Exhibit 10(z)
ALCOA INC.
CHANGE IN CONTROL
SEVERANCE PLAN
The Company hereby adopts, as of January 11, 2002, the Alcoa Inc.
Change in Control Severance Plan for the benefit of certain employees of the
Company and its subsidiaries, on the terms and conditions hereinafter stated.
All capitalized terms used herein are defined in Section 1 hereof.
Section 1. DEFINITIONS. As hereinafter used:
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1.1 "Affiliate" shall have the meaning set forth in Rule 12b-2 under
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Section 12 of the Exchange Act.
1.2 "Applicable Multiplier" shall mean three (3); provided, however,
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that, with respect to an Eligible Employee who incurs a Severance during the
three year period immediately preceding such individual's Mandatory Retirement
Age, such multiplier shall be equal to (x) the number of full and partial months
remaining until such Eligible Employee attains Mandatory Retirement Age, (y)
divided by twelve.
1.3 "Applicable Period" shall mean the thirty-six (36) month period
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immediately following an Eligible Employee's Severance Date; provided, however,
that, with respect to an Eligible Employee who incurs a Severance during the
three year period immediately preceding such individual's Mandatory Retirement
Age, the Applicable Period shall mean the period remaining until such Eligible
Employee attains Mandatory Retirement Age.
1.4 "Beneficial Owner" shall have the meaning set forth in Rule 13d-3
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under the Exchange Act.
1.5 "Board" means the Board of Directors of the Company.
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1.6 "Cause" means: (i) the willful and continued failure by the
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Eligible Employee to substantially perform the Eligible Employee's duties with
the Employer that has not been cured within thirty (30) days after a written
demand for substantial performance is delivered to the Eligible Employee by the
Board, which demand specifically identifies the manner in which the Board
believes that the Eligible Employee has not substantially performed the Eligible
Employee's duties, or (ii) the willful engaging by the Eligible Employee in
conduct which is demonstrably and materially injurious to the Company,
monetarily or otherwise. For purposes of clauses (i) and (ii) of this
definition, (x) no act, or failure to act, on the Eligible Employee's part shall
be deemed "willful" unless done, or omitted to be done, by the
Eligible Employee not in good faith and without reasonable belief that the
Eligible Employee's act, or failure to act, was in the best interest of the
Company and (y) in the event of a dispute concerning the application of this
provision, no claim by the Company that Cause exists shall be given effect
unless the Company establishes to the Board by clear and convincing evidence
that Cause exists and the Board finding to that effect is adopted by the
affirmative vote of not less than three quarters (3/4) of the entire membership
of the Board (after reasonable notice to the Eligible Employee and an
opportunity for the Eligible Employee, together with the Eligible Employee's
counsel, to be heard by the Board).
1.7 "Change in Control" shall be deemed to have occurred if the event
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set forth in any one of the following paragraphs shall have occurred:
(a) the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals who, as of the
date hereof, constitute the Board and any new director (other than a director
whose initial assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent solicitation, relating
to the election of directors of the Company) whose appointment or election by
the Board or nomination for election by the Company's shareholders was approved
or recommended by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors on the date hereof or whose
appointment, election or nomination for election was previously so approved or
recommended;
(b) there is consummated a merger or consolidation of the Company or
any direct or indirect subsidiary of the Company with any other corporation or
other Entity where one of the following is true (i) such merger or
consolidation, as applicable, results in the voting securities of the Company
outstanding immediately prior to such merger or consolidation no longer
representing (either by remaining outstanding or by being converted into voting
securities of the surviving Entity or any parent thereof) at least 55% of the
combined voting power of the stock and securities of the Company or such
surviving Entity or any parent thereof outstanding immediately after such merger
or consolidation, or (ii) immediately following such merger or consolidation, as
applicable, the individuals who comprise the board of directors of the Company
immediately prior to such merger or consolidation no longer constitute at least
a majority of the board of directors of the Company, the surviving Entity or any
parent thereof;
(c) the sale or disposition by the Company of all or substantially
all of the Company's assets other than a sale or disposition by the Company of
all or substantially all of the assets to an Entity at least 55% of the combined
voting power
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of the stock and securities of which is owned by the shareholders of the Company
in substantially the same proportions as their ownership of the Company's voting
stock immediately prior to such sale; or
(d) the shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company.
1.8 "Code" means the Internal Revenue Code of 1986, as it may be
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amended from time to time.
1.9 "Committee" means the Compensation Committee of the Board.
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1.10 "Company" means Alcoa Inc., or any successors thereto.
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1.11 "DB Pension Plan" means any tax-qualified, supplemental or excess
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defined benefit pension plan maintained by the Company or any of its Affiliates
and any other defined benefit plan or agreement entered into between the
Eligible Employee and the Company or any of its Affiliates which is designed to
provide the Eligible Employee with supplemental defined benefit retirement
benefits.
1.12 "DC Pension Plan" means any tax-qualified, supplemental or excess
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defined contribution plan maintained by the Company or any of its Affiliates and
any other defined contribution plan or agreement entered into between the
Eligible Employee and the Company or any of its Affiliates which is designed to
provide the Eligible Employee with supplemental defined contribution retirement
benefits.
1.13 "Eligible Employee" means any Tier I, Tier II or Tier III
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Employee. An Eligible Employee becomes a "Severed Employee" once he or she
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incurs a Severance.
1.14 "Employer" means the Company or any of its subsidiaries which is
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an employer of the Eligible Employee.
1.15 "Entity" means any individual, entity, person (within the meaning
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of Section 3(a)(9) of the Exchange Act or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Exchange Act), other than (i) an employee plan of
the Company or any of its Affiliates, (ii) any Affiliate of the Company, (iii)
an underwriter temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly or indirectly, by shareholders
of the Company in substantially the same proportions as their ownership of the
Company.
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1.16 "Exchange Act" shall mean the Securities Exchange Act of 1934,
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as amended from time to time.
1.17 "Excise Tax" shall mean any excise tax imposed under section 4999
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of the Code.
1.18 "Good Reason" in respect of an Eligible Employee means the
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occurrence, after a Change in Control (or prior to a Change in Control, under
the circumstances described in the second sentence of Section 1.24 hereof,
treating all references below to a "Change in Control" as references to a
"Potential Change in Control"), of:
(i) the assignment to the Eligible Employee of any duties
inconsistent with the Eligible Employee's employment status with the Employer
immediately prior to the Change in Control or a substantial adverse alteration
in the nature or status of the Eligible Employee's responsibilities from those
in effect immediately prior to the Change in Control, including, but not limited
to, (x) with respect to a Tier I Employee, the Eligible Employee's ceasing to
hold the office as the sole chief executive officer of the Company (or its
parent or successor) and to function in that capacity, reporting directly to the
board of directors of a public company, and (y) with respect to a Tier II
Employee, the Eligible Employee's ceasing to report directly to the chief
executive officer of a public company;
(ii) a reduction by the Company in the Eligible Employee's
total compensation and benefits in the aggregate from that in effect immediately
prior to the Change in Control. Total compensation and benefits includes, but is
not limited to (1) annual base salary, annual variable compensation opportunity
(taking into account applicable performance criteria and the target bonus amount
of annual variable compensation); (2) long term stock-based and cash incentive
opportunity (taking into account applicable performance criteria and the target
stock option amount); and (3) benefits and perquisites under pension, savings,
life insurance, medical, health, disability, accident and material fringe
benefit plans of the Company or its subsidiaries or Affiliates in which the
Eligible Employee was participating immediately before the Change in Control;
(iii) the relocation of the Eligible Employee's principal place
of employment to a location more than fifty (50) miles from the Eligible
Employee's principal place of employment immediately prior to the Change in
Control; or
(iv) the failure by the Employer to pay to the Eligible
Employee any portion of the Eligible Employee's compensation, within fourteen
(14) days of the date such compensation is due.
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The Eligible Employee's right to terminate the Eligible Employee's
employment for Good Reason shall not be affected by the Eligible Employee's
incapacity due to physical or mental illness. The Eligible Employee's continued
employment shall not constitute consent to, or a waiver of rights with respect
to, any act or failure to act constituting Good Reason hereunder. For purposes
of any determination regarding the existence of Good Reason, any good faith
determination by the Eligible Employee that Good Reason exists shall be
conclusive. Notwithstanding anything in this Section 1.18 to the contrary, any
termination of employment by a Tier I Employee or a Tier II Employee, whether
voluntary or involuntary, for any reason or no reason, within a thirty (30) day
period commencing on a date six months immediately following a Change in Control
shall be deemed to constitute a termination for Good Reason hereunder.
1.19 "Gross-Up Payment" shall have the meaning set forth in Section
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2.2 hereof.
1.20 "Mandatory Retirement Age" shall have the meaning set forth in
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the Company's Mandatory Retirement Policy or its successor policy.
1.21 "Notice of Termination" shall have the meaning set forth in
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Section 3.6.
1.22 "Plan" means the Alcoa Inc. Change in Control Severance Plan, as
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set forth herein, as it may be amended from time to time.
1.23 A "Potential Change in Control" shall be deemed to have occurred
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if the event set forth in any one of the following paragraphs shall have
occurred:
(a) the Company enters into an agreement, the consummation of which
would result in the occurrence of a Change in Control; or
(b) any Entity becomes the Beneficial Owner, directly or indirectly,
of securities of the Company representing 20% or more of either the then
outstanding shares of common stock of the Company or the combined voting power
of the Company's then outstanding securities and the Board determines the Entity
intends to effect a Change in Control.
1.24 "Severance" means the termination of an Eligible Employee's
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employment with the Employer on or within three years immediately following the
date of the Change in Control, (x) by the Employer other than for Cause, or (y)
by the Eligible Employee for Good Reason. In addition, for purposes of this
Plan, the
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Eligible Employee shall be deemed to have incurred a Severance, if (i) the
Eligible Employee's employment is terminated by the Employer without Cause prior
to a Change in Control (whether or not a Change in Control ever occurs) and such
termination was at the request or direction of an Entity who has entered into an
agreement with the Company the consummation of which would constitute a Change
in Control or (ii) the Eligible Employee terminates his employment for Good
Reason prior to a Change in Control (whether or not a Change in Control ever
occurs) and the circumstance or event which constitutes Good Reason occurs at
the request or direction of such Entity. For purposes of any determination
regarding the applicability of the immediately preceding sentence, any position
taken by the Eligible Employee shall be presumed to be correct unless the
Company establishes to the Board by clear and convincing evidence that such
position is not correct. An Eligible Employee will not be considered to have
incurred a Severance if his or her employment is discontinued by reason of the
Eligible Employee's death or a physical or mental condition causing such
Eligible Employee's inability to substantially perform his or her duties with
the Company, including, without limitation, such condition entitling him or her
to benefits under any sick pay or disability income policy or program of the
Company.
1.25 "Severance Date" means the date specified in the Notice of
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Termination, as provided in Section 3.6 (which, in the case of a termination by
the Company, shall not be less than thirty (30) days and, in the case of a
termination by the Eligible Employee, shall not be less than fifteen (15) days
nor more than sixty (60) days, respectively, from the date such Notice of
Termination is given).
1.26 "Severance Pay" means the payment determined pursuant to Section
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2.1(a) hereof.
1.27 "Tier I Employee" means the Chief Executive Officer of the
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Company.
1.28 "Tier II Employee" means the Chief Financial Officer, the General
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Counsel and the Vice President-Corporate Development of the Company, or such
other officer (other than an assistant officer) of the Company as the Committee
determines.
1.29 "Tier III Employee" means (i) any officer (other than an
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assistant officer) of the Company and (ii) any such other key executive of the
Company or any of its subsidiaries or Affiliates as the Committee determines,
which employee, in each case, is not a Tier I Employee or Tier II Employee.
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Section 2. BENEFITS.
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2.1 Severance Payments and Benefits. Each Eligible Employee who
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incurs a Severance shall be entitled, subject to Section 2.4, to receive the
following payments and benefits from the Company.
(a) Severance Pay equal to the product of (i) the sum of (x) the
Severed Employee's annual base salary, and (y) his or her target annual variable
compensation with respect to the year in which the Change in Control occurs, and
(ii) the Applicable Multiplier. For purposes of this Section 2.1(a), annual base
salary shall be the higher of (i) base monthly salary in the calendar month
immediately preceding a Change in Control or (ii) base monthly salary in the
calendar month immediately preceding the Severed Employee's Severance Date (in
either case without regard to any reductions therein which constitute Good
Reason) multiplied by twelve.
(b) During the Applicable Period, the Company shall arrange to
provide the Severed Employee and anyone entitled to claim through the Severed
Employee life, accident and health (including medical, behavioral, prescription
drug, dental and vision) benefits substantially similar to those provided to the
Severed Employee and anyone entitled to claim through the Severed Employee
immediately prior to Employee's Severance Date or, if more favorable to the
Severed Employee, those provided to the Severed Employee and those entitled to
claim through the Severed Employee immediately prior to the first occurrence of
an event or circumstance constituting Good Reason, at no greater after tax cost
to the Severed Employee than the after tax cost to the Severed Employee
immediately prior to such Severance Date or occurrence. Benefits otherwise
receivable by the Severed Employee pursuant to this Section 2.1(b) shall be
reduced to the extent benefits of the same type are received by or made
available to the Severed Employee during the Applicable Period (and any such
benefits received by or made available to the Severed Employee shall be reported
to the Company by the Severed Employee); provided, however, that the Company
shall reimburse the Severed Employee for the excess, if any, of the after-tax
cost of such benefits to the Severed Employee over such cost immediately prior
to the Severed Employee's Severance Date or, if more favorable to the Severed
Employee, the first occurrence of an event or circumstance constituting Good
Reason.
(c) In addition to the retirement benefits to which the Severed
Employee is entitled under each DC Pension Plan or any successor plan thereto,
the Company shall pay the Severed Employee a lump sum amount, in cash, equal to
the product of (i) the value of contributions or allocations actually made by
the Company
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to all DC Pension Plans, on behalf of the employee, with respect to the calendar
year immediately preceding the year in which the Change in Control occurs (but
assuming such contributions and allocations had been based on the annualized
base salary plus target annual variable compensation as determined in Section
2.1(a)) and (ii) the Applicable Multiplier. Such contributions or allocations
shall specifically not include any employee deferrals or contributions, or any
earnings.
(d) In addition to the retirement benefits to which the Severed
Employee is entitled under each DB Pension Plan or any successor plan thereto,
the Company shall pay the Severed Employee a lump sum amount, in cash, equal to
the excess of the actuarial equivalent of the aggregate retirement pension
(taking into account any early retirement subsidies associated therewith and
determined in accordance with each of the DB Pension Plan's normal form of
payment, commencing at the date (but in no event earlier than the end of the
Applicable Period) as of which the actuarial equivalent of such form of payment
is greatest) which the Severed Employee would have accrued under the terms of
all DB Pension Plans determined:
(i) without regard to any amendment to any DB Pension Plan
made subsequent to a Change in Control and on or prior to the
date of the Severed Employee's Severance Date, which amendment
adversely affects in any manner the computation of retirement
benefits thereunder, and
(ii) as if the Severed Employee were fully vested
thereunder, and
(iii) as if the Severed Employee had accumulated (after the
Severed Employee's Severance Date) a number of additional months of age
and service credit thereunder as if the Severed Employee had remained
employed by the Company during the Applicable Period (for all such
purposes of determining pension benefits and eligibility for such
benefits including all applicable retirement subsidies), and
(iv) as if the Severed Employee had been credited under
each DB Pension Plan compensation for each full calendar month during
the Applicable Period following the calendar month of the Severed
Employee's Severance Date equal to the Severed Employee's annualized
base salary plus target annual variable compensation as determined in
Section 2.1(a) divided by twelve
over
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the actuarial equivalent of the aggregate retirement pension (taking into
account any early retirement subsidies associated therewith and determined in
accordance with each of the DB Pension Plan's normal form of payment commencing
at the date (but in no event earlier than the Severed Employee's Severance Date)
as of which the actuarial equivalent of such form of payment is greatest) which
the Severed Employee had accrued pursuant to the provisions of the DB Pension
Plans as of the Severed Employee's Severance Date.
For purposes of this Section 2.1(d), "actuarial equivalent" shall be determined
based upon the Severed Employee's age as of the Severed Employee's Severance
Date using the same assumptions utilized under the Alcoa Retirement Plan I,
Section 8.3(d)(ii) or the successor to such provision (without regard to
applicable dollar limitations ($5,000 as of January 1, 2002)) immediately prior
to the Severed Employee's Severance Date or, if more favorable to the Severed
Employee, immediately prior to the first occurrence of an event or circumstance
constituting Good Reason.
(e) If the Severed Employee would have become entitled to
benefits under the Company's post-retirement health care or life insurance
plans, as in effect immediately prior to the Severed Employee's Severance Date
or, if more favorable to the Severed Employee, as in effect immediately prior to
the first occurrence of an event or circumstance constituting Good Reason, had
the Severed Employee's employment terminated at any time during the Applicable
Period, the Company shall provide such post-retirement health care or life
insurance benefits to the Severed Employee and the Severed Employee's dependents
commencing on the later of (i) the date on which such coverage would have first
become available and (ii) the date on which benefits described in 2.1(b)
terminate. Any such benefit, which is dependent on service or compensation shall
be determined as if the Severed Employee had accumulated (after the Severed
Employee's Severance Date) a number of additional months of age and service
credit thereunder as if the Severed Employee had remained employed by the
Company up to the foregoing commencement date, and as if the Severed Employee
had been credited with compensation for each full calendar month following the
calendar month of the Severed Employee's Severance Date up to the foregoing
commencement date equal to the Severed Employee's annualized based salary as
determined in Section 2.1(a) divided by twelve plus the Severed Employee's
target annual variable compensation as determined in Section 2.1(a) divided by
twelve. Except for the additional service and compensation during the Applicable
Period, nothing herein is intended to provide the Severed Employee with
benefits, which exceed the benefits provided to other participants in said post-
retirement health care or life insurance plans.
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(f) The Company shall provide the Severed Employee with
outplacement services suitable to the Severed Employee's position for a period
of six (6) months or, if earlier, until the first acceptance by the Severed
Employee of an offer of employment.
The amounts described in Sections 2.1(a), (c) and (d) shall be paid to
the Severed Employee in a cash lump sum, as soon as practicable following the
Severance Date, but in no event later than twenty (20) business days immediately
following the later of (x) the Severance Date or (y) the expiration of the
revocation period, if any, applicable to such Severed Employee's release,
described in Section 2.4.
2.2 Gross-Up Payment.
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(a) Whether or not an Eligible Employee incurs a Severance, if
any of the payments or benefits received or to be received by the Eligible
Employee in connection with a Change in Control or the Eligible Employee's
termination of employment (whether pursuant to the terms of this Plan or any
other plan, arrangement or agreement) (all such payments and benefits, excluding
the Gross-Up Payment, being hereinafter referred to as the "Total Payments")
will be subject to the Excise Tax, the Company shall pay to the Eligible
Employee an additional amount (the "Gross-Up Payment") such that the net amount
retained by the Eligible Employee, after deduction of any Excise Tax on the
Total Payments and any federal, state and local income and employment taxes and
Excise Tax upon the Gross-Up Payment, and after taking into account the phase
out of itemized deductions and personal exemptions attributable to the Gross-Up
Payment, shall be equal to the Total Payments.
(b) For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amount of such Excise Tax,
(i) all of the Total Payments shall be treated as "parachute payments" (within
the meaning of section 280G(b)(2) of the Code) unless, in the opinion of tax
counsel, a compensation consultant or accountant of recognized standing (the
"Expert") reasonably acceptable to the Eligible Employee and selected by the
accounting firm which was, immediately prior to the Change in Control, the
Company's independent auditor (the "Auditor"), such payments or benefits (in
whole or in part) do not constitute parachute payments, including by reason of
section 280G(b)(4)(A) of the Code, (ii) all "excess parachute payments" within
the meaning of section 280G(b)(l) of the Code shall be treated as subject to the
Excise Tax unless, in the opinion of the Expert, such excess parachute payments
(in whole or in part) represent reasonable compensation for services actually
rendered (within the meaning of section
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280G(b)(4)(B) of the Code) in excess of the Base Amount allocable to such
reasonable compensation, or are otherwise not subject to the Excise Tax, and
(iii) the value of any noncash benefits or any deferred payment or benefit shall
be determined by the Auditor in accordance with the principles of sections
280G(d)(3) and (4) of the Code. For purposes of determining the amount of the
Gross-Up Payment, the Eligible Employee shall be deemed to pay federal income
tax at the highest marginal rate of federal income taxation in the calendar year
in which the Gross-Up Payment is to be made and state and local income taxes at
the highest marginal rate of taxation in the state and locality of the Eligible
Employee's residence on the Eligible Employee's Severance Date (or if there is
no Severance Date, then the date on which the Gross-Up Payment is calculated for
purposes of this Section 2.2) net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes.
(c) In the event that the Excise Tax is finally determined to be
less than the amount taken into account hereunder in calculating the Gross-Up
Payment, the Eligible Employee shall repay to the Company, within five (5)
business days following the time that the amount of such reduction in the Excise
Tax is finally determined, the portion of the Gross-Up Payment attributable to
such reduction (plus that portion of the Gross-Up Payment attributable to the
Excise Tax and federal, state and local income and employment taxes imposed on
the Gross-Up Payment being repaid by the Eligible Employee), to the extent that
such repayment results in a reduction in the Excise Tax and a dollar-for-dollar
reduction in the Eligible Employee's taxable income and wages for purposes of
federal, state and local income and employment taxes, plus interest on the
amount of such repayment at 120% of the rate provided in section 1274(b)(2)(B)
of the Code. In the event that the Excise Tax is determined to exceed the amount
taken into account hereunder in calculating the Gross-Up Payment (including by
reason of any payment the existence or amount of which cannot be determined at
the time of the Gross-Up Payment), the Company shall make an additional Gross-Up
Payment in respect of such excess (plus any interest, penalties or additions
payable by the Eligible Employee with respect to such excess) within five (5)
business days following the time that the amount of such excess is finally
determined. The Eligible Employee and the Company shall each reasonably
cooperate with the other in connection with any administrative or judicial
proceedings concerning the existence or amount of liability for Excise Tax with
respect to the Total Payments.
(d) The Gross-Up Payment shall be paid on the thirtieth (30) day
(or such earlier date as the Excise Tax becomes due and payable to the taxing
authorities) after it has been determined that the Total Payments are subject to
the Excise Tax; provided however, that if the amount of the Gross-Up Payment or
any
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portion thereof cannot be finally determined on or before that day, the Company
shall pay to the Eligible Employee on such date an estimate as determined by the
Auditor until such point in time that the final determination of the Gross-Up
Payment can occur. Notwithstanding the foregoing, payments may be delayed until
the expiration of the revocation period, if any, applicable to such Eligible
Employee's release described in Section 2.4.
(e) The Eligible Employee shall notify the Company in writing of
any claim by the Internal Revenue Service that, if successful, would require the
payment by the Company of any additional Gross-Up Payment pursuant to Section
2.2(c). Such notification shall be given as soon as practicable but no later
than ten (10) business days after the Eligible Employee is informed in writing
of such claim and shall apprise the Company of the nature of such claim and date
on which the Company must respond to contest the claim. If the Company provides
timely notice to the Eligible Employee in writing that it desires to contest
such claim, the Eligible Employee shall (i) give the Company any information
reasonably requested by the Company relating to such claim; (ii) take such
action in connection with contesting such claim, as the Company shall reasonably
request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably
selected by the Company; (iii) cooperate with the Company in good faith in order
effectively to contest such claim; and (iv) permit the Company to participate in
any proceeding relating to such claim. The Company shall bear and pay directly
all costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Eligible Employee
harmless on an after-tax basis, for any Excise tax or income tax including
interest and penalties with respect hereto) imposed as a result of such
representation and payment of cost and expenses. Without limiting the foregoing,
the Company shall control all proceedings taken in connection with such contest
and at its sole option, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect of
such claim and may at its sole option either direct the Eligible Employee to pay
the tax claimed and sue for a refund or contest the claim in any permissible
manner, and the Eligible Employee agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts as the Company shall determine.
Provided however if the Company directs the Eligible Employee to pay such claim
and sue for a refund, the Company shall advance the amount of the payment to the
Eligible Employee on an interest-free basis and shall indemnify and hold the
Eligible Employee harmless on an after-tax basis from any Excise Tax or income
tax imposed with respect to such advance or with respect to such imputed income
with respect to such advance and further provided that any extension of the
statute of limitation relating to such payment of taxes for the taxable
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year of the Eligible Employee with respect to which such contested amount is
claimed to be due is limited solely to such contested amount. Furthermore, the
Company's control of the contest and reimbursement for the expenses shall be
limited to issues with respect to which an additional Gross-Up Payment would be
payable hereunder and the Eligible Employee shall be entitled to settle or
contest as the case may be, any other issue raised by the Internal Revenue
Service or any other taxing authority. If after the receipt by the Eligible
Employee of an amount advanced by the Company, the Eligible Employee becomes
entitled to receive any refund with respect to such claims, the Eligible
Employee shall promptly pay to the Company the amount of such refund (together
with any interest paid or credited thereon after taxes applicable thereto). If,
after the receipt by the Eligible Employee of an amount advanced by the Company
pursuant to the above section, a determination is made that the Eligible
Employee shall not be entitled to any refund with respect to such claim and the
Company does not notify the Eligible Employee in writing of its intent to
contest such denial of refund prior to the expiration of thirty (30) days after
such determination, then such advance shall be forgiven and shall not be
required to be repaid and the amount of such advance shall off-set to the extent
thereof the amount of Gross-Up Payment required to be paid.
2.3 Legal Fees. The Company shall pay to the Eligible Employee all
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legal fees and expenses incurred by the Eligible Employee in disputing in good
faith any issue hereunder or in seeking in good faith to obtain or enforce any
benefit or right provided by this Plan; provided, that the payment of legal fees
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hereunder by the Company shall not be required if the Eligible Employee pursues
such dispute in a manner inconsistent with the provisions of Sections 3.4 and
3.5 hereof; and provided further, that, the Eligible Employee shall be required
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to repay any such amounts to the Company to the extent that an arbitrator issues
a final, unappealable order setting forth a determination that the position
taken by the Eligible Employee was frivolous or advanced in bad faith. Subject
to Section 2.2(e) hereof, the Company shall pay to the Eligible Employee all
legal fees and expenses incurred in connection with any tax audit or proceeding
to the extent attributable to the application of section 4999 of the Code to any
payment or benefit provided hereunder. Such payments shall be made within
fourteen (14) business days after delivery of the Eligible Employee's written
requests for payment accompanied with such evidence of fees and expenses
incurred as the Company reasonably may require.
2.4 Release. No Severed Employee shall be eligible to receive
-------
Severance Pay or other benefits under the Plan unless and until he or she first
executes a written release substantially in the form attached hereto as Schedule
A (the "Release") (or, if the Severed Employee is not a United States employee,
a
13
similar release which is in accordance with the applicable laws of the relevant
jurisdiction), and such release becomes effective by its terms.
2.5 Withholding. The Company shall be entitled to withhold from
-----------
amounts to be paid to the Severed Employee hereunder any federal, state or local
withholding or other taxes or charges (or foreign equivalents of such taxes or
charges) which it is from time to time required to withhold.
2.6 Status of Plan Payments. Neither Severance Pay nor any payment
-----------------------
made pursuant to Section 2.1(c) or (d) hereof shall constitute "compensation"
(or similar term) under the Company's and its Affiliates' employee benefit
plans, including any DB Pension Plan or DC Pension Plan.
2.7 Mitigation; Setoff. The Severed Employee is not required to seek
------------------
other employment or attempt in any way to reduce any amounts payable to him or
her under the Plan. Further, except as specifically provided in Section 2.1(b),
no payment or benefit provided for in this Plan shall be reduced by any
compensation earned by the Severed Employee as a result of employment by another
employer, by retirement benefits, by offset against any amount claimed to be
owed by the Severed Employee to the Company or its Affiliates, or otherwise.
Section 3. PLAN ADMINISTRATION; CLAIMS PROCEDURES.
--------------------------------------
3.1 The Committee shall administer the Plan and may interpret and
construe the terms of the Plan, prescribe, amend and rescind rules and
regulations under the Plan and make all other determinations necessary or
advisable for the administration of the Plan, subject to all of the provisions
of the Plan, including, without limitation, Section 3.4. Any determination by
the Committee shall be final and binding with respect to the subject matter
thereof on all Eligible Employees.
3.2 The Committee may delegate any of its duties hereunder to such
person or persons from time to time as it may designate.
3.3 The Committee is empowered, on behalf of the Plan, to engage
accountants, legal counsel and such other personnel as it deems necessary or
advisable to assist it in the performance of its duties under the Plan. The
functions of any such persons engaged by the Committee shall be limited to the
specified services and duties for which they are engaged, and such persons shall
have no other duties, obligations or responsibilities under the Plan. Such
persons shall exercise no discretionary authority or discretionary control
respecting the management of the Plan. All reasonable expenses thereof shall be
borne by the Company.
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3.4 In the event of a claim by an Severed Employee, such Severed
Employee shall present the reason for his or her claim, dispute or controversy
in writing to the Committee. The Committee shall, within sixty (60) days after
receipt of such written claim, dispute or controversy, send a written
notification to the Severed Employee as to its disposition. In the event the
claim, dispute or controversy is wholly or partially denied, such written
notification shall (i) state the specific reason or reasons for the denial, (ii)
make specific reference to pertinent Plan provisions on which the denial is
based, (iii) provide a description of any additional material or information
necessary for the Severed Employee to perfect the claim, dispute or controversy
and an explanation of why such material or information is necessary, and (iv)
set forth the procedure by which the Severed Employee may appeal the denial of
his or her claim, dispute or controversy. In the event a Severed Employee wishes
to appeal the denial of his or her claim, dispute or controversy he or she may
request a review of such denial by making application in writing to the
Committee within sixty (60) days after receipt of such denial. Such Severed
Employee (or his or her duly authorized legal representative) may, upon written
request to the Committee, review any documents pertinent to his or her claim,
dispute or controversy and submit in writing, issues and comments in support of
his or her position. Within sixty (60) days after receipt of a written appeal
(unless special circumstances require an extension of time, but in no event more
than one hundred twenty (120) days after such receipt), the Committee shall
notify the Severed Employee of the final decision. The final decision shall be
in writing and shall include specific reasons for the decision, written in a
manner calculated to be understood by the claimant, and specific references to
the pertinent Plan provisions on which the decision is based. Notwithstanding
the foregoing, any claim, dispute or controversy regarding whether an Eligible
Employee was terminated for Cause shall be submitted to the Board in accordance
with Section 1.6, and upon the mutual agreement of the Severed Employee and the
Committee, any claim, dispute or controversy that has been submitted by the
Severed Employee in writing to the Committee may be submitted directly to
arbitration in accordance with Section 3.5.
3.5 Except with respect to any dispute or controversy arising under
the Release, any unresolved claim, dispute or controversy arising under or in
connection with the Plan, and which is not resolved in accordance with Section
3.4, shall be settled exclusively by arbitration in New York City or at any
other mutually agreed upon location. All claims, disputes and controversies
shall be submitted to the CPR Institute for Dispute Resolution ("CPR") in
accordance with the CPR's rules then in effect; provided, however, that the
evidentiary standards set forth in this Agreement shall apply. The claim,
dispute or controversy shall be heard and decided by three arbitrators selected
from CPR's employment panel. The arbitrator's
15
decision shall be final and binding on all parties. Judgment may be entered on
the arbitrator's award in any court having jurisdiction.
3.6 Any purported termination of an Eligible Employee's
employment shall be communicated by written Notice of Termination from one party
hereto to the other party in accordance with Section 5.8. For purposes of this
Agreement, a "Notice of Termination" shall mean a notice which shall indicate
the specific termination provision in this Plan relied upon and shall set forth
in reasonable detail the facts and circumstances claimed to provide a basis for
termination of the Eligible Employee's employment under the provision so
indicated.
Section 4. PLAN MODIFICATION OR TERMINATION.
--------------------------------
The Plan may be amended or terminated by the Board at any time;
provided, however, that the Committee may make amendments to the Plan (i) that
are required by law, (ii) that will have minimal effect upon the Company's cost
of providing benefits, or (iii) that do not change or alter the character and
intent of the Plan; and further provided that the Plan may not be terminated or
amended within three years immediately following a Change in Control.
Section 5. GENERAL PROVISIONS.
------------------
5.1 Except as otherwise provided herein or by law, no right or
interest of any Eligible Employee under the Plan shall be assignable or
transferable, in whole or in part, either directly or by operation of law or
otherwise, including without limitation by execution, levy, garnishment,
attachment, pledge or in any manner; no attempted assignment or transfer thereof
shall be effective; and no right or interest of any Eligible Employee under the
Plan shall be liable for, or subject to, any obligation or liability of such
Eligible Employee. When a payment is due under this Plan to an Eligible Employee
who is unable to care for his or her affairs, payment may be made directly to
his or her legal guardian or personal representative.
5.2 If the Company is obligated by law or by contract to pay
severance pay, a termination indemnity, notice pay, or the like, or if the
Company is obligated by law to provide advance notice of separation ("Notice
Period"), then any Severance Pay hereunder shall be reduced by the amount of any
such severance pay, termination indemnity, notice pay or the like, as
applicable, and by the amount of any compensation received during any Notice
Period (but not below zero). Except as set forth in the immediately preceding
sentence, nothing herein is intended to
16
affect an employee's rights under any unemployment law or severance contract or
plan.
5.3 Neither the establishment of the Plan, nor any modification
thereof, nor the creation of any fund, trust or account, nor the payment of any
benefits shall be construed as giving any Eligible Employee, or any person
whomsoever, the right to be retained in the service of the Company, and all
Eligible Employees shall remain subject to discharge to the same extent as if
the Plan had never been adopted.
5.4 If any provision of this Plan shall be held invalid or
unenforceable, such invalidity or unenforceability shall not affect any other
provisions hereof, and this Plan shall be construed and enforced as if such
provisions had not been included.
5.5 This Plan shall inure to the benefit of and be binding upon the
heirs, executors, administrators, successors and assigns of the parties,
including each Eligible Employee, present and future, and any successor to the
Company. If an Eligible Employee shall die while any amount would still be
payable to such Eligible Employee hereunder if the Eligible Employee had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Plan to the executor, personal
representative or administrators of the Eligible Employee's estate.
5.6 The headings and captions herein are provided for reference and
convenience only, shall not be considered part of the Plan, and shall not be
employed in the construction of the Plan.
5.7 The Plan shall not be funded. No Eligible Employee shall have any
right to, or interest in, any assets of the Company which may be applied by the
Company to the payment of benefits or other rights under this Plan.
5.8 Any notice or other communication required or permitted pursuant
to the terms hereof shall have been duly given when delivered or mailed by
United States Mail, first class, postage prepaid, addressed to the intended
recipient at his, her or its last known address.
5.9 This Plan shall be construed and enforced according to the laws
of the State of New York to the extent not preempted by federal law, which shall
otherwise control.
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SCHEDULE A
WAIVER AND RELEASE OF CLAIMS AGREEMENT
--------------------------------------
In consideration of, and subject to, the payments and benefits provided
to me pursuant to the Alcoa Inc. Change in Control Severance Plan (the "Plan"),
I agree to this Waiver and Release of Claims Agreement (the "Release Agreement")
as follows:
I hereby waive, release and completely discharge Alcoa Inc. (the
"Company"), its parents, subsidiaries and affiliates, and all of their
respective past and present directors, officers, managers, employees,
shareholders, partners, representatives, agents, attorneys, servants,
predecessors, successors and assigns (collectively, the "Releasees") from any
and all claims, charges, complaints, promises, agreements, controversies, liens,
demands, causes of action, obligations, damages and liabilities of any nature
whatsoever, known or unknown, suspected or unsuspected, arising out of or in any
way relating to my employment with the Company, or the termination thereof,
which against the Company or any of the Releasees, I or my executors,
administrators, successors or assigns ever had, now have, or may hereafter claim
to have against any of the Releasees by reason of any matter, cause or thing
whatsoever arising on or before the date this Release Agreement is executed by
me, and whether or not previously asserted before any state or federal court or
before any state or federal agency or governmental entity (the "Release"). This
Release includes, without limitation, any rights or claims arising under any
statute or regulation, including, in each case as amended, the federal Age
Discrimination in Employment Act of 1967, the Older Workers Benefit Protection
Act, Title VII of the Civil Rights Act of 1964, the Civil Rights Act of 1991,
the Americans with Disabilities Act of 1990, the Employee Retirement Income
Security Act of 1974, the Family and Medical Leave Act of 1993 and the National
Labor Relations Act of 1947, each as amended, the [insert specific state and/or
local anti-discrimination law], or any other federal, state or local law,
regulation, ordinance, or common law, or under any policy, agreement,
understanding or promise, written or oral, formal or informal, between me and
the Company and/or any of the Releasees. I further discharge, indemnify and hold
harmless the Company and the Releasees from any and all liability from such
claims, or claims under any company sponsored internal dispute resolution
process.
I represent that I have not commenced, filed or joined in, and am not a
participant in, any claim, charge, action or proceeding whatsoever against the
Company or any of the Releasees arising out of or relating to any of the matters
set forth in the above Release. By signing this Release Agreement, I further
covenant and agree that I shall not seek or be entitled to any personal recovery
in any claim,
18
charge, action or proceeding that may be commenced on my behalf arising out of
the matters released hereby. Notwithstanding the foregoing or any other
provision hereof, nothing in this Release Agreement shall adversely affect: (i)
my rights under the Plan; (ii) my rights to benefits other than severance
benefits under plans, programs and arrangements of the Company or any subsidiary
or parent of the Company; (iii) my rights to indemnification under any
indemnification agreement, applicable law and the articles of incorporation
and bylaws of the Company and any subsidiary or parent of the Company, and my
rights under any director's and officer's liability insurance policy covering
me; (iv) any claims that may arise after this Release Agreement is executed, or
(v) any claims related to worker's compensation or unemployment compensation. I
agree that neither the Company nor any Releasee has any obligation to reinstate
me or to employ me in the future.
I acknowledge and represent that the Company has advised me to consult
with an attorney of my choosing prior to signing this Release Agreement and that
I have been given forty-five (45) days during which to review and consider the
provisions of this Release Agreement, although I may sign and return it sooner
if I so desire. I further acknowledge and represent that I have been advised by
the Company that I have the right to revoke this Release Agreement for a period
of seven (7) days after signing it. I acknowledge and agree that, if I wish to
revoke this Release Agreement, I must do so in a writing, signed by me and
received by the General Counsel of the Company at the address listed above, no
later than 5:00 p.m. Eastern Standard Time on the seventh (7th) day of the
revocation period. If no such revocation occurs, this Release Agreement shall
become effective on the eighth (8th) day following my execution of this Release
Agreement (the "Effective Date"). I further acknowledge and agree that, in the
event that I revoke this Release Agreement, it shall have no force or effect,
and I shall have no right to receive any payment hereunder. I understand and
agree that the Company is under no obligation to offer the payments set forth in
the Plan, and that I am under no obligation to consent to this Release
Agreement. I acknowledge that the payments made under the Plan are more than
that which I am entitled to receive if I did not enter into this Release
Agreement. I further represent that I have read this Release Agreement, and
understand its terms and that I enter into this Release Agreement freely,
voluntarily, and without coercion.
19
The offer to me of this Release Agreement and the payments and benefits
set forth in the Plan is not intended to, and shall not be construed as, any
admission of liability to me or of any improper conduct on the part of the
Company or the Releasees.
This Release Agreement constitutes the entire agreement among the
parties with respect to the subject matter hereof, and it supersedes any and all
other prior or contemporaneous agreements, discussions, or negotiations with
respect to said subject matter. I represent and acknowledge that in executing
this Release Agreement, I have not relied upon any representation or statement
made by the Company not set forth herein. This Release Agreement may be
modified, amended, or supplemented only in a writing duly signed by all parties
hereto.
This Release Agreement shall be governed by and construed and enforced
in accordance with the laws of the State of New York.
The provisions of this Release Agreement shall be enforced to the
fullest extent permissible under the laws and public policies applied in each
jurisdiction in which enforcement is sought. In the event that any one or more
of the provisions of this Release Agreement shall be held to be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remainder of
this Release Agreement shall not in any way be affected or impaired thereby.
Moreover, if any one or more of the provisions contained in this Release
Agreement is held to be excessively broad as to duration, scope, activity or
subject, such provisions shall be construed by limiting and reducing them so as
to be enforceable to the maximum extent allowed by applicable law.
I ACKNOWLEDGE THAT I HAVE FULLY READ AND UNDERSTAND THIS RELEASE AGREEMENT,
INCLUDING MY RELEASE AND WAIVER OF CLAIMS AGAINST THE COMPANY AND THE RELEASEES,
THAT GOOD AND SUFFICIENT CONSIDERATION HAS BEEN GIVEN TO ME FOR SIGNING THIS
RELEASE AGREEMENT, THAT THE EXECUTION OF THIS RELEASE AGREEMENT IS VOLUNTARY AND
DONE OF MY OWN FREE WILL, ACT, AND DEED, AND THAT I HAVE HAD AN OPPORTUNITY TO
SEEK COUNSEL WITH AN ATTORNEY AND HAVE HAD SUFFICIENT TIME TO READ THE AGREEMENT
AND MAKE A DECISION REGARDING ACCEPTANCE OF ITS TERMS.
20
Date: , 200__
________________________________ _______________________
Witness Employee
Received and acknowledged this ____ day of ____________, 200 __
By: __________________.
For the Company
21