%) or more of the Voting Stock of the Company
inadvertently, and such Person divests as promptly as practicable,
but no later than the date, if any, set by the Incumbent Directors,
a sufficient number of shares so that such Person beneficially owns
less than thirty percent (30%) of the Voting Stock of the Company,
then no Change in Control shall have occurred as a result of such
Person’s acquisition; or |
(b) the consummation of a
reorganization, merger or consolidation of the Company with, or the
acquisition of the stock or assets of the Company by, another
Person, or similar transaction (each, a “Business
Transaction”), unless, in each case, immediately following
such Business Transaction (A) the Voting Stock of the Company
outstanding immediately prior to such Business Transaction
continues to represent, directly or indirectly, (either by
remaining outstanding or by being converted into Voting Stock of
the surviving entity or any parent thereof), more than fifty
percent (50%) of the combined voting power of the then outstanding
shares of Voting Stock or comparable equity interests of the entity
resulting from such Business Transaction (including, without
limitation, an entity which as a result of such transaction owns
the Company or all or substantially all of the Company’s
assets either directly or through one or more subsidiaries),
(B) no Person (other than the Company, such entity resulting
from such Business Transaction, or any employee benefit plan (or
related trust) sponsored or maintained by the Company or any
Affiliate or such entity resulting from such Business Transaction)
beneficially owns, directly or indirectly, thirty percent (30%) or
more of the combined voting power of the then outstanding shares of
Voting Stock of the entity resulting from such Business
Transaction, and (C) at least a majority of the members of the
board of directors of the entity resulting from such Business
Transaction were Incumbent Directors at the time of the execution
of the initial agreement or of the action of the Board providing
for such Business Transaction; or
(c) during any consecutive 18-month
period, more than fifty percent (50%) of the Board ceases to be
comprised of Incumbent Directors; or
(d) consummation of a transaction
that implements in whole or in part a resolution of the
stockholders of the Company authorizing a sale of all or
substantially all of Company’s assets or a complete
liquidation or dissolution of the Company, except pursuant to a
Business Transaction that complies with clauses (A), (B) and
(C) of Section 1.7(b); or
(e) any event the Board of Directors
determines, in its sole discretion, will constitute a “Change
in Control” for purposes of the Plan.
Notwithstanding the foregoing (other than Section 1.7(e)), any
disposition of all or substantially all of the assets of the
Company pursuant to a spinoff, split-up or similar transaction (a
“Spinoff”) shall not be treated as a Change in Control
if, immediately following the Spinoff, holders of the Prior Voting
Securities immediately prior to the Spinoff continue to
beneficially own, directly or indirectly, more than fifty percent
(50%) of the combined voting power of the
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then
outstanding securities of both entities resulting from such
transaction, in substantially the same proportions as their
ownership, immediately prior to such transaction, of the Prior
Voting Securities; provided , that if another
Business Combination involving the Company occurs in connection
with or following a Spinoff, such Business Combination shall be
analyzed separately for purposes of determining whether a Change in
Control has occurred.
1.8 “Change in Control
Date” shall mean the date on which the Change in Control
occurs. Notwithstanding the first sentence of this definition, if a
Designated Employee’s employment with the Company terminates
prior to the Change in Control Date and it is reasonably
demonstrated that such termination (a) was at the request of
the third party who has taken steps reasonably calculated to effect
the Change in Control or (b) otherwise arose in connection
with or in anticipation of the Change in Control, then
“Change in Control Date” shall mean the date
immediately prior to the date of such Designated Employee’s
termination of employment.
1.9 “Code” shall mean the
Internal Revenue Code of 1986, as amended from time to time,
including any rules and regulations promulgated thereunder, along
with Treasury and IRS interpretations thereof. Reference to any
section or subsection of the Code includes reference to any
comparable or succeeding provisions of any legislation that amends,
supplements or replaces such section or subsection.
1.10 “Company” shall mean
Dana Holding Corporation, a Delaware Corporation, and its
successors.
1.11 “Disability” shall
mean the absence of a Designated Employee from the Designated
Employee’s duties with the Company on a full-time basis for
one hundred eighty (180) consecutive business days as a result
of incapacity due to mental or physical illness which is determined
to be total and permanent by a physician selected by the Company or
its insurers and reasonably acceptable to the Designated Employee
or the Designated Employee’s legal representative.
1.12 “Effective Date”
shall mean June 18, 2008.
1.13 “Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended from time to
time.
1.14 “Good Reason” shall
mean a Designed Employee’s resignation of employment without
the express written consent of the Designated Employee during the
Term as a result of any one of the following:
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(a) |
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a meaningful and detrimental alteration in such Designated
Employee’s position, titles, or the nature or status of
responsibilities (including reporting responsibilities) from those
in effect immediately prior to the Change in Control Date provided,
however, that this Section 1.14 shall not apply to Tier 3
Employees and, notwithstanding the foregoing, in no event shall a
termination of employment pursuant to this Section 1.14 be
considered to be for “Good Reason” if, (x) such
assignment, action or change results |
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from the Designated Employee’s termination of employment
for Cause, or from the Designated Employee’s Disability or
death or (y) at the time of the termination, the Designated
Employee shall have had a position with a title, level of duties
and responsibilities substantially similar to the Designated
Employee’s title, duties and responsibilities immediately
prior to the Change in Control (disregarding any changes as a
result of the Company no longer being publicly traded or becoming a
subsidiary, and any changes to conform titles to those of
equivalent positions in an affiliate of the Company); |
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(b) |
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a reduction by the Company in such Designed Employee’s
Annual Base Salary as in effect immediately prior to the Change in
Control Date or as the same may be increased from time to time
thereafter; a failure by the Company to increase such Designated
Employee’s salary at a rate commensurate with that of other
similarly situated key executives of the Company; or a reduction in
the target incentive opportunity percentage used to determine such
Designated Employee’s Target Bonus below the percentage in
effect immediately prior to the Change in Control Date; |
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(c) |
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the failure by the Company to continue to provide such
Designated Employee with benefits at least as favorable in the
aggregate to those enjoyed by such Designated Employee under the
Company’s retirement, savings, life insurance, medical,
health and accident, disability, and fringe benefit plans and
programs in which such Designated Employee participated in
immediately prior to the Change in Control Date; or the failure by
the Company to provide such Designated Employee with the number of
paid vacation days to which he or she was entitled on the basis of
years of service with the Company in accordance with the
Company’s normal vacation policy in effect immediately prior
to the Change in Control; |
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(d) |
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the failure by the Company to pay or provide to such Designated
Employee with any material item of compensation or benefits
promptly when due; |
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(e) |
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the failure of the Company to obtain an express written
agreement from any successor to assume and agree to perform the
obligations of this Plan, as contemplated in this Section 1.14
hereof or, if the business for which such Designated
Employee’s services are principally performed is sold at any
time after a Change in Control, the failure of the Company to
obtain such an agreement from the purchaser of such business; |
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(f) |
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if the employee has a separate severance agreement, then the
occurrence of any event that constitutes good reason under such
agreement; and |
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(g) |
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any other action or inaction that constitutes a material breach
by the Company of the Plan or of an employment agreement between
the Company and the Designated Employee. |
provided , however, that an event described above in clause
(a), (b), (c), (d), or (f), shall not constitute Good Reason unless
it is communicated by such Designated Employee to the Company in
writing and is not corrected by the Company in a manner which is
reasonably satisfactory to such Designated Employee (including full
retroactive correction with respect to any monetary matter) within
ten (10) days of the Company’s receipt of such written
notice. The Designated Employee’s mental or physical
incapacity following the occurrence of an event described above in
clauses (a) through (g) shall not affect the Designated
Employee’s ability to resign employment for Good Reason. The
Designated Employee shall not be deemed to have waived a claim of
Good Reason as a result of the passage of no more than one hundred
eighty (180) days between the Designated Employee’s
knowledge of the occurrence of the event which would constitute
Good Reason and the assertion of such claim.
Notwithstanding the foregoing or anything to the contrary contained
herein, any event described in clauses (a) through
(g) above that occurs prior to a Change in Control
(“Potential Good Reason Event”) and the Designated
Employee reasonably demonstrates that such event was at the request
of a third party who had indicated an intention or taken steps
reasonably calculated to effect a Change in Control and who
effectuates a Change in Control within six (6) months
following such Potential Good Reason Event, shall be deemed for
purposes of this Plan to constitute Good Reason event occurring on
the date of the Change in Control. If such Covered Employee
terminated his employment prior to the Change in Control due to
such event, but would have been a Designated Employee had his
employment continued until the Change in Control, such former
employee shall be deemed a Designated Employee who has a Qualifying
Termination on the date of the Change in Control and the Designated
Employee’s Annual Base Salary and Target Bonus shall be
determined as in effect immediately prior to the Potential Good
Reason Event.
1.15 “Incumbent
Directors” means the individuals who, as of the Effective
Date, are Directors of the Company, and any individual becoming a
Director after the Effective Date whose election, nomination for
election by the Company’s stockholders, or appointment, was
approved by a vote of at least two-thirds (2/3 rd ) of the then
Incumbent Directors (either by a specific vote or by approval of
the proxy statement of the Company in which such person is named as
a nominee for director, without objection to such nomination);
provided, however, that an individual shall not be an Incumbent
Director if the individual’s election or appointment to the
Board occurs as a result of an actual or threatened election
contest (as described in Rule 14a-12(c) of the Exchange Act)
with respect to the election or removal of Directors or other
actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board.
1.16 “Person” shall have
the meaning given in Section 3(a)(9) of the Exchange Act, as
modified and used in Sections 13(d) and 14(d) thereof, except that
such term shall not include (i) the Company or any of its
subsidiaries, (ii) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or any of
its Affiliates, (iii) an underwriter temporarily holding
securities pursuant to an offering of such securities, or
(iv) a corporation owned, directly
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or
indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of stock of the Company.
1.17 “Qualifying
Termination” shall mean: (i) a Designated
Employee’s involuntary termination of employment with the
Company during the Term other than a termination by reason of
death, Disability or for Cause or (ii) a Designated
Employee’s resignation of employment with the Company during
the Term for Good Reason.
1.18 “Term” shall mean
the period of time representing a Designated Employee’s
employment that commences on the Change in Control Date and shall
continue until a date that is: (a) 36 months after the
Change in Control Date in the case of the Tier 1 Employee of the
Company; and (b) 24 months for all other participants under
the Plan.
1.19 “Tier 1 Employee”
shall mean the Chief Executive Officer of the Company.
1.20 “Tier 2 Employee”
shall mean each Designated Employee of the Company who is
identified by the Company as a Tier 2 employee.
1.21 “Tier 3 Employee”
shall mean each Designated Employee of the Company who is
identified by the Company as a Tier 3 employee.
1.22 “Voting Stock” shall
mean securities entitled to vote generally in the election of
members of the Board.
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ARTICLE II
EMPLOYMENT DURING THE TERM
During
the Term, the following terms and conditions shall apply to a
Designated Employee’s employment with the Company:
2.1 Titles; Reporting and
Duties . A Designated Employee’s position, title, nature
and status of responsibilities and reporting obligations shall be
no less favorable than those that such Designated Employee enjoyed
immediately prior to the Change in Control Date.
2.2 Annual Base Salary . A
Designated Employee’s Annual Base Salary will be reviewed and
increased in a manner commensurate with similarly situated
employees.
2.3 Incentive Compensation . A
Designated Employee shall be eligible to participate in each
long-term incentive plan or arrangement established by the Company
for its employees at such Designated Employee’s level of
seniority in accordance with the terms and provisions of such plan
or arrangement and at a level consistent with the Company’s
practices applicable to each Designated Employee prior to the
Change in Control Date.
2.4 Benefits . A Designated
Employee shall be eligible to participate in all retirement,
welfare and fringe benefit plans and arrangements that the Company
provides to its employees in accordance with the terms of such
plans and arrangements, which shall be no less favorable to such
Designated Employee, in the aggregate, than the terms and
provisions available to other similarly situated employees of the
Company.
2.5 Location . A Designated
Employee shall continue to be employed at a business location in
the metropolitan area in which such Designated Employee was
employed prior to the Change in Control Date and the amount of time
that such Designated Employee is required to travel for business
purposes will not be increased in any significant respect from the
amount of business travel required of such Designated Employee
prior to the Change in Control Date.
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ARTICLE III
SEVERANCE PAY FOR DESIGNATED EMPLOYEES
In the
event of a Designated Employee’s Qualifying Termination, the
terminated Designated Employee shall be entitled to the
following:
3.1 Payment of Wages and Accrued
Vacation . The Company shall pay to such terminated Designated
Employee within five (5) days of the date of such Qualifying
Termination the full amount of any earned but unpaid Annual Base
Salary through the Date of Termination at the rate in effect at the
time of the Notice of Termination, plus a cash payment (calculated
on the basis of such Designated Employee’s Reference Salary)
for all unused vacation time which such Designated Employee may
have accrued as of the Date of Termination.
3.2 Payment of Cash Severance
. Provided the Designated Employee’s Release and Covenant has
been timely executed in the manner provided in Article X and
the period of revocation has expired, the terminated Designated
Employee will receive the following cash benefits:
(a) Annual Incentive Award .
The Company shall pay to such terminated Designated Employee a pro
rata portion of the Designated Employee’s award under the
Annual Incentive Plan (or any successor plan) for the year in which
such Qualifying Termination occurs, equal to the product of
(x) the Designated Employee’s Target Bonus and
(y) a fraction, the numerator of which is the number of days
in the current fiscal year through the date of the Designated
Employee’s Qualifying Termination, and the denominator of
which is three hundred sixty five (365), calculated based on actual
performance results as of the date of the Change in Control, plus
the full amount of any bonus that the Designated Employee earned
for the year prior to the year in which the Qualifying Termination
occurs based on actual Company and individual performance, to the
extent such bonus has not been paid prior to the Date of
Termination. Except as otherwise provided in Sections 3.2(f)
through (i) and 4.5 below, these cash payments will be made in
a lump sum on the day following the Release Effective Date.
(b) Separation Payment . In
addition, the Company shall pay to such terminated Designated
Employee an amount equal to the Separation Payment as set forth in
the table below based on the greater of the annual base salary of
the Designated Employee in effect as of (i) the date that the
Change in Control occurs or (ii) the date of the Designated
Employee’s Qualifying Termination (the “Annual Base
Salary”) and, if applicable, the target annual bonus in
effect for such Designated Employee under the Company’s
Annual Incentive Plan (or any successor plan) or such other Company
annual bonus plan (the “Company Bonus Plan”) in which
such Designated Employee participates as of the date of the
Designated Employee’s Qualifying Termination or, if more
beneficial to the Designated Employee, on the date of the Change in
Control (the “Target Bonus”), as indicated on the
following table, based on a Designated Employee’s
“Designated Employee Category:”
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Designated Employee Category |
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Severance Formula (Severance Period) |
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Tier 1
Employee
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The sum of the Annual Base Salary and
the Target Bonus multiplied by 3. |
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Tier 2
Employees
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The sum of the Annual Base Salary and
the Target Bonus multiplied by 2. |
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Tier 3
Employees
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The sum of the Annual Base Salary and
the Target Bonus |
(c) Vesting and Exercise of Equity
Awards . Provided the Designated Employee’s Release and
Covenant as set forth in the Exhibit has been timely executed and
the period of revocation has expired, notwithstanding anything to
the contrary contained in an applicable equity award agreement, all
equity awards held by a terminated Designated Employee shall vest
in full and, as applicable, shall become fully exercisable, as of
the Date of Termination, except as otherwise provided in
Sections 3.2(f) through (i) and 4.5 below.
Notwithstanding anything in this Plan to the contrary, in no event
shall the vesting and exercisability provisions applicable to a
terminated Designated Employee under the terms of an Equity Award
be less favorable to such Designated Employee than the terms and
provisions of such awards in effect on the Change in Control
Date.
(d) Vesting of Performance
Awards . Subject to execution of the Release and Covenant set
forth in Exhibit A and the expiration of the revocation period
of such Release and notwithstanding anything to the contrary
contained in an applicable Performance Award agreement, and except
as otherwise provided in Sections 3.2(f) through (i) and
4.5 below, with respect to performance awards, the actual award
credited to the terminated Designated Employee under the
Company’s long-term incentive plan shall vest in full as of
the Date of Termination. Notwithstanding anything in this Plan to
the contrary, in no event shall the vesting and exercisability
provisions applicable to a terminated Designated Employee under the
terms of a Performance Awards agreement be less favorable to such
Designated Employee than the terms and provisions of such awards in
effect on the Change in Control Date.
(e) Other Benefit Plans .
Provided the Designated Employee’s Release and Covenant as
set forth in Exhibit A attached hereto has been timely
executed and the period of revocation has expired, a terminated
Designated Employee’s participation and rights in the benefit
plans listed below will continue (at a level consistent with that
provided to active employees) in this Section 3.2(e), subject
to the payment of any required employee contributions consistent
with those required of active employees of the Company and its
Affiliates, during the period that begins immediately following the
date of the Designated Employee’s Qualifying Termination (the
“Termination Date”) and ends
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on the date
that is a number of months after the Termination Date equal to the
number of months of salary continuation to which such Designated
Employee is entitled pursuant to the provisions of
Section 3.2(b); provided , however , that in
each case the coverage of a specific benefit will end when similar
coverage is available to the Designated Employee through other
employment:
i Medical
Insurance Plans.
ii Prescription
Drug Plan.
iii Dental
Insurance Plan.
iv Basic
Life Insurance coverage in the amount in effect at the time of
separation rounded to nearest $1,000 multiple.
v Employee
Assistance Program.
In addition, the Company shall, in
the discretion of the Committee, as defined below,
(i) reimburse the Designated Employee for or (ii) pay
directly to a third-party service provider selected by the
Committee, the Designated Employee’s reasonable costs of
outplacement services, subject to the maximum amount set forth in
the table below:
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Designated Employee Category |
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Maximum Benefit |
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Tier 1
Employee
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$ |
50,000 |
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Tier 2
Employees
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$ |
25,000 |
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Tier 3
Employees
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$ |
15,000 |
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To the extent applicable, the
Designated Employee will be entitled to receive COBRA continuation
health coverage benefits after the conclusion of the health plan
coverage set forth above.
(f) Certain Additional Payments by
the Company . Subject to the provisions of Section 3.2(h)
below, all determinations required to be made under
Sections 3.2(f), (g) and (h), including whether and when
a Gross-Up Payment is required, the amount of such Gross-Up Payment
and the assumptions to be utilized in arriving at such
determination, shall be made by the Accounting Firm. Anything in
this Plan to the contrary notwithstanding and except as set forth
below, in the event it shall be determined that any Payment by the
Company to or for the benefit of the Tier 1 or a Tier 2 Employee,
i.e., (the “Gross-Up Employees”), would be subject to
the Excise Tax, then the Gross-Up Employee shall be entitled to
receive an additional payment (the “Gross-Up Payment”)
in an amount such that, after payment by the Gross-Up Employee of
all taxes (and any interest or penalties imposed with respect to
such taxes), including, without limitation, any income taxes (and
any interest and penalties imposed with respect thereto) and Excise
Tax imposed upon the Gross-Up Payment, the Gross-Up Employee
retains an amount of the
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Gross-Up
Payment equal to the Excise Tax imposed upon the Payments.
Notwithstanding the foregoing provisions of this Se
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