Exhibit 10.15
GENTEK INC.
EXECUTIVE SEVERANCE PLAN
PRELIMINARY STATEMENTS
A.
GenTek Inc. (the “ Company ”) is a
Delaware corporation.
B.
The purpose of the Company’s Executive Severance Plan is to
provide key employees of the Company and its subsidiaries with
severance protection.
ARTICLE I.
DEFINITIONS AND INTERPRETATIONS
Section 1.01 Definitions.
Capitalized terms used in this Plan shall have the following
respective meanings, except as otherwise provided or as the context
shall otherwise require:
“ Annual
Salary ” shall mean the base salary paid to a
Participant on an annual basis exclusive of any bonus payments,
commission payments or additional payments under any Benefit
Plan.
“ Beneficial
Owner ” shall have the meaning set forth in Rule
13d-3 under the Securities Exchange Act of 1934.
“Benefit
Continuation” shall have the meaning set forth in Article
III.
“ Benefit
Plan ” shall mean any “employee benefit
plan” (including any employee benefit plan within the meaning
of Section 3(3) of ERISA), program, arrangement or practice
maintained, sponsored or provided by the Company or any of its
subsidiaries, including those relating to compensation, bonuses,
profit-sharing, stock option, or other stock related rights or
other forms of incentive or deferred compensation, vacation
benefits, insurance coverage (including any self-insured
arrangements) health or medical benefits, disability benefits,
workers’ compensation, supplemental unemployment benefits,
severance benefits and post-employment or retirement benefits
(including compensation, pension, health, medical or life insurance
or other benefits).
“ Board
” shall mean the Board of Directors of the
Company.
“ Cause
” shall mean (a) the continued failure by the Participant
substantially to perform his or her duties and obligations to the
Company or any of its subsidiaries (other than any such failure
resulting from his or her incapacity due to physical or mental
illness), including, without limitation, repeated refusal to follow
the reasonable directions of his or her employer, knowing violation
of the law in the course of performance of the duties of
Participant’s employment with the Company or any of its
subsidiaries, repeated absences from work without a reasonable
excuse, or intoxication with alcohol or illegal drugs while on the
Company’s or any of its subsidiaries’ premises during
regular business hours; (b) fraud or material dishonesty against
the Company or any of its subsidiaries; (c) a conviction or plea of
guilty or nolo contendere to the
commission of a felony or a crime
involving material dishonesty or moral turpitude; or
(d) willful malfeasance or misconduct in connection with a
Participant’s duties to the Company or any of its
subsidiaries or any act or omission that is results in demonstrable
injury to the financial condition or business reputation of the
Company or any of its subsidiaries. Determination of Cause shall be
made by the Compensation Committee in its sole
discretion.
“ Change of
Control ” shall mean the first to occur of the
following:
(i)
any Person, (A) who is not a Beneficial Owner, directly or
indirectly, of voting securities of the Company as of the Effective
Date, and becomes the Beneficial Owner, directly or indirectly, of
securities of the Company representing 35% or more of the combined
voting power of the Company’s then outstanding securities or
(B) who is a Beneficial Owner, directly or indirectly, of voting
securities of the Company as of the Effective Date, is or becomes
the Beneficial Owner, directly or indirectly, of securities of the
Company representing more than 50% of the combined voting power of
the Company’s then outstanding securities, excluding in both
(A) and (B) any Person who becomes such a Beneficial Owner in
connection with a transaction described in subclause (x) of clause
(iii) below; or
(ii)
the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals who,
on the Effective Date, constitute the Board and any new director
(other than a director whose initial assumption of office is in
connection with an actual or threatened election contest, including
but not limited to a consent solicitation, relating to the election
of directors of the Company) whose appointment or election by the
Board or nomination for election by the Company’s
stockholders was approved or recommended by a vote of at least
two-thirds (2/3) of the directors then still in office who either
were directors as of the Effective Date or whose appointment,
election or nomination for election was previously so approved or
recommended; or
(iii)
there is consummated a merger or consolidation of the Company or
any direct or indirect subsidiary of the Company with any other
corporation, other than (x) a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior to such merger or consolidation (1) continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or any parent
thereof), in combination with the ownership of any trustee or other
fiduciary holding securities under an employee benefit plan of the
Company or any subsidiary of the Company, at least 50% of the
combined voting power of the securities of the Company or such
surviving entity or any parent thereof outstanding immediately
after such merger or consolidation and (2) continuing to be
held by Persons who were holders thereof immediately prior to such
merger or consolidation, or (y) a merger or consolidation effected
to implement a recapitalization of the Company (or similar
transaction) in which no Person (A) who is not a Beneficial Owner,
directly or indirectly, of voting securities of the Company as of
the Effective Date, is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing 35% or more
of the combined voting power of the Company’s then
outstanding securities or (B) who is a Beneficial Owner, directly
or indirectly, of voting securities of the Company as of the
Effective Date, is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Company representing more than 50%
of the combined voting power of the Company’s then
outstanding securities; or
(iv)
the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company or there is consummated
an agreement for the sale or disposition by the Company of all or
substantially all of the Company’s assets, other than a sale
or disposition by the Company of all or substantially all of the
Company’s assets to an entity, at least 65% of the combined
voting power of the voting securities of which is owned by
substantially all of the stockholders of the Company immediately
prior to such sale in substantially the same proportions as their
ownership of the Company immediately prior to such sale.
“Change of Control
Benefit Continuation” shall have the meaning set forth in Article
III.
“Change of Control
Period” shall
have the meaning set forth in Article III.
“Change of Control
Severance Payment” shall have the meaning set forth in Article
III.
“Change of Control
Severance Period” shall have the meaning set forth in Article
III.
“ Code
” shall mean the Internal Revenue Code of 1986, as amended.
Reference in this Plan to any section of the Code shall be deemed
to include any amendments or successor provisions to such section
and any regulations under such section.
“ Compensation
Committee ” shall mean the Compensation Committee of
the Board.
“ Disability
” shall mean, when used with reference to any Participant,
long term disability under the applicable long term disability plan
maintained by the Company or one of its subsidiaries under which
the Participant is covered.
“ Effective
Date ” shall mean November 11, 2008.
“ ERISA
” shall mean the Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations promulgated
thereunder.
“ Exchange Ac
t ” shall mean the Securities Exchange Act of 1934, as
amended.
“ Existing Key
Employee Retention Plan ” shall mean the GenTek Inc.
Key Employee Retention Plan previously established by the
Company.
“Named Executive
Participant” shall mean an employee of the Company or any of
its subsidiaries who is designated as a Named Executive Participant
in Schedule A.
“Parachute
Value” of a
Payment shall mean the present value as of the date of the change
of control for purposes of Section 280G of the Code of the portion
of such Payment that constitutes a “parachute payment”
under Section 280G(b)(2) of the Code, as determined by the
accounting firm referred to in Section 3.04 for purposes of
determining whether and to what extent the Excise Tax will apply to
such Payment.
“
Participants ” shall mean those employees of
the Company or any of its subsidiaries who are from time to time
designated as Participants in accordance with Section
2.01(b).
“Payment”
shall mean any payment or
distribution in the nature of compensation (within the meaning of
Section 280G(b)(2) of the Code) to or for the benefit of the Named
Executive Participant, whether paid or payable pursuant to this
Plan or otherwise.
“ 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 or indirectly, by substantially all of the
stockholders of the Company in substantially the same proportions
as their ownership of stock of the Company.
“ Plan
” shall mean this GenTek Inc. Executive Severance Plan, as
amended, supplemented or modified from time to time in accordance
with its terms.
“Safe Harbor
Amount” shall
mean 2.99 times the Participant’s “base amount,”
within the meaning of Section 280G(b)(3) of the Code.
“ Severance
Payment ” shall have the meaning set forth in Article
III.
“ Severance
Period ” shall have the meaning set forth in
Article III.
“ Successor
” shall mean a successor to all or substantially all of the
business, operations or assets of the Company or such other portion
of the Company’s business as shall be determined by the
Committee.
“ Termination
Date ” shall mean, with respect to any Participant,
the actual date of the Participant’s Termination of
Employment.
“ Termination of
Employment ” shall mean the time when the
employee-employer relationship between the Participant and the
Company or any subsidiary of the Company is terminated for any
reason, with or without Cause, including, but not by way of
limitation, a termination by resignation, discharge, death,
Disability or retirement; but excluding: (a) terminations where
there is a simultaneous reemployment or continuing employment of
the Participant by the Company or any subsidiary of the Company,
and (b) terminations where the Successor offers to the Participant
a substantially equivalent position with respect to the portion of
the business of the Company that is transferred to the Successor,
the same or greater base salary, a substantially equivalent target
bonus opportunity from the Successor and continuing severance
protection that is similar to the severance protection provided
herein, without regard to Section 5.03.
“ Termination
Notice ” shall mean written notice from the Company
to any Participant purporting to terminate such Participant’s
employment for Cause or Disability in accordance with Section
2.02.
Section 1.02
Interpretation . In this Plan, unless a clear contrary
intention appears, (a) the words “herein,”
“hereof” and “hereunder” refer to this Plan
as a whole and not to any particular Article, Section or other
subdivision, (b) reference to any Article or Section, means such
Article or Section hereof and (c) the words “including”
(and with correlative meaning “include”)
means
including, without limiting the
generality of any description preceding such term. The Article and
Section headings herein are for convenience only and shall not
affect the construction hereof.
ARTICLE II.
ELIGIBILITY AND BENEFITS
Section 2.01 Eligible
Employees.
(a)
This Plan is only for the benefit of Participants, and no other
employees, personnel, consultants or independent contractors shall
be eligible to participate in this Plan or to receive any rights or
benefits hereunder.
(b)
The initial Participants are set forth on Exhibit A .
The Compensation Committee shall be authorized from time to time
after the Effective Date to designate as Participants one or more
employees of the Company (including new hires).
Section 2.02 Termination
Notices from Company. For purposes of this Plan, in order for
the Company to terminate any Participant’s employment for
Cause, the Company must give a Termination Notice to such
Participant, which notice shall be dated the date it is given to
such Participant, shall specify the Termination Date and shall
state that the termination is for Cause and shall set forth in
reasonable detail the particulars thereof. For purposes of this
Plan, in order for the Company to terminate any Participant’s
employment for Disability, the Company must give a Termination
Notice to such Participant, which notice shall be dated the date it
is given to such Participant, shall specify the Termination Date
and shall state that the termination is for Disability and shall
set forth in reasonable detail the particulars thereof.
ARTICLE III.
SEVERANCE AND RELATED TERMINATION
BENEFITS
Section 3.01 Termination of
Employment. In the event that a Participant incurs a
Termination of Employment by the Company or any of its subsidiaries
for any reason other than for Cause or Disability, then such
Participant shall be entitled to receive, and the Company shall be
obligated to pay to the Participant, within sixty (60) days after
such Participant’s Termination Date, a lump sum cash payment
equal to (a) the Participant’s Annual Salary, as determined
on the Termination Date without regard to any reduction in such
Annual Salary within the six (6) month period prior to and ending
on such Termination Date, that would have been paid to Participant
had Participant remained employed by the Company or any of its
subsidiaries for the number of weeks (the “ Severance
Period ”) set forth under the heading
“Severance Period” on Schedule A for such
Participant (the “ Severance Payment ”)
PLUS (b) all unused vacation time accrued and available for use by
such Participant as of the Termination Date under the
Company’s vacation policy. In addition, for a period of weeks
equal to the Participant’s applicable Severance Period,
such
Participant, including
Participant’s participating spouse and dependents, shall
continue to be covered by all group life, group medical and group
dental insurance plans (excluding disability) of the Company under
which he or she was covered on the Termination Date or if such
plan(s) or program(s) have been amended or terminated, in the group
plan(s) or program(s) in which executives of the Company
participate (the “ Benefit Continuation
”). The Company shall reduce the Severance Payment by the
after-tax amount necessary to pay the premium payments for the
Benefit Continuation, as reasonably determined by the Company,
which reduction shall include amounts necessary to pay for
reasonably anticipated increases in such rates over the Benefit
Continuation period. Any amount that is not used to pay premiums
for such coverage as a result of Section 3.05(a) or as a result of
an incorrect estimate of anticipated rate increases, as reasonably
determined by the Company, shall be promptly refunded to the
Participant. In the event premium rates are in excess of the amount
withheld, the Company may seek additional payments from the
Participant and the Company may cease the Benefit Continuation in
the event such additional payments are not promptly paid by the
Participant to the Company. Any Severance Payment obligations
arising under this Section 3.01 shall be paid to the
Participa
