Exhibit (10)
THE MCGRAW-HILL COMPANIES, INC.
SENIOR EXECUTIVE SEVERANCE PLAN
(As Amended and Restated Effective April 24, 2002)
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Exhibit (10)
TABLE OF CONTENTS
Page
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Section 1. Purpose...................................................... 37
Section 2. Effective Date............................................... 37
Section 3. Administration............................................... 37
Section 4. Participation................................................ 37
Section 5. Payments Upon Qualified Termination of Employment............ 38
Section 6. Unfunded Status of Plan...................................... 41
Section 7. Termination and Amendment of the Plan........................ 41
Section 8. Benefit of Plan.............................................. 41
Section 9. Non-Assignability............................................ 42
Section 10. Effect of Other Plans........................................ 42
Section 11. Mitigation and Offset........................................ 42
Section 12. Termination of Employment.................................... 42
Section 13. Severability................................................. 42
Section 14. Disputed Claims.............................................. 42
Section 15. Governing Law; Section Headings.............................. 43
Section 16. Claims Procedure............................................. 43
36
Exhibit (10)
THE McGRAW-HILL COMPANIES, INC. SENIOR EXECUTIVE SEVERANCE PLAN
Section 1. Purpose
The purpose of the Senior Executive Severance Plan (the
"Plan") is to provide senior executives who are in a position to
contribute materially to the success of The McGraw-Hill Companies,
Inc., or any subsidiary at least 20% of whose voting shares are owned
directly or indirectly by The McGraw-Hill Companies, Inc.
(collectively, the "Company"), with reasonable compensation in the
event of their termination of employment with the Company.
Section 2. Effective Date
The Plan is effective as of January 28, 1987.
Section 3. Administration
The Plan shall be administered (i) by the Compensation
Committee of the Board of Directors of the Company (the "Board") or by
such other committee of non-employee directors as the Board shall
appoint (the "Committee"), or (ii) in the absence of such Committee or
if the Committee is unable to act, by the Board (the "Adminstrator").
Subject to the express provisions of the Plan and the rights of
Participants pursuant thereto, the Administrator shall have
discretionary authority to (i) adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as
the Administrator shall, from time to time, deem advisable; (ii)
resolve all questions or ambiguities relating to the interpretation and
application of the Plan (and any notices or agreements relating
thereto); (iii) make eligibility and benefit determinations under the
Plan, including any factual determinations relevant thereto; and (iv)
otherwise supervise the administration of the Plan in accordance with
the terms hereof. The discretionary authority under the preceding
sentence may also be exercised by any person making a determination on
a claim for benefits or a review of a claim pursuant to Section 16
below.
Subject to Section 16 hereof, all decisions made by the
Administrator pursuant to the provisions of the Plan shall be final and
binding on all persons, including the Company and Participants.
All decisions made by the CEO, as hereinafter defined, which
may personally benefit, directly or indirectly, the CEO shall be
subject to the approval of the Committee.
Section 4. Participation
The Chief Executive Officer (the "CEO") of the Company shall
from time to time select, subject to the approval of the Committee, the
employees who are to participate in the Plan (the "Participants") from
among those employees who are determined by the CEO to be in a position
to contribute materially to the success of the Company. The Company
shall notify each Participant in writing of his participation in the
Plan, and such notice shall also set forth the payments and benefits to
which the Participant may become entitled. The Company may also enter
into such agreements as the Committee deems necessary or appropriate
with respect to a Participant's rights under the Plan. Any such notice
or agreement may contain such terms, provisions and conditions not
inconsistent with the Plan, including but not limited to provisions for
the extension or renewal of any such agreement, as shall be determined
by the Committee, in its sole discretion.
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Exhibit (10)
A Participant shall cease to be a Participant in the Plan upon
the earlier of (i) his receipt of all of the payments, if any, to which
he is or becomes entitled under the terms of this Plan and the terms of
any notice or agreement issued by the Company with respect to his
participation hereunder, or (ii) the termination of his employment with
the Company under circumstances not requiring payments under the terms
of this Plan.
Section 5. Payments Upon Qualified Termination of Employment
(a) In the event of a Qualified Termination of Employment,
the Participant shall be entitled, as compensation for services
rendered, subject to any applicable payroll or other taxes required to
be withheld, to:
(i) continue to receive an amount equal to his Monthly Base
Salary for a period following his termination of employment, based upon
the following formula, but in no event for less than 12 months: the
number of full and partial years of the Participant's continuous
service with the Company, up to a maximum of 15 years, multiplied by
1.6; provided that if the foregoing formula yields a period exceeding
12 months, the Participant shall be entitled to salary continuation for
only 12 months and, in addition, shall be entitled to a single lump sum
cash payment equal to the product of the Participant's Monthly Base
Salary and the number of months under the formula in excess of 12, to
be paid 12 months after the Participant's termination of employment, or
as soon thereafter as practicable; and
(ii) remain an active participant in all Company-sponsored
retirement, life, medical, dental, accidental death and disability
insurance benefit plans or programs in which he was participating at
the time of his termination for the duration of the salary continuation
period described in Section 5(a)(i) above (not in excess of 12 months),
but only to the extent permitted by applicable law, as determined by
the Company, it being understood that continued participation in
Company-sponsored retirement plans or programs shall be limited to such
plans or programs that are not intended to be qualified under Section
401(a) or 401(k) of the Internal Revenue Code of 1986, as amended (the
"Code"), and, in addition, if the formula in Section 5(a)(i) above
yields a period exceeding 12 months, the Participant shall be entitled
to a single lump sum cash payment equal to 10% of the product of the
Participant's Monthly Base Salary and the number of months under the
formula in excess of 12, to be paid 12 months after the Participant's
termination of employment, or as soon thereafter as practicable;
provided that the CEO may authorize, in his sole discretion, in lieu of
the payments and benefits provided under Sections 5(a)(i) and (ii)
above, payment to the Participant of a single lump sum equal to 110% of
the Participant's Monthly Base Salary for the period under the formula
specified under Section 5(a)(i), or for 12 months, if longer (100% of
Monthly Base Salary for such period in lieu of salary continuation, and
10% of Monthly Base Salary for such period in lieu of benefits
continuation).
Such payments shall be in lieu of any other payments under the Plan or
under any other severance pay or separation allowance plan, program or
policy of the Company including the Company's Separation Pay Plan;
provided, however, that if payments pursuant to the terms and
conditions of the Company's Separation Pay Plan would result in greater
payments to a Participant than would be payable under this Plan, said
Participant shall in such event receive payments pursuant to the terms
and conditions of the Company's Separation Pay Plan in lieu of payments
pursuant to this Plan.
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Exhibit (10)
(b) For purposes of this Section 5, the following definitions
shall apply:
(i) A "Qualified Termination of Employment" shall mean
termination of employment with the Company (other than by reason of
death, Disability, voluntary resignation by a Participant under
circumstances not qualifying under (B) below, or lawful Company
mandated retirement at normal retirement age)
(a) by the Company for any reason other than for Cause, or
(b) by the Participant after an Adverse Change in Conditions
of Employment or for any reason during the 30-day period following the
first anniversary of a Change of Control.
(ii) "Cause" shall mean the Participant's misconduct in
respect of the Participant's obligations to the Company or other acts
of misconduct by the Participant occurring during the course of the
Participant's employment, which in either case results in or could
reasonably be expected to result in material damage to the property,
business or reputation of the Company; provided that in no event shall
unsatisfactory job performance alone be deemed to be "Cause"; and,
provided, further, that no termination of employment that is carried
out at the request of a person seeking to accomplish a Change in
Control or otherwise in anticipation of a Change in Control shall be
deemed to be for "Cause".
(iii) An "Adverse Change in Conditions of Employment" shall
mean the occurrence of any of the following events:
(a) an adverse change by the Company in the Participant's
functions, duties or responsibilities, which change would cause the
Executive's position with the Company to become one of substantially
less responsibility, importance or scope; or
(b) a 10% or larger reduction by the Company (in one or more
steps) of the Participant's Monthly Base Salary.
Notwithstanding the foregoing the Participant's failure to
object to the Company in writing to a change described in (A) or (B)
above within 120 days after such change shall constitute a waiver of
such change as an Adverse Change in Conditions of Employment.
(iv) "Disability" shall mean a Participant's long-term
disability pursuant to a determination of disability under the
Company's Long-Term Disability Plan.
(v) "Monthly Base Salary" shall mean a Participant's highest
regular monthly salary during the preceding 24-month period, excluding
any of the following: year-end or other bonuses, incentive
compensation, whether short term or long term, commissions, reimbursed
expenses, and any payments on account of premiums on insurance or other
contributions made to other Company welfare or benefit plans.
(i) "Change of Control" shall mean any of the following:
An acquisition by an individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (a
"Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 20% or more of either (1) the
then outstanding shares of common stock
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Exhibit (10)
of the Corporation (the "Outstanding Corporation Common Stock") or (2)
the combined voting power of the then outstanding voting securities of
the Corporation entitled to vote generally in the election of directors
(the "Outstanding Corporation Voting Securities"); excluding, however,
the following: (1) any acquisition directly from the Corporation, other
than an acquisition by virtue of the exercise of a conversion privilege
unless the security being so converted was itself acquired directly
from the Corporation; (2) any acquisition by the Corporation; (3) any
acquisition by any employee benefit plan (or related trust) sponsored
or maintained by the Corporation or any entity controlled by the
Corporation; or (4) any acquisition pursuant to a transaction which
complies with clauses (1), (2) and (3) of subsection (iii) of this
definition; or
(ii) A change in the composition of the Board of Directors
such that the individuals who, as of the effective date of the Plan,
constitute the Board of Directors (such Board of Directors shall be
hereinafter referred to as the "Incumbent Board") cease for any reason
to constitute at least a majority of the Board of Directors; provided,
however, that for purposes of this definition, that any individual who
becomes a member of the Board of Directors subsequent to the effective
date of the Plan, whose election, or nomination for election by the
Corporation's shareholders, was approved by a vote of at least a
majority of those individuals who are members of the Board of Directors
and who were also members of the Incumbent Board (or deemed to be such
pursuant to this proviso) shall be considered as though such individual
were a member of the Incumbent Board; but, provided, further, that any
such individual whose initial assumption of office occurs as a result
of either an actual or threatened election contest (as such terms are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange
Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board of Directors shall not
be so considered as a member of the Incumbent Board; or
(iii) Consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all
of the assets of the Corporation ("Corporate Transaction"); excluding,
however, such a Corporate Transaction pursuant to which (1) all or
substantially all of the individuals and entities who are the
beneficial owners, respectively, of the Outstanding Corporation Common
Stock and Outstanding Corporation Voting Securities immediately prior
to such Corporate Transaction will beneficially own, directly or
indirectly, more than 50% of, respectively, the outstanding shares of
common stock, and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from such
Corporate Transaction (including, without limitation, a corporation
which as a result of such transaction owns the Corporation or all or
substantially all of the Corporation's assets either directly or
through one or more subsidiaries) in substantially the same proportions
as their ownership, immediately prior to such Corporate Transaction, of
the Outstanding Corporation Common Stock and Outstanding Corporation
Voting Securities, as the case may be, (2) no Person (other than the
Corporation, any employee benefit plan (or related trust) of the
Corporation or such corporation resulting from such Corporate
Transaction) will beneficially own, directly or indirectly, 20% or more
of, respectively, the outstanding shares of common stock of the
corporation resulting from such Corporate Transaction or the combined
voting power of the outstanding voting securities of such corporation
entitled to vote generally in the election of directors except to the
extent that such ownership existed prior to the Corporate Transaction,
and (3) individuals who were members of the Incumbent Board will
constitute at least a majority of the members of the board of directors
of the corporation resulting from such Corporate Transaction; or
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Exhibit (10)
(iv) The approval by the stockholders of the Corporation of a
complete liquidation or dissolution of the Corporation.
(c) In the event a Participant dies after the commencement of
payments pursuant to Section 5(a) above, the balance of said payments
shall be payable to said Participant's estate.
(ii) It is the intent of this Plan that a Participant's
transfer to another location shall not by itself constitute an "Adverse
Change in Conditions of Employment"; provided, however, that such an
"Adverse Change in Conditions of Employment" will be deemed to exist
if, after a Change of Control, a Participant is transferred to a
principal business location so as to increase the distance between the
principal business location and such Participant's place of residence
at the time of the Change of Control by more than 50 miles or such
other distance standard as may be established from time to time under
Section 217(c)(1)(A) of the Code.
(iii) It is the intent of this Plan that a Participant shall
not receive payments hereunder in the event of a sale of the business
unit of the Company with which the Participant is associated as an
executive, provided that the Participant is offered a position and
salary with the buyer or the Company comparable to the position and
salary of the Participant immediately prior to said sale, whether or
not such offer is accepted by the Participant. If, however, the
Participant is not offered a comparable position and salary, the
Participant shall be entitled to payments hereunder. A position shall
not be deemed to be a "comparable position" for purposes of this
subsection (iii) if it increases the distance between the Participant's
principal business location and the Participant's place of residence at
the time of the sale by more than 50 miles or such other distance
standard as may be established from time to time under Section
217(c)(1)(A) of the Code.
Section 6. Unfunded Status of Plan
The Plan is intended to constitute an "unfunded" compensation
arrangement. With respect to any payments required to be made, but not
yet made to a Participant by the Company, nothing contained herein
shall give any such Participant any rights that are greater than those
of a general creditor of the Company. In its sole discretion, the
Company may authorize the creation of trusts or other arrangements to
meet the obligations created under the Plan to deliver payments in lieu
of or with respect to amounts payable hereunder, provided, however,
that the existence of such trusts or other arrangements is consistent
with the unfunded status of the Plan.
Section 7. Termination and Amendment of the Plan
The Board shall have the right at any time, in its discretion,
to amend the Plan, in whole or in part, or to terminate the Plan,
except that no amendment or termination shall impair or abridge the
obligations of the Company and the rights of Participants under any
notices or agreements previously issued pursuant to the Plan.
Section 8. Benefit of Plan
The Plan shall be binding upon and shall inure to the benefit
of the Participant, his heirs and legal representatives, and the
Company and its successors. The term "successor" shall mean any person,
firm, corporation or other business entity that, at any time, whether
by merger, acquisition or otherwise, acquires all or substantially all
of the stock, assets or business of the Company.
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Exhibit (10)
Section 9. Non-Assignability
Each Participant's rights under this Plan shall be
non-transferable except by will or by the laws of descent and
distribution and except insofar as applicable law may otherwise
require. Subject to the foregoing, no right, benefit or interest
hereunder, shall be subject to anticipation, alienation, sale,
assignment, encumbrance, charge, pledge, hypothecation, or set off in
respect of any claim, debt or obligation, or to execution, attachment,
levy or similar process, or assignment by operation of law, and any
attempt, voluntary or involuntary, to effect any such action shall, to
the full extent permitted by law, be null, void and of no effect.
Section 10. Effect of Other Plans
Except as expressly provided in Section 5 with respect to the
Company's Separation Pay Plan, (i) nothing in the Plan shall affect the
level of benefits provided to or received by any Participant (or the
Participant's estate or beneficiaries) as part of any employee benefit
plan of the Company, and (ii) the Plan shall not be construed to affect
in any way a Participant's rights and obligations under any other plan
maintained by the Company on behalf of employees.
Section 11. Mitigation and Offset
No Participant shall be required to mitigate the amount of any
payment under the Plan by seeking employment or otherwise, and there
shall be no right of setoff or counterclaim, in respect of any claim,
debt or obligation, against any payments to the Participant, his
dependents, beneficiaries or estate provided for in the Plan.
If, after a Participant's termination of employment with the
Company, the Participant is employed by another entity or becomes
self-employed, the amounts (if any) payable under this Plan to the
Participant shall not be offset by the amounts (if any) payable to the
Participant from such new employment with respect to services rendered
during the severance period applicable to such Participant under this
Plan.
Section 12. Termination of Employment
Nothing in the Plan shall be deemed to entitle a Participant
to continued employment with the Company, and the rights of the Company
to terminate the employment of a Participant shall continue as fully as
though this Plan were not in effect.
Section 13. Severability
In the event that any provision or portion of the Plan shall
be determined to be invalid or unenforceable for any reason, the
remaining provisions and portions of the Plan shall be unaffected
thereby and shall remain in full force and effect to the fullest extent
permitted by law.
Section 14. Disputed Claims
(a) If a Participant makes a claim for payments under the Plan
and such claim is disputed by the Company (a "Disputed Claim"), the
Company shall reimburse the Participant for any reasonable attorney's
fees and disbursements incurred in pursuing such claim ("Attorney's
Fees") provided that the Participant obtains a non-appealable, final
judgment from a court of competent jurisdiction or a binding
arbitration award granting the Participant all or substantially all of
the amount sought (a "Judgment or Award"). Unless
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Exhibit (10)
the Judgment or Award specifies whether it constitutes "all or
substantially all of the amount sought," such determination shall be
made by the Administrator in its sole and absolute discretion. Said
reimbursement of Attorney's Fees, if applicable, shall be made as soon
as practicable after said determination.
(b) If a Disputed Claim is made with respect to a termination
of employment occurring during a period beginning on the date of a
Change of Control and ending 24 months thereafter, the Participant
shall be entitled to reimbursement of Attorney's Fees, whether or not
the Participant obtains a Judgment or Award. Such reimbursement shall
be made on a "pay-as-you-go" basis, as soon as practicable after
presentation to the Company of any periodic statements for Attorney's
Fees.
(c) Without affecting the rights of a Participant under
subsection (a) of this Section 14, a Participant shall be entitled to
reimbursement of Attorney's Fees for a Disputed Claim in accordance
with the terms of subsection (b) with respect to termination of
employment occurring six months prior to a Change of Control, whether
or not the Participant obtains a Judgment or Award, provided, however,
that no reimbursement will be made under this subsection (c) in such
case (i) unless and until the Change of Control actually occurs or (ii)
if reimbursement has been made under subsection (a) of this Section 14.
Section 15. Governing Law; Section Headings
All questions pertaining to the construction, regulation,
validity and effect of the provisions of the Plan shall be determined
in accordance with the laws of the State of New York.
The section headings used in this document are for ease of
reference only and shall not be controlling with respect to the
application and interpretation of this Plan.
Section 16. Claims Procedure
(a) Benefits shall be paid in accordance with the provisions
of the Plan. Any claim for benefits under the Plan shall be promptly
filed in writing by the Participant, the Participant's beneficiary or
contingent beneficiary, or the Participant's authorized representative
(hereinafter collectively referred to as the "Claimant") with the
Company. This written claim shall be mailed or delivered to the Company
by registered mail and shall be decided by the person or persons to
whom this responsibility is delegated from time to time by the
Administrator.
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Exhibit (10)
(b) The Claimant shall be sent a written notice of the
Company's determination with respect to the claim of the Claimant
within 90 days of receipt of the claim, unless special circumstances
require an extension of time for processing the claim. Such extension
shall not exceed 90 days and notice thereof will be given within the
first 90-day period. If the claim is denied in whole or in part, the
notice shall indicate the reason for the denial (including references
to the Plan provisions on which the denial is based), describe any
additional information or material needed and the reasons why such
additional information or material is necessary, and explain the claim
review procedure.
(c) If a claim is denied in whole or in part (or if no
decision on a claim is rendered within the limitations of the time
described in Section 16(b)), the Claimant may request a review of the
decision (or of the claim, if no timely decision has been rendered).
This request shall be submitted in writing to the Chief Human Resources
Officer of the Company (the "Claims Reviewer") within 60 days of
receipt of the notice of denial. The business address and telephone
number of the Claims Reviewer is:
The McGraw-Hill Companies, Inc.
1221 Avenue of the Americas
New York, New York 10020
(212) 512-2000
This written request for review shall be mailed or delivered to the
Claims Reviewer by registered mail. The Claimant may review pertinent
documents and may submit in writing additional comments and material.
(d) The Company shall have the right to change the Claims
Reviewer under the Plan. The Company shall also have the right to
change the address and telephone number of the Claims Reviewer. The
Company shall give the Participants written notice of any change of the
Claims Reviewer, or any change in the address and telephone number of
the Claims Reviewer.
(e) A review decision shall be made by the Claims Reviewer
within 60 days of receipt of the request for review, unless there are
special circumstances (such as the need for a hearing) which require an
extension of the time for processing. Such extension shall not exceed
60 days and notice thereof shall be given within the first 60-day
period. The review decision shall be in writing and include specific
references to the Plan provisions on which the decision is based.
January 28, 1987
As amended: March 25, 1987
September 30, 1987
September 28, 1988
April 26, 2000
April 24, 2002
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