SEVERANCE AGREEMENT
Exhibit 10.1
This Severance Agreement (the “Agreement”) is dated as of the ___day of ___, 2006,
between The Timken Company, an Ohio corporation (the
“Company”), and _________________ (the
“Employee”).
Recitals
The Employee is a key employee of the Company and has made and is expected to continue to make
major contributions to the profitability, growth and financial strength of the Company.
The Company wishes to induce its key employees to remain in the employment of the Company and
to assure itself of stability and continuity of operations by providing severance protection to
those key employees who are expected to make major contributions to the success of the Company. In
addition, the Company recognizes that a termination of employment may occur following a change in
control in circumstances where the Employee should receive additional compensation for services
theretofore rendered and for other good reasons, the appropriate amount of which would be difficult
to ascertain. Hence, the Company has agreed to provide special severance in the event of a change
in control of the Company.
NOW, THEREFORE, in consideration of the premises, including the Release provided for in
Section 6 hereof, the Company and the Employee hereby agree as follows:
1. Definitions:
1.1 Base Salary: The term “Base Salary” shall mean the Employee’s annual base salary
as in effect on the date this Agreement becomes operative, as the same may be increased from time
to time.
1.2 Board: The term “Board” shall mean the Board of Directors of the Company.
1.3 Change in Control: “Change in Control” means the occurrence during the Term of
any of the following events:
(a) any individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act) (a “Person”) is or becomes the beneficial owner
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more
of the combined voting power of the then-outstanding Voting Stock of the Company;
provided, however, that:
(i) for purposes of this Section 1.3(a), the following acquisitions
will not constitute a Change in Control: (A) any acquisition of Voting Stock
of the Company directly from the Company that is approved by a majority of
the Incumbent Directors, (B) any acquisition of Voting Stock of the Company
by the Company or any Subsidiary, (C) any acquisition of Voting Stock of the
Company by the trustee or other
fiduciary holding securities under any employee benefit plan (or
related trust) sponsored or maintained by the Company or any Subsidiary, and
(D) any acquisition of Voting Stock of the Company by any Person pursuant to
a Business Transaction that complies with clauses (i), (ii) and (iii) of
Section 1.3(c) below;
(ii) if any Person is or becomes the beneficial owner of 30% or more of
combined voting power of the then-outstanding Voting Stock of the Company as
a result of a transaction described in clause (A) of Section 1.3(a)(i) above
and such Person thereafter becomes the beneficial owner of any additional
shares of Voting Stock of the Company representing 1% or more of the
then-outstanding Voting Stock of the Company, other than in an acquisition
directly from the Company that is approved by a majority of the Incumbent
Directors or other than as a result of a stock dividend, stock split or
similar transaction effected by the Company in which all holders of Voting
Stock are treated equally, such subsequent acquisition shall be treated as a
Change in Control;
(iii) a Change in Control will not be deemed to have occurred if a
Person is or becomes the beneficial owner of 30% or more of the Voting Stock
of the Company as a result of a reduction in the number of shares of Voting
Stock of the Company outstanding pursuant to a transaction or series of
transactions that is approved by a majority of the Incumbent Directors
unless and until such Person thereafter becomes the beneficial owner of any
additional shares of Voting Stock of the Company representing 1% or more of
the then-outstanding Voting Stock of the Company, other than as a result of
a stock dividend, stock split or similar transaction effected by the Company
in which all holders of Voting Stock are treated equally; and
(iv) if at least a majority of the Incumbent Directors determine in
good faith that a Person has acquired beneficial ownership of 30% or more of
the Voting Stock of the Company inadvertently, and such Person divests as
promptly as practicable but no later than the date, if any, set by the
Incumbent Directors a sufficient number of shares so that such Person
beneficially owns less than 30% of the Voting Stock of the Company, then no
Change in Control shall have occurred as a result of such Person’s
acquisition; or
(b) a majority of the Board ceases to be comprised of Incumbent Directors; or
(c) the consummation of a reorganization, merger or consolidation, or sale or
other disposition of all or substantially all of the assets of the Company or the
acquisition of the stock or assets of another corporation, or other transaction
(each, a “Business Transaction”), unless, in each case, immediately following such
Business Transaction (i) the Voting Stock of the Company outstanding
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immediately prior to such Business Transaction continues to represent (either
by remaining outstanding or by being converted into Voting Stock of the surviving
entity or any parent thereof), at least 51% of the combined voting power of the then
outstanding shares of Voting Stock of the entity resulting from such Business
Transaction (including, without limitation, an entity which as a result of such
transaction owns the Company or all or substantially all of the Company’s assets
either directly or through one or more subsidiaries), (ii) no Person (other than the
Company, such entity resulting from such Business Transaction, or any employee
benefit plan (or related trust) sponsored or maintained by the Company, any
Subsidiary or such entity resulting from such Business Transaction) beneficially
owns, directly or indirectly, 30% or more of the combined voting power of the then
outstanding shares of Voting Stock of the entity resulting from such Business
Transaction, and (iii) at least a majority of the members of the Board of Directors
of the entity resulting from such Business Transaction were Incumbent Directors at
the time of the execution of the initial agreement or of the action of the Board
providing for such Business Transaction; or
(d) approval by the shareholders of the Company of a complete liquidation or
dissolution of the Company, except pursuant to a Business Transaction that complies
with clauses (i), (ii) and (iii) of Section 1.3(c).
The Company shall give the Employee written notice, delivered to the Employee in the manner
specified in Section 8 hereof, of the occurrence of any event constituting a Change in Control as
promptly as practical, and in no case later than 10 calendar days, after the occurrence of such
event.
1.4 CIC Severance Amount: The term “CIC Severance Amount” shall mean a lump sum
amount equal to the sum of:
(a) ___times the greater of (i) the Employee’s Base Salary in effect
immediately prior to the Employee’s termination of employment or (ii) the Employee’s
Base Salary in effect immediately prior to the Change in Control;
(b) ___times the greater of (i) the Employee’s Incentive Pay for the
year in which the Employee’s employment is terminated or (ii) the Employee’s
Incentive Pay for the year in which the Change in Control occurred;
(c) The Supplemental Pension Benefit;
(d) The Supplemental SIP Plan Benefit; and
(e) The Post-Tax SIP Plan Benefit.
1.5 Code: The term “Code” shall mean the Internal Revenue Code of 1986, as amended.
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1.6 Company Termination Event: The term “Company Termination Event” shall mean the
termination, prior to any Employee Termination Event, of the employment of the Employee by the
Company in any of the following events:
(a) The Employee’s death;
(b) If the Employee shall become eligible to receive and begins actually to
receive long-term disability benefits under The Long Term Disability Program of The
Timken Company or any successor plan; or
(c) For Cause. Termination shall be deemed to have been for “Cause” only if
based on the fact that the Employee has done any of the following:
(i) An intentional act of fraud, embezzlement or theft in connection
with his duties with the Company;
(ii) Intentional wrongful disclosure of secret processes or
confidential information of the Company or a Company subsidiary; or
(iii) Intentional wrongful engagement in any Competitive Activity which
would constitute a material breach of the Employee’s duty of loyalty to the
Company.
For purposes of this Agreement, no act, or failure to act, on the part of the Employee shall be
deemed “intentional” unless done or omitted to be done, by the Employee not in good faith and
without reasonable belief that his action or omission was in or not opposed to the best interest of
the Company.
1.7 Competitive Activity: The term “Competitive Activity” shall mean the Employee’s
participation, without the written consent of an officer of the Company, in the management of any
business enterprise if such enterprise engages in substantial and direct competition with the
Company and such enterprise’s sales of any product or service competitive with any product or
service of the Company amounted to 25% of such enterprise’s net sales for its most recently
completed fiscal year and if the Company’s net sales of said product or service amounted to 25% of
the Company’s net sales for its most recently completed fiscal year. “Competitive Activity” shall
not include (a) the mere ownership of securities in any enterprise and exercise of rights
appurtenant thereto or (b) participation in management of any enterprise or business operation
thereof other than in connection with the competitive operation of such enterprise.
1.8 Employee Termination Event: The term “Employee Termination Event” shall mean the
termination of the employment of the Employee (including a decision to retire if eligible under The
1984 Retirement Plan for Salaried Employees of The Timken Company, or any successor plan (the
“Retirement Plan”)) by the Employee in any of the following events:
(a) A determination by the Employee made in good faith that upon or after the
occurrence of a Change in Control: (i) a significant reduction or other adverse
change has occurred in the nature or scope of the responsibilities,
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authorities, duties, powers or functions of the Employee attached to the
Employee’s position held immediately prior to the Change in Control; or (ii) a
change of more than 60 miles has occurred in the location of the Employee’s
principal office immediately prior to the Change in Control;
(b) A failure to elect, reelect or otherwise maintain the Employee in the same
or better office or position in the Company or any Subsidiary which the Employee
held immediately prior to a Change in Control, or removal of the Employee as a
Director of the Company (or a successor thereto) or a Subsidiary, if the Employee
shall have been a Director of the Company or such Subsidiary immediately prior to
the Change in Control;
(c) A reduction by the Company in the Employee’s Base Salary;
For purposes of this Agreement, the amount of any reduction in annual base salary
elected by the Employee pursuant to any qualified or non-qualified salary reduction
arrangement maintained by the Company, including, without limitation, The Timken
Company Savings and Investment Pension Plan (the “SIP Plan”) and The Timken Company
1996 Deferred Compensation Plan (the “Deferred Compensation Plan”), shall be
included in the determination of Base Salary;
(d) If in any calendar year, or portion of a calendar year, in or for which the
Company pays to any employee any Incentive Payments, the amount of Incentive
Payments received by or awarded to the Employee is less than an amount equal to the
Employee’s average Incentive Pay for the previous three calendar years;
(e) The failure by the Company to continue in effect without substantial change
any compensation or benefit plan in which the Employee participates, or the failure
by the Company to continue the Employee’s participation therein; or the taking of
any action by the Company or its subsidiaries which would directly or indirectly
materially reduce any of the benefits of such plans enjoyed by the Employee at the
time of the Change in Control, or the failure by the Company or its subsidiaries to
provide the Employee with the number of paid vacation days to which the Employee is
entitled on the basis of years of service with the Company or its subsidiaries in
accordance with the normal vacation policy of the Company or of the subsidiary by
which the Employee is employed as in effect at the time of the Change in Control, or
the taking of any other action by the Company or its subsidiaries which materially
adversely changes the conditions or prerequisites of the Employee’s employment;
(f) The purported termination of the Employee’s employment which is not
effected pursuant to a Notice of Termination satisfying the requirements of Section
1.13 of this Agreement, which purported termination shall not be effective for
purposes of this Agreement; or
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(g) A failure of any successor company to execute the agreement required by
Section 7.1 of this Agreement.
1.9 Incentive Pay: The term “Incentive Pay” shall mean an annual amount equal to the
target annual amount of Incentive Payments payable to the Employee, without regard to any reduction
thereof elected by the Employee pursuant to any qualified or non-qualified salary reduction
arrangement maintained by the Company, including, without limitation, the SIP Plan and the Deferred
Compensation Plan.
1.10 Incentive Payments: The term “Incentive Payments” shall mean any cash incentive
compensation paid based on an annual performance period (whether pursuant to the Company’s
Management Performance Plan or any successor similar plan or through any other means).
1.11 Incumbent Directors: The term “Incumbent Directors” means the individuals who,
as of the date hereof, are Directors of the Company and any individual becoming a Director
subsequent to the date hereof whose election, nomination for election by the Company’s
shareholders, or appointment, was approved by a vote of at least two-thirds of the then Incumbent
Directors (either by a specific vote or by approval of the proxy statement of the Company in which
such person is named as a nominee for director, without objection to such nomination);
provided, however, that an individual shall not be an Incumbent Director if such
individual’s election or appointment to the Board occurs as a result of an actual or threatened
election contest (as described in Rule 14a-12(c) of the Exchange Act) with respect to the election
or removal of Directors or other actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board.
1.12 Limited Period: The term “Limited Period” shall mean that period of time
commencing on the date of a Change in Control and continuing for a period of three years.
1.13 Notice of Termination: The term “Notice of Termination” shall mean a written
notice delivered to the Employee in the manner specified in Section 8 of this Agreement, which
notice indicates the specific termination provision in this Agreement relied upon and sets forth in
reasonable detail the facts and circumstances claimed to provide a basis for termination of the
Employee’s employment.
1.14 Post-Tax SIP Plan Benefit: The “Post-Tax SIP Plan Benefit” shall mean the sum
of:
(a) The amount credited to the Employee’s account under The Timken Company
Post-Tax SIP Plan (the “Post-Tax SIP Plan”) as of the Termination Date; plus
(b) The amount of Company contributions that would have been credited to the
Employee’s account under the Post-Tax SIP Plan after the Termination Date if the
Employee had remained in the full-time employment of the Company until the earlier
of (i) end of the Limited Period or (ii) the end of the Severance Period at the
greater of (I) his Base Salary and Incentive Pay for the calendar year in which the
Employee’s employment is terminated, or (II) his Base
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Salary and Incentive Pay for the calendar year in which the Change in Control
occurred, and assuming the Employee’s contributions to the Post-Tax SIP Plan
following the Termination Date had been at the highest rate at which such
contributions had been made at any time during the three-year period ending on the
Termination Date.
1.15 Severance Amount: The term “Severance Amount” shall mean a lump sum amount equal
to the sum of:
(a) ___times the Employee’s Base Salary in effect immediately prior to
the Employee’s termination of employment[; and
(b) ___times the Employee’s Incentive Pay for the year in which the
Employee’s employment is terminated;]
1.16 Severance Period: The term “Severance Period” shall mean the period beginning on
the Employee’s Termination Date and ending on the ___anniversary of the Termination Date.
1.17 Subsidiary: The term “Subsidiary” means a corporation, partnership, joint
venture, unincorporated association or other entity in which the Company directly or indirectly
beneficially owns 50% or more ownership or other equity interest.
1.18 Supplemental Pension Benefit: The term “Supplemental Pension Benefit” shall mean
(a) less (b), where:
(a) is the sum of the accrued pension benefits (converted to a lump sum of
actuarial equivalence as of the Termination Date) which the Employee would have been
entitled to receive at or after the Termination Date under (i) the Retirement Plan,
(ii) any annuity distributed to the Employee as a result of the termination on
October 31, 1984 of the Retirement Plan for Salaried Employees of The Timken Company
(the “Terminated Pension Plan”), (iii) any Employee Excess Benefits Agreement
(“Excess Agreement”), and (iv) the Supplemental Pension Plan of the Timken Company
(“Supplemental Plan”), assuming for purposes of this calculation that (A) the
Employee’s benefits under the Retirement Plan, the Excess Agreement and the
Supplemental Plan were vested and non-forfeitable, (B) the Employee satisfied any
other condition under the Retirement Plan, the Excess Agreement and the Supplemental
Plan to his receipt of benefits thereunder, (C) the Employee’s compensation for
purposes of the Retirement Plan, the Excess Agreement and the Supplemental Plan was
determined without regard to any reduction in compensation elected by the Employee
pursuant to any qualified or non-qualified salary reduction arrangement maintained
by the Company, including without limitation, the SIP Plan and the Deferred
Compensation Plan, (D) the Employee was credited with additional service with the
Company equal to the period of time between the Termination Date and the first to
occur of either (1) the end of the Limited Period or (2) the end of the Severance
Period, provided that for purposes of the Retirement Plan, the Excess
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Agreement and the Supplemental Plan the Employee will only be credited with
such additional service if the Employee was being credited with service for benefit
accrual purposes under such plans immediately prior to the Termination Date, (E)
solely for purposes of determining the time at which the Employee would receive
benefits under the Retirement Plan, the Terminated Pension Plan, the Excess
Agreement and the Supplemental Plan, the Employee had continued his employment with
the Company until such time Employee would have received such benefits, (F) the
Employee’s compensation for purposes of benefit calculation under the Retirement
Plan, the Excess Agreement and the Supplemental Plan included a period of the
Employee’s full-time employment with the Company equal to the period of time between
the Termination Date and the first to occur of either (1) the end of the Limited
Period or (2) the end of the Severance Period during which the Employee had Base
Salary equal to the greater of (I) his Base Salary for the calendar year in which
the Employee’s employment is terminated or (II) his Base Salary for the calendar
year in which the Change in Control occurred, and Incentive Pay equal to the greater
of (y) the Employee’s Incentive Pay for the calendar year in which the Termination
Date occurs or (z) the Employee’s Incentive Pay for the calendar year in which the
Change in Control occurs, and (G) the Employee commenced receiving benefits from the
Retirement Plan, the Terminated Pension Plan, the Excess Agreement and the
Supplemental Plan at the point in time when the total of the lump sums of actuarial
equivalence under the Retirement Plan, the Terminated Pension Plan, the Excess
Agreement and the Supplemental Plan is the greatest; and
(b) is the sum of the accrued pension benefits (converted to a lump sum of
actuarial equivalence as of the Termination Date) which the Employee is entitled to
receive at or after the Termination Date under (i) the Retirement Plan, and (ii) any
annuity distributed to the Employee as a result of the termination on October 31,
1984 of the Terminated Pension Plan.
The calculations of the Supplemental Pension Benefit (and its actuarial equivalence) shall be made,
as of the Termination Date, by Xxxxxx Xxxxx & Company or such other independent actuary appointed
by the administrator of the Retirement Plan and acceptable to the Employee (the “Actuary”). The
lump sum of actuarial equivalence shall be calculated using the applicable mortality table
promulgated by the Internal Revenue Service (“IRS”) under Section 417(e)(3) of the Code as in
effect on the Termination Date and the applicable interest rate promulgated by the IRS under
Section 417(e)(3) of the Code for the month third preceding the month in which the Termination Date
occurs, and if the IRS ceases to promulgate such interest rates, an interest rate determined by the
Actuary.
1.19 Supplemental SIP Plan Benefit: The “Supplemental SIP Plan Benefit” shall mean:
(a) The amount of the Company Matching Contributions and Core Contributions (as
such terms are defined in the SIP Plan) that would have been made to the SIP Plan by
the Company and allocated to the Employee’s account thereunder as if the Employee
had remained in the full-time employment of the
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Company until the earlier of (i) the end of the Limited Period or (ii) the end
of the Severance Period, at the greater of (I) his Base Salary for the calendar year
in which the Employee’s employment is terminated, or (II) his Base Salary
immediately prior to the Change in Control, and the greater of (y) the Employee’s
Incentive Pay for the calendar year in which the Termination Date occurs and (z) the
Employee’s Incentive Pay for the calendar year in which the Change in Control
occurred, and assuming the Employee’s salary deferral was at the maximum permissible
level; less
(b) The amount of the Company Matching Contributions and Core Contributions
made to the SIP Plan by the Company and allocated to the Employee’s account
thereunder as of the Termination Date.
1.20 Termination Date: The term “Termination Date” shall mean the effective date on
which the Employee’s employment with the Company is terminated.
1.21 Voting Stock: The term “Voting Stock” means securities entitled to vote
generally in the election of directors.
2. Operation of Agreement: This Agreement shall be effective immediately upon its
execution.
3. Severance Compensation:
3.1 Severance Compensation:
(a) If the Company shall terminate the Employee’s employment during the Limited
Period other than pursuant to a Company Termination Event, or if the Employee shall
voluntarily terminate his employment during the Limited Period pursuant to an
Employee Termination Event, then the Company shall pay as severance compensation to
the Employee a lump sum cash payment in the amount of the CIC Severance Amount.
Anything in this Agreement to the contrary notwithstanding, if a Change in Control
occurs and not more than 90 days prior to the date on which the Change in Control
occurs, the Employee’s employment with the Company is terminated by the Company,
such termination of employment will be deemed to be a termination of employment
during the Limited Period for purposes of this Agreement if the Employee has
reasonably demonstrated that such termination of employment (i) was at the request
of a third party who has taken steps reasonably calculated to effect a Change in
Control, or (ii) otherwise arose in connection with or in anticipation of a Change
in Control. In the event the Employee is entitled to the benefits under this
Agreement as a result of the preceding sentence, then the 60-calendar-day periods
specified in Section 3.1(c) and Section 3.5(b) shall be deemed to commence on the
date on which the Employee receives the notice contemplated by the last sentence of
Section 1.3 hereof; provided, however, that if the Change in Control is not a Change
in Control as defined under Section 409A of the Code, payments under
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Section 3.1(c) will be made no sooner than 6 months after the date of the
Employee’s “separation from service” (as defined in Section 409A of the Code).
(b) If the Company shall terminate the Employee’s employment other than during
the Limited Period and other than (i) pursuant to a Company Termination Event or
(ii) for reasons of (A) criminal activity or (B) willful misconduct or gross
negligence in the performance of the Employee’s duties, then the Company shall pay
as severance compensation to the Employee a lump sum cash payment in the amount of
the Severance Amount.
(c) The payment of the Severance Amount or the CIC Severance Amount required by
this Section 3.1 and any Gross-Up Payment initially determined to be required by
Section 3.5 shall, subject to execution and delivery by the Employee of the Release
described in Section 6 hereof, and the expiration of all applicable rights of the
Employee to revoke the Release or any provision thereof, be made to the Employee on
the date that is 60 calendar days after the Termination Date. Notwithstanding the
foregoing, if the Employee is a “specified employee” (as defined under Section 409A
of the Code), the portion of the CIC Severance Amount attributable to the
Supplemental Pension Benefit, the Supplemental SIP Plan Benefit, and the Post Tax
SIP Plan Benefit and any other payment or portion of a payment of amounts described
in Sections 3.1 and 3.5 that constitutes a “deferral of compensation” under Section
409A of the Code will be paid to the Employee upon the earlier of (i) six months
following the Employee’s “separation from service” with the Company (as such phrase
is defined in Section 409A of the Code) or (ii) the Employee’s death. Upon receipt
of the CIC Severance Amount, if paid, and because the CIC Severance Amount includes
a supplemental pension benefit that the parties intend to be paid pursuant to this
Agreement in lieu of any benefits to which the Employee is entitled under the Excess
Agreement, the Supplemental Plan, and the Post-Tax SIP Plan, the Employee hereby
retroactively waives, upon his receipt of the CIC Severance Amount, participation in
any non-qualified pension plan of, or benefits under any employee excess benefits
agreement with, the Company providing for benefits in excess of those permitted by
the Code to be paid under the Retirement Plan and SIP Plan, and which measure
service and compensation under such plan or agreement as a basis for benefits,
including, without limitation, the Excess Agreement and the Supplemental Plan.
3.2 Compensation through Termination: If the Employee’s employment is terminated, the
Company shall pay the Employee any Base Salary that has accrued but is unpaid through the
Termination Date. If the Employee’s employment is terminated by the Company other than for Cause,
the Company shall pay the Employee an amount equivalent to the Incentive Pay for the calendar year
in which the Termination Date occurs multiplied by a fraction, the numerator of which is the number
of days in the calendar year in which the Termination Date occurs that have expired prior to the
Termination Date and the denominator of which is three hundred sixty-five, in accordance with the
provisions of Section 3.1(c).
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3.3 Offset: To the full extent permitted by applicable law, the Company retains the
right to offset against the Severance Amount or the Gross-Up Payment on the Severance Amount
otherwise due to the Employee hereunder any amounts then owing and payable such Employee to the
Company or any of its affiliates.
3.4 Interest on Overdue Payments: Without limiting the rights of the Employee at law
or in equity, if the Company fails to make any payment required to be made under this Agreement on
a timely basis, the Company shall pay interest on the amount thereof at an annualized rate of
interest equal to the “prime rate” as set forth from time to time during the relevant period in
The Wall Street Journal “Money Rates” column, plus 1%.
3.5 Indemnification:
(a) Anything in this Agreement to the contrary notwithstanding, in the event
that it shall be determined (as hereafter provided) that any payment or distribution
by the Company to or for the benefit of the Employee, whether paid hereunder or paid
or payable or distributed or distributable pursuant to or by reason of any other
agreement, policy, plan, program or arrangement, including without limitation any
stock option, stock appreciation right or similar right, or the lapse of termination
of any of the foregoing (individually and collectively a “Payment”), would be
subject to the excise tax imposed by Section 4999 of the Code (or any successor
provision thereto) by reason of being considered “contingent on a change in
ownership or control” of the Company, within the meaning of Section 280G of the Code
(or any successor provision thereto), or to any similar tax imposed by state or
local law, or to any interest or penalties with respect to such taxes (such taxes
together with any such interest and penalties, being hereafter collectively referred
to as the “Excise Tax”), then the Employee shall be entitled to receive an
additional payment or payments (individually and collectively, a “Gross-Up
Payment”). The Gross-Up Payment shall be in an amount such that, after payment by
the Employee of all taxes (including any interest or penalties imposed with respect
to such taxes), including any Excise Tax imposed upon the Gross-Up Payment, the
Employee retains a portion of the Gross-Up Payment equal to the Excise Tax imposed
upon the Payment.
(b) Subject to the provisions of paragraph (e) of this Section 3.5, all
determinations required to be made under this Section 3.5, including whether an
Excise Tax is payable by the Employee and the amount of such Excise Tax and whether
a Gross-Up Payment is required to be paid by the Company to the Employee and the
amount of such Gross-Up Payment, if any, shall be made by a nationally recognized
accounting or benefits consulting firm (the “Firm”) mutually agreed upon by the
Employee and the Company. The Firm shall submit its determination and detailed
supporting calculations to both the Company and the Employee within 30 calendar days
after the Termination Date, if applicable, and any such other time or times as may
be requested by the Company or the Employee. If the Firm determines that any Excise
Tax is payable by the Employee, the Company shall pay the required Gross-Up Payment
to the Employee on the date that is 60 calendar days after the Termination Date. If
the
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(c) Firm determines that no Excise Tax is payable by the Employee, it shall, at
the same time as it makes such determination, furnish the Company and the Employee
an opinion that the Employee has substantial authority not to report any Excise Tax
on his federal income tax return. As a result of the uncertainty in the application
of Section 4999 of the Code (or any successor provision thereto) and the possibility
of similar uncertainty regarding applicable state or local tax law at the time of
any determination by the Firm hereunder, it is possible that Gross-Up payments which
will not have been made by the Company should have been made (an “Underpayment”),
consistent with the calculations required to be made hereunder. In the event that
the Company exhausts or fails to pursue its remedies pursuant to paragraph (e) of
this Section 3.5 and the Employee thereafter is required to make a payment of the
Excise Tax, the Employee shall direct the Firm to determine the amount of the
Underpayment that has occurred and to submit its determination and detailed
supporting calculations to both the Company and the Employee as promptly as
possible. Any such Underpayment shall be promptly paid by the Company to, or for
the benefit of, the Employee within five business days after receipt of such
determination and calculations.
(d) The Company and the Employee shall each provide the Firm access to and
copies of any books, records and documents in the possession of the Company or the
Employee, as the case may be, reasonably requested by the Firm, and otherwise
cooperate with the Firm in connection with the preparation and issuance of the
determinations and calculations contemplated by paragraph (b) of this Section 3.5.
Any determination by the Firm as to the amount of the Gross-Up Payment or the
Underpayment shall be binding upon the Company and the Employee.
(e) The fees and expenses of the Firm for its services in connection with the
determinations and calculations contemplated by paragraph (b) of this section 3.5
shall be borne by the Company. If such fees and expenses are initially paid by the
Employee, the Company shall reimburse the Employee the full amount of such fees and
expenses within five business days after receipt from the Employee of a statement
therefor and reasonable evidence of his payment thereof.
(f) The Employee shall notify the Company in writing of any claim by the IRS or
any other taxing authority that, if successful, would require the payment by the
Company of a Gross-Up Payment. Such notification shall be given as promptly as
practicable but no later than 10 business days after the Employee actually receives
notice of such claim and the Employee shall further apprise the Company of the
nature of such claim and the date on which such claim is requested to be paid (in
each case, to the extent known by the Employee). The Employee shall not pay such
claim prior to the earlier of (y) the expiration of the 30-calendar-day period
following the date on which he gives such notice to the Company and (z) the date
that any payment of amount with respect to such claim is due. If the Company
notifies the Employee in writing prior to the expiration of such period that it
desires to contest such claim, the Employee shall:
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(i) provide the Company with any written records or documents in his
possession relating to such claim reasonably requested by the Company;
(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 competent in respect of the subject matter and reasonably
selected by the Company;
(iii) cooperate with the Company in good faith in order to 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 interest and penalties) incurred in connection with such contest
and shall indemnify and hold harmless the Employee, on an after-tax basis, for and
against any Excise Tax or income tax, including interest and penalties with respect
thereto, imposed as a result of such representation and payment of costs and
expenses. Without limiting the foregoing provisions of paragraph (e), the Company
shall control all proceedings taken in connection with the contest of any claim
contemplated by paragraph (e) and, at its sole option, may pursue or forego any and
all administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim (provided, however, that the Employee may
participate therein at his own cost and expense) and may, at its option, either
direct the Employee to pay the tax claimed and xxx for a refund or contest the claim
in any permissible manner, and the Employee 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 directs the Employee to pay the tax claimed and xxx for
a refund, the Company shall, if permitted by applicable law, advance the amount of
such payment to the Employee on an interest-free basis and shall indemnify and hold
the Employee harmless, on an after-tax basis, from any Excise Tax or income tax or
other tax, including interest or penalties with respect thereto, imposed with
respect to such advance; and provided further, however, that any extension of the
statute of limitations relating to payment of taxes for the taxable year of the
Employee with respect to which the contested amount is claimed to be due is limited
solely to such contested amount. Furthermore, the Company’s control of any such
contested claim shall be limited to issues with respect to which a Gross-Up Payment
would be payable hereunder and the Employee shall be entitled to settle or contest,
as the case may be, any other issue raised by the IRS or any other taxing authority.
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(g) If, after the receipt by the Employee of an amount advanced by the Company
pursuant to paragraph (e) of this Section 3.5, the Employee receives any refund with
respect to such claim, the Employee shall (subject to the Company’s complying with
the requirements of paragraph (e) of this Section 3.5) promptly pay to the Company
the amount of such refund (together with any interest paid or credited thereon after
any taxes applicable thereto). If, after the receipt by the Employee of an amount
advanced by the Company pursuant to paragraph (e) of this Section 3.5, a
determination is made that the Employee shall not be entitled to any refund with
respect to such claim and the Company does not notify the Employee in writing of its
intent to contest such denial or refund prior to the expiration of 30 calendar days
after such determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of any such advance shall offset, to the extent
thereof, the amount of Gross-Up Payment required to be paid by the Company to the
Employee pursuant to this Section 3.5.
(h) The Federal, state and local income or other tax returns filed by the
Employee shall be prepared and filed on a basis consistent with the determination of
the Firm with respect to the Excise Tax payable by the Employee. The Employee shall
make proper payment of the amount of any Excise Tax, and at the request of the
Company, provide to the Company true and correct copies (with any amendments) of his
federal income tax return as filed with the IRS and corresponding state and local
tax returns, if relevant, as filed with the applicable taxing authority, and such
other documents reasonably requested by the Company, evidencing such payment. If
prior to the filing of the Employee’s federal income tax return, or corresponding
state or local tax return, if relevant, the Firm determines that the amount of the
Gross-Up Payment should be reduced, the Employee shall within five business days pay
to the Company the amount of such reduction.
3.6 Continuation of Certain Benefits.
(a) If the Company terminates the Employee’s employment during the Limited
Period other than pursuant to a Company Termination Event, or if the Employee
voluntarily terminates his employment during the Limited Period pursuant to an
Employee Termination Event, then the Employee, and the Employee’s eligible
dependents, shall be entitled to continue to participate in the Company’s medical,
dental, vision and life insurance plans for which the Employee was eligible
immediately prior to the Employee’s Termination Date, until the earlier of (i)
Employee’s eligibility for any such coverage under another employer’s or any other
medical plan or (ii) [three years/eighteen months] following the termination of
Executive’s employment. The Employee’s continued participation in the Company’s
medical, dental, vision and life insurance plans shall be on the terms (including
access fees) not less favorable than those in effect for actively employed key
employees of the Company. Employee agrees that the period of coverage under such
plan shall count against the medical plan’s obligation to provide continuation
coverage pursuant to Part 6
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of Subtitle B of Title I of the Employee Retirement Income Security Act of
1974, as amended (“COBRA”).
(b) If the Company terminates the Employee’s employment other than during the
Limited Period and other than (i) pursuant to a Company Termination Event or (ii)
for reasons of (A) criminal activity or (B) willful misconduct or gross negligence
in the performance of the Employee’s duties, then the Employee, and the Employee’s
eligible dependents, shall be entitled to continue to participate in the Company’s
medical, dental, vision and life insurance plans for which the Employee was eligible
immediately prior to the Employee’s Termination Date, until the earlier of (x)
Employee’s eligibility for any such coverage under another employer’s or any other
medical plan or (y) ___following the termination of Executive’s employment.
The Employee’s continued participation in the Company’s medical, dental, vision and
life insurance plans shall be on the terms (including access fees) not less
favorable than those in effect for actively employed key employees of the Company.
Employee agrees that the period of coverage under such plan shall count against the
medical plan’s obligation to provide continuation coverage pursuant to COBRA.
(c) Notwithstanding the foregoing, if the Company determines that the benefit
provided under this Section 3.6 is likely to result in negative tax consequences to
the Employee, the Company will use its reasonable best efforts to make other
arrangements to provide a substantially similar benefit to the Employee that does
not have such negative tax consequences, which may include making a lump sum payment
at the earliest time permitted under Section 409A of the Code, in an amount equal to
the Company’s reasonable determination of the present value of any such benefits
that, if provided, would result in negative tax consequences to the Employee or
providing such benefit through insurance coverage on the Employee’s behalf.
4. No Obligation to Mitigate Damages: The Employee shall not be required to mitigate
damages or the amount of any payment provided for under this Agreement by seeking other employment
or otherwise, nor shall the amount of any payment provided for under this Agreement be reduced by
any compensation earned by the Employee as the result of employment by another employer after the
Termination Date, or otherwise.
5. Confidential Information; Covenant Not To Compete:
5.1 The Employee acknowledges that all trade secrets, customer lists and other confidential
business information are the exclusive property of the Company. The Employee shall not (following
the execution of this Agreement, during the Limited Period, or at any time thereafter) disclose
such trade secrets, customer lists, or confidential business information without the prior written
consent of the Company. The Employee also shall not (following the execution of this Agreement,
during the Limited Period, or at any time thereafter) directly or indirectly, or by acting in
concert with others, employ or attempt to employ or solicit for any employment competitive with the
Company any person(s) employed by the Company. The Employee recognizes that any violation of this
Section 5.1 and Section 5.2 is likely to result
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in immediate and irreparable harm to the Company for which money damages are likely to be
inadequate. Accordingly, the Employee consents to the entry of injunctive and other appropriate
equitable relief by a court of competent jurisdiction, after notice and hearing and the court’s
finding of irreparable harm and the likelihood of prevailing on a claim alleging violation of this
Section 5, in order to protect the Company’s rights under this Section. Such relief shall be in
addition to any other relief to which the Company may be entitled at law or in equity. The
Employee agrees that the state and federal courts located in the State of Ohio shall have
jurisdiction in any action, suit or proceeding against Employee based on or arising out of this
Agreement and Employee hereby: (a) submits to the personal jurisdiction of such courts; (b)
consents to service of process in connection with any action, suit or proceeding against Employee;
and (c) waives any other requirement (whether imposed by statute, rule of court or otherwise) with
respect to personal jurisdiction, venue or service of process.
5.2 For a period of time beginning upon the Termination Date and ending upon the first
anniversary of the Termination Date, the Employee shall not (a) engage or participate, directly or
indirectly, in any Competitive Activity, as defined in Section 1.7 or (b) solicit or cause to be
solicited on behalf of a competitor any person or entity which was a customer of the Company during
the term of this Agreement, if the Employee had any direct responsibility for such customer while
employed by the Company.
6. Release:
Payment of the severance payments set forth in Section 3 hereof is conditioned upon the
Employee executing and delivering a full and complete release of all claims satisfactory to the
Company.
7. Successors, Binding Agreement and Complete Agreement:
7.1 Successors: The Company shall require any successor (whether direct or indirect,
by purchase, merger, consolidation or otherwise) to all or substantially all of the business or
assets of the Company, by agreement in form and substance satisfactory to the Employee, to assume
and agree to perform this Agreement.
7.2 Binding Agreement: This Agreement shall inure to the benefit of and be
enforceable by the Employee’s personal or legal representative, executor, administrators,
successors, heirs, distributees and legatees. This Agreement shall be binding upon and inure to
the benefit of the Company and any successor of or to the Company, including, without limitation,
any person acquiring directly or indirectly all or substantially all of the assets of the Company
whether by merger, consolidation, sale or otherwise (and such successor shall thereafter be deemed
“the Company” for the purposes of this Agreement), but shall not otherwise be assignable by the
Company.
7.3 Complete Agreement. This Agreement embodies the complete agreement and
understanding between the parties with respect to the subject matter hereof and effective as of its
date supersedes and preempts any prior understandings, agreements or representations [, including,
but not limited to, the Severance Agreement between the Company and the Employee
-16-
dated
,
,] by or between the parties, written or oral, which may have related
to the subject matter hereof in any way.
8. Notices: For the purpose of this Agreement, all communications provided for herein
shall be in writing and shall be deemed to have been duly given when delivered or mailed by United
States registered or certified mail, return receipt requested, postage prepaid, addressed as
indicated below, or to such other address as any party may have furnished to the other in writing
and in accordance herewith, except that notices of change of address shall be effective only upon
receipt.
If to the Company:
|
The Timken Company | |
| 0000 Xxxxxx Xxxxxx, X.X. | ||
| Xxxxxx, Xxxx 00000 | ||
If to the Employee:
|
9. Governing Law: The validity, interpretation, construction and performance of this
Agreement shall be governed by the laws of the State of Ohio, without giving effect to the
principles of conflict of laws of such State.
10. Miscellaneous: No provision of this Agreement may be amended, modified, waived or
discharged unless such amendment, waiver, modification or discharge is agreed to in writing signed
by the Employee and the Company. No waiver by either party hereto at any time of any breach by the
other party hereto of, or compliance with, any condition or provision of this Agreement to be
performed by such other party shall be deemed a waiver of similar or dissimilar provisions or
conditions at the same or at any prior or subsequent time. No agreements or representations, oral
or otherwise, expressed or implied with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement. If the Employee files a claim
for benefits under this Agreement with the Company, the Company will follow the claims procedures
set out in 29 C.F.R. section 2560.503-1.
11. Validity: The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this Agreement which
shall remain in full force and effect.
12. Counterparts: This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together will constitute one and the same
Agreement.
13. Employment Rights: Nothing expressed or implied in this Agreement shall create
any right or duty on the part of the Company or the Employee to have the Employee remain in the
employment of the Company.
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14. Withholding of Taxes: The Company may withhold from any amount payable under this
Agreement all federal, state, city or other taxes as shall be required pursuant to any law or
government regulation or ruling.
15. Nonassignability: This Agreement is personal in nature and neither of the parties
hereto shall, without the consent of the other, assign or transfer this Agreement or any rights or
obligations, hereunder, except as provided in Sections 7.1 and 7.2 above. Without limiting the
foregoing, the Employee’s right to receive payments hereunder shall not be assignable or
transferable, whether by pledge, creation of a security interest or otherwise, other than by a
transfer by his will or by the laws of descent and distribution and in the event of any attempted
assignment or transfer contrary to this Section the Company shall have no liability to pay any
amounts so attempted to be assigned or transferred.
16. Termination of Agreement: The term of this Agreement (the “Term”) shall commence
as of the date hereof and shall expire on the close of business on December 31, 2007;
provided, however, that (i) commencing on January 1, 2008 and each January 1
thereafter, the term of this Agreement will automatically be extended for an additional year
unless, not later than September 30 of the immediately preceding year, the Company or the Employee
shall have given notice that it or the Employee, as the case may be, does not wish to have the Term
extended; (ii) if a Change in Control occurs during the Term, the Term will expire on the last day
of the Limited Period; and (iii) subject to Section 3.1, if the Employee ceases for any reason to
be a key employee of the Company or any subsidiary, thereupon without further action the Term shall
be deemed to have expired and this Agreement will immediately terminate and be of no further
effect. For purposes of this Section 16, the Employee shall not be deemed to have ceased to be an
employee of the Company or any subsidiary by reason of the transfer of Employee’s employment
between the Company and any subsidiary, or among any subsidiaries.
17. Indemnification of Legal Fees and Expenses; Security for Payment:
17.1 Indemnification of Legal Fees. It is the intent of the Company that in the case
of a Change in Control, the Employee not be required to incur the expenses associated with the
enforcement of his rights under this Agreement by litigation or other legal action because the cost
and expense thereof would substantially detract from the benefits intended to be extended to the
Employee hereunder. Accordingly, after a Change in Control, if it should appear to the Employee
that the Company has failed to comply with any of its obligations under this Agreement or in the
event that the Company or any other person takes any action to declare this Agreement void or
unenforceable, or institutes any litigation designed to deny, or to recover from, the Employee the
benefits intended to be provided to the Employee hereunder, the Company irrevocably authorizes the
Employee from time to time to retain counsel of his choice, at the expense of the Company as
hereafter provided, to represent the Employee in connection with the initiation or defense of any
litigation or other legal action, whether by or against the Company or any Director, officer,
stockholder or other person affiliated with the Company, in any jurisdiction. The Company shall
pay or cause to be paid and shall be solely responsible for any and all attorneys’ and related fees
and expenses incurred by the Employee after a Change in Control and as a result of the Company’s
failure to perform this Agreement or any provision hereof or as a result of the Company or any
person contesting the validity or enforceability of this Agreement or any provision hereof as
aforesaid.
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17.2 Trust Agreements. To ensure that the provisions of this Agreement can be
enforced by the Employee, two agreements (“Amended and Restated Trust Agreement” and “Amended and
Restated Trust Agreement No. 2”) each dated as of March 26, 1991, as they may have been or may be
amended, have been established between a Trustee selected by the members of the Compensation
Committee of the Board or any officer (the “Trustee”) and the Company. The Amended and Restated
Trust Agreement sets forth the terms and conditions relating to payment pursuant to the Amended and
Restated Trust Agreement of the CIC Severance Amount, the Gross-Up Payment and other payments
provided for in Section 3.5 hereof pursuant to this Agreement owed by the Company, and Amended and
Restated Trust Agreement No. 2 sets forth the terms and conditions relating to payment pursuant to
Amended and Restated Trust Agreement No. 2 of attorneys’ and related fees and expenses pursuant to
paragraph (a) of this Section owed by the Company. Employee shall make demand on the Company for
any payments due Employee pursuant to paragraph (a) of this Section prior to making demand therefor
on the Trustee under Amended and Restated Trust Agreement No. 2. Payments by such Trustee shall
discharge the Company’s liability under paragraph (a) of this Section only to the extent that trust
assets are used to satisfy such liability.
17.3 Obligation of the Company to Fund Trusts. Upon the earlier to occur of (x) a
Change in Control that involves a transaction that was not approved by the Board, and was not
recommended to the Company’s shareholders by the Board, (y) a declaration by the Board that the
trusts under the Amended and Restated Trust Agreement and Amended and Restated Trust Agreement No.
2 should be funded in connection with a Change in Control that involves a transaction that was
approved by the Board, or was recommended to shareholders by the Board, or (z) a declaration by the
Board that a Change in Control is imminent, the Company shall promptly to the extent it has not
previously done so, and in any event within five (5) business days:
(a) transfer to the Trustee to be added to the principal of the trust under the
Amended and Restated Trust Agreement a sum equal to the aggregate value on the date
of the Change in Control of the CIC Severance Amount and Gross-Up Payment which
could become payable to the Employee under the provisions of Section 3.1 and Section
3.5 hereof. The payment of any CIC Severance Amount, Gross-Up Payment or other
payment by the Trustee pursuant to the Amended and Restated Trust Agreement shall,
to the extent thereof, discharge the Company’s obligation to pay the CIC Severance
Amount, Gross-Up Payment or other payment hereunder, it being the intent of the
Company that assets in such Amended and Restated Trust Agreement be held as security
for the Company’s obligation to pay the CIC Severance Amount, Gross-Up Payment and
other payments under this Agreement; and
(b) transfer to the Trustee to be added to the principal of the trust under
Amended and Restated Trust Agreement No. 2 the sum authorized by the members of the
Compensation Committee from time to time.
Any payments of attorneys’ and related fees and expenses, which are the obligation of the Company
under Section 17.1, by the Trustee pursuant to Amended and Restated Trust Agreement No. 2 shall, to
the extent thereof, discharge the Company’s obligation hereunder, it
-19-
being the intent of the Company that such assets in such Amended and Restated Trust Agreement No. 2
be held as security for the Company’s obligation under Section 17.1.
18. Code Section 409A of the Code.
18.1 General. To the extent applicable, it is intended that this Agreement comply
with the provisions of Section 409A of the Code. This Agreement shall be administered in a manner
consistent with this intent, and any provision that would cause the Agreement to fail to satisfy
Section 409A of the Code shall have no force and effect until amended to comply with Section 409A
of the Code (which amendment may be retroactive to the extent permitted by Section 409A of the Code
and may be made by the Company without the consent of the Employee).
18.2 Interest, Indemnification, and Legal Fee Payments. Notwithstanding any provision
of this Agreement to the contrary, if any payments are owed to the Employee pursuant to Section
3.4, 3.5 or 17.1, those payments will only be paid to the Employee to the extent and in the manner
permitted by Section 409A of the Code.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed and delivered as of
the date first set forth above.
| By: | ||||
| Employee | ||||
| THE TIMKEN COMPANY |
||||
| By: | ||||
| X. X. Xxxxxxxx | ||||
| Its: | Sr. VP & General Counsel | |||
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