Exhibit
10.5


 


TYCO
INTERNATIONAL (US) INC.


 


SEVERANCE
PLAN FOR U.S. OFFICERS AND EXECUTIVES


 


(AS AMENDED AND RESTATED EFFECTIVE MAY 10, 2007)


 


May 10, 2007


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  BACKGROUND, PURPOSE AND TERM OF PLAN

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 1.01

  	
   

  	
  Purpose of the Plan

  	
   

  	
  1

  
	
  Section 1.02

  	
   

  	
  Term of the Plan

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  DEFINITIONS

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.01

  	
   

  	
  “Alternative Position”

  	
   

  	
  2

  
	
  Section 2.02

  	
   

  	
  “Annual Bonus”

  	
   

  	
  2

  
	
  Section 2.03

  	
   

  	
  “Base Salary”

  	
   

  	
  2

  
	
  Section 2.04

  	
   

  	
  “Board”

  	
   

  	
  2

  
	
  Section 2.05

  	
   

  	
  “Cause”

  	
   

  	
  2

  
	
  Section 2.06

  	
   

  	
  “COBRA”

  	
   

  	
  2

  
	
  Section 2.07

  	
   

  	
  “Code”

  	
   

  	
  2

  
	
  Section 2.08

  	
   

  	
  “Committee”

  	
   

  	
  2

  
	
  Section 2.09

  	
   

  	
  “Company”

  	
   

  	
  2

  
	
  Section 2.10

  	
   

  	
  “Effective Date”

  	
   

  	
  3

  
	
  Section 2.11

  	
   

  	
  “Eligible Employee”

  	
   

  	
  3

  
	
  Section 2.12

  	
   

  	
  “Employee”

  	
   

  	
  3

  
	
  Section 2.13

  	
   

  	
  “Employer”

  	
   

  	
  3

  
	
  Section 2.14

  	
   

  	
  “ERISA”

  	
   

  	
  3

  
	
  Section 2.15

  	
   

  	
  “Exchange Act”

  	
   

  	
  3

  
	
  Section 2.16

  	
   

  	
  “Involuntary Termination”

  	
   

  	
  3

  
	
  Section 2.17

  	
   

  	
  “Notice Pay”

  	
   

  	
  3

  
	
  Section 2.18

  	
   

  	
  “Officer”

  	
   

  	
  3

  
	
  Section 2.19

  	
   

  	
  “Participant”

  	
   

  	
  3

  
	
  Section 2.20

  	
   

  	
  “Permanent Disability”

  	
   

  	
  3

  
	
  Section 2.21

  	
   

  	
  “Plan”

  	
   

  	
  4

  
	
  Section 2.22

  	
   

  	
  “Plan Administrator”

  	
   

  	
  4

  
	
  Section 2.23

  	
   

  	
  “Release”

  	
   

  	
  4

  
	
  Section 2.24

  	
   

  	
  “Service”

  	
   

  	
  4

  
	
  Section 2.25

  	
   

  	
  “Severance Benefit”

  	
   

  	
  4

  
	
  Section 2.26

  	
   

  	
  “Severance Period”

  	
   

  	
  4

  
						



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.27

  	
   

  	
  “Subsidiary”

  	
   

  	
  4

  
	
  Section 2.28

  	
   

  	
  “Termination Date”

  	
   

  	
  4

  
	
  Section 2.29

  	
   

  	
  “Voluntary Termination”

  	
   

  	
  4

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  PARTICIPATION AND ELIGIBILITY FOR BENEFITS

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 3.01

  	
   

  	
  Participation

  	
   

  	
  5

  
	
  Section 3.02

  	
   

  	
  Conditions

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  DETERMINATION OF SEVERANCE BENEFITS

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.01

  	
   

  	
  Amount of Severance Benefits Upon Involuntary
  Termination

  	
   

  	
  7

  
	
  Section 4.02

  	
   

  	
  Voluntary Termination; Termination for Death or
  Permanent Disability

  	
   

  	
  9

  
	
  Section 4.03

  	
   

  	
  Termination for Cause

  	
   

  	
  9

  
	
  Section 4.04

  	
   

  	
  Reduction of Severance Benefits

  	
   

  	
  9

  
	
  Section
  4.05

  	
   

  	
  Modification of
  Severance Benefits

  	
   

  	
  9

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  METHOD AND DURATION OF SEVERANCE BENEFIT PAYMENTS

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.01

  	
   

  	
  Method of Payment

  	
   

  	
  10

  
	
  Section 5.02

  	
   

  	
  Other Arrangements

  	
   

  	
  10

  
	
  Section 5.03

  	
   

  	
  Termination of Eligibility for Benefits

  	
   

  	
  10

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  CONFIDENTIALITY, COVENANT NOT TO COMPETE AND NOT TO
  SOLICIT

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 6.01

  	
   

  	
  Confidential Information

  	
   

  	
  11

  
	
  Section 6.02

  	
   

  	
  Non-Competition

  	
   

  	
  11

  
	
  Section 6.03

  	
   

  	
  Non-Solicitation

  	
   

  	
  11

  
	
  Section 6.04

  	
   

  	
  Non-Disparagement

  	
   

  	
  12

  
	
  Section 6.05

  	
   

  	
  Reasonableness

  	
   

  	
  12

  
	
  Section 6.06

  	
   

  	
  Equitable Relief

  	
   

  	
  12

  
	
  Section 6.07

  	
   

  	
  Survival of Provisions

  	
   

  	
  13

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  THE PLAN ADMINISTRATOR

  	
   

  	
  14

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 7.01

  	
   

  	
  Authority and Duties

  	
   

  	
  14

  
	
  Section 7.02

  	
   

  	
  Compensation of the Plan Administrator

  	
   

  	
  14

  
	
  Section 7.03

  	
   

  	
  Records, Reporting and Disclosure

  	
   

  	
  14

  
							



 


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  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  AMENDMENT, TERMINATION AND DURATION

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 8.01

  	
   

  	
  Amendment, Suspension and Termination

  	
   

  	
  15

  
	
  Section 8.02

  	
   

  	
  Duration

  	
   

  	
  15

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  DUTIES OF THE COMPANY AND THE COMMITTEE

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 9.01

  	
   

  	
  Records

  	
   

  	
  16

  
	
  Section 9.02

  	
   

  	
  Payment

  	
   

  	
  16

  
	
  Section 9.03

  	
   

  	
  Discretion

  	
   

  	
  16

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  CLAIMS PROCEDURES

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 10.01

  	
   

  	
  Claim

  	
   

  	
  17

  
	
  Section 10.02

  	
   

  	
  Initial Claim

  	
   

  	
  17

  
	
  Section 10.03

  	
   

  	
  Appeals of Denied Administrative Claims

  	
   

  	
  17

  
	
  Section 10.04

  	
   

  	
  Appointment of the Named Appeals Fiduciary

  	
   

  	
  18

  
	
  Section 10.05

  	
   

  	
  Arbitration; Expenses

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  MISCELLANEOUS

  	
   

  	
  19

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 11.01

  	
   

  	
  Nonalienation of Benefits

  	
   

  	
  19

  
	
  Section 11.02

  	
   

  	
  Notices

  	
   

  	
  19

  
	
  Section 11.03

  	
   

  	
  Successors

  	
   

  	
  19

  
	
  Section 11.04

  	
   

  	
  Other Payments

  	
   

  	
  19

  
	
  Section 11.05

  	
   

  	
  No Mitigation

  	
   

  	
  19

  
	
  Section 11.06

  	
   

  	
  No Contract of Employment

  	
   

  	
  19

  
	
  Section 11.07

  	
   

  	
  Severability of Provisions

  	
   

  	
  19

  
	
  Section 11.08

  	
   

  	
  Heirs, Assigns, and Personal Representatives

  	
   

  	
  20

  
	
  Section 11.09

  	
   

  	
  Headings and Captions

  	
   

  	
  20

  
	
  Section 11.10

  	
   

  	
  Gender and Number

  	
   

  	
  20

  
	
  Section 11.11

  	
   

  	
  Unfunded Plan

  	
   

  	
  20

  
	
  Section 11.12

  	
   

  	
  Payments to Incompetent Persons

  	
   

  	
  20

  
	
  Section 11.13

  	
   

  	
  Lost Payees

  	
   

  	
  20

  
	
  Section 11.14

  	
   

  	
  Controlling Law

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULE A SEVERANCE BENEFITS

  	
   

  	
  A-1

  
							



 


iii

















 


ARTICLE I




BACKGROUND, PURPOSE AND TERM OF PLAN


 


Section 1.01         Purpose of the Plan.
The purpose of the Plan is to provide Eligible Employees with certain
compensation and benefits as set forth in the Plan in the event the Eligible
Employee’s employment with the Company or a Subsidiary is terminated due to an
Involuntary Termination. The Plan is not intended to be an “employee pension
benefit plan” or “pension plan” within the meaning of Section 3(2) of ERISA. Rather,
this Plan is intended to be a “welfare benefit plan” within the meaning of
Section 3(1) of ERISA and to meet the descriptive requirements of a plan
constituting a “severance pay plan” within the meaning of regulations published
by the Secretary of Labor at Title 29, Code of Federal Regulations,
section 2510.3-2(b). Accordingly, the benefits paid by the Plan are not
deferred compensation and no employee shall have a vested right to such
benefits.


 


Section 1.02         Term of the Plan.
The Plan shall generally be effective as of the Effective Date and shall
supersede any prior plan, program or policy under which the Company or any
Subsidiary provided severance benefits prior to the Effective Date of the Plan.
The Plan shall continue until terminated pursuant to Article VIII of the Plan.


 

















 


ARTICLE II




DEFINITIONS


 


Section 2.01         “Alternative
Position” shall mean a position with the Company that:


 


(a)           is not more than 75
miles each way from the location of the Employee’s current position (for
positions that are essentially mobile, the mileage does not apply); and


 


(b)           provides the Employee
with pay and benefits (not including perquisites or long term incentive
compensation) that are comparable in the aggregate to the Employee’s current
position.


 


The Plan
Administrator has the exclusive discretionary authority to determine whether a
position is an Alternative Position.


 


Section 2.02         “Annual Bonus”
shall mean 100% of the Participant’s target annual bonus.


 


Section 2.03         “Base Salary”
shall mean the annual base salary in effect as of the Participant’s Termination
Date.


 


Section 2.04         “Board” shall
mean the Board of Directors of the Company, or any successor thereto, or a
committee thereof specifically designated for purposes of making determinations
hereunder.


 


Section 2.05         “Cause” shall
mean an Employee’s (i) substantial failure or refusal to perform duties and
responsibilities of his or her job as required by the Company, (ii) violation
of any fiduciary duty owed to the Company, (iii) conviction of a felony or
misdemeanor, (iv) dishonesty, (v) theft, (vi) violation of Company rules or
policy, or (vii) other egregious conduct, that has or could have a serious and
detrimental impact on the Company and its employees. The Plan Administrator, in
its sole and absolute discretion, shall determine Cause. Examples of “Cause”
may include, but are not limited to, excessive absenteeism, misconduct,
insubordination, violation of Company policy, dishonesty, and deliberate
unsatisfactory performance (e.g., Employee refuses to improve deficient
performance).


 


Section 2.06         “COBRA” shall
mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.


 


Section 2.07         “Code” shall
mean the Internal Revenue Code of 1986, as amended.


 


Section 2.08         “Committee”
shall mean the Compensation and Human Resources Committee of the Board or such
other committee appointed by the Board to assist the Company in making
determinations required under the Plan in accordance with its terms. The “Committee”
may delegate its authority under the Plan to an individual or another
committee.


 


Section 2.09         “Company”
shall mean Tyco International Ltd. Unless it is otherwise clear from the
context, Company shall generally include participating Subsidiaries.


 


2

















 


Section 2.10         “Effective Date”
shall mean May 10, 2007, the effective date of this amended and restated Plan. The
Plan was originally effective January 1, 2004.


 


Section 2.11         “Eligible Employee”
shall mean an Employee employed in the United States who is an Officer, or in
career bands 1 and 2, who is not covered under any other severance plan or
program sponsored by the Company or a Subsidiary. If there is any question as
to whether an Employee is deemed an Eligible Employee for purposes of the Plan,
the Senior Vice President—Human Resources, Tyco International Ltd. shall make
the determination.


 


Section 2.12         “Employee”
shall mean an individual employed by Tyco International Ltd. or a Subsidiary as
a common law employee on the United States payroll of Tyco International Ltd.
or a Subsidiary, and shall not include any person working for the Company
through a temporary service or on a leased basis or who is hired by the Company
as an independent contractor, consultant, or otherwise as a person who is not
an employee for purposes of withholding federal employment taxes, as evidenced
by payroll records or a written agreement with the individual, regardless of
any contrary governmental or judicial determination or holding relating to such
status or tax withholding.


 


Section 2.13         “Employer”
shall mean the Company or any Subsidiary with respect to which this Plan has
been adopted.


 


Section 2.14         “ERISA” shall
mean the Employee Retirement Income Security Act of 1974, as amended, and
regulations thereunder.


 


Section 2.15         “Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended.


 


Section 2.16         “Involuntary
Termination” shall mean a termination of the Participant initiated by the
Company or a Subsidiary for any reason other than Cause, Permanent Disability
or death, as provided under and subject to the conditions of Article III.


 


Section 2.17         “Notice Pay”
shall mean the amounts that a Participant is eligible to receive pursuant to
Article IV of the Plan.


 


Section 2.18         “Officer”
shall mean any individual who is an officer, as such term is defined pursuant
to Rule 16a-1(f) as promulgated under the Exchange Act, of the Company. For
purposes of this definition, Officer shall also mean any officer of any of the
Company’s Subsidiaries who perform policy making functions, within the context
of Rule 16a-1(f).


 


Section 2.19         “Participant”
shall mean any Eligible Employee who meets the requirements of Article III and
thereby becomes eligible for salary continuation and other benefits under the
Plan.


 


Section 2.20         “Permanent
Disability” shall mean that an Employee has a permanent and total
incapacity from engaging in any employment for the Employer for physical or
mental reasons. A “Permanent Disability” shall be deemed to exist if the
Employee meets the requirements for disability benefits under the Employer’s
long-term disability plan or under the requirements for disability benefits
under the Social Security law (or similar law outside the


 


3

















 


United States, if the Employee is employed in that
jurisdiction) then in effect, or if the Employee is designated with an inactive
employment status at the end of a disability or medical leave.


 


Section 2.21         “Plan” means
the Tyco International (US) Inc. Severance Plan for U.S. Officers and
Executives as set forth herein, and as the same may from time to time be
amended.


 


Section 2.22         “Plan
Administrator” shall mean the individual(s) appointed by the Committee to
administer the terms of the Plan as set forth herein and if no individual is
appointed by the Committee to serve as the Plan Administrator for the Plan, the
Plan Administrator shall be the Senior Vice President—Human Resources, Tyco
International Ltd. (or the equivalent). Notwithstanding the preceding sentence,
in the event the Plan Administrator is entitled to Severance Benefits under the
Plan, the Committee or its delegate shall act as the Plan Administrator for
purposes of administering the terms of the Plan with respect to the Plan
Administrator. The Plan Administrator may delegate all or any portion of its
authority under the Plan to any other person(s).


 


Section 2.23         “Release”
shall mean the Separation of Employment Agreement and General Release, as
provided by the Company.


 


Section 2.24         “Service”
shall mean the total number of years and completed months the Participant was
an Employee of the Company. Service with any predecessor employer or with a
Subsidiary prior to the Subsidiary’s becoming part of the Company shall be
recognized only to the extent specified in the merger or acquisition
documentation relating to the Subsidiary. Periods of authorized leave of
absence, such as military leave, will be included in Service only to the extent
required by applicable law. Any period of employment with the Company, a
Subsidiary, or a predecessor employer for which an Eligible Employee previously
received severance benefits, shall be excluded from Service.


 


Section 2.25         “Severance Benefit”
shall mean the salary continuation amounts and other benefits that a
Participant is eligible to receive pursuant to Article IV of the Plan.


 


Section 2.26         “Severance Period”
shall mean the period during which a Participant is receiving Severance
Benefits under this Plan.


 


Section 2.27         “Subsidiary”
shall mean (i) a subsidiary company (wherever incorporated) as defined by
section 86 of the Companies Act 1981 of Bermuda (as amended), (ii) any
separately organized business unit, whether or not incorporated, of the
Company, and (iii) any employer that is required to be aggregated with the
Company pursuant to section 414 of the Internal Revenue Code of 1986, as
amended, and regulations issued thereunder.


 


Section 2.28         “Termination Date”
shall mean the date on which the active employment of the Participant by the
Company or a Subsidiary is severed by reason of an Involuntary Termination.


 


Section 2.29         “Voluntary
Termination” shall mean any retirement or termination of employment that is
not initiated by the Company or any Subsidiary.


 


4

















 


ARTICLE III




PARTICIPATION AND ELIGIBILITY FOR BENEFITS


 


Section 3.01         Participation.
Each Eligible Employee in the Plan who incurs an Involuntary Termination and
who satisfies the conditions of Section 3.02 shall be eligible to receive the
Severance Benefits described in the Plan. An Eligible Employee shall not be
eligible to receive any other severance benefits from the Company or Subsidiary
on account of an Involuntary Termination, unless otherwise provided in the Plan.
In addition, any Eligible Employee who is a party to an employment agreement
with the Company pursuant to which such Eligible Employee is entitled to
severance benefits shall be ineligible to participate in the Plan.


 


Section 3.02         Conditions.


 


(a)           Eligibility for any
Severance Benefits is expressly conditioned on (i) execution by the Participant
of a Release in the form provided by the Company; (ii) compliance by the
Participant with all the terms and conditions of such Release; (iii) the Participant’s
written agreement to the confidentiality, non-solicitation, and
non-disparagement provisions in Article VI during and after the Participant’s
employment with the Company; and (iv) execution of a written agreement that
authorizes the deduction of amounts owed to the Company prior to the payment of
any Severance Benefit (or in accordance with any other schedule as the
Committee may, in its sole discretion, determine to be appropriate). If the
Committee determines, in its sole discretion, that the Participant has not
fully complied with any of the terms of the Agreement and/or Release, the
Committee may deny Severance Benefits not yet in pay status or discontinue the
payment of the Participant’s Severance Benefit and may require the Participant,
by providing written notice of such repayment obligation to the Participant, to
repay any portion of the Severance Benefit already received under the Plan. If
the Committee notifies a Participant that repayment of all or any portion of
the Severance Benefit received under the Plan is required, such amounts shall
be repaid within thirty (30) calendar days of the date the written notice is
sent. Any remedy under this subsection (a) shall be in addition to, and not in
place of, any other remedy, including injunctive relief, that the Company may
have.


 


(b)           An Eligible Employee
will not be eligible to receive severance benefits under any of the following
circumstances:


 


(i)            The Eligible Employee
voluntarily terminates employment:


 


(ii)           The Eligible Employee
resigns employment before the job-end date specified by the Employer or while
the Employer still desires the Eligible Employee’s services;


 


(iii)          The Eligible Employee’s
employment is terminated for Cause;


 


(iv)          The Eligible Employee
voluntarily retires;


 


5

















 


(v)           The Eligible Employee’s
employment is terminated due to the Eligible Employee’s death or Permanent
Disability;


 


(vi)          The Eligible Employee
does not return to work within six (6) months of the onset of an approved leave
of absence, other than a personal, educational or military leave and/or as
otherwise required by applicable statute;


 


(vii)         The Eligible Employee
does not return to work within three (3) months of the onset of a personal or
educational leave of absence;


 


(viii)        The Eligible Employee
continues in employment with the Company or a Subsidiary or has the opportunity
to continue in employment in the same or in an Alternative Position with the
Company or a Subsidiary; or


 


(ix)           The Eligible Employee’s
employment with the Employer terminates as a result of a sale of stock or
assets of the Employer, merger, consolidation, joint venture or a sale or
outsourcing of a business unit or function, or other transaction, and the
Eligible Employee accepts employment, or has the opportunity to continue
employment in an Alternative Position, with the purchaser, joint venture, or
other acquiring or outsourcing entity, or a related entity of either the
Company or the acquiring entity. The payment of Severance Benefits in the
circumstances described in this subsection (ix) would result in a windfall to
the Eligible Employee, which is not the intention of the Plan.


 


(c)           The Plan Administrator
has the sole discretion to determine an Eligible Employee’s eligibility to
receive Severance Benefits.


 


(d)           An Eligible Employee
returning from approved military leave will be eligible for Severance Benefits
if: (i) he/she is eligible for reemployment under the provisions of the
Uniformed Services Employment and Reemployment Rights Act (USERRA); (ii)
his/her pre-military leave job is eliminated; and (iii) the Employer’s
circumstances are changed so as to make reemployment in another position
impossible or unreasonable, or re-employment would create an undue hardship for
the Employer. If the Eligible Employee returning from military leave qualifies
for Severance Benefits, his/her severance benefits will be calculated as if
he/she had remained continuously employed from the date he/she began his/her
military leave. The Eligible Employee must also satisfy any other relevant
conditions for payment, including execution of a Release.


 


6

















 


ARTICLE IV




DETERMINATION OF SEVERANCE BENEFITS


 


Section 4.01         Amount of Severance
Benefits Upon Involuntary Termination. Except as otherwise provided in
Section 4.05,  the Severance Benefits to be
provided to an Eligible Employee who incurs an Involuntary Termination and is
determined to be eligible for Severance Benefits shall be as follows:


 


(a)           Notice Pay. Except
for Officers, each Eligible Employee who meets the eligibility requirements for
a Severance Benefit under Section 3.01 shall receive 30 calendar days notice as
a Notice Period. In the event that the Company determines that a Participant’s
last day of work shall be prior to the end of his or her Notice Period, such
Employee shall be entitled to pay in lieu of notice for the balance of such
Notice Period. Notice Pay paid to an Eligible Employee shall be in addition to,
and not offset against, the Severance Benefits the Participant may be entitled
to receive under this Article IV. An Eligible Employee who does not sign, or
who revokes his or her signature on, a Release shall only be eligible for
Notice Pay. Unless otherwise permitted by the applicable plan documents or
laws, an Eligible Employee will not be eligible to apply for short-term
disability, long-term disability and/or workers’ compensation during the Notice
Period, or anytime thereafter.


 


(b)           Salary Continuation
Benefits. Salary Continuation shall be provided during the Severance Period
applicable to the Participant as set forth under the benefits schedule appended
to the Plan. During the Severance Period, the Participant shall receive his or
her Base Salary (net of deductions and tax withholdings, as applicable) in
equal installments over the Severance Period, per normal payroll cycles. The
salary continuation payment shall commence no earlier than the end of the
revocation period applicable to the Release.


 


(c)           Bonus.


 


(i)            Participant may be
eligible for a cash payment equal to his or her pro rated annual bonus for the
year in which Participant’s Termination Date occurs, subject to the discretion
of the Company and pursuant to the terms set forth in the applicable incentive
plans.


 


(ii)           The Participant shall
also receive a cash payment equal to his or her Annual Bonus during the
Severance Period applicable to the Participant as set forth under the benefits
schedule appended to the Plan. Such bonus payment shall be paid to the
Participant in equal installments over the Severance Period (e.g., 12 month, 18 months or 24 months) or, in the sole
discretion of the Plan Administrator, may be paid to the Participant in a
single lump sum in lieu of payment over the Severance Period. The bonus payment
shall be paid at the same time as the Salary Continuation Benefits.


 


(d)           Medical, Dental and
Health Care Reimbursement Account Benefits. The Participant shall continue
to be eligible to participate in the medical, dental and Health Care
Reimbursement Account coverage in effect at the date of his or her termination
(or generally comparable coverage) for himself or herself and, where
applicable, his or her spouse and


 


7

















 


dependents, as the same may be changed from time to time
for employees of the Company generally, as if Participant had continued in
employment during the Severance Period (the “COBRA Continuation Coverage Period”).
The Participant shall be responsible for the payment of the employee portion of
the medical, dental and Health Care Reimbursement Account contributions that
are required during the Severance Period and such contributions shall be made
within the time period and in the amounts that other employees are required to
pay to the Company for similar coverage. The Participant’s failure to pay the
applicable contributions shall result in the cessation of the applicable
medical and dental coverage for the Participant and his or her spouse or
domestic partner and dependents. Notwithstanding any other provision of this
Plan to the contrary, in the event that a Participant commences employment with
another company at any time during the Severance Period, the Participant may
cease receiving coverage under the Company’s medical and dental plans. Within
thirty (30) days of Participant’s commencement of employment with another
company, Participant shall provide the Company written notice of such
employment and provide information to the Company regarding the medical and
dental benefits provided to Participant by his or her new employer. The COBRA
Continuation Coverage Period under section 4980B of the Code shall run
concurrently with the Severance Period.


 


(e)           Stock Options. All
stock options held by the Participant as of his or her Termination Date shall
continue to vest as scheduled during the twelve (12) month period after the
Participant’s Termination Date (unless the Participant’s option agreement
covering such options provides for more favorable vesting treatment), and
provided that the Participant has met any other condition contained in an
applicable stock option award agreement with respect to such continued vesting.
All vested outstanding stock options held by Participant shall be exercisable
for the greater of (i) the period set forth in Participant’s option agreement
covering such options, or (ii) twelve (12) months from the Termination Date,
provided that the Participant has met any other condition contained in an
applicable stock option award agreement with respect to such extended exercise
period. In no event, however, shall an option be exercisable beyond its
original term.


 


(f)            Restricted Stock.


 


(i)            Restricted Stock.
All unvested restricted stock and restricted stock units held by the
Participant as of his or her Termination Date shall be forfeited as of the
Termination Date.


 


(g)           Outplacement
Services. The Company may, in its sole and absolute discretion, pay the
cost of outplacement services for the Participant at the outplacement agency
that the Company regularly uses for such purpose; provided,
however, that the period of outplacement shall not exceed twelve
(12) months from Participant’s Termination Date. The Company shall pay the cost
of outplacement services for the Participant for a period of up to twelve (12)
months from Participant’s Termination Date at either (i) the outplacement
agency that the Company regularly uses for such purpose, or (ii) provided the
Senior Vice President—Human Resources provides prior approval, at an
outplacement agency selected by the Participant.


 


(h)           In the event that provision
of any of the benefits in (d) above, would adversely affect the tax status of
the applicable plan or benefits, the Company, in its sole


 


8

















 


discretion, may elect to pay to the Participant cash
in lieu of such coverage in an amount equal to the Company’s premium or average
cost of providing such coverage.


 


9

















 


Section 4.02         Voluntary Termination;
Termination for Death or Permanent Disability. If the Eligible Employee’s
employment terminates on account of (i) the Eligible Employee’s Voluntary
Resignation, (ii) death, or (iii) Permanent Disability, then the Eligible
Employee shall not be entitled to receive Severance Benefits under this Plan
and shall be entitled only to those benefits (if any) as may be available under
the Company’s then-existing benefit plans and policies at the time of such
termination.


 


Section 4.03         Termination for Cause.
If any Eligible Employee’s employment terminates on account of termination by
the Company for Cause, the Eligible Employee shall not be entitled to receive
Severance Benefits under this Plan and shall be entitled only to those benefits
that are legally required to be provided to the Eligible Employee. Notwithstanding
any other provision of the Plan to the contrary, if the Committee or the Plan
Administrator determines that an Eligible Employee has engaged in conduct that
constitutes Cause at any time prior to the Eligible Employee’s Termination
Date, any Severance Benefit payable to the Eligible Employee under Section 4.01
of the Plan shall immediately cease, and the Eligible Employee shall be
required to return any Severance Benefits paid to the Eligible Employee prior
to such determination. The Company may withhold paying Severance Benefits under
the Plan pending resolution of an inquiry that could lead to a finding
resulting in Cause. If the Company has offset other payments owed to the
Eligible Employee under any other plan or program, it may, in its sole
discretion, waive its repayment right solely with respect to the amount of the
offset so credited.


 


Section 4.04         Reduction of Severance
Benefits. The Plan Administrator reserves the right to make deductions
in accordance with applicable law for any monies owed to the Company by the
Participant or the value of Company property that the Participant has retained
in his/her possession.


 


Section 4.05         Modification of
Severance Benefits. Notwithstanding anything to the contrary contained
herein, the Senior Vice President, Human Resources (or her/his successor) shall
have the discretion to modify the benefits otherwise available to a Plan
Participant under Section 4.01 or the timing of such benefits as she/he deems
appropriate, provided that in no event may the exercise of such discretion
result in an increase in the benefits that would otherwise have been payable to
the Participant under Section 4.01.


 


10

















 


ARTICLE V




METHOD AND DURATION OF SEVERANCE BENEFIT PAYMENTS


 


Section 5.01         Method of Payment.
The Severance Benefit to which a Participant is entitled, as determined
pursuant to Section 4.01, shall be paid in accordance with normal payroll
practices over the Severance Period or from a supplemental unemployment
benefits trust. In no event will interest be credited on the unpaid balance for
which a Participant may become eligible. Payment shall be made by mailing to
the last address provided by the Participant to the Company or such other
reasonable method as determined by the Plan Administrator. In general, the
initial payments shall be made as promptly as practicable after the Participant’s
Termination Date, the execution of the Release required under Section 3.02, and
the expiration of the required revocation period specified in the Release. All
payments of Severance Benefits are subject to applicable federal, state and
local taxes and withholdings. In the event of the Participant’s death prior to
the completion of all payments being made, the remaining payments shall be paid
to the Participant’s estate.


 


Section 5.02         Other Arrangements.
The Severance Benefits under this Plan are not additive or cumulative to
severance or termination benefits that a Participant might also be entitled to
receive under the terms of a written employment agreement, a severance
agreement or any other arrangement with the Employer. As a condition of
participating in the Plan, the Eligible Employee must expressly agree that this
Plan supersedes all prior agreements, and sets forth the entire Severance
Benefit the Eligible Employee is entitled to while an Eligible Employee in the
Plan. The provisions of this Plan may provide for payments to the Eligible
Employee under certain compensation or bonus plans under circumstances where
such plans would not provide for payment thereof. It is the specific intention
of the Company that the provisions of this Plan shall supersede any provisions
to the contrary in such plans, to the extent permitted by applicable law, and
such plans shall be deemed to be have been amended to correspond with this Plan
without further action by the Company or the Board.


 


Section 5.03         Termination of
Eligibility for Benefits.


 


(a)           All Eligible Employees
shall cease to be eligible to participate in the Plan, and all Severance
Benefit payments shall cease upon the occurrence of the earlier of:


 


(i)            Subject to Article
VIII, termination or modification of the Plan; or


 


(ii)           Completion of payment
to the Participant of the Severance Benefit for which the Participant is
eligible under Article IV.


 


(b)           Notwithstanding
anything herein to the contrary, the Company shall have the right to cease all
Severance Benefit payments and to recover payments previously made to the
Participant should the Participant at any time breach the Participant’s
undertakings under the terms of the Plan, the Release the Participant executed
to obtain the Severance Benefits under the Plan or the confidentiality,
non-competition, non-solicitation and non-disparagement provisions of Article
VI.


 


11

















 


ARTICLE VI




CONFIDENTIALITY, COVENANT NOT TO COMPETE AND NOT TO SOLICIT


 


Section 6.01         Confidential
Information. The Eligible Employee
agrees that he or she shall not, directly or indirectly, use, make available,
sell, disclose or otherwise communicate to any person, other than in the course
of the Eligible Employee’s assigned duties and for the benefit of the Company,
either during the period of the Eligible Employee’s employment or at any time
thereafter, any nonpublic, proprietary or confidential information, knowledge
or data relating to the Company, any of its Subsidiaries, affiliated companies
or businesses, which shall have been obtained by the Eligible Employee during
the Eligible Employee’s employment by the Company or a Subsidiary. The foregoing
shall not apply to information that (i) was known to the public prior to its
disclosure to the Eligible Employee; (ii) becomes known to the public
subsequent to disclosure to the Eligible Employee through no wrongful act of
the Eligible Employee or any representative of the Eligible Employee; or (iii)
the Eligible Employee is required to disclose by applicable law, regulation or
legal process (provided that the Eligible Employee provides the Company with
prior notice of the contemplated disclosure and reasonably cooperates with the
Company at its expense in seeking a protective order or other appropriate
protection of such information). Notwithstanding clauses (i) and (ii) of the
preceding sentence, the Eligible Employee’s obligation to maintain such
disclosed information in confidence shall not terminate where only portions of
the information are in the public domain.


 


Section 6.02         Non-Competition.
The Participant acknowledges that he or she performs services of a unique
nature for the Company that are irreplaceable, and that his or her performance
of such services for a competing business will result in irreparable harm to
the Company. Accordingly, during the Participant’s employment with the Company
or Subsidiary and for the one (1) year period thereafter, the Participant
agrees that the Participant will not, directly or indirectly, own, manage,
operate, control, be employed by (whether as an employee, consultant,
independent contractor or otherwise, and whether or not for compensation) or
render services to any person, firm, corporation or other entity, in whatever
form, engaged in any business of the same type as any business in which the
Company or any of its Subsidiaries or affiliates is engaged on the date of
termination or in which they have proposed, on or prior to such date, to be
engaged in on or after such date and in which the Participant has been involved
to any extent (other than de minimis) at any time during the one (1) year
period ending with the date of termination, in any locale of any country in
which the Company or any of its Subsidiaries conducts business. This Section
6.02 shall not prevent the Participant from owning not more than one percent of
the total shares of all classes of stock outstanding of any publicly held
entity engaged in such business, nor will it restrict the Participant from
rendering services to charitable organizations, as such term is defined in
section 501(c) of the Code.


 


Section 6.03         Non-Solicitation.
During the Eligible Employee’s employment with the Company or a Subsidiary and
for the two (2) year period thereafter, the Eligible Employee agrees that he or
she will not, directly or indirectly, individually or on behalf of any other
person, firm, corporation or other entity, knowingly solicit, aid or induce (i)
any employee of the Company or any Subsidiary, as defined by the Company, to
leave such employment in order to accept employment with or render services to
or with any other person, firm, corporation or other entity unaffiliated with
the Company or knowingly take any action to materially assist or aid any other
person, firm, corporation or other entity in identifying or hiring any such
employee, or (ii)


 


12

















 


any customer of the Company or any Subsidiary to purchase
goods or services then sold by the Company or any Subsidiary from another
person, firm, corporation or other entity or assist or aid any other persons or
entity in identifying or soliciting any such customer.


 


Section 6.04         Non-Disparagement.
Each of the Eligible Employee and the Company (for purposes hereof, the Company
shall mean only the executive officers and directors thereof and not any other
employees) agrees not to make any statements that disparage the other party, or
in the case of the Company or its Subsidiaries, their respective affiliates,
employees, officers, directors, products or services. Notwithstanding the
foregoing, statements made in the course of sworn testimony in administrative,
judicial or arbitral proceedings (including, without limitation, depositions in
connection with such proceedings) shall not be subject to this Section 6.04.


 


Section 6.05         Reasonableness.
In the event the provisions of this Article VI shall ever be deemed to exceed
the time, scope or geographic limitations permitted by applicable laws, then
such provisions shall be reformed to the maximum time, scope or geographic
limitations, as the case may be, permitted by applicable laws.


 


Section 6.06         Equitable Relief.


 


(a)           By participating in the
Plan, the Eligible Employee acknowledges that the restrictions contained in
this Article VI are reasonable and necessary to protect the legitimate
interests of the Company, its Subsidiaries and its affiliates, that the Company
would not have established this Plan in the absence of such restrictions, and
that any violation of any provision of this Article will result in irreparable
injury to the Company. By agreeing to participate in the Plan, the Eligible
Employee represents that his or her experience and capabilities are such that
the restrictions contained in this Article VI will not prevent the Eligible
Employee from obtaining employment or otherwise earning a living at the same
general level of economic benefit as is currently the case. The Eligible
Employee further represents and acknowledges that (i) he or she has been
advised by the Company to consult his or her own legal counsel in respect of
this Plan, and (ii) that he or she has had full opportunity, prior to agreeing
to participate in this Plan, to review thoroughly this Plan with his or her
counsel.


 


(b)           The Eligible Employee
agrees that the Company shall be entitled to preliminary and permanent
injunctive relief, without the necessity of proving actual damages, as well as
an equitable accounting of all earnings, profits and other benefits arising
from any violation of this Article VI, which rights shall be cumulative and in
addition to any other rights or remedies to which the Company may be entitled. In
the event that any of the provisions of this Article VI should ever be
adjudicated to exceed the time, geographic, service, or other limitations
permitted by applicable law in any jurisdiction, then such provisions shall be
deemed reformed in such jurisdiction to the maximum time, geographic, service,
or other limitations permitted by applicable law.


 


(c)           The Eligible Employee
irrevocably and unconditionally (i) agrees that any suit, action or other legal
proceeding arising out of this Article VI, including without limitation, any
action commenced by the Company for preliminary and permanent injunctive relief
or other equitable relief, may be brought in the United States District Court
for the District of New York, or if such court does not have jurisdiction or
will not accept jurisdiction, in any court of general jurisdiction in New York,
(ii) consents to the non-exclusive jurisdiction of any such court in any


 


13

















 


such suit, action or proceeding, and (iii) waives any
objection which Participant may have to the laying of venue of any such suit,
action or proceeding in any such court. Participant also irrevocably and
unconditionally consents to the service of any process, pleadings, notices or
other papers in a manner permitted by the notice provisions of Section 11.02.


 


Section 6.07         Survival of Provisions.
The obligations contained in this Article VI shall survive the termination of
Eligible Employee’s employment with the Company or a Subsidiary and shall be
fully enforceable thereafter.


 


14

















 


ARTICLE VII




THE PLAN ADMINISTRATOR


 


Section 7.01         Authority and Duties.
It shall be the duty of the Plan Administrator, on the basis of information
supplied to it by the Company and the Committee, to properly administer the
Plan. The Plan Administrator shall have the full power, authority and
discretion to construe, interpret and administer the Plan, to make factual
determinations, to correct deficiencies therein, and to supply omissions. All
decisions, actions and interpretations of the Plan Administrator shall be
final, binding and conclusive upon the parties, subject only to determinations
by the Named Appeals Fiduciary (as defined in Section 10.04), with respect to
denied claims for Severance Benefits. The Plan Administrator may adopt such
rules and regulations and may make such decisions as it deems necessary or
desirable for the proper administration of the Plan.


 


Section 7.02         Compensation of the
Plan Administrator. The Plan Administrator shall receive no
compensation for services as such. However, all reasonable expenses of the Plan
Administrator shall be paid or reimbursed by the Company upon proper
documentation. The Plan Administrator shall be indemnified by the Company
against personal liability for actions taken in good faith in the discharge of
the Plan Administrator’s duties.


 


Section 7.03         Records, Reporting and
Disclosure. The Plan Administrator shall keep a copy of all records
relating to the payment of Severance Benefits to Participants and former
Participants and all other records necessary for the proper operation of the
Plan. All Plan records shall be made available to the Committee, the Company
and to each Participant for examination during business hours except that a
Participant shall examine only such records as pertain exclusively to the
examining Participant and to the Plan. The Plan Administrator shall prepare and
shall file as required by law or regulation all reports, forms, documents and
other items required by ERISA, the Code, and every other relevant statute, each
as amended, and all regulations thereunder (except that the Company, as payor
of the Severance Benefits, shall prepare and distribute to the proper
recipients all forms relating to withholding of income or wage taxes, Social
Security taxes, and other amounts that may be similarly reportable).


 


15

















 


ARTICLE VIII




AMENDMENT, TERMINATION AND DURATION


 


Section 8.01         Amendment, Suspension
and Termination. Except as otherwise provided in this Section 8.01, the
Board or its delegee shall have the right, at any time and from time to time,
to amend, suspend or terminate the Plan in whole or in part, for any reason or
without reason, and without either the consent of or the prior notification to
any Participant, by a formal written action. No such amendment shall give the
Company the right to recover any amount paid to a Participant prior to the date
of such amendment or to cause the cessation of Severance Benefits already
approved for a Participant who has executed a Release as required under Section
3.02.


 


Section 8.02         Duration. Unless
terminated sooner by the Board or its delegee, the Plan shall continue in full
force and effect until termination of the Plan pursuant to Section 8.01;
provided, however, that after the termination of the Plan, if any Participants
terminated employment on account of an Involuntary Termination prior to the
termination of the Plan and are still receiving Severance Benefits under the
Plan, the Plan shall remain in effect until all of the obligations of the
Company are satisfied with respect to such Participants.


 


16

















 


ARTICLE IX




DUTIES OF THE COMPANY AND THE COMMITTEE


 


Section 9.01         Records. The
Company or a Subsidiary thereof shall supply to the Committee all records and
information necessary to the performance of the Committee’s duties.


 


Section 9.02         Payment.
Payments of Severance Benefits to Participants shall be made in such amount as
determined by the Committee under Article IV, from the Company’s general assets
or from a supplemental unemployment benefits trust, in accordance with the
terms of the Plan, as directed by the Committee.


 


Section 9.03         Discretion. Any
decisions, actions or interpretations to be made under the Plan by the Board,
the Committee and the Plan Administrator, acting on behalf of either, shall be
made in each of their respective sole discretion, not in any fiduciary capacity
and need not be uniformly applied to similarly situated individuals and such
decisions, actions or interpretations shall be final, binding and conclusive
upon all parties. As a condition of participating in the Plan, the Eligible
Employee acknowledges that all decisions and determinations of the Board, the
Committee and the Plan Administrator shall be final and binding on the Eligible
Employee, his or her beneficiaries and any other person having or claiming an
interest under the Plan on his or her behalf.


 


17

















 


ARTICLE X




CLAIMS PROCEDURES


 


Section 10.01       Claim. Each
Participant under this Plan may contest only the administration of the
Severance Benefits awarded by completing and filing with the Plan Administrator
a written request for review in the manner specified by the Plan Administrator.
No appeal is permissible as to a Participant’s eligibility for or amount of the
Severance Benefit, which are decisions made solely within the discretion of the
Company, and the Committee acting on behalf of the Company. No person may bring
an action for any alleged wrongful denial of Plan benefits in a court of law
unless the claims procedures described in this Article X are exhausted and a
final determination is made by the Plan Administrator and/or the Named Appeals
Fiduciary. If the terminated Participant or interested person challenges a
decision by the Plan Administrator and/or Named Appeals Fiduciary, a review by
the court of law will be limited to the facts, evidence and issues presented to
the Plan Administrator during the claims procedure set forth in this Article X.
Facts and evidence that become known to the terminated Participant or other
interested person after having exhausted the claims procedure must be brought
to the attention of the Plan Administrator for reconsideration of the claims
administrator. Issues not raised with the Plan Administrator and/or Named
Appeals Fiduciary will be deemed waived.


 


Section 10.02       Initial Claim. Before
the date on which payment of a Severance Benefit commences, each such
application must be supported by such information as the Plan Administrator
deems relevant and appropriate. In the event that any claim relating to the
administration of Severance Benefits is denied in whole or in part, the
terminated Participant or his or her beneficiary (“claimant”) whose claim has
been so denied shall be notified of such denial in writing by the Plan
Administrator within ninety (90) days after the receipt of the claim for
benefits. This period may be extended an additional ninety (90) days if the
Plan Administrator determines such extension is necessary and the Plan
Administrator provides notice of extension to the claimant prior to the end of
the initial ninety (90) day period. The notice advising of the denial shall
specify the following: (i) the reason or reasons for denial, (ii) make specific
reference to the Plan provisions on which the determination was based, (iii)
describe any additional material or information necessary for the claimant to
perfect the claim (explaining why such material or information is needed), and
(iv) describe the Plan’s review procedures and the time limits applicable to
such procedures, including a statement of the claimant’s right to bring a civil
action under section 502(a) of ERISA following an adverse benefit determination
on review.


 


Section 10.03       Appeals of Denied
Administrative Claims. All appeals shall be made by the following
procedure:


 


(a)           A claimant whose claim
has been denied shall file with the Plan Administrator a notice of appeal of
the denial. Such notice shall be filed within sixty (60) calendar days of
notification by the Plan Administrator of the denial of a claim, shall be made
in writing, and shall set forth all of the facts upon which the appeal is based.
Appeals not timely filed shall be barred.


 


(b)           The Named Appeals
Fiduciary shall consider the merits of the claimant’s written presentations,
the merits of any facts or evidence in support of the denial of benefits, and
such other facts and circumstances as the Named Appeals Fiduciary shall deem
relevant.


 


18

















 


(c)           The Named Appeals
Fiduciary shall render a determination upon the appealed claim which
determination shall be accompanied by a written statement as to the reasons
therefor. The determination shall be made to the claimant within sixty (60)
days of the claimant’s request for review, unless the Names Appeals Fiduciary
determines that special circumstances require an extension of time for
processing the claim. In such case, the Named Appeals Fiduciary shall notify
the claimant of the need for an extension of time to render its decision prior
to the end of the initial sixty (60) day period, and the Named Appeals
Fiduciary shall have an additional sixty (60) day period to make its
determination. The determination so rendered shall be binding upon all parties.
If the determination is adverse to the claimant, the notice shall provide (i)
the reason or reasons for denial, (ii) make specific reference to the Plan
provisions on which the determination was based, (iii) a statement that the
claimant is entitled to receive, upon request and free of charge, reasonable
access to, and copies of, all documents, records and other information relevant
to a the claimant’s claim for benefits, and (iv) state that the claimant has
the right to bring an action under section 502(a) of ERISA.


 


Section 10.04       Appointment of the Named
Appeals Fiduciary. The Named Appeals Fiduciary shall be the person or
persons named as such by the Board or Committee, or, if no such person or
persons be named, then the person or persons named by the Plan Administrator as
the Named Appeals Fiduciary. Named Appeals Fiduciaries may at any time be
removed by the Board or Committee, and any Named Appeals Fiduciary named by the
Plan Administrator may be removed by the Plan Administrator. All such removals
may be with or without cause and shall be effective on the date stated in the
notice of removal. The Named Appeals Fiduciary shall be a “Named Fiduciary”
within the meaning of ERISA, and unless appointed to other fiduciary
responsibilities, shall have no authority, responsibility, or liability with
respect to any matter other than the proper discharge of the functions of the
Named Appeals Fiduciary as set forth herein.


 


Section 10.05       Arbitration; Expenses.
In the event of any dispute under the provisions of this Plan, other than a
dispute in which the primary relief sought is an equitable remedy such as an
injunction, the parties shall have the dispute, controversy or claim settled by
arbitration in New York, New York (or such other location as may be mutually
agreed upon by the Employer and the Participant) in accordance with the
National Rules for the Resolution of Employment Disputes then in effect of the
American Arbitration Association, before a panel of three arbitrators, two of
whom shall be selected by the Company and the Participant, respectively, and
the third of whom shall be selected by the other two arbitrators. Any award
entered by the arbitrators shall be final, binding and nonappealable and
judgment may be entered thereon by either party in accordance with applicable
law in any court of competent jurisdiction. This arbitration provision shall be
specifically enforceable. The arbitrators shall have no authority to modify any
provision of this Plan or to award a remedy for a dispute involving this Plan
other than a benefit specifically provided under or by virtue of the Plan. If
the Participant substantially prevails on any material issue, which is the
subject of such arbitration or lawsuit, the Company shall be responsible for
all of the fees of the American Arbitration Association and the arbitrators and
any expenses relating to the conduct of the arbitration (including the Company’s
and Participant’s reasonable attorneys’ fees and expenses). Otherwise, each
party shall be responsible for its own expenses relating to the conduct of the
arbitration (including reasonable attorneys’ fees and expenses) and shall share
the fees of the American Arbitration Association.


 


19

















 


ARTICLE XI




MISCELLANEOUS


 


Section 11.01       Nonalienation of
Benefits. None of the payments, benefits or rights of any Participant
shall be subject to any claim of any creditor of any Participant, and, in
particular, to the fullest extent permitted by law, all such payments, benefits
and rights shall be free from attachment, garnishment (if permitted under
applicable law), trustee’s process, or any other legal or equitable process
available to any creditor of such Participant. No Participant shall have the
right to alienate, anticipate, commute, plead, encumber or assign any of the
benefits or payments that he may expect to receive, continently or otherwise,
under this Plan, except for the designation of a beneficiary as set forth in
Section 5.01.


 


Section 11.02       Notices. All
notices and other communications required hereunder shall be in writing and
shall be delivered personally or mailed by registered or certified mail, return
receipt requested, or by overnight express courier service. In the case of the
Participant, mailed notices shall be addressed to him or her at the home
address which he or she most recently communicated to the Company in writing. In
the case of the Company, mailed notices shall be addressed to the Plan
Administrator.


 


Section 11.03       Successors. Any
successor to the Company shall assume the obligations under this Plan and
expressly agree to perform the obligations under this Plan.


 


Section 11.04       Other Payments. Except
as otherwise provided in this Plan, no Participant shall be entitled to any
cash payments or other severance benefits under any of the Company’s then
current severance pay policies for a termination that is covered by this Plan
for the Participant.


 


Section 11.05       No Mitigation. Except
as otherwise provided in Section 4.01(d) and Section 4.04, Participant shall
not be required to mitigate the amount of any Severance Benefit provided for in
this Plan by seeking other employment or otherwise, nor shall the amount of any
Severance Benefit provided for herein be reduced by any compensation earned by
other employment or otherwise, except if the Participant is re-employed by
Company, in which case Severance Benefits shall cease.


 


Section 11.06       No Contract of
Employment. Neither the establishment of the Plan, nor any modification
thereof, nor the creation of any fund, trust or account, nor the payment of any
benefits shall be construed as giving any Eligible Employee or any person
whosoever, the right to be retained in the service of the Company, and all
Eligible Employees shall remain subject to discharge to the same extent as if
the Plan had never been adopted.


 


Section 11.07       Severability of
Provisions. If any provision of this Plan shall be held invalid or
unenforceable by a court of competent jurisdiction, such invalidity or
unenforceability shall not affect any other provisions hereof, and this Plan
shall be construed and enforced as if such provisions had not been included.


 


20

















 


Section 11.08       Heirs, Assigns, and
Personal Representatives. This Plan shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties, including
each Participant, present and future.


 


Section 11.09       Headings and Captions.
The headings and captions herein are provided for reference and convenience
only, shall not be considered part of the Plan, and shall not be employed in
the construction of the Plan.


 


Section 11.10       Gender and Number.
Where the context admits: words in any gender shall include any other gender,
and, except where otherwise clearly indicated by context, the singular shall
include the plural, and vice-versa.


 


Section 11.11       Unfunded Plan. The
Plan shall not be funded. No Participant shall have any right to, or interest
in, any assets of the Company that may be applied by the Company to the payment
of Severance Benefits.


 


Section 11.12       Payments to Incompetent
Persons. Any benefit payable to or for the benefit of a minor, an
incompetent person or other person incapable of receipting therefor shall be
deemed paid when paid to such person’s guardian or to the party providing or
reasonably appearing to provide for the care of such person, and such payment
shall fully discharge the Company, the Committee and all other parties with
respect thereto.


 


Section 11.13       Lost Payees. A
benefit shall be deemed forfeited if the Committee is unable to locate a
Participant to whom a Severance Benefit is due. Such Severance Benefit shall be
reinstated if application is made by the Participant for the forfeited
Severance Benefit while this Plan is in operation.


 


Section 11.14       Controlling Law.
This Plan shall be construed and enforced according to the laws of the State of
New York to the extent not superseded by Federal law.


 


21


 

















 


SCHEDULE A


 


SEVERANCE BENEFITS


 


 




	
   Section 16 Officers

  	
   24 months of pay

  
	
   Presidents of businesses whose annual revenue
  is

   $2 billion or more

  	
   18 months of pay

  
	
   All other Band 1 and 2 employees

  	
   12 months of pay.

  






 


Notwithstanding the foregoing, for Participants whose
benefit is provided pursuant to a supplemental unemployment benefits trust —
cash Severance Benefits shall be paid for the period of time set forth under
the plan, with the trust being the exclusive source of all salary continuation
other than Notice Pay.


 


A-1