EXHIBIT 10.35
SUPERIOR INDUSTRIES INTERNATIONAL, INC. EXECUTIVE SEVERANCE PLAN
As approved by the Board of Directors on April 28, 2022
SUPERIOR INDUSTRIES INTERNATIONAL, INC. EXECUTIVE SEVERANCE PLAN
ARTICLE 1 PURPOSE AND TERM
ARTICLE 2 DEFINITIONS
As used herein, the following words and phrases shall have the following meanings:
Notwithstanding the foregoing, in the case of conduct described in clause (ii) or (iii) above, such conduct shall not constitute “Cause” unless the Company shall have delivered to the Participant notice setting forth with specificity (A) the conduct deemed to qualify as “Cause,” (B) reasonable action that would remedy such objection (if applicable), and (C) a reasonable time (not less than thirty (30) days) within which the Participant may take such remedial action (if applicable), and the Participant shall not have taken such specified remedial action within the specified time.
as provided in Section 9.6.
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A termination by the Participant shall not constitute termination for Good Reason unless the Participant shall first have delivered written notice to the Company setting forth with specificity the occurrence deemed to give rise to a right to terminate for Good Reason (which notice must be given no later than 90 days after the initial occurrence of such event), and the expiration of a cure period provided to the Company of not less than 30 days, during which the Company could take action to correct, rescind or otherwise substantially reverse the occurrence supporting termination for Good Reason as identified by the Participant. Good Reason shall not include the Participant’s death or Disability. The Company and Participants intend, believe and take the position that a resignation by the Participant for Good Reason as defined above effectively constitutes an involuntary separation from service within the meaning of Section 409A of the Code and Treas. Reg. §1.409A-1(n)(2).
ARTICLE 3 ELIGIBILITY
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who has terminated employment and is entitled to Severance Benefits under Article 4, shall remain a Participant in the Plan until the full amount of Severance Benefits under the Plan have been paid to such Participant.
ARTICLE 4 SEVERANCE BENEFITS
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and have not terminated or expired as of the Participant’s Termination Date, shall be prorated and paid or distributed as follows: (i) the Participant’s time-based restricted stock units and/or time-based restricted cash awards with any associated underlying dividend equivalents, shall become 100% vested as of the Participant’s Termination Date, prorated and paid or distributed as soon as reasonably practicable thereafter, but in no event later than March 15 of the calendar year following the calendar year in which vesting occurs. The proration for the Participant’s restricted stock units and/or restricted cash awards shall be based on the number of days in the original vesting period for the time-based restricted stock units and/or time-based restricted cash awards; and (ii) the Participant’s performance- based restricted stock units and/or long-term incentive cash awards shall continue after the Participant’s Termination Date and shall be prorated with any associated underlying dividend equivalents, and paid or distributed at the same time as paid or distributed to other Participants at the end of the applicable performance period if the targets are attained. The proration for the Participant’s performance-based restricted stock units or performance cash awards shall be based on the number of days into the performance period for the performance-based restricted stock units and/or long-term performance cash incentive awards worked by the Participant prior to the Participant’s Termination Date, divided by the number of days in the original vesting period and number of days in the full performance period, as applicable. Notwithstanding the foregoing, the Annual Bonus, time-based restricted stock units and/or time-based cash awards, and performance-based restricted stock units and/or long-term cash incentive awards shall not be paid or distributed prior to the expiration of the applicable revocation period in the Release set forth in Exhibit A, or such later date as may be required under Article 8 of the Plan.
The proration for the Participant’s performance-based restricted stock units or performance cash awards shall be based on the number of days into the performance period
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for the performance-based restricted stock units and/or long-term performance cash incentive awards worked by the Participant prior to the Participant’s Termination Date, divided by the number of days in the original vesting period and number of days in the full performance period, as applicable. Notwithstanding the foregoing, the Annual Bonus, time-based restricted stock units and/or time-based cash awards, and performance-based restricted stock units and/or long-term cash incentive awards shall not be paid or distributed prior to the expiration of the applicable revocation period in the Release set forth in Exhibit A, or such later date as may be required under Article 8 of the Plan.
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ARTICLE 5 REDUCTION OF PAYMENTS
(ii) above shall be made at the expense of the Company by an independent, nationally recognized accounting firm or compensation consulting firm mutually acceptable to the Company and the Participant (the “Determination Firm”), which shall provide detailed supporting calculations. Any determination by the Determination Firm shall be binding upon the Company and the Participant. As a result of the uncertainty in the application of Section 4999 of the Code at the time of the initial determination by the Determination Firm hereunder, it is possible that Payments that the Participant was entitled to, but did not receive pursuant to Section 5.1(a), could have been made without the imposition of the Excise Tax (“Underpayment”). In such event, the Determination Firm shall determine the amount of the Underpayment that occurred and any such Underpayment shall be promptly paid by the Company to or for the benefit of the Participant but no later than March 15 of the year after the year in which the Underpayment is determined to exist, which is when the legally binding right to such Underpayment arises.
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ARTICLE 6
NOTICE; TERMINATION DATE
ARTICLE 7
DURATION; AMENDMENT AND TERMINATION
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(i) state the specific reasons for denial, (ii) refer to the specific provisions of the Plan upon which such denial is based, and (iii) if applicable, describe any additional information or material necessary to perfect the claim, an explanation of why such information or material is necessary, and an explanation of the review procedure in Section 7.4(ii).
U.S.C. §1, et. seq. The arbitrator(s) shall be authorized to award both liquidated and actual damages, in addition to injunctive relief, but no punitive damages. The arbitrator(s) may also award attorneys’ fees and costs to either or both parties. Such an award shall be binding and conclusive upon the parties, subject to 9 U.S.C. §10. Each party shall have the right to have the award made the judgment of a court of competent jurisdiction.
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ARTICLE 8 CODE SECTION 409A
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For purposes of this Plan, the term “Specified Employee” has the meaning given such term in Code Section 409A and the final regulations thereunder; provided, however, that the Company’s Specified Employees and its application of the six-month delay rule of Code Section 409A(a)(2)(B)(i) shall be determined in accordance with rules adopted by the Board or a committee thereof, which shall be applied consistently with respect to all nonqualified deferred compensation arrangements of the Company, including this Plan.
(60) days after the Termination Date; failing which such payment or benefit shall be forfeited. If such payment or benefit constitutes Non-Exempt Deferred Compensation, and if such 60-day period begins in one calendar year and ends in the next calendar year, the payment or benefit shall not be made or commence before the second such calendar year, even if the release becomes irrevocable in the first such calendar year. If such payment or benefit is exempt from Section 409A of the Code, the Company may elect to make or commence payment at any time during such 60-day period.
ARTICLE 9 MISCELLANEOUS
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The foregoing is hereby acknowledged as being the Superior Industries International, Inc.
Executive Severance Plan as adopted by the Board on April 28, 2022.
SUPERIOR INDUSTRIES INTERNATIONAL INC.
By: Majdi B. Abulaban
CEO and President
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EXHIBIT A
SEPARATION AGREEMENT AND GENERAL RELEASE
(Date Given to Employee)
This Separation Agreement and General Release (this “Agreement”) is entered into by and between Superior Industries International, Inc. (together with its subsidiaries and affiliates, the “Company”) and the undersigned employee (“Employee”).
Notice to Employee:
Under the Superior Industries International, Inc. Executive Severance Plan (the “Plan”) you are eligible to receive severance pay if you agree to waive, to the extent permitted by law, all of your potential claims against the Company and agree to the other terms in this Separation Agreement. This means that you cannot sue or pursue any other claim against the Company as provided for in this release. PLEASE READ THIS DOCUMENT CAREFULLY BEFORE YOU SIGN IT. YOU ARE ADVISED TO CONSULT WITH AN ATTORNEY OR OTHER REPRESENTATIVE BEFORE SIGNING THIS DOCUMENT. YOU HAVE TWENTY-ONE
(21) DAYS TO CONSIDER WHETHER YOU WANT TO SIGN THIS DOCUMENT AND TO CONSULT WHOMEVER YOU WISH.
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Part I Release of Claims and Covenant Not to Sue.
In consideration of the severance pay from the Company set forth above, the receipt and sufficiency of which are hereby acknowledged, Employee, on behalf of himself and his agents and successors in interest, hereby UNCONDITIONALLY RELEASES AND DISCHARGES Company, its successors, subsidiaries, parent corporations, assigns, joint ventures, and affiliated companies, and their respective agents, legal representatives, shareholders, attorneys, employees, officers and directors, (collectively, the “Releasees”) from ALL CLAIMS, LIABILITIES, DEMANDS AND CAUSES OF ACTION, whether known or unknown, fixed or contingent, that he may have or claim to have against Company or any of the Releasees for any reason as of the Effective Date (as defined above). Except to the extent that applicable law requires that Employee be allowed to file a Charge with the Equal Employment Opportunity Commission (“EEOC”), Employee further hereby AGREES NOT TO FILE A LAWSUIT or other legal claim or charge or to assert any claim against any of the Releasees based on facts that occurred prior to, or that exist as of, the Effective Date. This Release and Covenant Not To Sue includes, but is not limited to, claims arising under federal, state or local laws prohibiting employment discrimination, claims arising under severance plans and contracts, and claims growing out of any legal restrictions on Company’s rights to terminate its employees or to take any other employment action, whether statutory, contractual or arising under common law or case law. Employee specifically acknowledges and agrees that he is releasing any and all rights under federal, state and local employment laws including, without limitation, the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621, et seq., the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e, et seq., 42 U.S.C. § 1981, as amended, the Americans With Disabilities Act (“ADA”), as amended, 42 U.S.C. § 12101 et seq., the Rehabilitation Act of 1973, as amended, as amended, 29 U.S.C. § 701, et seq., the Employee Retirement Income Security Act of 1974 (“ERISA”), as amended, 29 U.S.C. § 301 et seq., the Worker Adjustment and Retraining Notification Act (“WARN”), 29 U.S.C. § 2101, et seq., the Family and Medical Leave Act of 1993 (“FMLA”), as amended, 29 U.S.C. § 2601 et seq., the Fair Labor Standards Act (“FLSA”), as amended, 29 U.S.C. § 201 et seq., the Employee Polygraph Protection Act of 1988, 29 U.S.C. § 2001, et seq., all other state and federal code sections and legal principles, including, without limitation, claims for defamation and slander, and the state and federal worker’s compensation laws. Employee further agrees that if anyone (including, but not limited to, Employee, the EEOC or any other government agency or similar such body) makes a claim or undertakes an investigation involving Employee in any way, Employee waives any and all right and claim to financial recovery resulting from such claim or investigation.
As a material inducement for Superior Industries International, Inc. to enter into this Agreement, Employee represents and warrants that he or she does not have any complaint, claim
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or action pending against Company or any of the Releasees in any federal, state or local court or government agency or before any arbitrator or other tribunal.
Part II Non-Disparagement.
Employee hereby agrees that he or she shall not disparage, criticize or otherwise publish or communicate any statements or opinions that are derogatory to or could otherwise harm the business or reputation of the Company. However, Employee is not restricted from making any factual statement that is required to be disclosed by law, subpoena, court order or other legal process.
Part III Employee’s Continuing Obligations.
Employee understands and acknowledges that Employee continues to be subject to any existing obligations of the Employee to the Company and its Affiliates, such as confidentiality, covenant not to compete and non-solicitation provisions that are outside of this General Release and constitute ongoing obligations following employment termination.
Part IV Return of Property.
Employee agrees to return immediately and warrants that he or she has returned before executing or receiving payments pursuant to this Agreement, all documents, materials and other things in Employee’s possession or control relating to Company, or that have been in Employee’s possession or control at the time of or since the termination of Employee’s employment with Company, without retaining any copies, summaries, abstracts, excerpts, portions, replicas or other representations thereof. Employee likewise represents and warrants that Company has returned all of Employee’s personal property and that any such property is no longer in Company’s possession.
This Agreement has been executed voluntarily by the parties. The parties acknowledge that they have read this Agreement carefully, that they have had a full and reasonable opportunity to consider this Agreement, and that they have not been pressured or in any way coerced, threatened or intimidated into its execution.
SIGNATURE BY EMPLOYEE
I acknowledge that I have been advised to consult with an attorney prior to signing this Agreement. I further acknowledge that the consideration for signing this Agreement is a benefit that I otherwise would not have been entitled to receive had I not signed this Agreement.
I have read this entire document and I understand and agree to each of its terms. SPECIFICALLY, I AGREE THAT BY SIGNING THIS DOCUMENT, I AM WAIVING MY RIGHTS TO SUE THE COMPANY AS SET FORTH ABOVE IN PART I. I also understand that
this is the entire Agreement between the Company and me regarding severance pay and the termination of my employment and that no other agreements or promises about those matters, written or oral will be enforceable.
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(Signature of Employee) (Date Signed)
(Print Employee Name) (Witness)
ACCEPTANCE BY THE COMPANY
The Company hereby enters into and accepts this Agreement as set forth above.
SUPERIOR INDUSTRIES INTERNATIONAL, INC.
By: Name: Title:
116087.000005 4882-1006-1074.7
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