UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC  20549

 


 

FORM 8-K

 

CURRENT REPORT

 

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

 

Date of Report (date of earliest event reported): December 4, 2012 (December 3, 2012)

 

STEEL DYNAMICS, INC.

(Exact name of registrant as specified in its charter)

 

Indiana

 

0-21719

 

35-1929476

(State or other jurisdiction

 

(Commission File Number)

 

(IRS Employer

of incorporation)

 

 

 

Identification No.)

 

7575 W. Jefferson Blvd., Fort Wayne, Indiana 46804

(Address of principal executive offices) (Zip Code)

 

Registrant’s telephone number, including area code:  260-969-3500

 

Not Applicable

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o             Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

o             Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

o             Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

o             Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 



 

Item 5.02.                                         Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

1.                                       Regarding adoption of a Change in Control Benefit Plan:

 

The Compensation Committee of the Board of Directors of Steel Dynamics, Inc., following the approval of the Board, has approved the Steel Dynamics, Inc. Change in Control Benefit Plan (the “CIC Plan”), effective as of December 1, 2012, a copy of which is attached hereto as Exhibit 10.20.

 

The following is a summary of the terms and provisions of the CIC Plan, which is qualified in its entirety by reference to Exhibit 10.20, and which, in the event of inconsistency, shall control.

 

Purpose:   To currently provide five (5) senior officers — specifically, the Chief Executive Officer; the Executive Vice President for Steelmaking, President and COO of Steel Operations; the Executive Vice President and Chief Financial Officer; the Executive Vice President of Metals Recycling, President and COO of OmniSource; and the Executive Vice President of Business Development, President and COO of New Millennium Building Systems — with specified severance benefits in the event of a “change in control” (as defined), accompanied by an involuntary termination of employment, without “Cause” by the company, or for “Good Reason” by the executive, within the period of six months prior to or twenty-four months following the change in control.  Change in Control severance benefits may also be extended from time to time to other Executive Vice Presidents or other senior officers, by approval of the Company’s Compensation Committee, upon the recommendation of the Chief Executive Officer.

 

Key Defined Terms:

 

“Change in Control” — (a)  the acquisition of stock ownership of more than fifty percent of the total voting power, (b) a merger or consolidation in which the Company is not the surviving entity (except if more than fifty percent of the total combined voting power of the securities beneficially owned, post-transaction, are owned by persons who beneficially owned common stock immediately prior to the transaction, and the members of the pre-transaction board of directors constitute a majority of the board immediately after the transaction), (c) a reverse merger (where the Company is the surviving entity), but one in which either (i) persons who beneficially owned common stock or securities, pre-transaction, representing more than fifty percent of the total combined voting power of the Company, or (ii) the members of the pre-transaction board of directors do not constitute a majority of the board immediately after the transaction, or (d) the sale, transfer or disposition (other than to one or more subsidiaries of the Company) of all or substantially all of the assets of the Company.

 

“Cause”  — (a) gross negligence or willful misconduct; (b) a willful and material violation of a state or federal law, which, if publicly known, would injure the Company’s business or reputation; (c) a refusal or willful failure to comply with any specific lawful direction, order, policy or procedure; (d) conviction (or the entry of a nolo contendere plea) of a felony, or of a misdemeanor that would have a material adverse effect on the Company’s goodwill or commercial relationships, or (e) the substantial and continuing willful refusal, post-transaction, to perform duties ordinarily performed by an employee in the same position, pre-transaction.

 

“Change in Control Period” — The time commencing during the period beginning six (6) months prior to and ending twenty-four (24) months following a Change in Control

 

“Good Reason” — Resignation, associated with a Change in Control event, within thirty days following any of the following events: (a) a significant reduction, post-transaction, in the person’s pre-transaction duties, authority, responsibilities, or reporting relationships (other than the mere occurrence, as such, of the Change in Control event itself), or the continued assignment, after due notice of objection, to that person of such reduced duties, authority, responsibilities or reporting relationships.

 

“Termination Date” — If employment is terminated by the Company, or by the executive, the date designated by the Company as the last day of employment or the effective date of resignation, as the case may be,

 

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except if termination is by reason of death (in which case the Termination Date is date of death) or disability (in which case the Termination is the date designated by the Company).

 

“Tier One Officer” — The Chief Executive Officer, or, hereafter and if applicable, upon recommendation of the Chief Executive Officer and approval by the Compensation Committee, any other senior officer so designated, by name and title.

 

“Tier Two Officer” — Except if previously designated and approved as a Tier One Officer, the Executive Vice President for Steelmaking, President and COO of Steel Operations; the Executive Vice President and Chief Financial Officer; the Executive Vice President of Metals Recycling, President and COO of OmniSource; and the Executive Vice President of Business Development, President and COO of New Millennium Building Systems.

 

Trigger Event for Benefits:

 

The executive’s employment is terminated, either by the Company without Cause, or by the executive for Good Reason, at any time during the Change in Control Period.

 

Change in Control Benefits:

 

(1)           Acceleration in full, so as to become immediately and completely vested, or acceleration of any applicable deferred settlement dates (subject in all cases to applicable holding periods) of any and all unvested stock options, restricted stock units, performance units, or any other equity-based securities or similar incentives that have been granted to the executive as of the Termination Date. In all other respects, the terms and conditions of executive’s securities shall continue to be subject to the terms of the applicable equity incentive plan and award.

 

(2)           In the case of a Tier One Officer, a lump sum cash payment equal to (A) two (2) times that person’s highest base salary, at the Chief Executive Officer’s or such other designated Tier One Officer’s highest base salary rate then in effect as of the Termination Date (without taking into account any reduction in base salary that could independently trigger that person’s resignation for Good Reason), plus (B) two (2) times the greater of that person’s target bonus or average actual bonus for the prior two (2) years, pursuant to the Company’s 2008 Executive Incentive Compensation Plan (the “Annual Bonus Plan”) or its annual bonus plan successor, if any), less, in all instances, applicable withholding taxes or other withholding obligations of the Company, and less any amounts to which the Chief Executive Officer or other Tier One Officer is otherwise entitled under any statutory or Company long or short term disability plan, or by reason of any other plans, policies or practices of the Company that, if and to the extent implemented, would result in benefit payments to the Chief Executive Officer or such other Tier One Officer, on the occasion of a termination of employment without Cause, unrelated to a Change in Control event.

 

(3)           In the case of a Tier Two Officer, a lump sum cash payment equal to (A) one and one-half (1½) times such Tier Two Officer’s base salary, at such Tier Two Officer’s highest base salary rate then in effect as of the Termination Date (without taking into account any reduction in base salary that could independently trigger such person’s resignation for Good Reason), plus (B) one and one-half (1½) times the greater of such Tier Two Officer’s target bonus or average actual bonus for the prior two (2) years, pursuant to the Company’s Annual Bonus Plan or its successor, less, in all instances, applicable withholding taxes or other withholding obligations of the Company, and less any amounts to which such Tier Two Officer is otherwise entitled under any statutory or Company long or short term disability plan, or by reason of any other plans, policies or practices of the Company that, if and to the extent implemented, would result in benefit payments to the that Tier Two Officer on the occasion of a termination of employment without Cause, unrelated to a Change in Control event.

 

(4)           If the executive elects benefits continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) following termination of employment, payment of the full cost of such benefits (either directly to the executive or to the appropriate carrier or administrator at the Company’s election) for the lesser of (a) twenty-four (24) months or (b) until such time as the executive becomes eligible for reasonably comparable health care benefits from a subsequent employer.

 

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If executive’s employment terminates by reason of voluntary resignation (and which is not for Good Reason), or by the Company for Cause, then such executive is not entitled to receive any benefits under the CIC Plan.  If the executive suffers from a Disability, the Company may terminate such person’s employment to the extent permitted by law and, if such termination occurs during the Change in Control Period, the Company will then pay the full amount of the benefits under the CIC Plan.  If the executive’s employment is terminated due to the death of that person within twenty-four (24) months following a Change in Control, then the full amount of the benefits under the CIC Plan will be paid to that person’s estate.

 

If the executive’s employment terminates for any reason or no reason, whether on account of Disability, death, or otherwise, other than during the Change in Control Period, then that person is not entitled to receive severance or any other benefits under the CIC Plan.

 

Coordination with Other Change in Control Benefits or Severance Benefits:

 

If an executive is entitled to any cash payments, accelerated vesting of stock options or restricted stock grants or units, or any other benefits from the Company following the termination of such person’s employment, after a Change in Control but pursuant either to any other individually negotiated or otherwise applicable agreement or Company policy then in effect, then any benefits to which that executive may become entitled under the CIC Plan are to be reduced by the benefits, if any, to which that executive may become entitled to from the Company under such other agreement or policy, the purpose of such reduction being to ensure that any such Change in Control payment is not duplicative of a similar payment otherwise also payable to that executive merely because the termination of that person’s employment associated with the Change in Control event also constitutes a termination of employment without regard to that Change in Control event.

 

2.                                       Regarding an amendment to Section 10.4 of the Amended and Restated Steel Dynamics, Inc.2006 Equity Incentive Plan (the “Plan”):

 

The Compensation Committee of the Board of Directors of Steel Dynamics, Inc. has amended Section 10.4 of the Plan by deleting old Section 10.4 and replacing it with the following new and amended Section 10.4:

 

10.4                   Withholding Obligations.   The Administrator shall satisfy any federal, state or local tax withholding obligations relating to the exercise by a Participant of a Stock Option, or a Stock Appreciation Right, or acquisition by a Participant of shares of Common Stock pursuant to a Restricted Stock Award, a Performance Award, a Deferred Stock Unit, or a Restricted Stock Unit, or under any other Award by withholding shares of Common Stock from the shares of Common Stock otherwise issuable to the Participant as a result of the exercise or acquisition of Common Stock under the Award, provided, however, that no shares of Common Stock shall be withheld with a value exceeding the minimum amount of tax required to be withheld by law.  It is the intention of this provision, insofar as it pertains to a Participant who is an officer, director or other “insider” subject to Section 16(b) of the Exchange Act, to constitute the granting of a blanket approval, in advance of each such transaction, of a mandatory withholding right to satisfy the tax withholding requirements associated with any Award under this Plan, without the necessity of additional further approval in advance of each individual transaction.

 

The principal change effected by the amendment is to make mandatory on the part of the company the withholding of shares of the company’s common stock, issuable upon the exercise of a stock option or stock appreciation right, or issuable by virtue of a restricted stock award, a performance award, a deferred stock unit or a restricted stock unit (all as defined in the Plan), or by virtue of any other award, to satisfy any federal, state or local tax withholding obligation relating to such transaction.

 

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Item 9.01.                                         Financial Statements and Exhibits

 

(d)                                  Exhibits.

 

Exhibit Number

 

Description

 

 

 

10.20*†

 

Steel Dynamics, Inc. Change in Control Benefit Plan

 


*              Filed concurrently herewith

†              Indicates a management contract or compensatory plan or arrangement.

 

SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Report to be signed on its behalf by the undersigned, hereunto duly authorized.

 

 

STEEL DYNAMICS, INC.

 

 

 

 

 

/s/ Theresa E. Wagler

Date: December 4, 2012

By:

Theresa E. Wagler

 

Title:

Executive Vice President and CFO

 

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Exhibit 10.20

 

STEEL DYNAMICS, INC.

 

CHANGE IN CONTROL BENEFIT PLAN

 

1.             Introduction .

 

This Steel Dynamics, Inc. (“SDI” or the “Company”) Change in Control Benefits Plan (the “CIC Plan”) is established, effective as of December 1, 2012.

 

(a)           Purpose . The purpose of the Plan is to describe eligibility for certain post-employment benefits for Eligible Executives (as defined, and in the amounts set forth, below), whose employment is involuntarily terminated as a result of, or following, a Change in Control (as defined below).

 

(b)           Effect . This Plan, to the extent that it provides Eligible Executives with benefits upon a change in control event (i) supersedes and replaces any other prior plans, policies or practices of the Company or any of its subsidiaries, but only on a dollar-for-dollar basis, that relate to severance payments or acceleration of vesting requirements with respect to any stock options, restricted stock units, performance units, or any other equity-based securities, triggered specifically upon a change in control (as may be defined therein ), and (ii) replaces, but only on a dollar-for-dollar basis, any other like-kind benefits or payments that may be payable to the Eligible Executive upon a termination of service unrelated to a Change in Control event, the purpose of such offset being to insure that any such change in control payment is not duplicative of a similar payment otherwise also payable to the Eligible Employee merely because the termination of that person’s employment associated with the Change in Control event also constitutes a termination of employment without regard to that Change in Control event. Notwithstanding the foregoing, this CIC Plan, and any the payment required hereby, is and will be deemed subordinated, in any event, to any individually negotiated severance benefit agreement, in writing, whether in the form of a change in control severance agreement, as such, or an employment agreement that also provides for severance benefits upon a change in control event.

 

2.             Definition of Terms .

 

The following capitalized terms used in this CIC Plan shall have the following meanings:

 

(a)           Cause . “Cause” shall mean (i) gross negligence or willful misconduct in the performance of an Eligible Executive’s duties to Company; (ii) a material and willful violation of any federal or state law by an Eligible Executive that if made public would injure the business or reputation of Company; (iii) refusal or willful failure by an Eligible Executive to comply with any specific lawful direction or order of Company or the material policies and procedures of Company, including but not limited to the Steel Dynamics, Inc. Code of Ethics for Principal Executive Officers and Senior Financial Officers (iv) conviction (including a plea of nolo contendere ) of an Eligible Executive of a felony, or of a misdemeanor that would have a material adverse effect on the Company’s goodwill or commercial relationships if such Eligible Executive were to

 



 

continue to be retained as an employee of the Company; or (v) substantial and continuing willful refusal by an Eligible Executive to perform duties ordinarily performed by an employee in the same position and having similar duties as such Eligible Executive; in each case as reasonably determined by the Compensation Committee or the Board of Directors of the Company (the “Board”).

 

(b)           Change in Control . “Change in Control” shall mean the occurrence of one or more of the following with respect to the Company:

 

(i)            the acquisition by any person (or related group of persons), whether by tender or exchange offer made directly to the Company’s stockholders, open market purchases or any other transaction or series of transactions, of stock of the Company that, together with stock of the Company held by such person or group, constitutes more than fifty percent (50%) of the total voting power of the then outstanding stock of the Company entitled to vote generally in the election of the members of the Company’s Board;

 

(ii)           a merger or consolidation in which the Company is not the surviving entity, except for a transaction in which both (A) securities representing more than fifty percent (50%) of the total combined voting power of the surviving entity are beneficially owned (within the meaning of Rule 13d-3 promulgated under the Securities Exchange Act of 1934), directly or indirectly, immediately after such merger or consolidation by persons who beneficially owned common stock immediately prior to such merger or consolidation, and (B) the members of the Board immediately prior to the transaction (the “Existing Board”) constitute a majority of the Board immediately after such merger or consolidation;

 

(iii)          any reverse merger in which the Company is the surviving entity but in which either (A) persons who beneficially owned, directly or indirectly, common stock immediately prior to such reverse merger do not retain immediately after such reverse merger direct or indirect beneficial ownership of securities representing more than fifty percent (50%) of the total combined voting power of the Company’s outstanding securities, or (B) the members of the Existing Board do not constitute a majority of the Board of Directors immediately after such reverse merger; or

 

(iv)          the sale, transfer or other disposition of all or substantially all of the assets of the Company (other than a sale, transfer or other disposition to one or more subsidiaries of the Company).

 

(c)           Disability . “Disability” shall mean a mental or physical disability, illness or injury, evidenced by medical reports from a duly qualified medical practitioner, which renders an Eligible Executive unable to perform any one or more of the essential duties of his or her position after the provision of reasonable accommodation, if applicable, for a period of greater than ninety (90) days within a one year period.

 

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(d)           “Eligible Executives” shall mean (i) the Chief Executive Officer of the Company; (ii) the Executive Vice President for Steelmaking, President and COO of Steel Operations;(iii) the Executive Vice President and Chief Financial Officer; (iv) the Executive Vice President of Metals Recycling, President and COO of OmniSource; the Executive Vice President of Business Development, President and COO of New Millennium Building Systems; and (v) such other Executive Vice Presidents or other senior officers, by name and title, as may be recommended by the Chief Executive Officer and approved by the Compensation Committee of the Board.

 

(e)           Good Reason . “Good Reason” shall mean an Eligible Executive’s resignation from the Company within thirty (30) days following the occurrence of any of the following events with respect to such Eligible Executive:

 

(i)            without Eligible Executive’s express written consent, the significant reduction of Eligible Executive’s duties, authority, responsibilities, or reporting relationships relative to Eligible Executive’s duties, authority, responsibilities, or reporting relationships as in effect immediately prior to such reduction, or the assignment to Eligible Executive of such reduced duties, authority, responsibilities, or reporting relationships, which reduction or assigned reduction remains in effect five (5) business days after written notice by the Eligible Executive to the Chief Executive Officer of such conditions; provided, however, that the mere occurrence of a Change in Control shall not, in and of itself, constitute a material adverse change in Eligible Executive’s duties, authority, responsibilities or reporting relationships.

 

(ii)           a material reduction by Company in the base salary, bonus structure or benefits of Eligible Executive as in effect immediately prior to such reduction, with the result that Eligible Executive’s overall benefits package is significantly reduced; or

 

(iii)          the relocation of Eligible Executive’s principal work location to a facility or a location more than fifty (50) miles from Eligible Executive’s then present principal work location, without Eligible Executive’s express written consent.

 

(f)            Termination Date . “Termination Date” shall mean:

 

(i)            if an Eligible Executive’s employment is terminated by Company for Disability, the date designated by Company as the last day of such Eligible Executive’s employment;

 

(ii)           if an Eligible Executive dies, the date of death;

 

(iii)          if an Eligible Executive’s employment is terminated by Company for any other reason, the date designated by Company as the last day of such Eligible Executive’s employment; or

 

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(iv)          if an Eligible Executive’s employment is terminated by such Eligible Executive, the date designated by Company as the effective date of resignation.

 

3.                                       Severance and Other Benefit Payments: Unless otherwise prescribed by the Compensation Committee, upon recommendation by the Chief Executive Officer, Eligible Executives will receive the benefits described herein under the following circumstances:

 

(a)           Termination in Connection with a Change in Control . If an Eligible Executive’s employment terminates either by Company without Cause, or by such Eligible Executive for Good Reason, at any time commencing during the period beginning six (6) months prior to a Change in Control and ending twenty-four (24) months following a Change of Control (the “Change in Control Period”), then, subject to the Eligible Executive’s execution and delivery of an effective release of claims against Company, and any related parties, that releases Company and any such parties from any claims whatsoever arising from or related to the Eligible Executive’s employment relationship with Company, including the termination of that relationship, in a form reasonably acceptable to the Company, the Eligible Executive will receive or otherwise become entitled to the following:

 

(i)            acceleration in full, so as to become immediately and completely vested, or acceleration of any applicable deferred settlement dates (subject in all cases to applicable holding periods) of any and all unvested stock options, restricted stock units, performance units, or any other equity-based securities or similar incentives that have been awarded to Eligible Executive as of the Termination Date. In all other respects, Eligible Executive’s securities shall continue to be subject to the terms of the applicable equity incentive plan, the notice of grant and any grant agreement;

 

(ii)           in the case of the Chief Executive Officer, or, from time to time, upon recommendation by the Chief Executive Officer and approval by the Compensation Committee, any other senior officer , by name and title (each thereafter a “Tier One Officer”), including, if so recommended, those officers noted in Section 3(a)(iii), a lump sum cash payment equal to (A) two (2) times that person’s highest base salary, at the Chief Executive Officer’s or such other designated Tier One Officer’s highest base salary rate then in effect as of the Termination Date (without taking into account any reduction in base salary that could independently trigger Eligible Executive’s resignation for Good Reason), plus (B) two (2) times the greater of that person’s target bonus or average actual bonus for the prior two (2) years, pursuant to the Company’s 2008 Executive Incentive Compensation Plan (the “Annual Bonus Plan”) or its annual bonus plan successor), less, in all instances, applicable withholding taxes or other withholding obligations of the Company, and less any amounts to which the Chief Executive Officer or other Tier One Officer is otherwise entitled under any statutory or Company long or short term disability plan, or by reason of any other plans, policies or practices of the Company that, if and to the extent implemented, would result in benefit payments to the Chief Executive Officer or such other Tier

 

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One Officer, on the occasion of a termination of employment without Cause, unrelated to a Change in Control event;

 

(iii)          except if otherwise previously designated and approved as a Tier One Officer, in the case of the Executive Vice President and Chief Operating Officer of the Company, the Chief Financial Officer of the Company, or, upon recommendation by the Chief Executive Officer and approval by the Compensation Committee, any other senior officer , by name and title (each thereafter a “Tier Two Officer”) a lump sum cash payment equal to (A) one and one-half (1½) times such Tier Two Officer’s base salary, at such Tier Two Officer’s highest base salary rate then in effect as of the Termination Date (without taking into account any reduction in base salary that could independently trigger such person’s resignation for Good Reason), plus (B) one and one-half (1½) times the greater of such Tier Two Officer’s target bonus or average actual bonus for the prior two (2) years, pursuant to the Company’s Annual Bonus Plan or its annual bonus plan successor, less, in all instances, applicable withholding taxes or other withholding obligations of the Company, and less any amounts to which such Tier Two Officer is otherwise entitled under any statutory or Company long or short term disability plan, or by reason of any other plans, policies or practices of the Company that, if and to the extent implemented, would result in benefit payments to the that Tier Two Officer on the occasion of a termination of employment without Cause, unrelated to a Change in Control event; and

 

(iv)          if Eligible Executive elects benefits continuation under the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) following termination of employment, payment of the full cost of such benefits (either directly to Eligible Executive or to the appropriate carrier or administrator at the Company’s election) for the lesser of (a) twenty-four (24) months or (b) until such time as Eligible Executive becomes eligible for reasonably comparable health care benefits from a subsequent employer.

 

(b)           Voluntary Resignation; Termination for Cause . If an Eligible Executive’s employment terminates by reason of voluntary resignation (which is not for Good Reason), or if an Eligible Executive is terminated for Cause, then such Eligible Executive is not entitled to receive any benefits under Section 3(a) of this CIC Plan.

 

(c)           Disability . If an Eligible Executive suffers from a Disability, the Company may terminate such Eligible Executive’s employment to the extent permitted by law and, if such termination occurs during the Change in Control Period, Company will then pay to that Eligible Executive the compensation set forth in Section 3(a) of this Plan.

 

(d)           Death . If the Eligible Executive’s employment is terminated due to the death of such Eligible Executive within twenty-four (24) months following a Change in Control, then the compensation set forth in Section 3(a) of this Plan will be paid to the former Eligible Executive’s estate.

 

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(e)           Application of Section 409A . Notwithstanding any inconsistent provision of this CIC Plan, to the extent the Company determines in good faith that (a) one or more of the payments or benefits received or to be received by an Eligible Executive pursuant to this CIC Plan in connection with such Eligible Executive’s termination of employment would constitute deferred compensation subject to the rules of Section 409A, and (b) that the Eligible Executive is a “specified employee” under Section 409A, then, but only to the extent required to avoid the Eligible Executive’s incurrence of any additional tax or interest under Section 409A of the Code, such payment or benefit will be delayed until the date which is six (6) months after the Eligible Executive’s “separation from service,” within the meaning of Section 409A. The Company will revise any applicable provisions of this CIC Plan to maintain to the maximum extent practicable the original intent of the applicable CIC Plan provisions without violating the provisions of Section 409A of the Code, if the Company deems such revisions necessary or advisable pursuant to guidance under Section 409A to avoid the incurrence of any such interest and penalties. Such revisions shall not result in a reduction of the aggregate amount of payments or benefits under this Plan, without regard to the delayed payment, if any, that might be required hereunder.

 

(f)            Termination Not in Connection With a Change of Control . If the Executive’s employment terminates for any reason or no reason, whether on account of Disability, death, or otherwise, other than during the Change in Control Period, then such Eligible Executive shall not be entitled to receive severance or any other benefits under Section 3(a) of this Plan.

 

(g)           Coordination with Other Change of Control Benefits, Severance Benefits or Debts . If an Eligible Executive is entitled to cash payments, accelerated vesting of stock options or restricted stock grants, or any other benefits from Company following the termination of such Eligible Executive’s employment, after a Change in Control but pursuant to any other individually negotiated agreement, of the kind contemplated by Section I(b) hereof, then any benefits to which that Eligible Executive may become entitled under this CIC Plan shall be reduced by the benefits, if any, to which that Eligible Executive may become entitled to from the Company under such other agreement. Furthermore, if an Eligible Executive is indebted to the Company at the time of a termination, and the situation is such as would give rise to severance benefits under Section 3(a) of this CIC Plan, the Company shall have the right, but not the obligation to offset such severance payment under this CIC Plan by all or any portion of such indebtedness.

 

4.             At-Will Employment . Subject only to any applicable individual employment agreement between the Company and an Eligible Executive, or to any applicable policy of the Company, nothing herein shall be construed to imply a right to continued employment, for any specific period or otherwise, and each Eligible Executive’s employment, unless otherwise provided pursuant to any such other individual employment agreement or policy, is and shall continue to be at-will, as defined under applicable law. If an Eligible Executive’s employment terminates for any reason other than as specified in Section 3, such Eligible Executive shall not be entitled to any benefits, damages, awards or compensation under this CIC Plan.

 

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5.             Tax Matters . The Company may withhold from any amounts payable under the CIC Plan such federal, state and local taxes as may be required to be withheld. In the event that any payment or other benefits provided for in this CIC Plan or otherwise payable to an Eligible Executive (i) would constitute “parachute payments” within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) become subject to the excise tax imposed by Section 4999 of the Code (or any corresponding provisions of state tax law), then, notwithstanding the other provisions of this CIC Plan, such Eligible Executive’s benefits under Section 3 will be reduced by an amount necessary to insure that such payments under this CIC Plan, together with any other payments that may constitute parachute payments for purposes of Section 280G, are at least one dollar less than the aggregate amount that, if applicable, would otherwise render such payments subject to Section 280G. 6. Severability, Enforcement . If any provision of this CIC Plan, or the application thereof to any person, place or circumstance, shall be held by a court of competent jurisdiction to be invalid, unenforceable or void, the remainder of this CIC Plan and such provisions as applied to other persons, places and circumstances shall remain in full force and effect.

 

7.             General .

 

(a)           Notice . Notices and all other communications contemplated by this CIC Plan shall be in writing and shall be deemed to have been duly given either (i) when personally delivered or sent by facsimile or (ii) five (5) days after being mailed by U.S. registered or certified mail, return receipt requested and postage prepaid. In the case of an Eligible Executive, mailed notices shall be addressed to him or her at the home address or facsimile number which he or she most recently communicated to Company in writing. In the case of Company, mailed notices or notices sent by facsimile shall be addressed to its corporate headquarters, and all notices shall be directed to the attention of its Chief Financial Officer.

 

(b)           Amendment . Prior to a Change in Control, the Company reserves the right to amend or terminate this CIC Plan. Upon a Change in Control, this Plan will become non-modifiable without the consent of the affected Eligible Executive(s).

 

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