{"id":39921,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/executive-severance-agreement-maytag-corp-tom-briatico-rick.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"executive-severance-agreement-maytag-corp-tom-briatico-rick","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/compensation\/executive-severance-agreement-maytag-corp-tom-briatico-rick.html","title":{"rendered":"Executive Severance Agreement &#8211; Maytag Corp., Tom Briatico, Rick Foltz, David McConnaughey and Richard Mosher"},"content":{"rendered":"<pre>\nThe following executives are covered under this severance agreement:\n\n\n                                  Tom Briatico\n                                   Rick Foltz\n                               David McConnaughey\n                                 Richard Mosher\n                                     \n\n\n                          EXECUTIVE SEVERANCE AGREEMENT\n\n\n\n     THIS  AGREEMENT  is made the ____ day of _____, 199_, by and between Maytag\nCorporation, a Delaware corporation (the 'Company'), and  _______  (the\n'Executive').\n\n                                    RECITALS\n\n     A.   The Board of Directors of the Company has approved the Company en-\ntering into severance agreements with such executives of the Company and its\nsubsidiaries as is determined by the Chairman and Chief Executive Officer.\n\n     B.   Should the Company receive or learn of any proposal by a third person\nabout a possible business combination with the Company or the acquisition of its\nequity securities, the Board considers it imperative that the Company be able to\nrely upon the Executive to continue in his or her position.  This to the end\nthat the Company be able to receive and rely upon the Executive's advice\nconcerning the best interests of the Company and its stockholders, without\nconcern that person might be distracted by the personal uncertainties and risks\ncreated by such a proposal.\n\n     C.   Should the Company receive any such proposals, in addition to the\nExecutive's regular duties, he or she may be called upon to assist in the\nassessment of such proposals, advise management and the Board as to whether such\nproposals would be in the best interests of the Company and its stockholders,\nand to take such other actions as the Board might determine to be appropriate.\n\n                                    AGREEMENT\n\n     NOW, THEREFORE, to assure the Company that it will have the continued\ndedication of the Executive and the availability of that person's advice and\ncounsel notwithstanding the possibility, threat or occurrence of a bid to take\nover control of the Company, and to induce the Executive to remain in the employ\nof the Company, and for other good and valuable consideration, the Company and\nthe Executive agree that the Executive Severance Agreement described above be\namended and restated in its entirety as follows:\n\n     A.   Should a third person, in order to effect a change of control (as\ndefined), begin a tender or exchange offer, circulate a proxy to stockholders or\ntake other steps, the Executive agrees that he or she will not voluntarily leave\nthe employ of the Company, and will render the services contemplated in the\nrecitals to this agreement, until the third person has abandoned or terminated\nhis efforts to effect a change of control or until a change of control has\noccurred.\n\n     B.   Should the Executive's employment with the Company or its subsidiaries\nterminate for any reason (either voluntary or involuntary, other than because of\ndeath, disability or normal retirement) within two (2) years after a change of\ncontrol of the Company the following will be provided:\n\n     1.   'Lump Sum Cash Payment.'  On or before the Executive's last day of\nemployment with the Company or its subsidiaries, or as soon thereafter as\npossible, the Company will pay to the Executive as compensation for services\nrendered, a lump sum cash amount (subject to the usual withholding taxes) equal\nto (A)  two times the sum of (1) the Executive's annual salary at the rate in\neffect immediately prior to the change of control and (2) the maximum annual\n\n                                        1\n\n\nincentive bonus opportunity provided by the Plan and any discretionary bonus\ndeclared for the year in which the change of control occurred, or the preceding\nyear if not established plus (B) an amount equal to the compensation (at the\nExecutive's rate of pay in effect immediately prior to the change of control)\npayable for any period for which the Executive could have, immediately prior to\nthe date of his termination of employment, been on vacation and received such\ncompensation, for unused and accrued vacation benefits determined under the\nCompany's vacation pay plan or program covering the Executive immediately prior\nto the change of control.   If the time from the Executive's last day of\nemployment with the Company or its subsidiaries to the Executive's 65th birthday\nis less than 24 months, there shall be a proportionate reduction of the payment\ncomputed under clause (A) of the preceding sentence.\n\n     2.   'Salaried and Supplemental Executive Retirement Plans.'  The Executive\nshall be paid a monthly retirement benefit, in addition to any benefits received\nu n der the Salaried Retirement Plans maintained by the Company or its\nsubsidiaries, including The Maytag Corporation Salaried Retirement Plan and any\nSupplemental Executive Retirement Plan, such benefit to commence on the first to\noccur of (a)  the commencement of payment of benefits under the Maytag\nCorporation Salaried Retirement Plan or (b) attainment of age 65, but not prior\nto two (2)  years following the date of termination of employment or age 65,\nwhichever first occurs, such benefit to be an amount equal to the excess of (i)\nthe aggregate benefits under such Salaried Retirement Plans to which the\nExecutive would be entitled if he or she remained employed by the Company or its\nsubsidiaries, for an additional period of two (2)  years or until his or her \n65th birthday, whichever is earlier, at the rate of annual compensation \nspecified herein; over (ii) the benefits to which the Executive is actually \nentitled under such Salaried Retirement Plans.\n\n     3.   'Life, Dental, Vision, Health and Long Term Disability Coverage.' The\nExecutive's participation in, and entitlement to, benefits under: (i) the life\ninsurance plan of the Company; (ii) all the health insurance plan or plans of\nthe Company or its subsidiaries, including but not limited to those providing\nmajor medical and hospitalization benefits, dental benefits and vision benefits;\nand (iii) the Company's long-term disability plan or plans; as all such plans\nexisted immediately prior to the change of control shall continue as though he\nor she remained employed by the Corporation or its subsidiaries for an\nadditional period of two (2) years or until the obtainment of such coverages\nwith another employer, whichever is earlier. To the extent such participation\nor entitlement is not possible for any reason whatsoever, equivalent benefits\nshall be provided.\n\n     4.   'Participation in Employee Benefit Plans.'  After termination of em-\nployment, the Executive shall continue to participate in the Salaried Retirement\nPlans as contemplated above.  The Executive's participation in any other\nsavings, capital accumulation, retirement, incentive compensation, profit\nsharing, stock option, and\/or stock appreciation rights plans of the Company or\nany of its subsidiaries shall continue only through the last day of his or her\nemployment.  Any terminating distributions and\/or vested rights under such\nplans shall be governed by the terms of those respective plans.  Furthermore,\nthe Executive's participation in any insurance plans of the Company and rights\nto any other fringe benefits shall, except as otherwise specifically provided in\nsuch plans or Company policy, terminate as of the close of the Executive's last\nday of employment, except to the extent specifically provided to the contrary in\nthis agreement.\n\n     5.   'Incentive Plans.'  In addition to the payments required by paragraph\n1 of this Section, the Company shall pay to the Executive as compensation for\n\n                                        2\n\n\nservices rendered cash in an amount equal to the maximum amount which could be\npayable to the Executive under any and all incentive compensation plans in which\nthe Executive is a participant or under which the Executive holds any\noutstanding award as of the day prior to the change of control.  To the extent\nthat any such award is represented by restricted shares of stock of the Company,\nthe Executive's such cash payment shall include an amount equal to the aggregate\nvalue of such shares determined as of the day of the change of control.  Any\npayment due pursuant to this paragraph 5 shall be paid at the same time as the\namount payable pursuant to paragraph 1 of this Section.\n\n    6.   'Reimbursement for Loss on Sale of Principal Residence.'  If on the\ndate of the change of control the Executive shall own a private residence within\nJasper County, Iowa (the 'Executive's residence'), the Executive shall be paid\nan amount equal to the excess, if any, of the amount by which the greater of (i)\nthe 'aggregate purchase price' (as defined below) of the Executive's residence\nand (ii) the 'change of control market value' (as defined below) of the\nExecutive's residence, over the amount realized by the Executive upon the sale\nof such residence.  Any amount payable to the Executive under this agreement\nshall be paid to the Executive on the date on which the Executive's residence is\nsold in a bona fide transaction with an unrelated party.  Notwithstanding the\nforegoing, if the Executive's residence shall not be sold within 6 months after\nthe date on which the Executive's residence is first offered for sale, the\nCompany shall purchase the Executive's residence from the Executive for a cash\namount equal to the 'change of control market value' of the Executive's\nresidence.  For purposes of this paragraph, the 'aggregate purchase price' of\nthe Executive's residence shall be the sum of the amount paid therefor plus the\ncost of any significant repairs such as the cost of siding, or roof repair or\nmaintenance, incurred within the 5 year period ending on the date on which a\nchange of control occurs, plus the cost of any improvements to such residence\nmade by the Executive, the 'amount realized' upon the sale of such residence\nshall be the net amount, after deduction for brokers' fees, title charges,\ntransfer taxes and similar items, realized by the Executive upon the sale of the\nExecutive residence and 'change of control market value' shall mean the value of\nthe Executive's residence on the date on which the change of control occurred,\nas determined by an independent appraiser selected by the Executive.  The fees\nand expenses of such appraiser shall be paid by the Company.\n\n     7.   'Excise Tax-Additional Payment.'  (a) Notwithstanding anything in this\nagreement or any written or unwritten policy of the Company or its subsidiaries\nto the contrary, (i) if it shall be determined that any payment or distribution\nby the Company or its subsidiaries to or for the benefit of the Executive,\nwhether paid or payable or distributed or distributable pursuant to the terms of\nthis agreement, any other agreement between the Company or its subsidiaries and\nthe Executive or otherwise (a 'Payment'), would be subject to the excise tax\nimposed by section 4999 of the Internal Revenue Code of 1986, as amended, (the\n'Code') or any interest or penalties with respect to such excise tax (such\nexcise tax, together with any such interest and penalties, are hereinafter\ncollectively referred to as the 'Excise Tax'), or (ii) if the Executive shall\notherwise become obligated to pay the Excise Tax in respect of a Payment, then\nthe Company shall pay to the Executive an additional payment (a 'Gross-Up\nPayment') in an amount such that after payment by the Executive of all taxes\n(including any interest or penalties imposed with respect to such taxes),\nincluding any Excise Tax, imposed upon the Gross-Up Payment, the Executive\nretains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon\nsuch Payment.\n\n\n\n\n                                        3\n\n\n     (b)    All determinations and computations required to be made under this\nsection B7, including whether a Gross-Up Payment is required under clause (ii)\nof paragraph B7(a) above, and the amount of any Gross-Up Payment, shall be made\nby the Company's regularly engaged independent certified public accountants (the\n'Accounting Firm').   The Company shall cause the Accounting Firm to provide\ndetailed supporting calculations both to the Company and the Executive within 15\nbusiness days after such determination or computation is requested by the\nExecutive.   Any initial Gross-Up Payment determined pursuant to this paragraph\nB7 shall be paid by the Company or the subsidiary to the Executive within 5 days\nof the receipt of the Accounting Firm's determination. A determination that no\nExcise Tax is payable by the Executive shall not be valid or binding unless\naccompanied by a written opinion of the Accounting Firm to the Executive that\nthe Executive has substantial authority not to report any Excise Tax on his\nfederal income tax return.  Any determination by the Accounting Firm shall be\nbinding upon the Company, its subsidiaries and the Executive, except to the\nextent the Executive becomes obligated to pay an Excise Tax in respect of a\nPayment. In the event that the Company or the subsidiary exhausts or waives its\nremedies pursuant to subparagraph B7(c) and the Executive thereafter shall\nbecome obligated to make a payment of any Excise Tax, and if the amount thereof\nshall exceed the amount, if any, of any Excise Tax computed by the Accounting\nFirm pursuant to this subparagraph (b) in respect to which an initial Gross-Up\nPayment was made to the Executive, the Accounting Firm shall within 15 days\nafter Notice thereof determine the amount of such excess Excise Tax and the\namount of the additional Gross-Up Payment to the Executive.  All expenses and\nfees of the Accounting Firm incurred by reason of this paragraph B7 shall be\npaid by the Company.\n\n     (c)  The Executive shall notify the Company in writing of any claim by the\nInternal Revenue Service that, if successful, would require the payment by the\nCompany of a Gross-Up Payment.  Such notification shall be given as soon as\npracticable but no later than ten business days after the Executive knows of\nsuch claim and shall apprise the Company of the nature of such claim and the\ndate on which such claim is requested to be paid.  The Executive shall not pay\nsuch claim prior to the expiration of the thirty-day period following the date\non which it gives such notice to the Company (or such shorter period ending on\nthe date that any payment of taxes with respect to such claim is due). If the\nCompany notifies the Executive in writing prior to the expiration of such period\nthat it desires to contest such claim, the Executive shall:\n\n          (i)  give the Company any information reasonably requested\n      relating to such claim,\n\n          (ii)  take such action in connection with contesting such \n     claim as the Company shall reasonably request in writing from time\n     to time, including, without limitation, accepting legal representation\n     with respect to such claim by an attorney reasonably selected by\n     the Company,\n\n          (iii) cooperate with the Company in good faith in order\n     effectively to contest such claim,\n\n          (iv) permit the Company to participate in any proceedings\n     relating to such claim;\n\nPROVIDED, HOWEVER that the Company shall bear and pay directly all costs and\nexpenses (including additional interest and penalties) incurred in connection\nwith such contest and shall indemnify and hold the Executive harmless, on an\nafter-tax basis, for any Excise Tax or income tax, including interest and\n\n                                        4\n\n\npenalties with respect thereto, imposed as a result of such representation and\npayment of costs and expenses.  Without limitation on the foregoing provisions\nof this  subparagraph B7(c), the Company shall control all proceedings taken in\nconnection with such contest and, at its sole option, may pursue or forgo any\nand all administrative appeals, proceedings, hearings and conferences with the\ntaxing authority in respect of such claim and may, at its sole option, either\ndirect the Executive to pay the tax claimed and sue for a refund or contest the\nclaim in any permissible manner, and the Executive agrees to prosecute such\ncontest to a determination before any administrative tribunal, in a court of\ninitial jurisdiction and in one or more appellate courts, as the Company or the\nsubsidiary shall determine;  PROVIDED, HOWEVER, that if the Company or the\nsubsidiary directs the Executive to pay such claim and sue for a refund, the\nCompany or the subsidiary shall advance the amount of such payment to the\nExecutive, on an interest-free basis and shall indemnify and hold the Executive\nharmless, on an after-tax basis, from any Excise Tax or income tax, including\ninterest or penalties with respect thereto, imposed with respect to such advance\nor with respect to any imputed income with respect to such advance; and FURTHER\nPROVIDED, that any extension of the statue of limitations relating to payment of\ntaxes for the taxable year of the Executive with respect to which such contested\namount is claimed to be due is limited solely to such contested amount.\nFurthermore, control of the contest by the Company or the subsidiary shall be\nlimited to issues with respect to which a Gross-Up Payment would be payable\nhereunder and the Executive shall be entitled to settle or contest, as the case\nmay be, any other issue raised by the Internal Revenue Service or any other\ntaxing authority.\n\n     (d)  If, after the receipt by the Executive of an amount advanced by the\nCompany or the subsidiary pursuant to subparagraph B7(c), the Executive becomes\nentitled to receive any refund with respect to such claim, the Executive shall\n(subject to compliance with the requirements of paragraph B7 by the Company or\nthe subsidiary) promptly pay to the Company or the subsidiary the amount of such\nrefund (together with any interest paid or credited thereon after taxes\napplicable thereto).  If, after the receipt by the Executive of an amount\nadvanced by the Company or the subsidiary pursuant to subparagraph B7(c), a\ndetermination is made that the Executive shall not be entitled to any refund\nwith respect to such claim and the Company does not notify the Executive in\nwriting of its intent to contest such denial of refund prior to the expiration\nof thirty days after such determination, then such advance shall be forgiven and\nshall not be required to be repaid and the amount of such advance shall off-set,\nto the extent thereof, the amount of Gross-Up Payment required to be paid.\n                                                                             h\n     C.  Definitions.\n\n     1.  'Change of Control.'   For purposes of this Agreement, 'change of\ncontrol' shall mean:\n    (a)  The acquisition by any individual, entity or group (within the meaning\nof Section 13 (d) (3) or 14 (d) (2) of the Securities Exchange Act of 1934, as\namended (the 'Exchange Act')) (a 'Person') of beneficial ownership (within the\nmeaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of\neither (i) the then outstanding shares of common stock of the Company (the\n'Outstanding Company Common Stock') or (ii) the combined voting power of the\nthen outstanding voting securities of the Company entitled to vote generally in\nthe election of directors (the 'Outstanding Company Voting Securities');\nprovided, however, that for purposes of this subsection (a), the following\nacquisitions shall not constitute a Change of Control: (i) any acquisition by\nthe Company, (ii) any acquisition by any employee benefit plan (or related\ntrust) sponsored or maintained by the Company or any corporation controlled by\nthe Company or (iii) any acquisition by any corporation pursuant to a\n\n                                        5\n\n\ntransaction which complies with clauses (i), (ii) and (iii) of subsection (c)\nbelow; or\n\n\n     (b)  Individuals who, as of the date hereof, constitute the Board (the\n'Incumbent Board') cease for any reason to constitute at least a majority of the\nBoard; provided, however, that any individual becoming a director subsequent to\nthe date hereof whose election, or nomination for election by the Company's\nshareholders, was approved by a vote of a least a majority of the directors then\ncomprising the Incumbent Board shall be considered as though such individual\nwere a member of the Incumbent Board, but excluding, for this purpose, any such\nindividual whose initial assumption of office occurs as a result of an actual or\nthreatened election contest with respect to the election or removal of directors\nor other actual or threatened solicitation of proxies or consents by or on\nbehalf of a Person other than the Board; or\n\n     (c)  Consummation of a reorganization, merger or consolidation or sale or\nother disposition of all or substantially all of the assets of the Company (a\n'Business Combination'), in each case, unless, following such Business\nCombination, (i) all or substantially all of the individuals and entities who\nwere the beneficial owners, respectively, of the Outstanding Company Common\nStock and outstanding Company Voting Securities immediately prior to such\nBusiness Combination beneficially own, directly or indirectly, more than 50% of,\nrespectively, the then outstanding shares of common stock and the combined\nvoting power of the then outstanding voting securities entitled to vote\ngenerally in the election of directors, as the case may be, of the corporation\nresulting from such Business Combination (including, without limitation, a\ncorporation which as a result of such transaction owns the Company or all or\nsubstantially all of the Company's assets either directly or through one or more\nsubsidiaries)  in substantially the same proportions as their ownership,\nimmediately prior to such Business Combination of the Outstanding Company Common\nStock and Outstanding Company Voting Securities, as the case may be, (ii) no\nPerson (excluding any employee benefit plan (or related trust) of the Company or\nsuch corporation resulting from such Business Combination) beneficially owns,\ndirectly or indirectly, 20% or more of, respectively, the then outstanding\nshares of common stock of the corporation resulting from such Business\nCombination or the combined voting power of the then outstanding voting\nsecurities of such corporation except to the extent that such ownership existed\nprior to the Business Combination and (iii) at least a majority of the members\nof the board of directors of the corporation resulting from such Business\nCombination were members of the Incumbent Board at the time of the execution of\nthe initial agreement, or of the action of the Board, providing for such\nBusiness Combination; or\n\n     (d)  Approval by the shareholders of the Company of a complete liquidation\nor dissolution of the Company.    \n\n     2.   'Subsidiary.'   For purposes of this agreement, a 'Subsidiary' shall\nmean any domestic or foreign corporation at least 20% of whose shares normally\nentitled to vote in electing directors is owned directly or indirectly by the\nCompany or by other subsidiaries.\n\n     D.  General Provisions.\n\n     1.  'No Guaranty of Employment.'  Nothing in this agreement shall be deemed\nto entitle the Executive to continued employment with the Company or its sub-\nsidiaries, and the rights of the Company to terminate the employment of the\nExecutive shall continue as fully as if this agreement were not in effect,\n\n                                        6\n\n\nPROVIDED that any such termination of employment within two (2) years following\na change of control shall entitle the Executive to the benefits herein provided.\n\n     2.  'Confidentiality'.  The Executive shall retain in confidence any confi-\ndential information known to him concerning the Company and its business so long\nas such information is not publicly disclosed.\n\n     3.   'Payment Obligation Absolute.'  The Company's obligation to pay the\nExecutive the compensation and to make the arrangements provided herein shall be\nabsolute and unconditional and shall not be affected by any circumstances,\nincluding without limitation, any set-off, counterclaim, recoupment, defense or\nother right which the Company may have against him, her or anyone else. All\namounts payable by the Company hereunder shall be paid without notice or demand.\nThe Company waives all rights which it may now have or may hereafter have\nconferred upon it, by statute or otherwise, to terminate, cancel or rescind this\nagreement in whole or in part.  Each and every payment made hereunder by the\nCompany shall be final and the Company shall not seek to recover all or any part\nof such payment from the Executive or from whoever may be entitled thereto, for\nany reason whatsoever.\n\n     4.  'Indemnification.'  If litigation shall be brought to enforce or inter-\npret any provision contained herein, the Company hereby indemnifies the Execu-\ntive for his or her reasonable attorney's fees and disbursements incurred in\nsuch litigation, and hereby agrees to pay prejudgment interest on any money\njudgment obtained by the Executive calculated by using the prevailing prime\ninterest rate on the date that payment(s) to him or her should have been made\nunder this agreement.\n     \n     5.  'Successors.'  This agreement shall be binding upon and inure to the\nbenefit of the Executive and his or her estate, and the Company and any suc-\ncessor of the Company, but neither this agreement nor any rights arising here-\nunder may be assigned or pledged by the Executive.\n\n     6.  'Severability'.  Any provision in this agreement which is prohibited or\nunenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective\nonly to the extent of such prohibition or unenforceability without invalidating\nor affecting the remaining provisions hereof, and any such prohibition or\nunenforceability in any jurisdiction shall not invalidate or render\nunenforceable such provision in any other jurisdiction.\n\n     7.   'Controlling Law.'  This agreement shall in all respects be governed\nby, and construed in accordance with, the laws of the State of Delaware.\n\n     IN WITNESS WHEREOF, the parties have executed this agreement on the date\nset out above.\n\n                                        \n                                               MAYTAG CORPORATION\n\n\n                                        By ___________________________\n                                           Leonard A. Hadley, CEO\n\n                                             ___________________________\n                                                       , Executive\n\n\n\n\n                                        7\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8154],"corporate_contracts_industries":[9393],"corporate_contracts_types":[9539,9551],"class_list":["post-39921","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-maytag-corp","corporate_contracts_industries-consumer__appliances","corporate_contracts_types-compensation","corporate_contracts_types-compensation__severance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/39921","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=39921"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=39921"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=39921"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=39921"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}