a6087067ex10-5.htm


    EXHIBIT
10-5

    


    


    CHEMED
CORPORATION

    CHANGE
IN CONTROL SEVERANCE PLAN

     AS
AMENDED JULY 9, 2009

    


     

    ARTICLE
I

    ESTABLISHMENT OF
PLAN

     

    As of the
Effective Date, the Company (as such term is hereinafter defined) hereby
establishes the Chemed Corporation Change in Control Severance Plan, as set
forth in this document.

     

     

    ARTICLE
II

    PURPOSE

     

    Chemed
Corporation, by means of this Change in Control Severance Plan, desires to
provide Participants (as such term is hereinafter defined) with certain
severance protections in the event of a Change in Control of the Company (as
both terms are hereinafter defined) in order to minimize the personal financial
concerns and to promote the best interests of the Company and any
successor.

     

     

    ARTICLE
III

    DEFINITIONS

     

    As used
herein, the following words and phrases shall have meanings set forth below
(unless the context clearly indicates otherwise):

    


    3.1           “Administrative
Committee” shall mean the Compensation/Incentive Committee of the Board
of Directors or such other committee as determined by the Board of
Directors.

     

    3.2           “Affiliate” shall mean
an entity directly or indirectly controlled by, controlling, or under common
control with the Company.

     

    3.3           “Annual Bonus” shall
mean the average of the amounts of the Participant’s bonuses under an Employer’s
annual bonus plan paid or payable for the last three full fiscal years prior to
the Change in Control Date, or if more favorable to the Participant, the Date of
Termination.  The amount shall include any annual bonus or portion
thereof which has been earned but deferred, and in the event that the
Participant was not employed by an Employer for the whole of a particular fiscal
year and such amount received by the Participant was reduced pro-rata to reflect
this fact, the amount shall be annualized.

     

    3.4           “Base Salary” shall
mean the amount a Participant is entitled to receive from an Employer in cash as
wages or salary on an annualized basis in consideration for his or her services,
including any such amounts which may have been deferred, but excluding all other
elements of compensation such as, without limitation, any bonus, commissions,
overtime, health benefits, perquisites, and incentive compensation.

     

    3.5           “Beneficiary” shall
mean those designated by the Participant, or if not so designated:

     

    (a)           with
respect to a Participant who was married at the time of death, his or her
surviving spouse; and

     

    
      	
               
      

            	
              (b)

            	
              with
      respect to a Participant who was not married at the time of death, the
      legal representative of the Participant’s estate under the laws of the
      state of the Participant’s domicile at the time of
  death.

            


    

     

    3.6           “Board” shall mean the
Board of Directors of the Company.

     

    
      
         

      

      
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    3.7           “Cause” shall mean,
with respect to a Participant’s termination of employment: (a) the willful and
repeated failure of the Participant to perform substantially the Participant’s
duties with an Employer (other than any such failure resulting from incapacity
due to physical or mental illness); (b) the Participant’s conviction of, or plea
of guilty or nolo contendere to, which through lapse of time or otherwise is not
subject to appeal, a felony which is materially and demonstrably injurious to an
Employer; or (c) the Participant’s engagement in willful gross misconduct or
gross negligence in connection with his or her employment.

     

    3.8           “Change in Control”
shall mean the first to occur of any of the following events after the Effective
Date:

     

    (a)           the
direct or indirect acquisition by any person, corporation, entity, or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1934 (the “Exchange Act”)) (a “Person”) of the beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or
more of either the then outstanding capital stock of the Company (“Outstanding
Capital Stock”) or the combined voting power of the then outstanding voting
securities of the Company entitled to vote in the election of members of the
Board (“Outstanding Voting Securities”) in a single transaction or series of
transactions; provided, however, that the following acquisitions shall not
constitute a Change in Control:

     

    (i)           an
acquisition from the Company or an Affiliate;

     

    (ii)           an
acquisition by the Company or an Affiliate;

     

    (iii)           an
acquisition by an employee benefit plan or related trust sponsored or maintained
by the Company or an Affiliate; or

     

    (iv)           an
acquisition by any corporation pursuant to a transaction which complies with
clauses (i), (ii), and (iii) of Subsection (c) of this Section 3.8;

     

    (b)           Individuals
who, as of the Effective Date, constitute the Board (the “Incumbent Board”)
cease for any reason to constitute at least a majority of the Board, provided,
however, that any individual becoming a Board member subsequent to the Effective
Date whose election, or nomination for election by the Company’s shareholders,
was approved by a vote of at least a majority of the Board members then
comprising the Incumbent Board shall be considered as though such individual
were a member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an actual or
threatened election contest with respect to the election or removal of Board
members or other actual or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board;

     

    (c)           the
consummation of a reorganization, merger, consolidation, or similar transaction
to which the Company is a party (a “Business Combination”), unless following
such Business Combination: (i)  the Company is the surviving
corporation of such Business Combination, (ii) no Person (excluding any
corporation resulting from such Business Combination or any employee benefit
plan or related trust of the Company or such corporation resulting from such
Business Combination) beneficially owns, directly or indirectly, 30% or more of,
respectively, the then outstanding capital stock or the combined voting power of
the then outstanding voting securities entitled to vote in the election of
members of the board, as the case may be, of the corporation resulting from such
Business Combination, except to the extent that such ownership existed prior to
such Business Combination; and (iii) individuals who were members of the
Incumbent Board constitute at least a majority of the members of the board of
the corporation resulting from such Business Combination;

     

    (d)           the
approval by the shareholders of the Company of a plan for the complete
liquidation or dissolution of the Company or the sale of all or substantially
all of the assets of the Company; or

     

    (e)           any
other transaction that the Administrative Committee deems to be a Change in
Control, which the Administrative Committee can deem to apply to all
Participants or only those Participants it selects.

     

    3.9           “Change in Control
Date” shall mean the date on which a Change in Control
occurs.

     

    3.10           “Company” shall mean
Chemed Corporation and any successor thereto.

     

    
      
         

      

      
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    3.11           “Date of Termination”
shall mean the date on which a Participant’s employment with all Employers
terminates.

     

    3.12           “Disability” shall
mean, with respect to a Participant’s termination of employment due to
Disability: (a) a disability entitling the Participant to long-term disability
benefits under the applicable long-term disability plan of the Company or an
Affiliate or such other long-term disability plan under which the Participant is
entitled to long-term disability benefits; or (b) if the Participant is not
covered by such a plan, a physical or mental condition or illness that renders a
Participant totally and permanently incapable of performing the Participant’s
duties for the Company or an Affiliate for a total of 180 days or more during
any consecutive 12-month period.

     

    3.13           “Effective Date” shall
mean December 1, 2006.

     

    3.14           “Employee” shall mean
any full-time employee of an Employer.

     

    3.15           “Employer” shall mean
the Company or any of its Affiliates.

     

    3.16           “Good Reason” shall
mean, with respect to any Participant, the occurrence of any of the following
events after expiration of a 30 day cure period afforded the Company to remedy
any of the following events claimed by the Participant following a Change in
Control Date, or prior to a Change in Control Date if any such events can be
reasonably demonstrated to have occurred in connection with, or in anticipation
of, a Change in Control:

     

    (a)           a
material diminution in the nature and scope of the Participant’s
responsibilities, authorities, powers, functions, or duties from the most
significant of those responsibilities, authorities, powers, functions, or duties
exercised by, and assigned to, the Participant at any time during the 120-day
period prior to the Change in Control Date, other than an isolated,
insubstantial, and inadvertent action not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof given by the
Participant;

     

    (b)           a
material reduction in the Participant’s Base Salary below the Required Base
Salary, other than an isolated, insubstantial, and inadvertent reduction not
occurring in bad faith and which is remedied by the Company promptly after
receipt of notice thereof given by the Participant;

     

    (c)           a
material reduction in bonus under any current or subsequent annual bonus plan
available to the Participant below the average of the Participant’s bonuses
under an Employer’s annual bonus plan for the last three full fiscal years prior
to the Change in Control Date;

     

    (d)           a
material reduction in equity-based or other long-term incentive compensation
opportunity below that in effect for the Participant during the 120-day period
prior to the Change in Control Date;

     

    (e)           a
material reduction in the aggregate level of employee benefits offered to the
Participant in comparison to the most favorable of such employee benefit
programs and arrangements in effect for the Participant during the 120-day
period prior to the Change in Control Date, other than any across-the-board
reduction applicable to all Employees and other than an isolated, insubstantial,
and inadvertent reduction not occurring in bad faith and which is remedied by
the Company promptly after receipt of notice thereof given by the Participant;
or

     

    (f)           a
change at the request of an Employer in the Participant’s principal work
location to a work location that is more than 50 miles from any location where
the Participant was based during the 120-day period prior to the Change in
Control Date, or an Employer’s requiring the Participant to travel on Employer
business to a substantially greater extent than required during the 120-day
period prior to the Change in Control Date; or

     

    (g)           receipt
of notice of Company’s intention to cancel or not renew any employment agreement
of a Tier 1 Participant during the first year following a Change in
Control.

     

    3.17           “Participant” shall
mean an Employee who is designated in Appendix A hereto to participate in the
Plan or who may be added to such appendix from time to time by the
Administrative Committee.

     

    3.18           “Plan” shall mean the
Chemed Corporation Change in Control Severance Plan.

     

    
      
         

      

      
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    3.19           “Required Base Salary”
shall mean, with respect to any Participant, the higher

     

    of: (a)
the Participant’s highest Base Salary as in effect during the 120-day period
prior to the Change in Control Date; and (b) the Participant’s highest Base
Salary in effect at any time

     

    thereafter.

     

    3.20           “Severance Benefits”
shall mean the payments and benefits provided in

     

    accordance
with Section 6.2 of the Plan.

     

    3.21           “Severance Period”
shall mean a period beginning on the Date of Termination with a duration in
years equal to the severance multiple the Participant is entitled to receive
under Section 6.2(a).

     

     

    ARTICLE
IV

    ADMINISTRATION

     

    4.1           Administration.  Subject
to the express provisions of the Plan, the Administrative Committee shall have
the authority to interpret the Plan, to prescribe, amend, and rescind rules and
regulations relating to it, and to make all other determinations deemed
necessary or advisable for the administration of the Plan.  The
determinations of the Administrative Committee pursuant to its authority under
the Plan shall be conclusive and binding.

     

     

    ARTICLE
V

    DURATION OF
PARTICIPATION

     

    5.1           Duration of
Participation.  A Participant shall cease to be a Participant
in the Plan when he or she no longer is an Employee of any
Employer.  Notwithstanding the foregoing, a Participant who is
entitled, as a result of ceasing to be an Employee of an Employer, to receipt of
Severance Benefits or any other amounts under the Plan shall remain a
Participant in the Plan until the full amount of the Severance Benefits and any
other amounts payable under the Plan have been paid to the
Participant.

     

     

    ARTICLE
VI

    SEVERANCE
BENEFITS

     

    6.1           Right to Severance
Benefits.

     

    (a)           Terminations
Which Give Rise to Severance Benefits.  A Participant shall be
entitled to receive Severance Benefits as provided in Section 6.2, if a Change
in Control has occurred and the Participant’s employment with an Employer is
terminated under the following circumstances:  (i) by action of the
Employer, unless the termination is for Cause; or (ii) by action of the
Participant within 90 days after the occurrence of an event constituting Good
Reason; provided, in either event, that (x) such termination occurs after such
Change in Control and on or before the second anniversary thereof, or (y) the
termination described in clause (i) above or the event constituting Good Reason
giving rise to the termination described in clause (ii) above, as applicable,
occurs before such Change in Control but the Participant can reasonably
demonstrate that such termination or event, as applicable, occurred in
connection with, or in anticipation of, a Change in
Control.  Severance Benefits or any other amounts otherwise payable to
a Participant under the Plan shall be conditioned upon execution of a general
release of claims in favor of the Company in a form satisfactory to the
Company’s counsel.

     

    (b)           Terminations Which Do Not
Give Rise to Severance Benefits.  If a Participant’s employment
is terminated: (i) by an Employer for Cause; (ii) due to the Participant’s death
or Disability; or (iii) by the Participant other than for Good Reason, the
Participant shall not be entitled to the Severance Benefits under the Plan,
regardless of the occurrence of a Change in Control.

     

    6.2           Severance
Benefits.

     

    (a)           In
General.  If a Participant’s employment is terminated in
circumstances entitling him or her to Severance Benefits as provided in Section
6.1(a), the Company shall pay such Participant (or in the event of a
Participant’s death following entitlement to Severance Benefits, his or her
Beneficiary), an amount equal to three times for Tier 1 Participants and two
times for Tier 2 Participants, the sum of the Participant’s: (i) Required Base
Salary; and (ii) Annual Bonus.  In addition, Participant shall receive
an amount equal to the product of the Participant’s: (x) Annual Bonus; and (ii)
a fraction, the numerator of which is the number of days in the fiscal year
through the Date of Termination and the denominator of which is 365, if such
termination occurs in a fiscal year other than the fiscal year of the Change in
Control.  All such payments shall be made in a lump sum in cash within
10 days after the Date of Termination, but in no event later than the following
March 15.  Regardless of termination, a Participant shall receive an
amount equal to the Participant’s Annual Bonus within 10 days after the Change
in Control Date.

     

    
      
         

      

      
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    (b)           Payment
shall be made in a lump sum in cash.

     

    (c)           Welfare Benefits; Retirement
Plans; Perquisites.  In addition, a Participant entitled to
Severance Benefits pursuant to Section 6.1(a) will continue to be provided with
health insurance, life insurance, long-term care insurance and long-term
disability benefits comparable to the benefits provided to the Participant
immediately prior to the Date of Termination, or if more favorable to the
Participant, the Change in Control, for the duration of the Severance Period,
with no increase in the Employee’s contribution rate on the Date of Termination
(without giving effect to any rate increase after the Change in Control which
constitutes or may constitute Good Reason); provided that if the Participant is
precluded from continuing his or her participation in any applicable plan,
program, or arrangement, the Participant shall be provided with the after-tax
cost of continuation of such coverage, including premiums under the Consolidated
Omnibus Budget Reconciliation Act of 1985, as amended, (“COBRA Premiums”), for
the Participant with respect to the benefits provided under such plan, program,
or arrangement, paid as a lump sum payment within 10 days after Termination, but
in no event later than the following March 15.  Any benefits so
provided shall not be considered a continuation of coverage as provided under
the Consolidated Omnibus Budget Reconciliation Act of 1985, as
amended.  A Participant entitled to Severance Benefits pursuant to
Section 6.1(a) shall also receive a lump sum payment in cash within 10 days
after the Change in Control but in no event later than the following March 15,
equal to the Employer contributions that would have been made on the
Participant’s behalf pursuant to the Company’s qualified and non-qualified
defined contribution retirement plans, assuming continued participation on the
same basis as immediately prior to the Date of Termination, or if more favorable
to the Participant, the Change in Control, which the Participant would have
received if the Participant’s employment had continued during the Severance
Period, assuming that the Participant’s compensation for each year during such
period is as in effect immediately prior to the Date of Termination, or if more
favorable to the Participant, the Change in Control, and that the Employer
contributions are determined pursuant to the applicable plans as in effect
immediately prior to the Date of Termination, or if more favorable to the
Participant, the Change in Control.  A Participant entitled to
Severance Benefits pursuant to Section 6.1(a) will continue to be provided with
perquisites comparable to those provided to the Participant immediately prior to
the Date of Termination, or if more favorable to the Participant, the Change in
Control, for the duration of the Severance Period.  Such perquisites
shall be paid in a lump sum within 10 days of Termination, but in no event later
than the following March 15.  If the Participant becomes reemployed
with another employer and is eligible to receive health insurance, life
insurance, long-term care insurance or long-term disability coverage under
another employer-provided plan (regardless of whether the Participant elects
such coverage), the health insurance, life insurance, and long-term disability
benefits provided pursuant to this section shall be secondary to those provided
under such other plan during the applicable period of
eligibility.   Long-term care insurance vests by its terms upon a
Change in Control.

     

    (d)           Equity
Vesting.  In the event of a Change in Control (whether or not a
Participant’s employment terminates): (i) any unvested portions of stock awards
or options granted under the Company’s equity-based plans shall become fully
vested upon the Change in Control; and (ii) any shares then unallocated under
the Company’s equity-based plans shall then be allocated and distributed to such
plan’s participants by the Compensation/Incentive Committee of the Company’s
Board of Directors upon the Change in Control.

     

    (e)           Outplacement.  A
Participant entitled to Severance Benefits under Section 6.1(a) shall be
entitled to receive outplacement assistance at an agency of his or her choice,
in an amount not to exceed $25,000.00

     

    6.3           Certain Additional Payments
by the Company.

     

    (a)                              In
the event that any payment or benefit to the Participant or for the
Participant’s benefit paid or payable or distributed or distributable pursuant
to the terms of this Plan or otherwise in connection with, or arising out of,
the Participant’s employment with an Employer or a change in ownership or
effective control of the Company or of a substantial portion of its assets (a
“Payment”), would be subject to the excise tax imposed by Section 4999 of
the Code or any tax imposed by Section 409A of the Code, or any interest or
penalties are incurred by the Participant with respect to such tax (such tax,
together with any such interest and penalties, are hereinafter collectively
referred to herein as the “Excise Tax”), then the Participant will be entitled
to receive an additional payment (a “Gross-Up Payment”) in an amount such that
after payment by the Participant of all taxes (including any income, payroll,
interest or penalties imposed with respect to such taxes and the Excise Tax,
other than interest and penalties imposed by reason of the Participant’s failure
to file timely a tax return or pay taxes shown due on the Participant’s return,
and including any Excise Tax imposed upon the Gross-Up Payment), the Participant
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.

     

    
      
         

      

      
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    (b)                              
An initial determination as to whether a Gross-Up Payment is required pursuant
to this Plan and the amount of such Gross-Up Payment will be made at the
Company’s expense by an accounting firm of recognized national standing selected
by the Company (the “Accounting Firm”). The Accounting Firm will provide its
determination (the “Determination”), together with detailed supporting
calculations and documentation, to the Company and the Participant within five
days of the Date of Termination, if applicable, or such other time as requested
by the Company or by the Participant (provided the Participant reasonably
believes that any of the Payments may be subject to the Excise Tax). If the
Accounting Firm determines that no Excise Tax is payable by the Participant with
respect to a Payment or Payments, it will furnish the Participant with an
opinion reasonably acceptable to the Participant that no Excise Tax will be
imposed with respect to any such Payment or Payments. Within 10 days of the
delivery of the Determination to the Participant, the Participant will have the
right to dispute the Determination (the “Dispute”). The Gross-Up Payment, if
any, as determined pursuant to this Section 6.3(b) will be paid by the
Company to the Participant within 5 days of the receipt of the Determination.
The existence of the Dispute will not in any way affect the Participant’s right
to receive the Gross-Up Payment in accordance with the Determination. If there
is no Dispute, the Determination will be binding, final and conclusive upon the
Company and the Participant, subject to the application of
Section 6.3(c).

     

    (c)                              As
a result of uncertainty in the application of Sections 280G, 409A, and 4999
of the Code, it is possible that a Gross-Up Payment (or a portion thereof) will
be paid which should not be paid (an “Excess Payment”) or that a Gross-Up
Payment (or a portion thereof) which should be paid will not be paid (an
“Underpayment”). An Underpayment will be deemed to have occurred (i) upon
notice (formal or informal) to the Participant from any governmental taxing
authority that the Participant’s tax liability (whether in respect of the
Participant’s current taxable year or in respect of any prior taxable year) may
be increased by reason of the imposition of the Excise Tax on a Payment or
Payments with respect to which the Company has failed to make a sufficient
Gross-Up Payment, (ii) upon a determination by a court, (iii) by
reason of a determination by the Company (which will include the position taken
by the Company on its federal income tax return) or (iv) upon the
resolution of the Dispute to the Participant’s satisfaction. If an Underpayment
occurs, the Participant will promptly notify the Company and the Company will
promptly, but in any event at least 5 days prior to the date on which the
applicable government taxing authority has requested payment, pay to the
Participant an additional Gross-Up Payment equal to the amount of the
Underpayment plus any interest and penalties (other than interest and penalties
imposed by reason of the Participant’s failure to file timely a tax return or
pay taxes shown due on the Participant’s return) imposed on the Underpayment. An
Excess Payment will be deemed to have occurred upon a Final Determination (as
hereinafter defined) that the Excise Tax will not be imposed upon a Payment or
Payments (or portion thereof) with respect to which the Participant had
previously received a Gross-Up Payment. A “Final Determination” will be deemed
to have occurred when the Participant has received from the applicable
government taxing authority a refund of taxes or other reduction in the
Participant’s tax liability by reason of the Excise Payment and upon either
(x) the date a determination is made by, or an agreement is entered into
with, the applicable governmental taxing authority which finally and
conclusively binds the Participant and such taxing authority, or in the event
that a claim is brought before a court of competent jurisdiction, the date upon
which a final determination has been made by such court and either all appeals
have been taken and finally resolved or the time for all appeals has expired or
(y) the statute of limitations with respect to the Participant’s applicable
tax return has expired. If an Excess Payment is determined to have been made,
the Participant will pay to the Company (but not less than 10 days after
the determination of such Excess Payment and written notice has been delivered
to the Participant) the amount of the Excess Payment plus interest at an annual
rate equal to the Applicable Federal Rate provided for in Section 1274(d)
of the Code from the date the Gross-Up Payment (to which the Excess Payment
relates) was paid to the Participant until the date of repayment to the Company.
The Participant will use reasonable cooperative efforts at the request of the
Company to assist in the determination of the amount of any Excess Payment or
Underpayment made to the Participant pursuant to this Plan.

     

    (d)                              All
Payments are intended by Company and Participant to meet the requirements of
Section 409A of the Code.

     

    
      
         

      

      
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    6.4           Other Benefits
Payable.  The Severance Benefits provided pursuant to Section
6.2 above shall be provided in addition to, and not in lieu of, all other
accrued or vested or earned but deferred compensation, rights, stock options, or
other benefits which may be owed to a Participant by an Employer, with the
exception of payments to be made under (a) the Chemed Corporation Senior
Executive Severance Policy and (b) employment agreements for Tier 1
Participants.

     

    6.5           Payment Obligations
Absolute.  The obligations of the Company to pay the Severance
Benefits described in Section 6.2 shall be absolute and unconditional and shall
not be affected by any circumstances, including, without limitation, any
set-off, counterclaim, recoupment, defense, or other right which the Company or
any Affiliate may have against any Participant.  In no event shall a
Participant be obligated to seek other employment or take any other action by
way of mitigation of the amounts payable to a Participant under any of the
provisions of this Plan, nor shall the amount of any payment hereunder be
reduced by any compensation earned by a Participant as a result of employment by
another employer, except with respect to the welfare benefits as provided under
Section 6.2(c).

     

     

    ARTICLE
VII

    SUCCESSOR TO
COMPANY

     

    This Plan shall bind any successor of
the Company, its assets, or its businesses (whether direct or indirect, by
purchase, merger, consolidation, or otherwise), in the same manner and to the
same extent that the Company would be obligated under this Plan if no succession
had taken place.  In the case of any transaction in which a successor
would not, by the foregoing provision or by operation of law, be bound by this
Plan, the Company shall require such successor expressly and unconditionally to
assume and agree to perform the Company’s obligations under this Plan, in the
same manner and to the same extent that the Company would be required to perform
if no such succession had taken place.  The term “Company,” as used in
this Plan, shall mean the Company as hereinbefore defined and any successor or
assignee to the business or assets which by reason hereof becomes bound by this
Plan.

     

     

    ARTICLE
VIII

    AMENDMENT, AND
TERMINATION

     

    8.1           Amendment and
Termination.  The Plan may be terminated or amended in any
respect by resolution adopted by a majority of the Administrative Committee,
unless a Change in Control has previously occurred.  However, after
the Administrative Committee has knowledge of a transaction or event that, if
consummated, would constitute a Change in Control, this Plan may not be
terminated or amended in any manner which would adversely affect the rights or
potential rights of Participants, unless and until the Administrative Committee
has determined that such potential Change in Control has been abandoned and will
not be consummated, and the Administrative Committee does not have knowledge of
another transaction or event that, if consummated, would constitute a Change in
Control.  If a Change in Control occurs, the Plan shall no longer be
subject to amendment or termination in any respect which adversely affects the
rights of Participants.

     

    8.2           Form of
Amendment.  The form of any amendment or termination of the
Plan shall be a written instrument signed by a duly authorized officer or
officers of the Company, certifying that the amendment or termination has been
approved by the Administrative Committee.  An amendment of the Plan in
accordance with the terms hereof shall automatically effect a corresponding
amendment to all Participants’ rights hereunder.  A termination of the
Plan, subject to the terms hereof, shall automatically effect a termination of
all Participants’ rights and benefits hereunder.

     

     

    ARTICLE
IX

    MISCELLANEOUS

     

    9.1           Legal Fees and Expenses,
Arbitration.  Each party shall pay their own legal fees
incurred in connection with any enforcement of rights under this
Plan.  Disputes arising under this Plan shall be subject to
arbitration according to the rules of the American Arbitration
Association.  The Company and Participant shall share equally any
third party costs of such arbitration.

     

    
      
         

      

      
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    9.2           Employment
Status.  This Plan does not constitute a contract of employment
or impose on a Participant’s Employer any obligation to retain the Participant
as an Employee, to change the status of the Participant’s employment, or to
change the Company’s policies or those of its Affiliates regarding termination
of employment.

     

    9.3           Validity and
Severability.  The invalidity or unenforceability of any
provision of the Plan shall not affect the validity or enforceability of any
other provision of the Plan, which shall remain in full force and effect, and
any prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.

     

    9.4           Waiver.  The
Company’s or a Participant’s failure to insist upon strict compliance with any
provision of this Plan or the failure to assert any right the Company or a
Participant may have hereunder shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Plan.

     

    9.5           Governing
Law.  The validity, interpretation, construction, and
performance of the Plan shall in all respects be governed by the laws of the
State of Ohio, without reference to its principles of conflict of
law.

     

    9.6           Claims
Procedure.  If an Employee or former Employee makes a written
request alleging a right to receive benefits under the Plan or alleging a right
to receive an adjustment in benefits being paid under the Plan, the Company
shall treat it as a claim for benefits.  All claims for Severance
Benefits under the Plan shall be sent to the Legal Department of the Company and
must be received within 30 days after the Date of Termination.  If the
Company determines that any individual who has claimed a right to receive
Severance Benefits under the Plan is not entitled to receive all or any part of
the benefits claimed, it will inform the claimant in writing of its
determination and the reasons therefor in terms calculated to be understood by
the claimant.  The notice will be sent within 30 days of the written
request, unless the Company determines additional time, not exceeding 45 days,
is needed.  The notice shall make specific reference to the pertinent
Plan provisions on which the denial is based, and describe any additional
material or information that is necessary.  Such notice shall, in
addition, inform the claimant what procedure the claimant should follow to take
advantage of the review procedures set forth below in the event the claimant
desires to contest the denial of the claim.  The claimant may, within
90 days thereafter, submit in writing to the Company a notice that the claimant
contests the denial of his or her claim by the Company and desires a further
review.  The Company shall, within 30 days thereafter, review the
claim and authorize the claimant to appear personally and review pertinent
documents and submit issues and comments relating to the claim to the persons
responsible for making the determination on behalf of the
Company.  The Company will render its final decision with specific
reasons therefor in writing and will transmit it to the claimant within 30 days
of the written request for review, unless the Company determines additional
time, not exceeding 45 days, is needed, and so notifies the
Participant.  If the Company fails to respond to a claim filed in
accordance with the foregoing within 30 days or any such extended period, the
Company shall be deemed to have denied the claim.

     

    9.7           Indemnification of
Administrative Committee.  No member or agent of the
Administrative Committee shall be personally liable for any action,
determination, or interpretation made with respect to the Plan, and each member
of the Administrative Committee shall be indemnified by the Company to the
fullest extent permitted by applicable law and the governing instruments of the
Company.

     

    9.8           Unfunded Plan
Status.  This Plan is intended to be an unfunded
plan.  All payments pursuant to the Plan shall be made from the
general funds of the Company, and no special or separate fund shall be
established or other segregation of assets made to assure payment.  No
Participant or other person shall have under any circumstances any interest in
any particular property or assets of the Company as a result of participating in
the Plan.  Notwithstanding the foregoing, the Company may (but shall
not be obligated to) create one or more grantor trusts, the assets of which are
subject to the claims of the Company’s creditors, to assist it in accumulating
funds to pay its obligations under the Plan.

     

    9.9           Tax
Withholding.  Any payment provided for hereunder shall be paid
net of any applicable tax withholding required under federal, state, local, or
foreign law.

     

    9.10           Nonalienation of
Benefits.  Except as otherwise specifically provided herein,
amounts payable under the Plan shall not be subject to any manner of
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance,
charge, garnishment, execution, or levy of any kind, either voluntary or
involuntary, including any liability which is for alimony or other payments for
the support of a spouse or former spouse, or for any other relative of a
Participant, prior to actually being received by the person entitled to payment
under the terms of the Plan.  Any attempt to anticipate, alienate,
sell, transfer, assign, pledge, encumber, charge, garnish, execute, or levy
upon, otherwise dispose of any right to amounts payable hereunder, shall be null
and void.

     

    
      
         

      

      
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    9.11           Facility of
Payment.

     

    (a)           If
a Participant is declared an incompetent, and a conservator, guardian, or other
person legally charged with his or her care has been appointed, any Severance
Benefits to which such Participant is entitled may be paid to such conservator,
guardian, or other person legally charged with his or her care;

    


    (b)           If
a Participant is declared an incompetent and a conservator, guardian, or other
person charged with his or her care has not been appointed, the Administrative
Committee may: (i) require the appointment of a conservator or guardian; (ii)
distribute any Severance Benefits to which such Participant is entitled to his
or her spouse, with respect to a Participant who is married, or to such other
relative of an unmarried Participant for the benefit of such Participant; or
(iii) distribute any Severance Benefits to which such Participant is entitled
directly to or for the benefit of such Participant.

    


     

    9.12           Gender and
Number.  Except when the context indicates to the contrary,
when used herein masculine terms shall be deemed to include the feminine, and
the plural shall be deemed to include the singular.

     

    9.13           Headings. The
headings of Articles and Sections are included solely for

     

    convenience
of reference and are not to be used in the interpretation of the provisions of
the Plan.

     

    9.14           Equity-Based
Plans.  No provision hereunder is intended to restrict
acceleration of any interests granted under equity-based plans of the Company,
in accordance with the terms of said plans.

    


    
      
         

      

      
        E-22

        
          

        

      

      
         

      

    

    


    Appendix
A to Chemed Corporation

    Change
in Control Severance Plan

    Participant
Designation

    
      
        

      



     Tier 1

    


    1.  K.
J. McNamara

    


    2.  D.
P. Williams

    


    3.  T.
S. O’Toole

    


    


    Tier 2

    


    4.  T.
C. Hutton

     

    5.  N.
C. Dallob

    


    6.  A.
V. Tucker

    


    7.  T.
J. Reilly

    


    8.  L.
A. Dittman

    


    9.  S.
S. Lee

    


    10.  R.
L. Arquilla

    


    11.  G.
H. Sander

    


    12.  R.
P. Goldschmidt

    


    13.  D.
Lawe

    


    14.  P.
Pettit

    


    15.  D.
A. Wester

     
 

    E-23