Change in Control Separation Benefits Plan - Merck & Co. Inc.
MERCK & CO., INC.
CHANGE IN CONTROL SEPARATION BENEFITS PLAN
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ARTICLE I
PURPOSE
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The Board of Directors of the Company recognizes that the possibility
of a Change in Control exists and that the threat or the occurrence of a
Change in Control can result in significant distractions of its key executive
personnel because of the uncertainties inherent in such a situation. In
addition, the Board has determined that it is essential and in the best
interest of the Company and its stockholders to retain the services of its
key executive personnel in the event of a threat of a Change in Control and
to ensure their continued dedication and efforts in such event without undue
concern for their personal financial and employment security. Accordingly,
the Company has adopted, effective as of the Effective Date, the Merck & Co.,
Inc. Change in Control Separation Benefits Plan as set forth in this document.
ARTICLE II
DEFINITIONS
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As used herein, the following words and phrases shall have the
following meanings:
2.1 Affiliate. The term "Affiliate" shall mean, with respect to any
person or entity, any entity directly or indirectly controlled by,
controlling or under common control with such person or entity.
2.2 Base Salary. The term "Base Salary" shall mean, as to any
Participant, the amount a Participant is entitled to receive as base wages or
base salary on an annualized basis as in effect immediately prior to a Change
in Control or, if greater, at any time thereafter, in each case without
reduction for any pre-tax contributions to benefit plans. Base Salary does
not include bonuses, commissions, overtime pay, shift pay, premium pay, cost
of living allowances or income from stock options, stock grants or other
incentives.
2.3 Board. The term "Board" shall mean the Board of Directors of the
Company.
2.4 Bonus Amount. The term "Bonus Amount" shall mean, as to any
Participant, an amount equal to the Participant's annual cash bonus which
would have been payable under the Bonus Plan in which he or she participates
(x) as of immediately prior to the Change in Control had he or she continued
in employment until the end of the fiscal year of the Employer in which the
Change in Control occurs and had bonuses been payable at "target" levels for
such year or (y) if greater, as of the Termination Date had he or she
continued in employment until the end of the fiscal year of the Employer in
which the Termination Date occurs and had bonuses been payable at "target"
levels for such year.
2.5 Bonus Plans. The term "Bonus Plans" shall mean the Merck & Co.,
Inc. Executive Incentive Plan and the Merck & Co., Inc. Annual Incentive Plan
(or successors thereto).
2.6 Cause. "Cause" for termination by the Employer of the
Participant's employment shall mean (i) willful and continued failure by the
Participant to substantially perform the Participant's duties on behalf of
the Employer (other than any such failure resulting from the Participant's
incapacity due to physical or mental illness or any such actual or
anticipated failure after the issuance of a Notice of Termination for Good
Reason by the Participant) for a period of at least thirty consecutive days
after a written demand for substantial performance has been delivered to the
Participant by the Responsible Person, which demand specifically identifies
the manner in which the Responsible Person believes that the Participant has
not substantially performed the Participant's duties, (ii) willful misconduct
or gross negligence by the Participant which is demonstrably and materially
injurious to the Company or any of its subsidiaries, or (iii) the Participant
is convicted of, or has entered a plea of nolo contendere to, (x) a felony or
(y) any crime (whether or not a felony) involving dishonesty, fraud,
embezzlement or breach of trust. For purposes of clauses (i) and (ii) of
this definition, an act, or failure to act, on the Participant's part shall
not be deemed "willful" if done, or omitted to be done, by the Participant in
good faith and with reasonable belief that the Participant's act, or failure
to act, was in the best interest of the Company. In addition, as to any
Participant who is a Management Committee Member, the Participant shall not
be deemed to have been terminated for Cause unless and until there shall have
been delivered to the Participant a copy of a resolution duly adopted by the
affirmative vote of not less than three-quarters of the entire membership of
the Board at a meeting of the Board (after reasonable notice to the
Participant and an opportunity for the Participant, together with the
Participant's counsel, to be heard before the Board), finding in good faith
that the Participant has committed Cause as set forth in such clauses and
specifying the circumstances constituting Cause. For purposes of this
definition, "Responsible Person" shall mean (i) for a Participant who is a
Management Committee Member, the Board, and (ii) for a Participant who is an
Other Executive, the Management Committee Member who is the direct or
indirect supervisor of the Participant.
2.7 Change in Control. A "Change in Control" shall mean the
occurrence of any of the following:
(a) An acquisition (other than directly from the Company) of
any voting securities of the Company (the "Voting Securities") by any
"Person" (as the term "person" is used for purposes of Section 13(d) or 14(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")),
immediately after which such Person has "Beneficial Ownership" (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of more than twenty
percent (20%) of (i) the then-outstanding Shares or (ii) the combined voting
power of the Company's then-outstanding Voting Securities; provided, however,
that in determining whether a Change in Control has occurred pursuant to this
paragraph (a), the acquisition of Shares or Voting Securities in a
Non-Control Acquisition (as defined below) shall not constitute a Change in
Control. A "Non-Control Acquisition" shall mean an acquisition by (i) an
employee benefit plan (or a trust forming a part thereof) maintained by (A)
the Company or (B) any corporation or other Person the majority of the voting
power, voting equity securities or equity interest of which is owned,
directly or indirectly, by the Company (for purposes of this definition, a
"Related Entity"), (ii) the Company or any Related Entity, or (iii) any
Person in connection with a Non-Control Transaction (as defined below);
(b) The individuals who, as of the Effective Date, are members
of the Board (the "Incumbent Board"), cease for any reason to constitute at
least a majority of the members of the Board or, following a Merger (as
defined below), the board of directors of (i) the corporation resulting from
such Merger (the "Surviving Corporation"), if fifty percent (50%) or more of
the combined voting power of the then-outstanding voting securities of the
Surviving Corporation is not Beneficially Owned, directly or indirectly, by
another Person (a "Parent Corporation") or (ii) if there is one or more than
one Parent Corporation, the ultimate Parent Corporation; provided, however,
that if the election, or nomination for election by the Company's common
shareholders, of any new director was approved by a vote of at least
two-thirds of the Incumbent Board, such new director shall, for purposes of
the Plan, be considered a member of the Incumbent Board; and provided,
further, however, that no individual shall be considered a member of the
Incumbent Board if such individual initially assumed office as a result of an
actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board (a "Proxy Contest"), including by reason of any
agreement intended to avoid or settle any Proxy Contest; or
(c) The consummation of:
(i) A merger, consolidation or reorganization (x) with or
into the Company or (y) in which securities of the Company are issued (a
"Merger"), unless such Merger is a "Non-Control Transaction." A "Non-Control
Transaction" shall mean a Merger in which:
(A) the Voting Securities immediately before such
Merger represent, directly or indirectly, immediately following such Merger
at least sixty percent (60%) of the combined voting power of the outstanding
voting securities of (1) the Surviving Corporation, if there is no Parent
Corporation or (2) if there is one or more than one Parent Corporation, the
ultimate Parent Corporation;
(B) the individuals who were members of the
Incumbent Board immediately prior to the execution of the agreement providing
for such Merger constitute at least a majority of the members of the board of
directors of (1) the Surviving Corporation, if there is no Parent
Corporation, or (2) if there is one or more than one Parent Corporation, the
ultimate Parent Corporation; and
(C) no Person other than (1) the Company or another
corporation that is a party to the agreement of Merger, (2) any Related
Entity, (3) any employee benefit plan (or any trust forming a part thereof)
that, immediately prior to the Merger, was maintained by the Company or any
Related Entity, or (4) any Person who, immediately prior to the Merger had
Beneficial Ownership of twenty percent (20%) or more of the then outstanding
Shares or Voting Securities, has Beneficial Ownership, directly or
indirectly, of twenty percent (20%) or more of the combined voting power of
the outstanding voting securities or common stock of (x) the Surviving
Corporation, if there is no Parent Corporation, or (y) if there is one or
more than one Parent Corporation, the ultimate Parent Corporation; provided,
however, that any Person described in clause (4) of this subsection (C) may
not, immediately following the Merger, Beneficially Own more than thirty
percent (30%) of the combined voting power of the outstanding voting
securities of the Surviving Corporation or the Parent Corporation, as
applicable, for the Merger to constitute a Non-Control Transaction;
(ii) A complete liquidation or dissolution of the Company;
or
(iii) The sale or other disposition of all or substantially
all of the assets of the Company and its subsidiaries taken as a whole to any
Person (other than (x) a transfer to a Related Entity or (y) the distribution
to the Company's shareholders of the stock of a Related Entity or any other
assets).
Notwithstanding the foregoing, a Change in Control shall not be deemed
to occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the then outstanding Shares or
Voting Securities as a result of the acquisition of Shares or Voting
Securities by the Company which, by reducing the number of Shares or Voting
Securities then outstanding, increases the proportional number of Shares
Beneficially Owned by the Subject Persons; provided that if a Change in
Control would occur (but for the operation of this sentence) as a result of
the acquisition of Shares or Voting Securities by the Company and, after such
acquisition by the Company, the Subject Person becomes the Beneficial Owner
of any additional Shares or Voting Securities and such Beneficial Ownership
increases the percentage of the then outstanding Shares or Voting Securities
Beneficially Owned by the Subject Person, then a Change in Control shall
occur.
2.8 Code. The term "Code" shall mean the Internal Revenue Code of
1986, as amended.
2.9 Company. The term "Company" shall mean Merck & Co., Inc.
2.10 Credited Service. The term "Credited Service" shall have the
meaning ascribed to it in the Pension Plan.
2.11 Effective Date. The "Effective Date" of the Plan is November 23,
2004, the date of its approval by the Board.
2.12 Employer. The term "Employer" shall mean, as applicable to any
Participant, the Company or a subsidiary of the Company that employs the
Participant.
2.13 ERISA. The term "ERISA" shall mean the Employee Retirement
Income Security Act of 1974, as amended.
2.14 Excise Tax. The term "Excise Tax" shall mean the excise tax
imposed by Section 4999 of the Code, together with any interest or penalties
imposed with respect to such excise tax.
2.15 Executive Health Plan. The term "Executive Health Plan" shall
mean the Retiree Healthcare Plan for Key Executives adopted by the Board to
provide medical, dental and prescription drug benefits under an insurance
policy to certain employees of the Company who, on the date their employment
with the Company ends, do not meet the requirements to be considered a
retiree under the Health Plan.
2.16 Good Reason. "Good Reason" for termination by the Participant of
the Participant's employment shall mean the occurrence (without the
Participant's express written consent) of any one of the following acts by
the Employer, or failures by the Employer to act, following the occurrence of
a Change in Control:
(a) solely as to Participants who are Management Committee
Members: a significant adverse change in the Participant's authority,
duties, responsibilities or position (including title, reporting level and
status as an executive officer subject to Section 16(b) of the Exchange Act)
from those in effect immediately prior to the Change in Control; provided
that, notwithstanding the foregoing, the following is not "Good Reason": (A)
an isolated, insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Employer promptly after receipt of notice thereof
given by the Participant, or (B) a change in the person to whom (but not the
position to which) the Participant reports;
(b) solely as to Participants who are Other Executives: a
significant adverse change in the Participant's authority, duties,
responsibilities or position from those in effect immediately prior to the
Change in Control; provided that, notwithstanding the foregoing, the
following is not "Good Reason": (A) an isolated, insubstantial and
inadvertent action not taken in bad faith and which is remedied by the
Employer promptly after receipt of notice thereof given by the Participant,
or (B) a change of less than two levels in the position to which the
Participant reports, (C) a change in the person to whom the Participant
reports, or (D) the Participant ceasing to be an executive officer subject to
Section 16(b) of the Exchange Act; and
(c) as to Participants who are either Management Committee
Members or Other Executives:
(i) a reduction in the Participant's annual base salary
as in effect immediately prior to the Change in Control or as the same may be
increased from time to time following the Change in Control, or a reduction
in the level of the Participant's bonus opportunity under the Bonus Plans as
in effect immediately prior to the Change in Control or as the same may be
increased from time to time following the Change in Control;
(ii) the Employer's requiring the Participant to change
the office location at which the Participant is based which results in the
Participant having a commute to such location from the Participant's
residence in excess of 50 miles or in excess of 120% (in miles) of the
Participant's commute immediately prior to the date of such change of
location, whichever is greater;
(iii) the failure by the Company or the Employer (as
applicable) to pay to the Participant (x) any portion of the Participant's
annual base salary, (y) any awards earned pursuant to the Bonus Plans or (z)
any portion of an installment of deferred compensation under any deferred
compensation program of the Company or any of its Affiliates, in each case
within seven days of the date such compensation is due;
(iv) (x) the failure by the Company or the Employer (as
applicable) to continue in effect any compensation plan or program in which
the Participant participates immediately prior to the Change in Control and
which is material to the Participant's total compensation, including, without
limitation, the Bonus Plans and the Company's Incentive Stock Plans, or any
plans or programs adopted in substitution therefor prior to the Change in
Control, unless an equitable arrangement (embodied in an ongoing substitute
or alternative plan or program) has been made with respect to such plan or
program, or (y) the failure by the Company or the Employer (as applicable) to
continue the Participant's participation therein (or in such substitute or
alternative plan or program) on a basis not materially less favorable, both
in terms of the amount of benefits provided and the level of the
Participant's participation relative to other positions as existed at the
time of the Change in Control;
(v) (x) the failure by the Company or the Employer (as
applicable) to continue to provide the Participant with benefits
substantially similar to those enjoyed by the Participant under any of the
Company's or the Employer's (as applicable) pension and retirement
(including, without limitation, the Pension Plan and the Savings Plan), life
insurance, medical, health and accident, disability, and vacation plans and
programs (including, without limitation, the Health Plan, the Executive
Health Plan and the Life Insurance Plan) in which the Participant
participates immediately prior to the Change in Control or (y) the taking of
any action by the Company or the Employer (as applicable) which would
directly or indirectly materially reduce any of such benefits or deprive the
Participant of any material fringe benefit enjoyed by the Participant
immediately prior to the Change in Control;
(vi) the failure of the Company to obtain a satisfactory
agreement from any successor to assume and agree to perform this Plan, as
contemplated in Article VII hereof, if required to do so; or
(vii) any purported termination of the Participant's
employment by the Company or the Employer (as applicable) which is not
effected pursuant to a Notice of Termination satisfying the requirements of
Article V hereof (and for purposes of this Plan, no such purported
termination shall be effective).
The Participant's right to terminate the Participant's employment for
Good Reason shall not be affected by the Participant's incapacity due to
physical or mental illness. The Participant's continued employment shall not
constitute consent to, or a waiver of rights with respect to, any act or
failure to act constituting Good Reason hereunder.
Notwithstanding the foregoing, the occurrence of an event that would
otherwise constitute Good Reason hereunder shall cease to be an event
constituting Good Reason if (i) the Participant fails to provide the Company
with notice of the occurrence of any of foregoing within the six-month period
immediately following the date on which the Participant first becomes aware
(or reasonably should have become aware) of the occurrence of such event,
(ii) the Participant fails to provide the Company with a period of at least
thirty days from the date of such notice to cure such event prior to
terminating his or her employment for Good Reason or (iii) Notice of
Termination is not provided to the Company by the Participant within ninety
days following the day on which the thirty-day period set forth in the
preceding clause (ii) expires; provided, that the thirty-day notice period
required by clause (ii) and referred to in clause (iii) shall end two days
prior to the second anniversary of the Change in Control in the event that
the second anniversary of the Change in Control would occur during such
thirty-day period.
2.17 Gross-Up Payment. The term "Gross-Up Payment" shall have the
meaning given thereto in Section 6.1(a).
2.18 Health Plan. The term "Health Plan" shall mean the Merck & Co.,
Inc. Medical Plan for Nonunion Employees and the Merck & Co., Inc. Dental
Plan for Nonunion Employees (which plans are part of the Merck & Co., Inc.
Medical, Dental and Long-Term Disability Plan for Nonunion Employees) but
only to the extent that such plans apply to salaried U.S.-based employees of
an Employer and to former salaried U.S.-based employees of an Employer who
are considered retirees thereunder and to the eligible dependents of each of
the foregoing.
2.19 Leave of Absence. The term "Leave of Absence" shall mean any
leave of absence, whether or not approved by the Company or the Employer,
other than (i) family medical leave, (ii) personal leave for jury duty, (iii)
military leave, (iv) any leave of absence approved for a period of less than
six months (including vacation time and paid time off) and (v) any leave of
absence approved for a period of six months or more from which the
Participant actually returns to work in less than six months.
2.20 Life Insurance Plan. The term "Life Insurance Plan" shall mean
the Merck & Co., Inc. Group Term Life and Optional Insurance Plan but only to
the extent that such plan applies to salaried U.S.-based employees of an
Employer and to former salaried U.S.-based employees of an Employer who are
considered retirees thereunder and to the eligible dependents of each of the
foregoing.
2.21 Management Committee Member. The term "Management Committee
Member" shall mean each individual whom the Company's Chief Executive Officer
has designated as a member of the Company's Management Committee.
2.22 Multiple. The "Multiple" applicable to a Participant shall be as
follows:
(a) if the Participant is a Management Committee Member as of
the Termination Date, three;
(b) if the Participant is an Other Executive and reports
directly to a Management Committee Member as of the Termination Date, two;
and
(c) if the Participant is an Other Executive and does not
report directly to a Management Committee Member as of the Termination Date,
one and one-half.
2.23 Notice of Termination. The term "Notice of Termination" shall
mean a notice that indicates the specific provisions in this Plan relied upon
as the basis for any termination of employment and sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination
of a Participant's employment under the provision so indicated. No purported
termination of employment shall be effective without a Notice of Termination.
2.24 Operating Unit. The term "Operating Unit" shall mean any
subsidiary, division or other operating unit of the Company or any of its
subsidiaries.
2.25 Other Executive. The term "Other Executive" shall mean each
employee of the Company or its subsidiaries (whether located in the United
States or in another country) designated as Grade 1 or Grade 2 (including
subcategories within such Grades, if any), excluding Management Committee
Members.
2.26 Participant. The term "Participants" shall mean those Management
Committee Members and Other Executives who meet the eligibility requirements
of Article III of the Plan, excluding (x) individuals on Leave of Absence,
(y) individuals who remain employed solely pursuant to a separation agreement
with the Company or the Employer and (z) individuals who provide services
primarily to or in respect of Merck Capital Ventures, LLC. An individual
excluded as a Participant pursuant to clause (x) of this Section 2.26 shall
be so excluded only during such Leave of Absence.
2.27 Payment. The term "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 a Participant, whether paid
or payable pursuant to this Plan or otherwise.
2.28 Pension Plan. The term "Pension Plan" shall mean the Retirement
Plan for Salaried Employees of Merck & Co., Inc.
2.29 Permanent Disability. The term "Permanent Disability" shall mean
(i) that a Participant is receiving long-term disability benefits under the
disability plan in which the Participant participates as of the Termination
Date, or (ii) if there is no such plan as of the Termination Date, that the
Participant has been substantially unable to perform his or her duties,
services and responsibilities by reason of a physical or mental infirmity for
180 consecutive days.
2.30 Plan. The term "Plan" shall mean the Merck & Co., Inc. Change in
Control Separation Benefits Plan as set forth in this document.
2.31 Pro-Rata Bonus. The term "Pro-Rata Bonus" shall mean, with
respect to the fiscal year in which a Participant's Termination Date occurs,
an amount equal to the Bonus Amount multiplied by a fraction the numerator of
which is the number of whole and partial months that have elapsed in such
fiscal year through the Termination Date (counting any partial month as a
whole month for this purpose) and the denominator of which is twelve;
provided, however, that the Pro-Rata Bonus shall be reduced, but not below
zero, to the extent of any annual cash bonus the Participant receives from
the Employer in respect of the fiscal year in which the Termination Date
occurs.
2.32 Savings Plan. The term "Savings Plan" shall mean the Merck &
Co., Inc. Employee Savings and Security Plan.
2.33 Severance Benefits. The term "Severance Benefits" shall mean the
payments and benefits payable in accordance with Article IV of the Plan.
2.34 Shares. The term "Shares" shall mean the shares of common stock,
par value $0.01 per share, of the Company.
2.35 Supplemental Plan. The term "Supplemental Plan" shall mean the
Merck & Co., Inc. Supplemental Retirement Plan.
2.36 Termination Date. The term "Termination Date" shall mean the
date of the termination of a Participant's employment with the Employer as
determined in accordance with Article V.
ARTICLE III
ELIGIBILITY
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3.1 Commencement of Participation.
(a) Management Committee Members. Each Management Committee
Member as of the Effective Date shall automatically be a Participant in the
Plan as of the Effective Date. Each individual who is designated by the
Chief Executive Officer as a Management Committee Member following the
Effective Date shall automatically be a Participant in the Plan as of the
date of such designation.
(b) Other Executives. Each Other Executive as of the Effective
Date shall automatically be a Participant in the Plan as of the Effective
Date. Each individual who becomes an Other Executive (whether by reason of
being hired or promoted from lower grades) shall automatically be a
Participant in the Plan as of the date that he or she becomes an Other
Executive.
3.2 Duration of Participation.
(a) Management Committee Members. A Participant who is a
Management Committee Member shall cease to be a Participant in the Plan (i)
if, prior to a Change in Control (but subject to Sections 4.2 and 8.2), he or
she ceases to be a Management Committee Member, or (ii) if his or her
employment is terminated under circumstances where he or she is not entitled
to Severance Benefits under the terms of this Plan; provided, however, that,
subject to Sections 4.2 and 8.2, if a Management Committee Member ceases to
be a Management Committee Member but remains an Other Executive, he or she
shall continue to participate in the Plan as an Other Executive.
(b) Other Executives. A Participant who is an Other Executive
shall cease to be a Participant in the Plan (i) if, prior to a Change in
Control (but subject to Sections 4.2 and 8.2), he or she ceases to be an
Other Executive (other than by reason of becoming a Management Committee
Member), or (ii) if his or her employment is terminated under circumstances
where he or she is not entitled to Severance Benefits under the terms of this
Plan.
(c) A Participant entitled to Severance Benefits under the
terms of this Plan shall remain a Participant in the Plan until the full
amount of the Severance Benefits has been paid to him or her.
ARTICLE IV
SEVERANCE BENEFITS
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4.1 Right to Severance Benefits.
(a) Subject to Section 4.1(b):
(i) a Participant shall be entitled to receive Severance
Benefits from the Company in the amount provided in Section 4.3(a) if (i) a
Change in Control has occurred and (ii) within two years thereafter, the
Participant's employment with the Employer terminates for any reason,
except that, notwithstanding the foregoing provisions of this Section
4.1(a)(i), no Severance Benefits under Section 4.3(a) shall be payable to a
Participant should the Participant's termination of employment be (A)
initiated by the Employer for Cause, (B) by reason of Permanent Disability,
(C) initiated by the Participant other than for Good Reason, (D) by reason
of the Participant's death or (E) an Excluded Termination (as defined in
Section 4.1(c)); and
(ii) a Participant shall be entitled to receive Severance
Benefits from the Company in the amount provided in Section 4.3(b) if (i) a
Change in Control has occurred and (ii) within two years thereafter, the
Participant's employment with the Employer terminates for any reason,
except that, notwithstanding the foregoing provisions of this Section
4.1(a)(ii), no Severance Benefits under Section 4.3(b) shall be payable to
a Participant should the Participant's termination of employment be (A)
initiated by the Employer for Cause, (B) by reason of Permanent Disability,
(C) initiated by the Participant other than for Good Reason or (D) by
reason of the Participant's death.
(b) No Severance Benefits shall be provided to a Participant
unless the Participant has properly executed and delivered to the Company a
release of claims and that release of claims has become irrevocable as
provided therein. Such release of claims shall not be accepted by the
Company unless it is executed on or after the Participant's Termination
Date. The initial release of claims is attached to this Plan as Appendix A.
Prior to the occurrence of a Change in Control, but subject to Section 8.2,
the release of claims may be revised by the Company. The Company may in any
event modify the release of claims to conform it to the laws of the local
jurisdiction applicable to a Participant so long as such modification does
not increase the obligations of the Participant thereunder.
(c) If, following a Change in Control, a Participant's
employment with the Employer terminates in connection with the sale,
divestiture or other disposition of the stock or assets of any Operating Unit
(or part thereof) (a "Transaction"), such termination shall not be a
termination of employment of the Participant for purposes of the Plan, and
(notwithstanding the rights provided to the Participant by Section 4.1(a)(i))
the Participant shall not be entitled to Severance Benefits as a result of
such termination of employment if (i) the Participant is offered continued
employment, or continues in employment, with the divested Operating Unit (or
part thereof) or the purchaser of the stock or assets of the Operating Unit
(or part thereof), or one of their respective Affiliates (the
"Post-Transaction Employer"), as the case may be, on terms and conditions
that would not constitute Good Reason and (ii) the Company obtains an
agreement from the acquiror of the stock or assets of the divested Operating
Unit (or part thereof), enforceable by the Participant, to provide or cause
the Post-Transaction Employer to provide severance pay and benefits, if the
Participant accepts the offered employment or continues in employment with
the Post-Transaction Employer or its Affiliates following the Transaction,
(A) at least equal to the Severance Benefits set forth in Section 4.3(a) and
(B) payable upon a termination of the Participant's employment with the
Post-Transaction Employer and its Affiliates within such portion of the
two-year period described in Section 4.1(a)(i) as is then remaining and under
the same circumstances set forth in Section 4.1(a)(i). For purposes of this
Section 4.1(c), the terms "Cause" and "Good Reason" shall have the meanings
ascribed to them in Sections 2.6 and 2.16 respectively, but the term
"Employer" as it is used in those Sections shall be deemed to refer to the
entity employing the Participant after the Transaction, the term "Company" as
used in those Sections shall be deemed to refer to such entity or, if
applicable, the ultimate parent corporation of such entity, and the term
"Board" as used in those Sections shall refer to the body serving the
function of a board of directors for such entity or, if applicable, the
ultimate parent corporation of such entity.
A termination of employment described in this Section 4.1(c) is herein
referred to as an "Excluded Termination." In the circumstances described in
this Section 4.1(c), the Participant shall not be entitled to receive
Severance Benefits under Section 4.3(a) of this Plan whether or not the
Participant accepts the offered employment or continues in employment. The
provisions of this Section 4.1(c) do not create any entitlement to Severance
Benefits from the Company and its subsidiaries in any circumstances
whatsoever and are to be construed solely as a limitation on such entitlement
in the circumstances herein set forth.
(d) For purposes of determining a Participant's and the
Company's rights and obligations under the Plan, the transfer of employment
of a Participant from the Company to one of its Affiliates, or from such an
Affiliate to the Company, in each case whether before or after the Change in
Control, shall not constitute a termination of employment for purposes of the
Plan.
4.2 If (i) a Participant's employment is terminated by the Employer
without Cause prior to the date of a Change in Control or (ii) an action is
taken with respect to the Participant prior to the date of a Change in
Control that would constitute Good Reason if taken after a Change in Control,
and the Participant reasonably demonstrates that such termination or action
(A) was at the request of a third party that has indicated an intention or
taken steps reasonably calculated to effect a Change in Control or (B)
otherwise arose in connection with, or in anticipation of, a Change in
Control that has been threatened or proposed, such termination or action
shall be deemed to have occurred after such Change in Control for purposes of
the Plan, so long as such Change in Control actually occurs. If any such
termination or action occurs while an agreement is pending and the effective
provisions of such agreement provide for a transaction or transactions which
if consummated would constitute a Change in Control, then such termination or
action shall conclusively be presumed to have occurred in connection with a
Change in Control.
4.3 Amount of Severance Benefits.
(a) Subject to Sections 4.3(c) through 4.3(f), if a
Participant's employment is terminated in circumstances entitling him or her
to the Severance Benefits provided in this Section 4.3(a), such Participant
shall be entitled to each of the following:
(1) The Company shall pay to the Participant a Pro-Rata
Bonus in a lump sum within thirty days following the Termination Date.
(2) The Company shall pay to the Participant, as
severance pay and in lieu of any further Base Salary for periods
subsequent to the Termination Date, an amount of cash equal to the
Multiple times the sum of (A) the Base Salary and (B) the Bonus Amount,
with such severance pay to be paid in substantially equal installments
not less often than monthly over a number of years equal to the
Multiple, or, as to any Participant whose Multiple has been reduced
pursuant to the following proviso, over the period from the Termination
Date through the date on which the Participant attains age 65;
provided, however, that, for purposes of this Section 4.3(a)(2), (i)
the Multiple shall be reduced if the number of days from the
Termination Date to the date on which the Participant attains age 65 is
less than (x) 1,095, if the Multiple applicable to the Participant is
three, (y) 730, if the Multiple applicable to the Participant is two or
(z) 547, if the Multiple applicable to the Participant is one and
one-half (in each case determined without regard to the proviso)
(whichever of (x), (y) or (z) is applicable to the Participant, the
"Applicable Number"), and (ii) the Multiple as so reduced shall be
determined by multiplying the Multiple (determined without regard to
this proviso) times a fraction, the numerator of which is the number of
days from the Termination Date through the date that the Participant
attains age 65 and the denominator of which is the Applicable
Number.
(3) For Participants who are U.S.-based employees
eligible to participate in the Health Plan and Life Insurance Plan, for
a period (the "Continuation Period") equal to the lesser of (i) the
number of full and partial years subsequent to the Participant's
Termination Date equal to the Multiple or (ii) the period beginning on
the Participant's Termination Date and ending on his or her 65th
birthday, the Company shall continue, on behalf of the Participant and
his or her dependents and beneficiaries, the medical, dental and life
insurance benefits that were being provided to the Participant and his
or her dependents and beneficiaries under the Health Plan and Life
Insurance Plan immediately prior to the Change in Control or, if
greater, as of the Termination Date. The cost to the Participant of
such coverage and the terms and conditions of such coverage, in each
case during the Continuation Period, shall be the same as those
applicable to similarly situated active U.S-based employees of the
Company and its subsidiaries during the Continuation Period. Following
the Continuation Period, the Participant and his or her dependents and
beneficiaries shall be eligible to elect medical and/or dental
continuation coverage pursuant to Section 601 of ERISA and Section
4980B of the Code, and the cost of such medical and dental continuation
coverage shall be the same as is charged to terminated former salaried
U.S.-based employees of the Company and its subsidiaries during such
period. The obligation under this Section 4.3(a)(3) with respect to
the foregoing benefits shall be reduced to the extent that the
Participant obtains any such benefits pursuant to a subsequent
employer's benefit plans, in which case the Company may reduce or
eliminate the coverage and benefits it is required to provide the
Participant hereunder as long as the aggregate coverages and benefits
of the combined benefit plans are no less favorable to the Participant
than the coverages and benefits required to be provided hereunder. In
addition, no benefits shall be provided pursuant to this Section
4.3(a)(3) to the extent that the Participant is entitled to the same
type of benefits as a retiree of the Employer, including those eligible
for treatment as a retiree under Section 4.3(b)(2), Section 4.3(b)(3)
or Section 4.3(b)(4).
(4) If the Participant is U.S.-based and is eligible to
receive Employer-provided financial planning services as of the
Termination Date, the Company shall, at its expense, continue to
provide such financial planning services to the Participant during the
calendar year in which the Termination Date occurs and during the next
following calendar year.
(5) The Company shall, at its expense, permit the
Participant to participate in outplacement assistance services which
are (1) as to Management Committee Members, at a level appropriate for
senior management of a public company but not less than the same as at
the highest level provided under the Company's Separation Benefits Plan
for Nonunion Employees as in effect from time to time and (2) as to
Other Executives, the same as at the highest level provided under the
Company's Separation Benefits Plan for Nonunion Employees as in effect
from time to time. Outplacement benefits shall be provided in kind;
cash shall not be paid in lieu thereof, nor will cash Severance
Benefits be increased if a Participant declines or does not use the
outplacement benefits.
(b) Subject to Sections 4.3(c) through 4.3(f), if a
Participant's employment is terminated in circumstances entitling him or her
to the Severance Benefits provided in this Section 4.3(b), such Participant
shall be entitled to each of the following:
(1) The Participant shall be entitled to the pension
benefits as described in Appendix B.
(2) For Participants who are U.S.-based employees
eligible to participate in the Health Plan, if the Participant on his
or her Termination Date is not at least age 55 with the requisite
amount of service with an Employer to satisfy the requirements to be
considered a retiree under the Health Plan but would attain at least
age 50 and meet the service requirements to be considered a retiree
under the Health Plan within two years following the date of the Change
in Control (assuming continued employment during the entirety of such
two-year period), then the Participant shall be eligible for retiree
healthcare benefits under the Health Plan on his or her Termination
Date on the same terms and conditions applicable to salaried U.S.-based
employees of the Company whose employment terminated the last day of
the month prior to the Participant's Termination Date who were treated
as retirees under the Health Plan as of that date.
(3) For Participants who are U.S.-based employees
eligible to participate in the Executive Health Plan who on their
Termination Date are not eligible to be considered retirees under the
Health Plan (including under Section 4.3(b)(2)), if the Participant on
his or her Termination Date does not satisfy the age requirement (or
for Participants who are Management Committee Members, the age or
service requirements) to be considered a retiree under the Executive
Health Plan but would satisfy such requirements to be considered a
retiree under the Executive Health Plan within two years following the
date of the Change in Control (assuming continued employment during the
entirety of such two-year period), then the Participant shall be
eligible for retiree healthcare benefits under the Executive Health
Plan on his or her Termination Date on the same terms and conditions
applicable to salaried U.S.-based employees of the Company whose
employment terminated the last day of the month prior to the
Participant's Termination Date who were treated as retirees under the
Executive Health Plan as of that date.
(4) For Participants who are U.S.-based employees
eligible to participate in the Life Insurance Plan, if the Participant
on his or her Termination Date is not either at least age 65 or at
least age 55 with the requisite amount of service with an Employer to
satisfy the requirements to be considered a retiree under the Life
Insurance Plan but would attain at least age 65 or at least age 50 and
meet the service requirements to be considered a retiree under the Life
Insurance Plan within two years following the date of the Change in
Control (assuming continued employment during the entirety of such
two-year period), then the Participant shall be eligible for retiree
life insurance benefits under the Life Insurance Plan on his or her
Termination Date on the same terms and conditions applicable to
salaried U.S.-based employees of the Company whose employment
terminated the last day of the month prior to the Participant's
Termination Date who were treated as retirees under the Life Insurance
Plan as of that date.
(5) The Company may, to the extent it deems necessary or
appropriate (including to comply with applicable law and to preserve
grandfathered status of arrangements subject to Section 409A of the
Code), (1) cause the benefits set forth in Appendix B to be paid from
the Supplemental Plan, from new arrangements or otherwise from the
Company's general assets and (2) cause the benefits set forth in
Section 4.3(b)(2), 4.3(b)(3) or 4.3(b)(4) to be provided from insured
arrangements (including the Executive Health Plan), or pursuant to new
arrangements, individual arrangements or otherwise.
(c) The payments and benefits under this Plan to a Participant
are intended to constitute the exclusive payments in the nature of severance
or termination pay that shall be due to a Participant upon termination of his
or her employment without Cause or for Good Reason following a Change in
Control and shall be in lieu of any such other payments under any agreement,
plan, practice or policy of the Company or any of its Affiliates.
Accordingly, if a Participant is a party to an employment, severance,
termination, salary continuation or other or similar agreement with the
Company or any of its Affiliates, or is a participant in any other severance
plan, practice or policy of the Company or any of its Affiliates, the
severance pay to which the Participant is entitled under this Plan shall be
reduced (but not below zero) by the amount of severance pay to which he or
she is entitled under such other agreement, plan, practice or policy;
provided that the reduction set forth in this sentence shall not apply as to
any other such agreement, plan, practice or policy that contains a reduction
provision substantially similar to this Section 4.3(c) so long as the
reduction provision of such other agreement, plan, practice or policy is
applied. The severance pay to which a Participant is otherwise entitled
shall be further reduced (but not below zero) by any cash payments to which
the Participant may be entitled (x) under any federal, state or local
plant-closing (or similar or analogous) law (including, without limitation,
pursuant to the U.S. Worker Adjustment and Retraining Notification Act) or
(y) under any law outside the U.S. with respect to the payment of severance,
termination indemnities or other, similar payments. In addition, cash
Severance Benefits shall be reduced by the amount of short-term or long term
disability benefits payable to a Participant under any plan, program or
arrangement of an Employer in the event that cash Severance Benefits payable
hereunder cannot, by law, reduce the amount of short-term or long-term
disability benefits payable to a Participant under such plan, program, or
arrangement. Non-cash Severance Benefits shall be provided under this Plan
without duplication of the same or similar benefits to which a Participant
may be entitled under any such agreement, plan, practice or policy.
(d) The Participant shall not be required to mitigate the
amount of any payment provided for in this Plan by seeking other employment
or otherwise and, except as provided in Section 4.3(a)(3), no such payment
shall be offset or reduced by the amount of any compensation or benefits
provided to the Executive in any subsequent employment.
(e) The Company's obligation to provide the Severance Benefits
to a Participant, other than those set forth in Section 4.3(b)(1), shall be
conditioned on the Participant's continued compliance in all material
respects with the restrictive covenants set forth in Section 6 of the release
of claims attached hereto as Appendix A.
(f) Any action taken by the Company or any of its Affiliates
that (i) forms a basis of a Participant's termination of employment for Good
Reason or (ii) is taken following the provision of a Notice of Termination
and would constitute Good Reason shall be disregarded in calculating the
payments and benefits to be provided pursuant to this Section 4.3.
ARTICLE V
TERMINATION OF EMPLOYMENT
-------------------------
5.1 Written Notice Required. Any purported termination of
employment, whether by the Employer or by the Participant, shall be
communicated by written Notice of Termination to the other.
5.2 Termination Date. In the case of the Participant's death, the
Participant's Termination Date shall be his or her date of death. In all
other cases, the Participant's Termination Date shall be the date specified
in the Notice of Termination subject to the following:
(a) If the Participant's employment is terminated by the
Employer for Cause or due to Permanent Disability, the date specified in the
Notice of Termination shall be at least 30 days from the date the Notice of
Termination is given to the Participant, provided that in the case of
Permanent Disability the Participant shall not have returned to the full-time
performance of his or her duties during such period of at least thirty days;
and
(b) If the Participant terminates his or her employment for
Good Reason, the date specified in the Notice of Termination shall not be
more than sixty days from the date the Notice of Termination is given to the
Employer.
5.3 If the Participant terminates his or her employment for Good
Reason, the Company may, in its discretion, require the Participant to remain
employed for transition purposes for not more than thirty days after the
Termination Date (such period, the "Extension Period"). If the Company
elects to continue the Participant's employment during the Extension Period
pursuant to this Section 5.3, then (i) during the Extension Period, the
Participant shall continue to receive compensation and employee benefits that
are the same as in effect prior to the commencement of the Extension Period
and (ii) no act, circumstance or occurrence during the Extension Period shall
affect the right of the Participant to receive the Severance Benefits
determined as of the Termination Date, or if greater, determined as of the
end of the Extension Period.
ARTICLE VI
EFFECT OF SECTIONS 280G AND 4999 OF THE CODE
--------------------------------------------
6.1 Management Committee Members. This Section 6.1 shall be
applicable solely to Participants who are Management Committee Members.
(a) Anything in this Plan to the contrary notwithstanding, in
the event it shall be determined that any Payment to or in respect of a
Participant would be subject to the Excise Tax, then the Participant shall be
entitled to receive an additional payment (the "Gross-Up Payment") in an
amount such that, after payment by the Participant 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
Participant retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. The Company's obligation to make Gross-Up
Payments under this Section 6.1 shall not be conditioned upon the
Participant's termination of employment.
(b) Subject to the provisions of Section 6.1(c), all
determinations required to be made under this Section 6.1, 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 Company's independent accounting firm (the "Accounting
Firm"). The Accounting Firm shall provide detailed supporting calculations
both to the Company and the Participant within thirty business days of the
receipt of notice from the Participant that there has been a Payment or such
earlier time as is requested by the Company. In the event that the
Accounting Firm is serving as accountant or auditor for the individual,
entity or group effecting the Change in Control, the Company shall appoint
another nationally recognized accounting firm to make the determinations
required hereunder (which accounting firm shall then be referred to as the
Accounting Firm hereunder). All fees and expenses of the Accounting Firm
shall be borne solely by the Company. Any Gross-Up Payment, as determined
pursuant to this Section 6.1, shall be paid by the Company to the Participant
within thirty days of the receipt of the Accounting Firm's determination.
Any determination by the Accounting Firm shall be binding upon the Company
and the Participant. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments that will
not have been made by the Company should have been made (the "Underpayment"),
consistent with the calculations required to be made hereunder. In the event
the Company exhausts its remedies pursuant to Section 6.1(c) and the
Participant thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by the Company to
or for the benefit of the Participant.
(c) The Participant shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of the Gross-Up Payment. Such notification shall be
given as soon as practicable, but no later than ten business days after the
Participant is informed in writing of such claim. The Participant shall
apprise the Company of the nature of such claim and the date on which such
claim is requested to be paid. The Participant shall not pay such claim
prior to the expiration of the thirty-day period following the date on which
the Participant gives such notice to the Company (or such shorter period
ending on the date that any payment of taxes with respect to such claim is
due). If the Company notifies the Participant in writing prior to the
expiration of such period that the Company desires to contest such claim, the
Participant shall:
(i) give the Company any information reasonably requested
by the Company relating to such claim,
(ii) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Company,
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including additional interest and penalties) incurred in connection
with such contest, and shall indemnify and hold the Participant harmless, on
an after-tax basis, for any Excise Tax or income tax (including interest and
penalties) imposed as a result of such representation and payment of costs
and expenses. Without limitation on the foregoing provisions of this Section
6.1(c), the Company shall control all proceedings taken in connection with
such contest, and, at its sole discretion, may pursue or forego any and all
administrative appeals, proceedings, hearings and conferences with the
applicable taxing authority in respect of such claim and may, at its sole
discretion, either pay the tax claimed to the appropriate taxing authority on
behalf of the Participant and direct the Participant to sue for a refund or
contest the claim in any permissible manner, and the Participant agrees to
prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as
the Company shall determine; provided, however, that, if the Company pays
such claim and directs the Participant to sue for a refund, the Company shall
indemnify and hold the Participant harmless, on an after-tax basis, from any
Excise Tax or income tax (including interest or penalties) imposed with
respect to such payment or with respect to any imputed income in connection
with such payment; and provided, further, that any extension of the statute
of limitations relating to payment of taxes for the taxable year of the
Participant with respect to which such contested amount is claimed to be due
is limited solely to such contested amount. Furthermore, the Company's
control of the contest shall be limited to issues with respect to which the
Gross-Up Payment would be payable hereunder, and the Participant shall be
entitled to settle or contest, as the case may be, any other issue raised by
the Internal Revenue Service or any other taxing authority.
(d) If, after the receipt by the Participant of a Gross-Up
Payment or payment by the Company of an amount on the Participant's behalf
pursuant to Section 6.1(c), the Participant becomes entitled to receive any
refund with respect to the Excise Tax to which such Gross-Up Payment relates
or with respect to such claim, the Participant shall (subject to the
Company's complying with the requirements of Section 6.1(c), if applicable)
promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after
payment by the Company of an amount on the Participant's behalf pursuant to
Section 6.1(c), a determination is made that the Participant shall not be
entitled to any refund with respect to such claim and the Company does not
notify the Participant in writing of its intent to contest such denial of
refund prior to the expiration of 30 days after such determination, then the
amount of such payment shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.
Notwithstanding any other provision of this Section 6.1, the Company
may, in its sole discretion, withhold and pay over to the Internal Revenue
Service or any other applicable taxing authority, for the benefit of the
Participant, all or any portion of any Gross-Up Payment, and the Participant
hereby consents to such withholding and payment.
6.2 Other Executives. This Section 6.2 shall be applicable solely to
Participants who are Other Executives.
(a) Anything in this Plan to the contrary notwithstanding, in
the event it shall be determined that any Payment to or in respect of a
Participant would be subject to the Excise Tax, then the Payments shall be
reduced (but not below zero) if and to the extent that a reduction in the
Payments would result in the Participant retaining a larger amount, on an
after-tax basis (taking into account federal, state and local income taxes
and the Excise Tax) than if the Participant received the entire amount of
such Payments. Unless the Participant shall have given prior written notice
specifying a different order to the Company to effectuate the foregoing, the
Company shall reduce or eliminate the Payments by first reducing or
eliminating the portion of the Payments which are not payable in cash and
then by reducing or eliminating cash payments, in each case in reverse order
beginning with payments or benefits which are to be paid the farthest in time
from the Determination (as defined below). Any notice given by the
Participant pursuant to the preceding sentence shall take precedence over the
provisions of any other plan, arrangement or agreement governing the
Participant's rights and entitlements to any benefits or compensation.
(b) The determination of whether the Payments shall be reduced
as provided in Section 6.2(a) and the amount of such reduction shall be made
at the Company's expense by the Accounting Firm, which shall provide its
determination (the "Determination"), together with detailed supporting
calculations and documentation to the Company and the Participant within
thirty business days after the Termination Date. If the Accounting Firm
determines that no Excise Tax is payable by the Participant with respect to
the Payments, it shall furnish the Participant with an opinion reasonably
acceptable to the Participant that no Excise Tax will be imposed with respect
to any such payments and, absent manifest error, such Determination shall be
binding, final and conclusive upon the Company and the Participant.
ARTICLE VII
SUCCESSORS TO COMPANY
---------------------
7.1 Successors. This Plan shall bind any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company, in the same
manner and to the same extent that the Company would be obligated under this
Plan if no succession had taken place. In the case of any transaction in
which a successor would not by the foregoing provision or by operation of law
be bound by this Plan, the Company shall require such successor expressly and
unconditionally to assume and agree to perform the obligations of the Company
and each Employer under this Plan, in the same manner and to the same extent
that the Company and each Employer would be required to perform if no such
succession had taken place.
ARTICLE VIII
DURATION, AMENDMENT AND PLAN TERMINATION
----------------------------------------
8.1 Duration. This Plan shall continue in effect until terminated in
accordance with Section 8.2. If a Change in Control occurs, this Plan shall
continue in full force and effect and shall not terminate or expire until
after all Participants who have become entitled to Severance Benefits
hereunder shall have received such payments in full.
8.2 Amendment and Termination. Prior to a Change in Control, the
Plan may be amended or modified in any respect, and may be terminated, in any
such case by resolution adopted by two-thirds of the Compensation and
Benefits Committee of the Board; provided, however, that no such amendment,
modification or termination that would adversely affect the benefits or
protections hereunder of any individual who is a Participant as of the date
such amendment, modification or termination is adopted shall be effective as
it relates to such individual unless no Change in Control occurs within one
year after such adoption, any such attempted amendment, modification or
termination adopted within one year prior to a Change in Control being null
and void ab initio as it relates to all such individuals who were
Participants prior to such adoption (it being understood, however, that,
subject to Section 4.2, the hiring, termination of employment, promotion or
demotion of any employee of the Company or any of its Affiliates prior to a
Change in Control shall not be construed to be an amendment, modification or
termination of the Plan); provided, further, however, that the Plan may not
be amended, modified or terminated, (i) at the request of a third party who
has indicated an intention or taken steps to effect a Change in Control and
who effectuates a Change in Control or (ii) otherwise in connection with, or
in anticipation of, a Change in Control which actually occurs, any such
attempted amendment, modification or termination being null and void ab
initio. Any action taken to amend, modify or terminate the Plan which is
taken after the execution of an agreement providing for a transaction or
transactions which, if consummated, would constitute a Change in Control
shall conclusively be presumed to have been taken in connection with a Change
in Control. From and after the occurrence of a Change in Control, the Plan
may not be amended or modified in any manner that would in any way adversely
affect the benefits or protections provided hereunder to any individual who
is a Participant in the Plan on the date the Change in Control occurs. The
revision of the release of claims attached hereto as Appendix A shall be
deemed to be a modification of the Plan for purposes of this Section 8.2.
8.3 Form of Amendment. The form of any amendment or termination of
the Plan in accordance with Section 8.2 hereof shall be a written instrument
signed by a duly authorized officer or officers of the Company, certifying
that the amendment or termination has been approved by the Compensation and
Benefits Committee of the Board.
ARTICLE IX
MISCELLANEOUS
-------------
9.1 Legal Fees and Expenses. The Company shall pay all legal fees
and related expenses (including the costs of experts, evidence and counsel)
reasonably and in good faith incurred by a Participant if the Participant
prevails on his or her claim for relief in an action (i) by the Participant
to obtain or enforce any right or benefit provided by this Plan or (ii) by
the Company or the Employer to enforce post-termination covenants against the
Participant.
9.2 Employment Status. This Plan does not constitute a contract of
employment or impose on any Employer any obligation to retain any Participant
as an employee, to change the status of any Participant's employment as a
Management Committee Member or Other Executive (as applicable), or to change
any employment policies of any Employer.
9.3 Withholding of Taxes. The Company shall withhold from any
amounts payable under this Plan all federal, state, local or other taxes that
are legally required to be withheld.
9.4 No Effect on Other Benefits. Severance Benefits shall not be
counted as compensation for purposes of determining benefits under other
benefit plans, programs, policies and agreements, except to the extent
expressly provided therein or herein.
9.5 Validity and Severability. The invalidity or unenforceability of
any provision of the Plan shall not affect the validity or enforceability of
any other provision of the Plan, which shall remain in full force and effect,
and any prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
9.6 Settlement of Claims. The Company's obligation to make the
payments provided for in this Plan and otherwise to perform its obligations
hereunder shall not be affected by any circumstances, including, without
limitation, any set-off, counterclaim, defense, recoupment, or other right
which the Company may have against a Participant or others.
9.7 Unfunded Obligation. All Severance Benefits provided under this
Plan shall constitute an unfunded obligation of the Company. Payments shall
be made, as due, from the general funds of the Company. This Plan shall
constitute solely an unsecured promise by the Company to provide such
benefits to Participants to the extent provided herein. For avoidance of
doubt, any pension, health or life insurance benefits to which a Participant
may be entitled under this Plan shall be provided under other applicable
employee benefit plans of the Company or the Employer. This Plan does not
provide the substantive benefits under such other employee benefit plans, and
nothing in this Plan shall restrict the Company's or Employer's ability to
amend, modify or terminate such other employee benefit plans (whether before
or after a Change in Control (but subject to Section 2.16 following a Change
in Control)).
9.8 Governing Law. It is intended that the Plan be an "employee
welfare benefit plan" within the meaning of Section 3(1) of ERISA, and the
Plan shall be administered in a manner consistent with such intent. The Plan
and all rights thereunder shall be governed and construed in accordance with
ERISA and, to the extent not preempted by federal law, with the laws of the
state of New Jersey, wherein venue shall lie for any dispute arising
hereunder. This Plan shall also be subject to all applicable non-U.S. laws
as to Participants employed by subsidiaries of the Company located outside of
the United States. Without limiting the generality of this Section 9.8, it
is intended that the Plan comply with Section 409A of the Code, and, in the
event that this Plan is determined to be a "deferred compensation plan"
within the meaning of Section 409A(d)(1) of the Code, the Compensation and
Benefits Committee shall, as necessary, adopt such conforming amendments as
are necessary to comply with Section 409A of the Code without reducing the
Severance Benefits due to Participants hereunder.
9.9 Assignment. This Plan shall inure to the benefit of and shall be
enforceable by a Participant's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If a
Participant should die while any amount is still payable to the Participant
under this Plan had the Participant continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms
of this Plan to the Participant's estate. A Participant's rights under this
Plan shall not otherwise be transferable or subject to lien or attachment.
9.10 Enforcement. This Plan is intended to constitute an enforceable
contract between the Company and each Participant subject to the terms hereof.
9.11 Effective Date. This Plan shall be effective as of November 23,
2004.
<PAGE>
Appendix A
Form of Release of Claims
GENERAL RELEASE
1. General Release.
In consideration of the payments and benefits to be made under the
Merck & Co., Inc. Change in Control Separation Benefits Plan (the "Plan"),
(the "Employee"), with the intention of binding the Employee
and the Employee's heirs, executors, administrators and assigns, does hereby
release, remise, acquit and forever discharge Merck and Co., Inc. (the
"Company") and each of its subsidiaries and affiliates (the "Company
Affiliated Group"), their present and former officers, directors, executives,
agents, attorneys, employees and employee benefits plans (and the fiduciaries
thereof), and the successors, predecessors and assigns of each of the
foregoing (collectively, the "Company Released Parties"), of and from any and
all claims, actions, causes of action, complaints, charges, demands, rights,
damages, debts, sums of money, accounts, financial obligations, suits,
expenses, attorneys' fees and liabilities of whatever kind or nature in law,
equity or otherwise, whether accrued, absolute, contingent, unliquidated or
otherwise and whether now known or unknown, suspected or unsuspected which
the Employee, individually or as a member of a class, now has, owns or holds,
or has at any time heretofore had, owned or held, against any Company
Released Party in any capacity, including, without limitation, any and all
claims (i) arising out of or in any way connected with the Employee's service
to any member of the Company Affiliated Group (or the predecessors thereof)
in any capacity, or the termination of such service in any such capacity,
(ii) for severance or vacation benefits, unpaid wages, salary or incentive
payments, (iii) for breach of contract, wrongful discharge, impairment of
economic opportunity, defamation, intentional infliction of emotional harm or
other tort and (iv) for any violation of applicable state and local labor and
employment laws (including, without limitation, all laws concerning unlawful
and unfair labor and employment practices), any and all claims based on the
Employee Retirement Income Security Act of 1974 ("ERISA"), any and all claims
arising under the civil rights laws of any federal, state or local
jurisdiction, including, without limitation, Title VII of the Civil Rights
Act of 1964 ("Title VII"), the Americans with Disabilities Act ("ADA"),
Sections 503 and 504 of the Rehabilitation Act, the Family and Medical Leave
Act, the Age Discrimination in Employment Act ("ADEA"), the Pennsylvania
Human Relations Act, the New Jersey Law Against Discrimination and any and
all claims under any whistleblower laws or whistleblower provisions of other
laws including, without limitation, the New Jersey Conscientious Employee
Protection Act, excepting only:
(a) rights of the Employee under this General Release and the Plan;
(b) rights of the Employee relating to equity awards held by the
Employee as of his or her Termination Date (as defined in the Plan);
(c) the right of the Employee to receive COBRA continuation coverage
in accordance with applicable law;
(d) rights to indemnification the Employee may have (i) under
applicable corporate law, (ii) under the by-laws or certificate of
incorporation of any Company Released Party or (iii) as an insured under any
director's and officer's liability insurance policy now or previously in
force;
(e) claims (i) for benefits under any health, disability, retirement,
deferred compensation, life insurance or other, similar employee benefit plan
or arrangement of the Company Affiliated Group and (ii) for earned but unused
vacation pay through the Termination Date in accordance with applicable
Company policy; and
(f) claims for the reimbursement of unreimbursed business expenses
incurred prior to the Termination Date pursuant to applicable Company policy.
2. No Admissions. The Employee acknowledges and agrees that this General
Release is not to be construed in any way as an admission of any liability
whatsoever by any Company Released Party, any such liability being expressly
denied.
3. Application to all Forms of Relief. This General Release applies to
any relief no matter how called, including, without limitation, wages, back
pay, front pay, compensatory damages, liquidated damages, punitive damages
for pain or suffering, costs and attorney's fees and expenses.
4. Specific Waiver. The Employee specifically acknowledges that his or
her acceptance of the terms of this General Release is, among other things, a
specific waiver of his or her rights, claims and causes of action under Title
VII, ADEA, ADA and any state or local law or regulation in respect of
discrimination of any kind; provided, however, that nothing herein shall be
deemed, nor does anything herein purport, to be a waiver of any right or
claim or cause of action which by law the Employee is not permitted to
waive.
5. No Complaints or Other Claims. The Employee acknowledges and agrees
that he or she has not, with respect to any transaction or state of facts
existing prior to the date hereof, filed any complaints, charges or lawsuits
against any Company Released Party with any governmental agency, court or
tribunal.
6. Conditions of General Release.
(a) Terms and Conditions. From and after the Termination Date, the
Employee shall abide by all the terms and conditions of this General Release
and the terms and conditions set forth in the Terms and Conditions of
Employment signed by the Employee, which is incorporated herein by reference.
(b) Confidentiality. The Employee shall not, without the prior
written consent of the Company or as may otherwise be required by law or any
legal process, or as is necessary in connection with any adversarial
proceeding against any member of the Company Affiliated Group (in which case
the Employee shall cooperate with the Company in obtaining a protective order
at the Company's expense against disclosure by a court of competent
jurisdiction), communicate, to anyone other than the Company and those
designated by the Company or on behalf of the Company in the furtherance of
its business, any trade secrets, confidential information, knowledge or data
relating to any member of the Company Affiliated Group, obtained by the
Employee during the Employee's employment by the Company that is not
generally available public knowledge (other than by acts by the Employee in
violation of this General Release).
(c) Return of Company Material. The Employee represents that he or
she has returned to the Company all Company Material (as defined below). For
purposes of this Section 6(c), "Company Material" means any documents, files
and other property and information of any kind belonging or relating to (i)
any member of the Company Affiliated Group, (ii) the current and former
suppliers, creditors, directors, officers, employees, agents and customers of
any of them or (iii) the businesses, products, services and operations
(including without limitation, business, financial and accounting practices)
of any of them, in each case whether tangible or intangible (including,
without limitation, credit cards, building and office access cards, keys,
computer equipment, cellular telephones, pagers, electronic devices,
hardware, manuals, files, documents, records, software, customer data,
research, financial data and information, memoranda, surveys, correspondence,
statistics and payroll and other employee data, and any copies, compilations,
extracts, excerpts, summaries and other notes thereof or relating thereto),
excluding only information (x) that is generally available public knowledge
or (y) that relates to the Employee's compensation or employee benefits.
(d) Cooperation. Following the Termination Date, the Employee shall
reasonably cooperate with the Company upon reasonable request of the Board
and be reasonably available to the Company with respect to matters arising
out of the Employee's services to the Company Affiliated Group.
(e) Nondisparagement. The Employee agrees not to communicate
negatively about or otherwise disparage any Company Released Party or the
products or businesses of any of them in any way whatsoever.
(f) Nonsolicitation. The Employee agrees that for the period of time
beginning on the date hereof and ending on the second anniversary of the date
of the Change in Control, the Employee shall not, either directly or
indirectly, solicit, entice, persuade, induce or otherwise attempt to
influence any person who is employed by any member of the Company Affiliated
Group to terminate such person's employment by such member of the Company
Affiliated Group. The Employee also agrees that for the same period of time
he or she shall not assist any person or entity in the recruitment of any
person who is employed by any member of the Company Affiliated Group. The
Employee's provision of a reference to or in respect of any individual shall
not be a violation this Section 6(f).
(g) No Representation. The Employee acknowledges that, other than as
set forth in this Agreement and the Plan, (i) no promises have been made to
him or her and (ii) in signing this General Release the Employee is not
relying upon any statement or representation made by or on behalf of any
Company Released Party and each or any of them concerning the merits of any
claims or the nature, amount, extent or duration of any damages relating to
any claims or the amount of any money, benefits, or compensation due the
Employee or claimed by the Employee, or concerning the General Release or
concerning any other thing or matter.
(h) Injunctive Relief. In the event of a breach or threatened breach
by the Employee of this Section 6, the Employee agrees that the Company shall
be entitled to injunctive relief in a court of appropriate jurisdiction to
remedy any such breach or threatened breach, the Employee acknowledging that
damages would be inadequate or insufficient.
7. Voluntariness. The Employee agrees that he or she is relying
solely upon his or her own judgment; that the Employee is over eighteen years
of age and is legally competent to sign this General Release; that the
Employee is signing this General Release of his or her own free will; that
the Employee has read and understood the General Release before signing it;
and that the Employee is signing this General Release in exchange for
consideration that he or she believes is satisfactory and adequate.
8. Legal Counsel. The Employee acknowledges that he or she has been
informed of the right to consult with legal counsel and has been encouraged
to do so.
9. Complete Agreement/Severability. This General Release
constitutes the complete and final agreement between the parties and
supersedes and replaces all prior or contemporaneous agreements,
negotiations, or discussions relating to the subject matter of this General
Release. All provisions and portions of this General Release are severable.
If any provision or portion of this General Release or the application of any
provision or portion of the General Release shall be determined to be invalid
or unenforceable to any extent or for any reason, all other provisions and
portions of this General Release shall remain in full force and shall
continue to be enforceable to the fullest and greatest extent permitted by
law.
10. Acceptance. The Employee acknowledges that he or she has been
given a period of twenty-one (21) days within which to consider this General
Release, unless applicable law requires a longer period, in which case the
Employee shall be advised of such longer period and such longer period shall
apply. The Employee may accept this General Release at any time within this
period of time by signing the General Release and returning it to the Company.
11. Revocability. This General Release shall not become effective or
enforceable until seven (7) calendar days after the Employee signs it. The
Employee may revoke his or her acceptance of this General Release at any time
within that seven (7) calendar day period by sending written notice to the
Company. Such notice must be received by the Company within the seven (7)
calendar day period in order to be effective and, if so received, would void
this General Release for all purposes.
12. Amendment, Termination of Plans. The Company retains the right
(to the extent permitted by law) to amend, modify or terminate the Plan in
accordance with its terms, and nothing in this General Release affects or
alters that right. If the Employee signs and returns the General Release,
any later amendment, modification or termination shall have no effect on the
amount of Severance Benefits the Employee is eligible to receive as set forth
in the Plan as in effect on the date that the Employee signs this General
Release.
13. Governing Law. Except for issues or matters as to which federal
law is applicable, this General Release shall be governed by and construed
and enforced in accordance with the laws of the State of New Jersey without
giving effect to the conflicts of law principles thereof.
Please indicate your acceptance of this General Release by signing and
dating this letter and returning it to the Company. A duplicate of this
letter is enclosed for your records.
Very truly yours,
-----------------------------
Name:
------------------------
Title:
-----------------------
ACCEPTED AND AGREED:
---------------------
<PAGE>
Appendix B
Description of Change-in-Control Benefits under the Merck & Co., Inc.
Salaried Retirement Plan
This Appendix describes benefits under the Pension Plan and the
Supplemental Plan provided to a Participant in the Plan if such Participant
signs and returns the release of claims in use under the Plan.
I. If a Participant's employment is terminated in circumstances entitling
him or her to the Severance Benefits provided in Section 4.3(b) of the Plan,
1. For a Participant who participates in the Pension Plan and
on his or her Termination Date is not at least age 55 with at least ten
years of Credited Service under the Pension Plan but would attain at
least age 50 and have at least ten years of Credited Service under the
Pension Plan within two years following the date of the Change in
Control (assuming continued employment during the entirety of such
two-year period), then the Participant shall be deemed to be eligible
for a subsidized early retirement benefit under the Pension Plan
commencing no earlier than age 55 based on his or her Credited Service
under the Pension Plan accrued as of his or her Termination Date.
2. For a Participant who participates in the Pension Plan and
on his or her Termination Date is not at least age 65 but would attain
at least age 65 within two years following the date of the Change in
Control without regard to years of Credited Service (assuming continued
employment during the entirety of such two-year period), then the
Participant shall be deemed to be eligible for a benefit unreduced for
early commencement under the Pension Plan commencing as soon after his
or her Termination Date that he or she elects to commence to receive
benefits.
3. For a Participant who participates in the Pension Plan and
on his or her Termination Date is not eligible for the "Rule of 85
Transition Benefit" (as such term is defined in the Pension Plan) but
would have been eligible for the Rule of 85 Transition Benefit within
two years following the date of the Change in Control (assuming
continued employment during the entirety of such two-year period),
then the Participant shall be deemed to be eligible for the Rule of
85 Transition Benefit upon commencement of his or her pension benefit
under the Pension Plan.
II. If a Participant's employment is terminated in circumstances entitling
him or her to the Severance Benefits provided in Section 4.3(a) of the Plan,
1. If the Participant participates in the Supplemental Plan at
any time prior to the Termination Date, the Company shall adjust the
benefit payable thereunder (a) by adding a number of years of
additional Credited Service to the Participant's existing Credited
Service as of the Termination Date equal to the Multiple, (b) by
assuming for each of the years of Credited Service added pursuant to
clause (a) that the Participant's Compensation (as such term is defined
in the Pension Plan) was equal to the sum of the Participant's Base
Salary and Bonus Amount, (c) by adding a number of years of age to the
Participant thereunder equal to the Multiple and (d) then by
calculating the Participant's pension in accordance with the formula
provided therein as of immediately prior to the Change in Control or,
if greater, as of the Termination Date. Anything in this Article II to
the contrary notwithstanding, the application of the Multiple and any
additional years of age shall not cause the Participant's total years
of Credited Service or age to exceed the amount that would have applied
to the Participant if his or her employment had continued to age 65.
III. The benefits described in Article I of this Appendix shall be payable
from the Pension Plan and, to the extent that such benefits cannot be paid
from the Pension Plan, then such benefits shall be paid under the
Supplemental Plan or under new arrangements or from the Company's general
assets as provided by Section 4.3(b)(5) of the Plan. The benefits provided
under Article II shall be paid from the Supplemental Plan or under new
arrangements or from the Company's general assets as provided by Section
4.3(b)(5) of the Plan.