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Exhibit 10.68.5
CANNONDALE CORPORATION
CHANGE-OF-CONTROL
SEPARATION PLAN B
(TIER IV)
1. Introduction. The Board of Directors of Cannondale Corporation, a
Delaware corporation (the "Company") has determined that it is in the best
interests of the Company and its shareholders to assure that the Company will
have the continued dedication of its employees, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined below) of the Company.
The Board of Directors of the Company (the "Board") believes it is imperative to
diminish the inevitable distraction of its employees by virtue of the personal
uncertainties and risks created by a pending or threatened Change of Control and
to encourage its employees' full attention and dedication to the Company
currently and in the event of any threatened or pending Change of Control, and
to provide its employees with compensation and benefits arrangements upon a
Change of Control which ensure that the compensation and benefits expectations
of Participants (as defined below) will be satisfied. Therefore, in order to
accomplish these objectives, the Board hereby adopts the Cannondale Corporation
Change of Control Separation Plan B (the "Plan").
2. Certain Definitions. (a) The "Effective Date" shall mean the first
date during the Change of Control Period (as defined in Section 2(b)) on which a
Change of Control (as defined in Section 3) occurs.
(b) The "Change of Control Period" shall mean the period commencing on
the date hereof and ending on the second anniversary of the date hereof;
provided, however, that commencing on the date one year after the date hereof,
and on each annual anniversary of such date (such date and each annual
anniversary thereof shall be hereinafter referred to as the "Renewal Date"),
unless previously terminated, the Change of Control Period shall be
automatically extended so as to terminate two years from such Renewal Date,
unless at least 60 days prior to the Renewal Date the Company shall give notice
to the Participant that the Change of Control Period shall not be so extended.
(c) "Participant" shall mean an employee who has been designated by the
Board from time to time as a participant in the Plan. Prior to the occurrence of
a Change of Control, the Board may add or remove any employee as a Participant,
and such employee's status as a Participant or a non-Participant shall be
effective as of the date of such Board action.
3. Change of Control. For the purpose of this Plan, a "Change of
Control" shall mean:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (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 (i) the then outstanding shares of common stock of the
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Company (the "Outstanding Company Common Stock") or (ii) the combined voting
power of the then outstanding voting securities of the Company entitled to vote
generally in the election of directors (the "Outstanding Company Voting
Securities"); provided, however, that for purposes of this subsection (a), the
following acquisitions shall not constitute a Change of Control: (i) any
acquisition directly from the Company, (ii) any acquisition by the Company,
(iii) any acquisition by any employee benefit plan (or related trust) sponsored
or maintained by the Company or any corporation controlled by the Company, or
(iv) any acquisition by any corporation pursuant to a transaction which complies
with clauses (i), (ii) and (iii) of subsection (c) of this Section 3; or
(b) Individuals who, as of the date hereof, constitute the Board (the
"Incumbent Board") cease for any reason to constitute at least a majority of the
Board; provided, however, that any individual becoming a director subsequent to
the date hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote of at least a majority of the directors
then comprising the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding, for this
purpose, any such individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with respect to the election
or removal of directors or other actual or threatened solicitation of proxies or
consents by or on behalf of a Person other than the Board; or
(c) Approval by the shareholders of the Company of a reorganization,
merger or consolidation or sale or other disposition of all or substantially all
of the assets of the Company (a "Business Combination"), in each case, unless,
following such Business Combination, (i) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Securities
immediately prior to such Business Combination would beneficially own, directly
or indirectly, more than 60% of, respectively, the then 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 Business Combination (including,
without limitation, a corporation which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly or
through one or more subsidiaries) in substantially the same proportions as their
ownership, immediately prior to such Business Combination of the Outstanding
Company Common Stock and Outstanding Company Voting Securities, as the case may
be, (ii) no Person (excluding any corporation resulting from such Business
Combination or any employee benefit plan (or related trust) of the Company or
such corporation resulting from such Business Combination) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such Business
Combination or the combined voting power of the then outstanding voting
securities of such corporation except to the extent that such ownership existed
prior to the Business Combination, and (iii) at least a majority of the members
of the board of directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of the execution of
the initial agreement, or of the action of the Board, providing for such
Business Combination; or
(d) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
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4. Eligibility. All employees who are so identified from time to time
pursuant to Section 2(c) hereof shall be Participants in the Plan. The Board may
from time to time designate other employees as Participants. A Participant shall
cease to be a Participant in the Plan when he ceases to be an employee of the
Company or its affiliated companies or when his designation as a Participant is
rescinded by the Board pursuant to Section 2(c), unless such Participant is then
entitled to payment as provided in Section 7 of the Plan. A Participant entitled
to such payment shall remain a Participant in the Plan until the full amount of
all payments due hereunder has been paid to him. As used in this Plan, the term
"affiliated companies" shall include any company controlled by, controlling or
under common control with the Company.
5. Termination of Employment. (a) Death or Disability. The
Participant's employment shall terminate automatically upon the Participant's
death. If the Company determines in good faith that the Disability of the
Participant has occurred (pursuant to the definition of Disability set forth
below), it may give to the Participant written notice of its intention to
terminate the Participant's employment. In such event, the Participant's
employment with the Company shall terminate effective on the 30th day after
receipt of such notice by the Participant (the "Disability Effective Date"),
provided that, within the 30 days after such receipt, the Participant shall not
have returned to full-time performance of the Participant's duties. For purposes
of this Plan, "Disability" shall mean the absence of the Participant from the
Participant's duties with the Company on a full-time basis for 180 consecutive
business days as a result of incapacity due to mental or physical illness which
is determined to be total and permanent by a physician selected by the Company
or its insurers and reasonably acceptable to the Participant or the
Participant's legal representative.
(b) Cause. The Company may terminate the Participant's employment for
Cause. For purposes of this Plan, "Cause" shall mean:
(i) the willful and continued failure of the Participant to
perform substantially the Participant's duties with the Company or one of its
affiliated companies (other than any such failure resulting from incapacity due
to physical or mental illness), after a written demand for substantial
performance is delivered to the Participant by the Board or the Chief Executive
Officer of the Company which specifically identifies the manner in which the
Board or Chief Executive Officer believes that the Participant has not
substantially performed the Participant's duties, or
(ii) the willful engaging by the Participant in illegal
conduct or gross misconduct which is materially and demonstrably injurious to
the Company.
For purposes of this provision, no act or failure to act on the part of the
Participant, shall be considered "willful" unless it is done, or omitted to be
done, by the Participant in bad faith or without reasonable belief that the
Participant's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon authority given pursuant to a resolution duly
adopted by a senior officer of the Company or based upon the advice of counsel
for the Company shall be conclusively presumed to be done, or omitted to be
done, by the Participant in good faith
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and in the best interests of the Company.
(c) Notice of Termination. Any termination by the Company shall be
communicated by Notice of Termination to the Participant. For purposes of this
Plan, a "Notice of Termination" means a written notice which (i) indicates the
specific termination provision in this Plan relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Participant's employment under the
provision so indicated and (iii) if the Date of Termination (as described below)
is other than the date of receipt of such notice, specifies the termination date
(which date shall be not more than thirty days after the giving of such notice).
(d) Date of Termination. "Date of Termination" means (i) if the
Participant's employment is terminated by the Company for Cause, the date of
receipt of the Notice of Termination, (ii) if the Participant's employment is
terminated by the Company other than for Cause, the Date of Termination shall be
the date on which the Company notifies the Participant of such termination and
(iii) if the Participant's employment is terminated by reason of death or
Disability, the Date of Termination shall be the date of death of the
Participant or the Disability Effective Date, as the case may be.
7. Obligations of the Company upon Termination. (a) Other Than for
Cause, Death or Disability. If, the Company shall terminate the Participant's
employment other than for Cause, death or Disability:
(i) the Company shall pay to the Participant in a lump sum in
cash within 30 days after the Date of Termination the aggregate of the
following amounts:
(A) the sum of (1) the Participant's annual base
salary at the time of a Change of Control (the "Annual Base
Salary") through the Date of Termination to the extent not
theretofore paid, (2) any compensation previously deferred by
the Participant (together with any accrued interest or
earnings thereon) and any accrued vacation pay, in each case
to the extent not theretofore paid (the sum of the amounts
described in clauses (1) and (2) shall be hereinafter referred
to as the "Accrued Obligations"); and
(B) an amount equal to the Participant's Annual Base
Salary;
(ii) to the extent not theretofore paid or provided, the
Company shall timely pay or provide to the Participant any other
amounts or benefits required to be paid or provided or which the
Participant is eligible to receive under any plan, program, policy or
practice or contract or agreement of the Company and its affiliated
companies (such other amounts and benefits shall be hereinafter
referred to as the "Other Benefits"); and
(iii) the amounts payable to the Participant hereunder shall
be reduced by any amount required to be paid to such Participant upon
termination of employment pursuant to any applicable law or regulation.
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(b) Death. If the Participant's employment is terminated by reason of
the Participant's death, the Company shall have no further obligations to the
Participant's legal representatives under this Plan, other than for payment of
Accrued Obligations. Accrued Obligations shall be paid to the Participant's
estate or beneficiary, as applicable, in a lump sum in cash within 30 days of
the Date of Termination.
(c) Disability. If the Participant's employment is terminated by reason
of the Participant's Disability, the Company shall have no further obligations
to the Participant under this plan, other than for payment of Accrued
Obligations. Accrued Obligations shall be paid to the Participant in a lump sum
in cash within 30 days of the Date of Termination.
8. Non-exclusivity of Rights. Nothing in this Plan shall prevent or
limit the Participant's continuing or future participation in any plan, program,
policy or practice provided by the Company or any of its affiliated companies
and for which the Participant may qualify, nor, subject to amendment or
termination of the Plan pursuant to Section 13, shall anything herein limit or
otherwise affect such rights as the Participant may have under any contract or
agreement with the Company or any of its affiliated companies. Amounts which are
vested benefits or which the Participant is otherwise entitled to receive under
any plan, policy, practice or program of or any contract or agreement with the
Company or any of its affiliated companies at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy, practice or
program or contract or agreement except as explicitly modified by this Plan.
9. Full Settlement. The Company's obligation to make the payments
provided for in this Plan and otherwise to perform its obligations hereunder
shall not be affected by any setoff, counterclaim, recoupment, defense or other
claim, right or action which the Company may have against the Participant or
others. In no event shall the Participant be obligated to seek other employment
or take any other action by way of mitigation of the amounts payable to the
Participant under any of the provisions of the Plan and such amounts shall not
be reduced whether or not the Participant obtains other employment.
10. Certain Reduction of Payments by the Company. (a) Anything in the
Plan to the contrary notwithstanding, in the event it shall be determined that
any payment or distribution by the Company or its affiliated companies to or for
the benefit of a Participant (whether paid or payable or distributed or
distributable pursuant to the terms of the Plan or otherwise) (a "Payment")
would be nondeductible by the Company for Federal income tax purposes because of
Section 280G of the Code, then the aggregate present value of amounts payable or
distributable to or for the benefit of the Participant pursuant to the Plan
(such payments or distributions pursuant to the Plan are hereinafter referred to
as "Plan Payments") shall be reduced to the Reduced Amount. The "Reduced Amount"
shall be an amount expressed in present value which maximizes the aggregate
present value of Plan Payments without causing any Payment to be nondeductible
by the Company because of Section 280G of the Code. For purposes of this Section
10, present value shall be determined in accordance with Section 280G(d)(4) of
the Code.
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(b) All determinations required to be made under this Section
10 shall be made by Ernst & Young LLP (the "Accounting Firm"), which shall
provide detailed supporting calculations both to the Company and the Participant
within fifteen (15) business days of the Date of Termination or such earlier
time as is requested by the Company. Any such determination by the Accounting
Firm shall be binding upon the Company and the Participant. Within five (5)
business days of the determination by the Accounting Firm as to the Reduced
Amount, the Company shall pay to or distribute to or for the benefit of the
Participant such amounts as are then due to the Participant under the Plan. If
Plan Payments are to be reduced, the Participant shall determine which Plan
Payments shall be reduced to comply with this Section.
(c) Notwithstanding the foregoing or any other provision of
the Plan to the contrary, the limitation set forth in this Section 10 shall not
apply in the event that the Accounting Firm determines that the benefits to the
Participant under the Plan on an after-tax basis (i.e., after Federal, state and
local income and excise taxes) if such limitation is not applied would exceed
the after-tax benefits to the Participant if such limitation is applied.
11. Successors. The Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise), to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform the Plan in the same manner and to the same
extent that the Company would be obligated under the Plan if no succession had
taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform the Plan by operation of law, or
otherwise.
12. Duration. If a Change in Control has not occurred, the Plan shall
expire five (5) years from the date the Plan is adopted by the Board, unless
sooner terminated as provided in Section 13, or unless extended as described
below. Following the end of the five (5) year term, on each anniversary of the
Effective Date before a Change in Control, the term of the Plan shall be
automatically extended to continue for an additional one (1) year period, unless
the Board, by vote of a majority of the entire Board, determines before the
anniversary date that the term will not be extended. If a Change in Control
occurs during the term of the Plan, the Plan shall continue in full force and
effect and shall not terminate or expire until all Participants who become
entitled to payments hereunder shall have received such payments in full.
13. Amendment and Termination. The Plan may be terminated or amended in
any respect by resolution adopted by a majority of the Incumbent Board, unless a
Change in Control has previously occurred. If a Change in Control occurs, the
Plan shall no longer be subject to amendment, change, substitution, deletion,
revocation or termination in any respect whatsoever.
14. Form of Amendment. The form of any amendment or termination of the
Plan shall be a written instrument signed by a duly authorized officer or
officers of the Company, certifying that the amendment or termination has been
approved by the Incumbent Board. An amendment of the Plan shall automatically
effect a corresponding amendment to all Participant's rights hereunder. A
termination of the Plan shall automatically effect a termination of all
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Participants' rights and benefits hereunder.
15. Withholding Taxes. The Company may directly or indirectly withhold
from any payments made under the Plan all Federal, state, city or other taxes as
shall be required pursuant to any law or governmental regulation or ruling.
16. Indemnification. If a Participant institutes any legal action in
seeking to obtain or enforce, or is required to defend any legal action
regarding the validity or enforceability of, any right or benefit provided by
the Plan, the Company will, if the Participant substantially prevails in such
action, pay for all reasonable legal fees and expenses incurred by such
Participant.
17. Employment Status. The Plan does not constitute a contract of
employment or impose on the Participant or the Company or any of its affiliated
companies any obligation to retain the Participant as an employee, to change the
status of the Participant's employment, or to change the Company's policies or
those of its affiliated companies regarding termination of employment. The
employment of any Participant by the Company is "at will" and, prior to the
Effective Date, the Participant's employment may be terminated by either the
Participant or the Company at any time, in which case the Participant shall have
no further rights under the Plan.
18. No Attachment. Except as required by law, no right to receive
payments under the Plan shall be subject to anticipation, commutation,
alienation, sale, assignment, encumbrance, charge, pledge, or hypothecation 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
be null, void and of no effect.
19. Source of Payment. All payments provided for under the Plan shall
be paid in cash from the general funds of the Company. The Company shall not be
required to establish a special or separate fund or other segregation of assets
to assure such payments, and, if the Company shall make any investments to aid
it in meeting its obligations hereunder, the Participants shall have no right,
title or interest whatever in or to such investments except as may otherwise be
expressly provided in a separate written instrument relating to such
investments. Nothing contained in the Plan, and no action taken pursuant to its
provisions, shall create or be construed to create a trust of any kind, or a
fiduciary relationship, between the Company and a Participant or any other
person. To the extent that any person acquires a right to receive payments from
the Company hereunder, such right shall be no greater than the right of an
unsecured general creditor of the Company.
20. Validity and Severability. The invalidity or unenforceability of
any provision of the Plan shall not affect the validity or enforceability of any
other provisions of the Plan, which shall remain in full force and effect, and
any prohibition of enforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
21. Governing Law. The validity, interpretation, construction and
performance of the Plan shall in all respects be governed by the laws of the
State of Connecticut, without reference to principles of conflict of laws.
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22. Named Fiduciary and Administrator. For the purposes of the Employee
Retirement Income Security Act of 1974, the Company shall be the "named
fiduciary" and the "Administrator" of the Plan. The Plan Administrator shall
operate, interpret and implement the Plan. The Plan Administrator shall have all
such powers as are necessary to discharge its duties, including, but not limited
to, the interpretation and construction of all provisions of the Plan, the
determination of all questions of eligibility, participation, benefits and all
other related or incidental matters, and such duties and powers of Plan
administration which are not assumed from time to time by any other appropriate
entity, individual, or institution. The Plan Administrator shall decide all such
questions and its decisions and determinations that are not arbitrary and
capricious shall be binding and conclusive on the Company, the Participant, the
Participant's designee, and the Participant's spouse or other dependent or
beneficiary, employees, and all other interested parties. The Plan Administrator
may require each Participant to submit, in such form as it shall deem reasonable
and acceptable, proof of any information which the Plan Administrator finds
necessary or desirable for the proper administration of the Plan.
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