Exhibit 13
NCS HealthCare, Inc.
SEVERANCE BENEFIT PLAN
This Agreement is entered into this 20th day of February 1998 by NCS
HealthCare, Inc. (hereinafter referred to as the "Company");
WITNESSETH:
WHEREAS, the Company desires to formally document the terms and provisions
of it's severance benefit plan in order to definitely delineate its procedures
and policies for making severance payments to eligible Employees of the Company,
and any Affiliates which may from time to time be Participating Companies
hereunder, in connection with the Termination of Employment of such Employees;
NOW THEREUNDER, the Company hereby adopts an employee severance benefit
plan, effective February 20, 1998, as follows:
ARTICLE I
NAME AND PURPOSE
1.1 Name. The name of this Plan is the NCS HealthCare SEVERANCE BENEFIT
PLAN.
1.2 Purpose. This Plan is hereby established in order to provide eligible
Employees of the Company and other Participating Companies with severance
benefits in the event of Termination of Employment of such Employees, under
certain conditions specified herein.
1.3 Employee Welfare Benefit Plan. This Plan is intended to be an employee
welfare benefit plan as defined in Section 3(1) of ERISA. This Plan shall be
administered in such a manner, and benefits hereunder shall be so limited,
notwithstanding any contrary provision of this Plan, that this Plan shall be an
employee welfare benefit plan as defined in Section 3(1) of ERISA and not an
employee pension benefit plan as defined in Section 3(2) of ERISA in conformity
with U.S. Department of Labor Regulation 2510.3-2(b).
ARTICLE II
DEFINITIONS
Unless the context otherwise indicates, the following words used herein
shall have the following meanings wherever used in this Plan:
2.1 Adoption Date. The words "Adoption Date" shall mean the date as of
which any Affiliate becomes a Participating Company under this Plan.
2.2 Affiliate. The word "Affiliate" shall mean a corporation which would
be defined as a member of a controlled group of corporations which includes a
Participating Company or any business organization which would be defined as a
trade or business (whether or not incorporated) which is under "common control"
with such Participating Company within the meaning of Sections 414(b) and (c) of
the Code, and any member of an "affiliated service group," as defined in Section
414(m) of the Code, which includes a Participating Company but, in each case,
only during the periods any such corporation, business organization or member
would be so defined.
2.3 Annual Compensation. The words "Annual Compensation" shall mean the
total of all compensation, including wages, salary, and any other benefit of
monetary value, whether paid in the form of cash or otherwise, which was paid as
consideration for the Employee's service during the year, or which would have
been so paid at the Employee's usual rate of compensation if the Employee had
worked a full year.
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2.4 Base Salary. The words "Base Salary" shall mean the base salary paid
to an Employee at the time of the Termination of Employment of such Employee.
2.5 Board. The word "Board" shall mean the Board of Directors of the
Company.
2.6 Code. The word "Code" shall mean the Internal Revenue Code of 1986, as
it may be amended from time to time, and lawful regulations and pronouncements
promulgated thereunder.
2.7 Committee. The word "Committee" shall mean the Benefit Appeals
Committee constituted under the provisions of Article VI of this Plan.
2.8 Company. The word "Company" shall mean NCS HealthCare, and any
successor corporation or business organization which shall assume the duties and
obligations of the Company by operation of law or otherwise under the Plan.
2.9 Covered Employee. The words "Covered Employee" shall mean a salaried
Employee working full time and an hourly Employee who customarily works at least
thirty (30) hours per week for a Participating Company and who may become
entitled to benefits hereunder if he shall satisfy the requirements for
entitlement to benefits set forth herein. A "Covered Employee" shall be an
Employee who is not:
(a) a member of a unit of Employees covered by a collective
bargaining agreement unless such agreement provides for
coverage hereunder; or
(b) a Leased Employee.
2.10 Date of Hire. The words "Date of Hire" shall mean the date on which
an Employee commences employment and works at least one (1) hour for the Company
or any Affiliate and shall mean, in the case of a rehired Employee, the first
day following his previous Termination of Employment on which he works at least
one (1) hour for the Company or an Affiliate.
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Notwithstanding the foregoing, in the event that an Employee was
employed by a predecessor employer, his "Date of Hire" shall mean the date on
which such Employee commenced employment and worked at least one (1) hour for
such predecessor employer, and in the case of a rehired Employee, the first day
following his previous Termination of Employment with such predecessor employer
on which he worked at least one (1) hour for such predecessor employer.
2.11 Effective Date. The words "Effective Date" shall mean the effective
date of this Plan which is February 20, 1998.
2.12 Employee. The word "Employee" shall mean any common-law employee of a
Participating Company or an Affiliate or a Leased Employee. The word "Employee"
shall not include any person who renders service to a Participating Company or
an Affiliate solely as a director or independent contractor.
2.13 ERISA. The acronym "ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as it may be amended from time to time, and lawful
regulations and pronouncements promulgated thereunder.
2.14 Leased Employee. The words "Leased Employee" shall mean an individual
who is an employee of an organization which has entered into an employee leasing
arrangement with a Participating Company or an Affiliate and who is required to
be treated as an Employee of a Participating Company or an Affiliate for certain
employee benefits law purposes pursuant to Section 414(n) of the Code.
2.15 Leave of Absence. The words "Leave of Absence" shall mean:
(a) that period of interruption of active employment of an
Employee caused by entrance into the Armed Services of the
United States under such circumstances that he becomes
entitled to reemployment rights under law, such period being
deemed to terminate at the expiration of such reemployment
rights;
(b) that period of interruption of active employment of an
Employee, with or without pay, granted by the Company or any
other Participating
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Company with the understanding that he will return to active
employment at the expiration of such period, provided, that
such interruption of active employment does not exceed the
period agreed to by the Company or other Participating
Company;
(c) a period of layoff not to exceed six months; and
(d) a period of jury duty.
2.16 Limited Program of Terminations. The words "Limited Program of
Terminations" shall mean a program of terminations:
(a) which, when begun, was scheduled to be completed upon a date
certain or upon the occurrence of one or more specified
events;
(b) under which the number, percentage or class or classes of
Employees whose services are to be terminated is specified in
advance; and
(c) which is described in a written document which is available to
the United States Secretary of Labor upon request, and which
contains information sufficient to demonstrate that the
conditions set forth in (a) and (b) above have been met.
2.17 Normal Retirement Age. The words "Normal Retirement Age" shall mean
for any Participant his attainment of age sixty-five (65).
2.18 Participant. The word "Participant" shall mean any Covered Employee
who becomes a participant in this Plan pursuant to Article III hereof.
2.19 Participating Company. The words "Participating Company" shall mean
the Company and any Affiliate which is a participating employer in this Plan.
The Participating Companies as of the Effective Date are listed in Article IX of
this Plan.
2.20 Plan Administrator. The words "Plan Administrator" shall mean the
Company, a Participating Company or any person or entity designated as Plan
Administrator as provided in Article VI.
2.21 Plan Year. The words "Plan Year" shall mean the twelve month period
ending each December 31.
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2.22 Termination Date. The words "Termination Date" shall mean the date as
of which any Participating Company ceases to participate in this Plan.
2.23 Termination of Employment. The words "Termination of Employment"
shall mean for any Employee the occurrence of any one of the following events:
(a) he is discharged by a Participating Company or Affiliate;
(b) he voluntarily terminates employment with a Participating
Company or Affiliate;
(c) he retires from employment with a Participating Company or
Affiliate; or
(d) he fails to return to work after the cessation of disability
income payments under any sick leave, short term disability or
long term disability program of a Participating Company or
Affiliate.
2.24 Year of Service. The words "Year of Service" shall mean a twelve (12)
consecutive month period measured from an Employee's Date of Hire and any
anniversary thereof until his subsequent Termination of Employment. A Fractional
Year of service shall be disregarded in determining the amount of severance
benefit payable to a Covered Employee under Section 5.3 below.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 Eligibility. Each Covered Employee who, on or after the Effective
Date, is employed by a Participating Company and has worked for a Participating
Company for at least twelve (12) continuous months after his most recent Date of
Hire shall be eligible to participate in this Plan.
3.2 Participation. Each Covered Employee who satisfies the requirements of
Section 3.1 on or after the Effective Date shall commence participation in the
Plan as of the Effective Date or, if later, as of the date upon which he first
satisfies the aforementioned requirements. A Participant shall continue to
participate in the Plan as long as he continues to satisfy the requirements of
Section 3.1 and shall cease to be a
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Participant immediately upon his failure to satisfy such requirements. A Covered
Employee who was previously a Participant and ceased to be a Participant, but
again satisfies the requirements of Section 3.1, shall immediately recommence
participation in the Plan.
3.3 Leave Of Absence. A Participant shall continue to be a Participant
throughout a Leave of Absence approved by the Participating Company by which he
is employed, except to the extent that any benefits provided under this Plan are
provided, under similar terms and conditions, to the Participant through a plan,
program or other arrangement as a result of the Participant's Leave of Absence.
ARTICLE IV
QUALIFICATION FOR BENEFITS
4.1 Entitlement to Benefits. A Participant shall be entitled, in the sole
discretion of the Company in its capacity as sponsor of the Plan, to receive the
benefits specified in Article V hereunder if, at any time on or after the
Effective Date, such Participant experiences a Termination of Employment. As
required by law, in order to prevent the Plan from being deemed an employee
pension benefit plan as described in Section 3(2) of ERISA, severance benefits
hereunder shall not be contingent, directly or indirectly, upon the
Participant's retiring.
4.2 Source of Payments. The benefits under this Plan shall be paid as
needed directly from the general assets of the Company or any Participating
Company as the Company shall direct. This Plan is an unfunded employee welfare
benefit plan, and nothing herein shall be interpreted to require prefunding by
the Company or any Participating Company of the cost of benefits.
4.3 No Entitlement to Benefits On or After Sale or Transfer. Unless
specifically provided for in an Exhibit to this Plan, in no event shall a
Participant be entitled to receive any benefits hereunder on or after the date
that either:
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(a) the stock or assets of the business unit or facility by which
he is employed is sold to a person or entity which is not an
Affiliate and such Participant either:
(i) continues employment with such business unit or facility
as owned by such unrelated person or entity; or
(ii) is offered employment but refuses to accept such offer
with such business unit or facility as owned by such
unrelated person or entity; or
(b) the employment of a Participant is transferred to a joint
venture which is not an Affiliate.
ARTICLE V
BENEFITS AND PAYMENT OF BENEFITS
5.1 Determination of Severance Benefit. If the Company shall so determine,
a Participant who is eligible for a severance benefit pursuant to Section 4.1
hereof, may be paid a severance benefit under this Plan following his date of
Termination of Employment and the satisfaction of any other applicable terms and
conditions to the receipt of such severance benefit.
5.2 Conditions to Severance Benefit. Subject to Section 5.5 below, a
Covered Employee's Termination of Employment must be on account of a lack of
work and/or corporate organizational restructuring in order to be entitled to a
severance benefit hereunder. A severance benefit shall not be payable for any
other reason including, but not limited to, voluntary resignations or
terminations resulting from disciplinary actions. The Plan Administrator, in its
sole discretion, shall determine whether a Covered Employee's Termination of
Employment is on account of lack of work and/or corporate organizational
restructuring. A Covered Employee shall not be entitled to a benefit hereunder
unless he has been informed in writing by the Plan Administrator that his
Termination of Employment is on account of either of such events.
5.3 Amount of Severance Benefit. The severance benefit payable to a
Covered Employee who is entitled to a severance benefit under Sections 5.1 and
5.2 above shall be an amount equal to one (1) week of Base Salary for each
consecutive full
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Year of Service. The minimum severance benefit shall equal two
(2) weeks of Base Salary and the maximum severance benefit shall be an amount
equal to ten (10) weeks of Base Salary.
In order to prevent this Plan from being deemed an employee pension
benefit plan as defined in Section 3(2) of ERISA, the total amount of such
severance benefit shall not exceed, with respect to any Participant, the
equivalent of twice the Participant's Annual Compensation during the year
immediately preceding his Termination of Employment.
5.4 Timing of Severance Payment. Upon a Participant's Termination of
Employment, the Company shall determine such Participant's eligibility for
benefits hereunder. Each eligible Participant shall receive his severance
benefit commencing as soon as administratively practicable following his
Termination of Employment and the determination of the amount of his benefit
hereunder, if any.
Such severance benefit payment shall be made in such form as the
Company shall determine, in its complete and sole discretion, including, but not
limited to:
(a) a single sum payment; or
(b) continuation of his regular payment of compensation as in
effect prior to his Termination of Employment.
In the event a Participant is paid in accordance with Subparagraph b
above and dies during term of payments, all payments cease upon death.
Notwithstanding the foregoing provisions of this Section 5.4, in
order to prevent this Plan from being deemed a pension plan under ERISA, all
such payments to a Participant shall be completed by:
(1) in the case of a Participant whose Termination of Employment
is in connection with a Limited Program of Terminations,
within the later of:
(i) twenty-four (24) months after such Termination of
Employment; or
(ii) twenty-four (24) months after the Participant reaches
his Normal Retirement Age; and
(2) in the case of any other Participant, within twenty-four (24)
months after his Termination of Employment.
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5.5 Discretionary Determination of Other Severance Benefits.
Notwithstanding anything in this Article V to the contrary, the Company may
determine that a Participant is eligible for a severance benefit pursuant to
Sections 4.1 and 5.1 above without regard to the conditions set forth in Section
5.2 above. The amount of the severance benefit for any such Participant shall,
subject to other limitations set forth in this Article V, be in the complete and
sole discretion of the Company in its capacity as Plan sponsor and need not be
consistent as between similarly situated Participants.
5.6 Delegation of Authority. The Company's duty and authority to determine
the eligibility for, amount and timing of severance benefit payments pursuant to
Article IV and V hereof is hereby delegated as follows:
(a) if the Participant with respect to whom a determination is to be
made is anyone other than the Chief Executive Officer or Chief
Operating Officer of the Company, delegation shall be to the Chief
Operating Officer of the Company;
(b) if the Participant with respect to whom a determination is to be
made is the Chief Operating Officer of the Company, delegation shall
be to the Chief Executive Officer of the Company; and
(c) if the Participant with respect to whom a determination is to be
made is the Chief Executive Officer of the Company, delegation shall
be to the Board of Directors of the Company.
ARTICLE VI
CLAIMS PROCEDURE
6.1 Claims for Benefits. Claims for benefits shall be made by application
of the Participant in such a manner as the Plan Administrator shall prescribe.
Without limiting the generality of the foregoing, such a claim for benefits may
take the form of (a) a response by the Participant to a proposed benefit or (b)
solicited or unsolicited claim for benefits by the Participant. The Plan
Administrator shall process each such claim and determine entitlement to
benefits within ninety (90) days following its receipt of a completed
application for benefits unless special circumstances require an extension of
time for processing the claim. If such an extension of time for processing is
required, written notice of the extension shall be furnished to the Participant
prior to the
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termination of the initial ninety (90) day period. In no event shall such
extension exceed a period of ninety (90) days from the end of such initial
period.
The extension notice shall indicate the special circumstances
requiring an extension of time and the date as of which the Plan Administrator
expects to render the final decision.
The Plan Administrator shall notify a Participant in writing,
delivered in person or mailed by first class mail to such Participant's last
known address, if any part of a claim for benefits under this Plan has been
denied, setting forth in such notice:
(a) the specific reason for the denial;
(b) a specific reference to pertinent Plan provisions upon which
the denial is based;
(c) a description of any additional material or information deemed
necessary by the Plan Administrator for such Participant to
perfect his claim, and an explanation of why such material or
information is necessary; and
(d) an explanation of the claim review procedure under the Plan.
Such notice shall set forth the above information in a manner
calculated to be understood by such Participant. If the notice referred to above
is not furnished and if the claim has not been granted within the time specified
above for processing of such claim, the claim shall be deemed denied and shall
be subject to review as set forth below.
6.2 Review of Claim Denials. Any Participant or any authorized
representative of such Participant whose claim for benefits under this Plan has
been denied or deemed denied, in whole or in part, by the Plan Administrator may
upon written notice to the Committee request a review by the Committee of such
denial of his claim for benefits. Such Participant shall have sixty (60) days
from the date the claim is deemed denied, or sixty (60) days from receipt of the
notice denying the claim, as the case may be, in which to request a review by
written application delivered to the Committee, which must specify the relief
requested and the reason such Participant believes the denial should be
reversed.
The Committee is hereby authorized to review the facts and relevant
documents as well as this Plan, to interpret this Plan and other relevant
documents and to render a decision on the claim of the Participant. Such review
may be made by written
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briefs submitted by the Participant and the Plan Administrator or at a hearing,
or by both as shall be deemed necessary by the Committee. Any such hearing shall
be held in the main offices of the Company or such other location as the
Committee shall select on such date and at such time as the Committee shall
designate upon not less than fifteen (15) days notice to the Participant and the
Plan Administrator unless both of them accept shorter notice. The notice shall
specify that such Participant must indicate in writing, at least five (5) days
in advance of the time established for such hearing, his intention to appear at
the appointed time and place, or the hearing will be automatically cancelled.
The reply shall specify any other persons who will accompany him to
the hearing, or such other persons will not be admitted to the hearing. The
Committee shall make every effort to schedule the hearing on a day and at a time
which is convenient to both the Participant and the Plan Administrator. The
Participant, or his duly authorized representative, may review all pertinent
documents relating to the claim in preparation for the hearing and may submit
issues and comments in writing prior to or during the hearing.
After the review has been completed, the Committee shall render a
decision in writing, a copy of which shall be sent to both the Participant and
the Plan Administrator. In rendering its decision, the Committee shall have full
power, authority and discretion to interpret this Plan and any other relevant
documents, to resolve ambiguities, inconsistencies and omissions, to determine
any and all questions of fact, to determine the right to benefits of, and the
amount of benefits, if any, payable to the Participant in accordance with the
provisions of this Plan. Such decision shall be final and binding on the
Participant and the Plan Administrator.
The decision of the Committee shall be delivered in writing within
thirty (30) days after the hearing, but, in any event it shall not ordinarily be
delivered later than sixty (60) days after the Plan's receipt of a request for
review, unless special circumstances (such as the need to hold a hearing)
require an extension of time for processing, in which case a decision shall be
rendered as soon as possible, but not later than one hundred and twenty (120)
days after receipt of a request for review. If such an extension of time for
review is required because of special circumstances, written notice of the
extension shall be furnished to the Participant prior to the commencement of the
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extension. The decision on review shall be in writing and shall include all
specific reasons for the decision, written in a manner calculated to be
understood by the Participant, as well as specific references to the pertinent
Plan provisions on which the decision is based. The decision on review shall be
furnished to the Participant within the appropriate time described above. If the
decision on review is not furnished within such time, the claim shall be deemed
denied on review.
6.3 Establishment of Benefit Appeals Committee. The Board shall appoint
the members of a Benefit Appeals Committee (the "Committee") which shall consist
of three (3) or more members. The members of the Committee shall remain in
office at the will of the Board and the Board may from time to time remove any
of said members with or without cause. The fact that a person is a Participant,
prospective Participant or former Participant in the Plan shall not disqualify
him from acting as a member of the Committee. A member of the Committee may
resign upon written notice to the remaining member or members of the Committee
and to the Board respectively. In case of the death, resignation or removal of
any member of the Committee, the remaining members shall act until a
successor-member shall be appointed by the Board. Upon request by the Plan
Administrator, the Board shall notify the Plan Administrator of the names of the
original members of the Committee, of any and all changes in the membership of
the Committee, of the member designated as Chairman, and the member designated
as Secretary, and of any changes in either office. Until notified of a change,
the Plan Administrator shall be protected in assuming that there has been no
change in the membership of the Committee or the designation of Chairman or of
Secretary since the last notification was filed with it. The Plan Administrator
shall be under no obligation at any time to inquire into the membership of the
Committee or its officers. All communications to the Committee shall be
addressed to its Secretary at the address of the Company.
6.4 Governance of the Committee. On all matters and questions the decision
of a majority of the members of the Committee shall govern and control. Meetings
may be held in person or by electronic means. In lieu of a meeting, decisions
may be made by
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unanimous written consent. The Committee shall appoint one of its members to act
as its Chairman and another member to act as Secretary. The terms of office of
these members shall be determined by the Committee, and the Secretary and/or
Chairman may be removed by the other members of the Committee for any reason
which such other members may deem just and proper. The Secretary shall do all
things directed by the Committee. Although the Committee shall act by decision
of a majority of its members as above provided, nevertheless in the absence of
written notice to the contrary, every person may deal with the Secretary and
consider his acts as having been authorized by the Committee. Any notice served
or demand made on the Secretary shall be deemed to have been served or made upon
the Committee.
6.5 Additional Committee Rules. No member of the Committee shall be
disqualified from acting on any question because of his interest therein. No fee
or compensation shall be paid to any member of the Committee for his services as
such, but the Committee shall be reimbursed for its expenses by the Company. The
Committee may hire such attorneys, accountants, actuaries, agents, clerks, and
secretaries as it may deem desirable in the performance of its functions any of
whom may also be advisors to any Participating Company or Affiliate and the
expense associated with the hiring or retention of any such person or persons
shall be paid directly by the Company.
6.6 No Liability. Neither the Committee nor any of its members shall be
liable for any act taken by the Committee pursuant to any provision of this Plan
except for gross abuse of the discretion given it and them hereunder. No member
of the Committee shall be liable for the act of any other member.
ARTICLE VII
ADMINISTRATION
7.1 Appointment of Plan Administrator. The Plan Administrator shall be
appointed by the Board, and may be removed or may resign upon thirty (30) days'
written notice, or such lesser period of notice as is mutually agreeable. In the
absence of another designation, the Company shall be the Plan Administrator, and
each Participating
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Company shall be the designated agent of the Company to carry out the duties of
the Plan Administrator with respect to the employees of such Participating
Company.
7.2 Powers and Duties of the Plan Administrator. Except as expressly
otherwise set forth herein, the Plan Administrator shall have the authority and
responsibility granted or imposed on a "plan administrator" by ERISA. The Plan
Administrator shall determine any and all questions of fact, resolve all
questions of interpretation of this Plan which may arise under any of the
provisions of this Plan as to which no other provision for determination is made
hereunder, and exercise all other powers and discretion necessary to be
exercised under the terms of this Plan which it is herein given or for which no
contrary provision is made. The Plan Administrator shall have full power and
discretion to interpret this Plan and related documents, to resolve ambiguities,
inconsistencies and omissions, to determine any question of fact, and to
determine the rights and benefits, if any, of any Participant or other
applicant, in accordance with the provisions of this Plan. Subject to the
provisions of any claims procedure hereunder, the Plan Administrator's decision
with respect to any matter shall be final and binding on all parties concerned,
and neither the Plan Administrator nor any of its directors, officers, employees
or delegates nor, where applicable, the directors, officers or employees of any
delegate, shall be liable in that regard except for gross abuse of the
discretion given it and them under the terms of this Plan. The Plan
Administrator may, from time to time, by action of its appropriate officers,
delegate to designated persons or entities the right to exercise any of its
powers or the obligation to carry out any or all of its duties as Plan
Administrator.
7.3 Engagement of Advisors. The Plan Administrator may employ actuaries,
attorneys, accountants, brokers, employee benefit consultants, and other
specialists to render advice concerning any responsibility the Plan
Administrator or Committee has under this Plan. Such persons may also be
advisors to any Participating Company or Affiliate.
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7.4 Payment of Costs and Expenses. The costs and expenses incurred in the
administration of the Plan shall be paid directly by one or more of the
Participating Companies in either of the following manners as determined by the
Company in its sole discretion the expenses may be paid directly by one or more
of the Participating Companies. Such costs and expenses include those incident
to the performance of the responsibilities of the Plan Administrator or
Committee, including but not limited to, claims administration fees and costs,
fees of accountants, legal counsel and other specialists, bonding expenses, and
other costs of administering this Plan. Notwithstanding the foregoing, in no
event will any person serving in the capacity of Plan Administrator, or
Committee member who is a full-time employee of a Participating Company or an
Affiliate be entitled to any compensation for such services.
ARTICLE VIII
AMENDMENT AND TERMINATION
8.1 Amendment Procedure. The Company may (without the consent of any other
Participating Company) amend this Plan at any time, or from time to time, by
action of the Board and/or by a writing executed in the name of the Company by
one or more of its officers who have the authority to do so. Any such amendment
may be made retroactively effective and shall be binding upon the Participants,
except that no such amendment shall retroactively deprive a participant of a
benefit hereunder.
8.2 Termination. The Company reserves the right (without the consent of
any Participating Company) to terminate this Plan at any time by action of the
Board and/or by a writing executed in the name of the Company by one or more of
its officers who have the authority to do so provided such termination shall not
be retroactive.
8.3 Result of Termination. If the employment of an employee terminates,
whether voluntarily or involuntarily, after the effective date of the Plan
termination, he shall not be eligible to receive any severance benefits under
this Plan.
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ARTICLE IX
PARTICIPATING COMPANIES
9.1 List of Participating Companies. The initial Participating
Companies as of the effective date are as follows:
All direct and indirect subsidiaries of NCS HealthCare, Inc.
The Company may add or remove Participating Companies during the
period of the Plan's existence. Such addition or removal shall be by action of
an appropriate officer of the Company, subject to approval of the Board. Such
addition or deletion shall require a formal amendment hereto.
9.2 Delegation of Authority. The Company is hereby fully empowered to act
on behalf of itself and the other Participating Companies as it may deem
appropriate in maintaining this Plan. Furthermore, the adoption by the Company
of any amendment to the Plan or the termination thereof, will constitute and
represent, without any further action on the part of any Participating Company,
the approval, adoption, ratification or confirmation by each Participating
Company of any such amendment or termination. In addition, the appointment of or
removal by the Company of any Benefit Appeals Committee member, any Plan
Administrator or other person under the Plan shall constitute and represent,
without any further action on the part of any Participating Company, the
appointment or removal by each Participating Company of such person.
ARTICLE X
MISCELLANEOUS
10.1 Exclusive Benefit. This Plan has been adopted for the exclusive
benefit of the eligible Participants. Notwithstanding the foregoing provisions
of this Section, nothing herein contained shall be construed as giving to any
Employee or any other person any legal or equitable right against any
Participating Company or any Affiliate unless such right shall exist by reason
of the express provisions of this Plan or any action taken pursuant thereto and
in compliance therewith.
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10.2 No Assets. Participation in this Plan shall not entitle any
Participant to any assets of any Participating Company or Affiliate. No funds
shall in any way be set aside or segregated from the general assets of the
Participating Companies or Affiliates by reason of a Participant's participation
herein except as otherwise expressly provided herein.
10.3 No Employment Right. Nothing herein contained shall be construed as
giving any Employee the right to be retained in the service of a Participating
Company or any Affiliate or shall in any way affect the right of a Participating
Company or any Affiliate to control its employees and to terminate the service
of any Employee at any time.
10.4 Construction. This Plan shall be construed in accordance with the
laws of the State of Ohio and of the United States of America.
10.5 No Liability. No liability shall be incurred by a Participating
Company or any Affiliate beyond the specific provisions of this Plan.
10.6 Satisfaction and Release of Claims. As further consideration for
execution of a formal release, waiver, separation agreement, or similar
document, a Plan Administrator, Participating Company, or an Affiliate may
provide a Participant with additional severance benefits, in the complete and
sole discretion of the Plan Administrator, the Participating Company, or the
Affiliate. Any such payment to any Participant, or to his legal representative,
shall be provided as legal consideration for release and waiver of any claims,
demands, and causes of action, both known and unknown, of Participant against
the Plan Administrator, any Participating Company and/or any Affiliate, and such
other persons or entities designated in any formal release, waiver, separation
agreement or similar document, if any, which Participant or his legal
representative shall be requested to execute.
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10.7 Severability. If any provision of this Plan is held invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provisions, and this Plan shall be construed and enforced as if such provisions
had not been included.
10.8 Interpretation. All provisions of this Plan shall be interpreted and
administered in accordance with the provisions of ERISA in a manner which will
assure compliance of the Plan's operation therewith.
10.9 Impossibility. In the event that it becomes impossible for any
Participating Company or the Plan Administrator to perform any act under this
Plan, that act shall be performed which, in the judgment of the Company, or Plan
Administrator, as the case may be, will most nearly carry out the intent and
purpose of this Plan.
10.10 Number. The singular herein shall include the plural, or vice versa,
wherever the context so requires.
10.11 Gender. A pronoun in the masculine, feminine or neuter gender shall
be deemed where appropriate to include also the masculine, feminine or neuter
gender.
10.12 Multiple Fiduciary Capacities. A person may serve in more than one
fiduciary capacity hereunder.
10.13 Indemnification. The Participating Companies shall jointly and
severally indemnify, defend, and hold harmless any Employee, or member of the
Board of Directors, of a Participating Company or an Affiliate for all acts
taken or omitted in carrying out the responsibilities of the Company, any
Participating Company, the Plan Administrator or Benefit Appeals Committee under
the terms of this Plan or other responsibilities imposed upon such individual by
law. This indemnification for all such acts taken or omitted is intentionally
broad, but shall not provide indemnification for any civil penalty that may be
imposed under Section 502(i) or 502(1) of ERISA, nor shall it provide
indemnification for embezzlement or diversion of funds or other property for the
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benefit of any such individual. The Participating Companies shall jointly and
severally indemnify any such individual for expenses of defending an action by a
participant, beneficiary, dependent, service provider, government entity or
other person, including all legal fees and other costs of such defense. The
Participating Companies shall also reimburse any such individual for any
monetary recovery in a successful action against such individual in any federal
or state court or arbitration. In addition, if a claim is settled out of court
with the concurrence of the Company, the Participating Companies shall jointly
and severally indemnify any such individual for any monetary liability under any
such settlement, and the expenses thereof. Such indemnification will not be
provided to any person who is not a present or former Employee, or present or
former member of the Board of Directors, of a Participating Company or an
Affiliate nor shall it be provided for any claim by a Participating Company or
an Affiliate against any such individual.
10.14 Titles. The titles are for reference only. In the event of a
conflict between a title and the content of a Section, the content of the
Section shall control.
IN WITNESS WHEREOF, the Company, by its officers duly authorized, has
caused this Plan to be executed as of the date first written above.
NCS HealthCare, Inc.
By: /s/ Kevin B. Shaw
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President and CEO
And: /s/ Judith Fimiani
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Plan Administrator
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