Exhibit 10.16
UNITRIN, INC.
SEVERANCE PLAN
Unitrin, Inc. (the “
Company ”) adopted the Unitrin, Inc. Severance Plan
(the “ Plan ”) effective January 1, 2002
for the benefit of certain employees of the Company and its
Subsidiaries and Affiliates, on the terms and conditions
hereinafter stated. The Plan is being amended and restated as of
January 1, 2009.
The Plan, as set forth herein, is
intended to help retain qualified employees, maintain a stable work
environment and provide economic security to certain employees of
the Company and its Subsidiaries and Affiliates in the event of a
Qualifying Termination following a Change in Control. The Plan, as
a “severance pay arrangement” within the meaning of
Section 3(2)(B)(i) of ERISA, is intended to be excepted from
the definitions of “employee pension benefit plan” and
“pension plan” set forth under Section 3(2) of
ERISA, and is intended to meet the descriptive requirements of a
plan constituting a “severance pay plan” within the
meaning of regulations published by the Secretary of Labor at Title
29, Code of Federal Regulations, § 2510.3-2(b).
Section 1. DEFINITIONS.
As hereinafter used:
1.1 “ Affiliate ”
shall have the meaning set forth in Rule 12b-2 promulgated under
Section 12 of the Exchange Act.
1.2 “ Annual
Compensation ” shall mean:
(a) with respect to a Severed
Employee who was a salaried employee immediately prior to his or
her Qualifying Termination, such Severed Employee’s rate of
annual base salary as in effect immediately prior to such Severed
Employee’s Qualifying Termination, without regard to any
decrease in such salary constituting Good Reason;
(b) with respect to a Severed
Employee who was compensated primarily based on commissions
immediately prior to his or her Qualifying Termination, the total
commissions earned by such Severed Employee with respect to the 12
full calendar month period ending immediately prior to such Severed
Employee’s Qualifying Termination, without regard to any
decrease in the rate of such commissions constituting Good
Reason;
(c) with respect to a Severed
Employee who was compensated based on an hourly rate of pay
immediately prior to his or her Qualifying Termination, the total
hourly wages earned by such Severed Employee with respect to the 12
full calendar month period ending immediately prior to such Severed
Employee’s Qualifying Termination, without regard to any
decrease in the Severed Employee’s hourly rate of pay
constituting Good Reason;
1.3 “ Beneficial Owner
” shall have the meaning set forth in Rule 13d-3 under the
Exchange Act.
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1.4 “ Board ”
shall mean the Board of Directors of the Company, or any successor
thereto.
1.5 “ Cause ”
shall mean, with respect to a termination of the Employee’s
employment with the Employer, (a) fraud, misappropriation of
or intentional material damage to the property or business of the
Company (including its Subsidiaries and Affiliates), which in any
such case is materially injurious to the Company (including its
Subsidiaries and Affiliates), monetarily or otherwise, or
(b) the conviction of the Employee for the commission of a
felony.
1.6 A “ Change in
Control ” shall be deemed to have occurred if the event
set forth in any one of the following paragraphs shall have
occurred:
(a) any Person is or becomes the
Beneficial Owner, directly or indirectly, of securities of the
Company (not including in the securities beneficially owned by such
Person any securities acquired directly from the Company or any of
its Subsidiaries or Affiliates) representing 25% or more of the
combined voting power of the Company’s then outstanding
securities, excluding any Person who becomes such a Beneficial
Owner in connection with a transaction described in clause
(i) of paragraph (c) below; or
(b) the following individuals cease
for any reason to constitute a majority of the number of directors
then serving: individuals who, on the date hereof, 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 relating to the election of directors of the
Company) whose appointment or election by the Board or nomination
for election by the Company’s shareholders was approved or
recommended by a vote of at least two-thirds of the directors then
still in office who either were directors on the date hereof or
whose appointment, election or nomination for election was
previously so approved or recommended; or
(c) 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 (i) a
merger or consolidation which results in the directors of the
Company immediately prior to such merger or consolidation
continuing to constitute at least a majority of the board of
directors of the Company, the surviving entity or any parent
thereof or (ii) a merger or consolidation effected to
implement a recapitalization of the Company (or similar
transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of the Company (not including
in the securities Beneficially Owned by such Person any securities
acquired directly from the Company or any of its Subsidiaries or
Affiliates) representing 25% or more of the combined voting power
of the Company’s then outstanding securities; or
(d) the shareholders 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
immediately following which the individuals who comprise the
Board
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immediately prior thereto constitute
at least a majority of the board of directors of the entity to
which such assets are sold or disposed or any parent
thereof.
1.7 “ Code ”
shall mean the Internal Revenue Code of 1986, as it may be amended
from time to time.
1.8 “ Employee ”
shall mean any person who is employed by the Employer on a
full-time basis (as determined under the Employer’s policies)
and whose compensation is reported on a Form W-2, excluding any
Employee who has an individual severance agreement that provides
for benefits in connection with a Change in Control. For purposes
of the Plan, an Employee shall be considered to continue to be
employed by the Employer on a full-time basis during sick leave,
military leave or any other leave of absence approved by the
Employer.
1.9 The “ Employer
” of an Employee shall mean the Company or any Subsidiary or
Affiliate of the Company by which such Employee is
employed.
1.10 “ ERISA ”
shall mean the Employee Retirement Income Security Act of 1974, as
it may be amended from time to time.
1.11 “ Exchange Act
” shall mean the Securities Exchange Act of 1934, as
amended.
1.12 “ Good Reason
” shall mean any action taken by the Employer which results
in a material negative change to the Employee in the employment
relationship, such as the duties to be performed, the conditions
under which such duties are to be performed or the compensation to
be received for performing such services. A termination by the
Employee shall not constitute termination for Good Reason unless
the Employee shall first have delivered to the Employer written
notice setting forth with specificity the occurrence deemed to give
rise to a right to terminate for Good Reason (which notice must be
given no later than 90 days after the occurrence of such event),
and there shall have passed a reasonable time (not less than 30
days) within which the Company may take action to correct, rescind
or otherwise substantially reverse the occurrence supporting
termination for Good Reason as identified by the
Employee.
1.13 “ Level I Employee
” shall mean any Employee who is primarily compensated by
commissions with at least three continuous years of service with
the Employer as of the date of such Employee’s Qualifying
Termination.
1.14 “ Level II
Employee ” shall mean any Employee who is not primarily
compensated by commissions and whose Annual Compensation is greater
than $150,000.
1.15 “ Level III
Employee ” shall mean any Employee who is not primarily
compensated by commissions and whose Annual Compensation is at
least $100,000 and not more than $150,000.
1.16 “ Level IV
Employee ” shall mean any Employee who is not primarily
compensated by commissions and whose Annual Compensation is at
least $50,000 and less than $100,000.
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1.17 “ Level V Employee
” shall mean any Employee who is not primarily compensated by
commissions and whose Annual Compensation is less than
$50,000.
1.18 “
Payment Date ” means, with respect to a Severed
Employee, the March 15 th that next follows the calendar
year in which the Severed Employee’s Severance Date
occurred.
1.19 “ 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 (a) the
Company or any of its Subsidiaries or Affiliates, (b) a
trustee or other fiduciary holding securities under an employee
benefit plan of the Company or any of its Subsidiaries or
Affiliates, (c) an underwriter temporarily holding securities
pursuant to an offering of such securities, (d) a corporation
owned, directly or indirectly, by the shareholders of the Company
in substantially the same proportions as their ownership of stock
of the Company, (e) any individual, entity or group whose
ownership of securities of the Company is reported on Schedule 13G
pursuant to Rule 13d-1 promulgated under the Exchange Act (but only
for so long as such ownership is so reported) or (f) Singleton
Group LLC or any successor in interest to such entity.
1.20 “ Plan
Administrator ” shall mean the committee appointed to
administer the Plan. Such committee shall be selected by the Board.
Following a Change in Control, a person may be appointed to such
committee only by a two-thirds majority of the individuals who were
members of the Board immediately prior to such Change in
Control.
1.21 A “ Potential Change
in Control ” shall be deemed to occur in the event that
(a) the Company enters into an agreement, the consummation of
which would result in a Change in Control, (b) the Company or
any Person publicly announces an intention to take or to consider
taking action which, if consummated would constitute a Change in
Control, (c) any Person becomes the Beneficial Owner, directly
or indirectly, of securities of the Company representing 15% or
more of either the then outstanding shares of common stock of the
Company or the combined voting power of the Company’s then
outstanding securities (not including in the securities
beneficially owned by such Person any securities acquired directly
from the Company or any of its Subsidiaries or Affiliates) or
(d) the Board adopts a resolution to the effect that, for
purposes of the Plan, a Potential Change in Control has
occurred.
1.22 “ Qualifying
Termination ” shall mean a termination of an
Employee’s employment during the 2-year period immediately
following a Change in Control, either (a) by the Employer
without Cause or (b) by the Employee for Good Reason. A
termination of employment will not be deemed to have occurred upon
(i) the transfer of the Employee to employment with a
Subsidiary or Affiliate of the Company or (ii) the divestiture
of a business with which the Employee is primarily associated if
the Employee is offered comparable employment by the successor
company.
1.23 “ Severance
Benefits ” shall mean the payments and benefits provided
to Severed Employees pursuant to Sections 2.1, 2.2, and 2.3
hereof.
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1.24 “ Severance Date
” shall mean the date on which an Employee incurs a
Qualifying Termination.
1.25 “ Severance Weeks
” means, for each Employee, one week for (a) each full
year such Employee has been continuously employed by the Employer,
plus (without duplication), if there has been a break in such
Employee’s employment with the Employer, (b) each full
year of employment for which such Employee has received credit
under any retirement plan or program maintained by the Employer for
employment prior to such break, but in no event less than four
(4) weeks or more than twenty six (26) weeks (thirteen
(13) weeks in the case of a Level I Employee). For purposes of
calculating an Employee’s full years of employment,
(x) any partial year of employment of at least thirty five
(35) weeks shall count as a full year of employment and
(y) employment at one Employer shall count (without
duplication) toward the number of years of employment at another
Employer, provided that (i) there is no break (other than as
the result of vacation or sick leave, military leave or other
approved leave of absence) in the employment between the two
Employers or (ii) such Employee has received credit under any
retirement plan or program maintained by the Employer for such
years of employment prior to such break.
1.26 “ Severed Employee
” shall mean an Employee who has incurred a Qualifying
Termination.
1.27 “ Subsidiary
” shall mean any entity at least 50% of the voting securities
of which are Beneficially Owned by the Company.
Additional definitions are set forth
within the Plan and shall have the meanings ascribed to them in the
Plan.
Section 2.
BENEFITS.
2.1 The Company shall pay (or shall
cause the Severed Employee’s Employer to pay) to each Severed
Employee a severance payment (the “ Severance Payment
”) equal to:
(a) in the case of a
Level I Employee, the product of (i) one-fifty-second (
1
/
52
) of his or her
Annual Compensation and (ii) his or her Severance
Weeks.
(b) in the case of a
Level II Employee, one year’s Annual Compensation plus the
product of (i) one-fifty-second ( 1
/
52
) of his or
her Annual Compensation and (ii) his or her Severance
Weeks.
(c) in the case of a
Level III Employee, thirty-five-fifty seconds (
35
/
52
) of his or her
Annual Compensation plus the product of (i) one-fifty-second
( 1 / 52 ) of his or her Annual
Compensation and (ii) his or her Severance Weeks.
(d) in the case of a
Level IV Employee, seventeen-fifty seconds (
17
/
52
) of his or her
Annual Compensation plus the product of (i) one-fifty-second
( 1 / 52 ) of his or her Annual
Compensation and (ii) his or her Severance Weeks.
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(e) in the case of a
Level V Employee, the product of (i) one-fifty-second (
1
/
52
) of his or her
Ann