UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT
TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (date of earliest event reported): July 28, 2015
GANNETT CO., INC.
(Exact name of registrant as specified in charter)
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| Delaware |
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1-36874 |
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47-2390983 |
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of incorporation) |
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(Commission
File Number) |
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(I.R.S. Employer
Identification No.) |
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| 7950 Jones Branch Drive, McLean,
Virginia |
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22107-0910 |
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(Zip Code) |
(703) 854-6000
(Registrant’s telephone number, including area code)
Not Applicable
(Former
name or former address, if changed since last report.)
Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
| Item 5.02 |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers |
Appointment of New Director; Outside Director RSU Awards
On July 28, 2015, the Board of Directors (the “Board”) of Gannett Co., Inc. (the “Company”) expanded its size from
eight to nine directors and appointed Stephen W. Coll to the Board, effective immediately. Mr. Coll was appointed to serve on the Audit Committee and the Nominating and Public Responsibility Committee of the Board. Mr. Coll will
participate in the Company’s Outside Director Compensation Program, as previously reported in the Company’s information statement, dated June 18, 2015 and attached as Exhibit 99.1 to the Company’s Current Report on Form 8-K filed
with the SEC on June 19, 2015 (the “Information Statement”), under the section entitled “Director Compensation”. This summary from the Information Statement is incorporated by reference into this Item 5.02. Amounts
payable to Mr. Coll under that program for the 2015-16 director compensation year, ending on the date of the Company’s 2016 annual stockholders meeting, will be prorated based on the number of days he will serve on the Board through the
expected meeting date in 2016.
Mr. Coll’s equity award in the form of restricted stock units (RSU’s) will vest in four
equal quarterly installments beginning August 1, 2015 and will have terms otherwise as described in the Information Statement. A copy of the form of agreement governing Mr. Coll’s RSU award, as well as the initial RSU awards granted
July 28, 2015 to other members of the Board who joined the Board in connection with the spin-off of the Company from TEGNA Inc. (Lila Ibrahim, Lawrence S. Kramer, Debra A. Sandler and Chloe R. Sladden) and having the terms reported in the
Information Statement and vesting on the same schedule as Mr. Coll’s RSU award, is attached hereto as Exhibit 10.1 and incorporated herein by reference.
Adoption of Compensation and Benefit Plans; RSU Awards
Also on July 28, 2015, the Board adopted several compensation and benefit plans, summarized below, and made RSU awards to certain of the
Company’s “named executive officers” identified in the Information Statement, described below.
Gannett Co., Inc. 2015 Change in
Control Severance Plan (CIC Severance Plan)
The CIC Severance Plan provides severance pay to key executives of the Company in the
event the executive is involuntarily terminated without “cause,” or terminates for “good reason” within two years after a “change in control” of the Company, or is terminated in anticipation of a “change in
control” of the Company. The CIC Severance Plan assures the Company that it will have the continued dedication of, and the availability of objective advice and counsel from, key executives of the Company notwithstanding the possibility,
threat or occurrence of a change in control and promotes the retention and continuity of certain key executives of the Company.
Following
is a summary of several key terms of the CIC Severance Plan:
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“change in control” means the first to occur of: (1) the acquisition of 20% or more of the Company’s then-outstanding shares of common stock or the combined voting power of the Company’s
then-outstanding voting securities; (2) the Company’s incumbent directors cease to constitute at least a majority of the board of directors of the Company, except in connection with the election of directors approved by a vote of at least
a majority of the directors then comprising the incumbent board of directors of the Company; (3) consummation of the Company’s sale in a merger or similar transaction, or sale or other disposition of all or substantially all of the
Company’s assets; or (4) approval by the Company’s shareholders of the Company’s complete liquidation or dissolution. |
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“cause” means (1) the participant’s material misappropriation of the Company’s funds or property; (2) the participant’s unreasonable and persistent neglect or refusal to perform his or
her duties which is not remedied in a reasonable period of time following notice from the Company; (3) conviction of the participant of a securities law violation or a felony involving moral turpitude; or (4) a finding by a court of
competent jurisdiction in a civil action or by the Securities and Exchange Commission that the participant has violated any Federal or State securities law. |
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“good reason” means the occurrence after a change in control of any of the following without the participant’s express written consent, unless fully corrected prior to the date of termination:
(1) the material diminution of the participant’s duties, authorities or responsibilities from those in effect immediately prior to the change in control; (2) a material reduction in the participant’s base salary or target bonus
opportunity as in effect on the date immediately prior to the change in control; (3) the relocation of the participant’s office from the location at which the participant is principally employed immediately prior to the date of the change
in control to a location 35 or more miles farther from the participant’s residence immediately prior to the change in control; (4) the failure by the Company to pay any material compensation or benefits due to the participant; (5) the
failure of the Company to obtain a satisfactory agreement from any successor to assume and agree to perform the CIC Severance Plan; or (6) any purported termination of the participant’s employment that is not effected pursuant to a notice
of termination satisfying the requirements of the CIC Severance Plan. |
If triggered upon a qualifying termination of employment, benefits
under the CIC Severance Plan include:
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Pension. For participants who are “Grandfathered Participants” under the Company’s Supplemental Retirement Plan (“SERP”), in addition to their vested Gannett Retirement Plan and SERP
benefits, upon their qualifying termination of employment, such CIC Severance Plan participants are entitled to a lump sum payment equal to the difference between (1) the amount that would have been paid under the SERP and Gannett Retirement
Plan had the executive remained in the employ of the Company through the third year anniversary of the date of the change in control and received the same level of base salary and bonus which the executive received with respect to the fiscal year
immediately preceding the date of the change in control or the termination date, whichever is higher, and (2) the amount payable under the SERP and the Gannett Retirement Plan as of the later of the date of the change in control or the
termination date, whichever is higher. |
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Payments. Upon a participant’s qualifying termination of employment, the participant is entitled to receive a lump sum amount equal to the sum of (1) any unpaid base salary or bonus through the
date of termination; and (2) a prorated annual bonus for the portion of the fiscal year elapsed prior to the termination date in an amount equal to the average annual bonus the participant earned with respect to three fiscal years immediately
prior to the fiscal year in which the termination date occurs prorated for the portion of the fiscal year elapsed prior to the termination date. Additionally, participants are paid a lump sum cash severance payment equal to a “multiplier”
that is designated for the participant times the sum of (1) the participant’s annual base salary at the highest rate of salary during the 12-month period immediately prior to the termination date or, if higher, during the 12 month period
immediately prior to the change in control (in each case, as determined without regard for any reduction for deferred compensation, 401(k) plan contributions and similar items), and (2) the higher of (A) the average annual bonus the
participant earned with respect to the three fiscal years immediately prior to the fiscal year in which the change in control occurs; and (B) the average annual bonus the participant earned with respect to the three fiscal years immediately
prior to the fiscal year in which the termination occurs. For participants who formerly participated in the Company’s 2015 Transitional Compensation Plan immediately prior to commencing participation in this Plan, “multiplier” means
three (3), and for other participants the “multiplier” shall be either two (2) or one (1) as assigned to the participant. |
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COBRA benefit. A participant will receive an amount equal to the monthly COBRA cost of the participant’s medical and dental coverage in effect as of the date of termination multiplied by the lesser of
(1) 18; or (2) 24 minus the number of full months between the date of the change in control and the date of termination. |
Benefits are subject to the participant executing a release and agreeing to certain restrictive covenants.
As of July 28, 2015, Alison K. Engel and John M. Zidich are participants in the CIC Severance Plan, and each of their
“multipliers” (as described above) is two (2). As of July 28, 2015, John M. Zidich is a “Grandfathered Participant” under the Company’s Supplemental Retirement Plan, and Allison K. Engel is not a “Grandfathered
Participant”.
Gannett Co., Inc. Executive Severance Plan (Executive Severance Plan)
Under the Executive Severance Plan, a participant who experiences an involuntary termination of employment without “cause” is
entitled to a lump sum cash severance payment equal to the product of (i) a “severance multiple” and (ii) the participant’s annual base salary. The “severance multiple” means (i) with respect to the President
and Chief Executive Officer of the Company, three (3); and (ii) with respect to other participants, either two (2) or one (1) as assigned to the participant.
“Cause” means a termination of a participant’s employment following the occurrence of any of the following events: (i) a
participant’s embezzlement, fraud, misappropriation of funds, breach of fiduciary duty or other act of material dishonesty committed by a participant or at his or her direction; (ii) a participant’s failure to perform adequately the
duties of his or her position, as a result of neglect or refusal, that he or she does not remedy within thirty (30) days after receipt of written notice from the Company; (iii) a participant’s violation of the Company’s
employment policies; (iv) a participant’s conviction of, or plea of guilty or nolo contendere to, a felony or any crime involving moral turpitude; or (v) a participant being found by a court of competent jurisdiction in a civil
action or by the Securities and Exchange Commission to have violated any Federal or State securities law.
The severance payment is
contingent upon the participant’s executing a release and agreeing to certain restrictive covenants, including a noncompete. In the event that a participant experiences a termination under circumstances that entitles the participant to
compensation and benefits under the Executive Severance Plan and the Gannett Co., Inc. 2015 Transitional Compensation Plan or the Gannett Co., Inc. 2015 Change in Control Severance Plan (collectively, the “Transitional
Plans”), the participant shall receive compensation and benefits under the Transitional Plans and not under the Executive Severance Plan.
As of July 28, 2015, Alison K. Engel, Barbara W. Wall and John M. Zidich are participants in the Executive Severance Plan, and each of
their “severance multiples” (as described above) is two (2).
Executive Restricted Stock Unit Awards
On July 28, 2015, Robert J. Dickey, Alison K. Engel, Barbara W. Wall and John M. Zidich received RSU awards which give them the right to
receive 31,362, 15,681, 11,201 and 26,882 shares of the Company’s common stock, respectively, to the extent such executive vests in such rights. Generally, the RSU’s require continued service with the Company to become vested. The
RSU’s will generally vest in four equal annual installments on December 31, 2015, December 31, 2016, December 31, 2017 and December 31, 2018; provided that the executive remains in continued employment with the
Company until such dates. Vested shares are delivered to the executive upon the earliest to occur of (1) the executive’s termination of employment, (2) a change in control of the Company and (3) December 31, 2018. The executives
are generally entitled to receive a prorated portion of their RSU’s upon retirement (defined as 65 years of age or at least 55 years of age with at least 5 years of service), disability or death, and the RSU’s will vest fully upon a change
in control of the Company. Under Mr. Dickey’s employment agreement, his RSU’s will fully vest upon his retirement, death, full disability or termination other than for “cause.”
These summaries of the terms of the RSU award agreements, the CIC Severance Plan and the Executive Severance Plan are qualified in their
entirety by reference to the full text of the form of RSU award agreement and the plans, which are attached as Exhibits 10.2 through 10.4 respectively, to this Current Report on Form 8-K, each of which is incorporated herein by reference.
| Item 9.01 |
Financial Statements and Exhibits. |
See Index to Exhibits attached hereto.
SIGNATURE
Pursuant to requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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Gannett Co., Inc. |
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| Date: July 30, 2015 |
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By: |
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/s/ Barbara W. Wall |
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Barbara W. Wall |
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Senior Vice President and Chief Legal Officer |
INDEX TO EXHIBITS
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| Exhibit No. |
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Description |
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| 10.1 |
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Form of Director RSU Award Agreement. |
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| 10.2 |
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Form of Executive Officer RSU Award Agreement |
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| 10.3 |
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Gannett Co., Inc. 2015 Change in Control Severance Plan |
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| 10.4 |
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Gannett Co., Inc. Executive Severance Plan |
Exhibit 10.1
AWARD AGREEMENT
STOCK
UNITS
The Executive Compensation Committee of the Gannett Co., Inc. Board of Directors has approved an award of Restricted Stock
Units (referred to herein as “Stock Units”) to you under the Gannett Co., Inc. 2015 Omnibus Incentive Compensation Plan, as set forth below.
This Award Agreement and the enclosed Terms and Conditions effective as of July 28, 2015, constitute the formal agreement governing this
award.
Please sign both copies of this Award Agreement to evidence your agreement with the terms hereof. Keep one copy and return the
other to the undersigned.
Please keep the enclosed Terms and Conditions for future reference.
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| Director: |
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| Grant Date: / / |
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| Stock Unit Commencement Date: / / |
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| Stock Unit Vesting Schedule: |
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25% of the Stock Units shall vest on August 1, 20 [year of Grant Date] |
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25% of the Stock Units shall vest on November 1, 20 [year of Grant Date] |
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25% of the Stock Units shall vest on February 1, 20 [year following Grant Date] |
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25% of the Stock Units shall vest on earlier of May 1, 20 [year following Grant Date] or the date of the 20 Annual Meeting [year following Grant Date] |
Number of Stock Units:
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Gannett Co., Inc. |
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By: |
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| Director’s Signature |
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David Harmon |
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Chief People Officer |
STOCK UNITS
TERMS AND CONDITIONS
Under the
Gannett Co., Inc.
2015
Omnibus Incentive Compensation Plan
These Terms and Conditions, dated July 28, 2015, govern the grant of Restricted Stock Units
(referred to herein as “Stock Units”) to the director (the “Director”) designated in the Award Agreement dated coincident with these Terms and Conditions. The Stock Units are granted under, and are subject to, the Gannett Co.,
Inc. (the “Company”) 2015 Omnibus Incentive Compensation. Terms used herein that are defined in the Plan shall have the meaning ascribed to them in the Plan. If there is any inconsistency between these Terms and Conditions and the terms of
the Plan, the Plan’s terms shall supersede and replace the conflicting terms herein.
1. Grant of Stock Units. Pursuant to the
provisions of (i) the Plan, (ii) the individual Award Agreement governing the grant, and (iii) these Terms and Conditions, the Company has granted to the Director the number of Stock Units set forth on the applicable Award Agreement.
Each Stock Unit shall entitle the Director to receive from the Company one share of the Company’s common stock (“Common Stock”) upon the Director’s separation from service.
2. Vesting Schedule. Except as otherwise provided in Sections 6 and 13, the Stock Units shall vest in accordance with the Vesting
Schedule specified in the Award Agreement; provided that the Director continues as a director of the Company until the dates specified in the Vesting Schedule.
3. Dividend Units. Dividend units shall be credited to the Director with regard to the Stock Units. Dividend units shall be calculated
based on the dividends paid on shares of Common
Stock. Dividend units shall be deemed to be reinvested in shares of Common Stock as of the date dividends are paid on Common Stock, shall be paid to the Director at the same time and in the same
form as Stock Units are paid to the Director and are subject to the same terms and conditions as the Stock Units, including, without limitation, the same vesting requirements.
4. Delivery of Shares. The Company shall deliver to the Director a certificate or certificates, or at the election of the Company make
an appropriate book-entry, for the number of shares of Common Stock equal to the number of vested Stock Units as soon as administratively practicable after the Director separates from service, but no later than 30 days from that date. A Director
shall have no further rights with regard to the Stock Units once the underlying shares of Common Stock have been delivered.
5.
Cancellation of Stock Units. Except as provided in Sections 6 and 13 below, all unvested Stock Units granted to the Director shall automatically be cancelled upon the Director’s separation from service, and in such event the Director
shall not be entitled to receive any shares of Common Stock in respect thereof.
6. Death, Disability or Retirement. In the event
that the Director separates from service on or prior to the Stock Unit Vesting Date due to death, Disability or the age of service limitations set forth in the Company’s Bylaws, the Director (or in the case of the Director’s death, the
Director’s estate or designated beneficiary) shall be entitled to receive at the time of the Director’s death or separation from service the total number of shares of Common Stock in respect of such Stock Units which the Director would
have been entitled to receive had the Director continued employment until the Stock Unit Vesting Date. For purposes of this Award Agreement, Disability shall mean the Director is unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months.
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7. Non-Assignability. Stock Units may not be transferred, assigned, pledged or
hypothecated, whether by operation of law or otherwise, nor may the Stock Units be made subject to execution, attachment or similar process.
8. Rights as a Shareholder. The Director shall have no rights as a shareholder by reason of the Stock Units.
9. Discretionary Plan; Employment. The Plan is discretionary in nature and may be suspended or terminated by the Company at any time.
With respect to the Plan, (a) each grant of Stock Units is a one-time benefit which does not create any contractual or other right to receive future grants of Stock Units, or benefits in lieu of Stock Units; (b) all determinations with
respect to any such future grants, including, but not limited to, the times when the Stock Units shall be granted, the number of Stock Units, and the Vesting Schedule, will be at the sole discretion of the Company; (c) the Director’s
participation in the Plan is voluntary; and (d) the future value of the Stock Units is unknown and cannot be predicted with certainty.
10. Effect of Plan and these Terms and Conditions. The Plan is hereby incorporated by reference into these Terms and Conditions, and
these Terms and Conditions are subject in all respects to the provisions of the Plan, including without limitation the authority of the Executive Compensation Committee of the Company (the “Committee”) in its sole discretion to adjust
awards and to make interpretations and other determinations with respect to all matters relating to the applicable Award Agreements, these Terms and Conditions, the Plan and awards made pursuant thereto. These Terms and Conditions shall apply to the
grant of Stock Units made to the Director on the date hereof and shall not apply to any future grants of Stock Units made to the Director.
11. Notices. Notices hereunder shall be in writing and if to the Company shall be addressed to the Secretary of the Company at 7950
Jones Branch Drive, McLean, Virginia 22107, and if to the Director shall be addressed to the Director at his or her address as it appears on the Company’s records.
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12. Successors and Assigns. The applicable Award Agreement and these Terms and Conditions
shall be binding upon and inure to the benefit of the successors and assigns of the Company and, to the extent provided in Section 6 hereof, to the estate or designated beneficiary of the Director.
13. Change in Control Provisions.
Notwithstanding anything to the contrary in these Terms and Conditions, the following provisions shall apply to all Stock Units granted under
the attached Award Agreement.
(a) Definitions.
As used in Article 15 of the Plan and in these Terms and Conditions, a “Change in Control” shall mean the first to occur of the
following:
(i) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (A) the then-outstanding shares of common stock
of the Company (the “Outstanding Company Common Stock”) or (B) 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 Section, the following acquisitions shall not constitute a Change in 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 one of its affiliates or (iv) any acquisition pursuant to a transaction that complies with Sections 13(a)(iii)(A),
13(a)(iii)(B) and 13(a)(iii)(C);
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(ii) 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 stockholders
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;
(iii) consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction
involving the Company or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or stock of another entity by the Company or any of its subsidiaries (each, a
“Business Combination”), in each case, unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the
Outstanding Company Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of 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 or entity resulting from such Business Combination (including, without limitation, a corporation or entity that, 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 the Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding
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any employee benefit plan (or related trust) of the Company or any corporation or entity 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 or entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of such corporation or entity, except to the
extent that such ownership existed prior to the Business Combination, and (C) at least a majority of the members of the board of directors of the corporation or entity 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
(iv)
approval by the stockholders of the Company of a complete liquidation or dissolution of the Company.
(b) Acceleration Provisions.
In the event of the occurrence of a Change in Control, the vesting of the Stock Units shall be accelerated and, if such Change in Control constitutes a “change in control event” within the meaning of Section 409A of the Code, there
shall be paid out to the Director within thirty (30) days following the effective date of the Change in Control, the full number of shares of Common Stock subject to the Stock Units. In the event of the occurrence of a Change in Control that is
not a “change in control event” within the meaning of Section 409A of the Code, the vesting of the Stock Units shall be accelerated and the Stock Units shall be paid out at the Director’s separation from service.
(c) Legal Fees. The Company shall pay all legal fees, court costs, fees of experts and other costs and expenses when incurred by
Director in connection with any actual, threatened or contemplated litigation or legal, administrative or other proceedings involving the provisions of this Section 13, whether or not initiated by the Director. The Company agrees to pay such
amounts within 10 days following the Company’s receipt of an invoice from the Director, provided that the Director shall have submitted an invoice for such amounts at least 30 days before the end of the calendar year next following the calendar
year in which such fees and disbursements were incurred.
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14. Applicable Laws and Consent to Jurisdiction. The validity, construction,
interpretation and enforceability of this Agreement shall be determined and governed by the laws of the State of Delaware without giving effect to the principles of conflicts of law. For the purpose of litigating any dispute that arises under this
Agreement, the parties hereby consent to exclusive jurisdiction in Virginia and agree that such litigation shall be conducted in the courts of Fairfax County, Virginia or the federal courts of the United States for the Eastern District of Virginia.
15. Compliance with Section 409A. This Award is intended to comply with the requirements of Section 409A, and shall be
interpreted and administered in accordance with that intent (e.g., the definition of “separates from service” or “separation from service” (or similar term used herein) shall have the meaning ascribed to “separation from
service” under Section 409A). If any provision of these Terms and Conditions would otherwise conflict with or frustrate this intent, the provision shall not apply. Solely to the extent required by Section 409A of the Internal Revenue
Code of 1986, as amended (the “Code”), if the Director is a “specified employee” (within the meaning of Code Section 409A and the regulations and guidance issued thereunder (“Section 409A”)) and if delivery of
shares is being made in connection with the Director’s separation from service other than by reason of the Director’s death, delivery of the shares shall be delayed until six months and one day after the Director’s separation from
service with the Company (or, if earlier than the end of the six-month period, the date of the Director’s death).
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Exhibit 10.2
AWARD AGREEMENT
STOCK
UNITS
The Executive Compensation Committee of the Gannett Co., Inc. Board of Directors has approved an award of Restricted Stock
Units (referred to herein as “Stock Units”) to you under the Gannett Co., Inc. 2015 Omnibus Incentive Compensation Plan, as set forth below.
This Award Agreement and the enclosed Terms and Conditions effective as of July 28, 2015, constitute the formal agreement governing this
award.
Please sign both copies of this Award Agreement to evidence your agreement with the terms hereof. Keep one copy and return the
other to the undersigned.
Please keep the enclosed Terms and Conditions for future reference.
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| Employee: |
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Location: |
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| Grant Date: / / |
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| Stock Unit Commencement Date: / / |
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| Stock Unit Expiration Date: |
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12/31/ |
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| Stock Unit Vesting Schedule: |
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25% of the Stock Units shall vest on 12/31/ * |
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25% of the Stock Units shall vest on 12/31/ * |
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25% of the Stock Units shall vest on 12/31/ * |
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25% of the Stock Units shall vest on 12/31/ * |
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Provided the Employee is continuously employed until such dates and has not terminated employment on or before such dates. |
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| Number of Stock Units: |
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Gannett Co., Inc. |
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By: |
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| Employee’s Signature |
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David Harmon |
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Chief People Officer |
STOCK UNITS
TERMS AND CONDITIONS
Under the
Gannett Co., Inc.
2015
Omnibus Incentive Compensation Plan
These Terms and Conditions, dated July 28, 2015, govern the grant of Restricted Stock Units
(referred to herein as “Stock Units”) to the employee (the “Employee”) designated in the Award Agreement dated coincident with these Terms and Conditions. The Stock Units are granted under, and are subject to, the Gannett Co.,
Inc. (the “Company”) 2015 Omnibus Incentive Compensation Plan (the “Plan”). Terms used herein that are defined in the Plan shall have the meaning ascribed to them in the Plan. If there is any inconsistency between these Terms and
Conditions and the terms of the Plan, the Plan’s terms shall supersede and replace the conflicting terms herein.
1. Grant of
Stock Units. Pursuant to the provisions of (i) the Plan, (ii) the individual Award Agreement governing the grant, and (iii) these Terms and Conditions, the Company has granted to the Employee the number of Stock Units set forth on
the applicable Award Agreement. Each vested Stock Unit shall entitle the Employee to receive from the Company one share of the Company’s common stock (“Common Stock”) upon the earliest of the Employee’s termination of employment,
a Change in Control (to the extent provided in Section 14) or the expiration of the Incentive Period, as defined below. The Employee shall not be entitled to receive any shares of Common Stock with respect to unvested Stock Units, and the
Employee shall have no further rights with regard to a Stock Unit once the underlying share of Common Stock has been delivered with respect to that Stock Unit.
2. Incentive Period. The Incentive Period in respect of the Stock Units shall commence on
the Stock Unit Commencement Date specified in the Award Agreement and end on the Stock Unit Expiration Date specified in the Award Agreement.
3. Vesting Schedule. Subject to the special vesting rules set forth in Sections 7, 14 and 15, the Stock Units shall vest in accordance
with the Vesting Schedule specified in the Award Agreement to the extent that the Employee is continuously employed by the Company or its Subsidiaries until the dates specified in the Vesting Schedule and has not terminated employment on or before
such dates. An Employee will not be treated as remaining in continuous employment if the Employee’s employer ceases to be a Subsidiary of the Company. The Employee shall not receive shares relating to the Employee’s Stock Units when the
Stock Units vest. Rather, as set forth in Section 5 below, the shares related to vested Stock Units will generally be delivered, less applicable withholdings, as soon as administratively practicable after the earliest of the Employee’s
termination of employment, a Change in Control (to the extent provided in Section 14) or the Stock Unit Expiration Date.
4. No
Dividend Equivalents. No dividend equivalents shall be paid to the Employee with regard to the Stock Units.
5. Delivery of
Shares. The Company shall deliver to the Employee a certificate or certificates, or at the election of the Company make an appropriate book-entry, for the number of shares of Common Stock equal to the number of vested Stock Units as soon as
administratively practicable after the earliest of the Employee’s termination of employment, a Change in Control (to the extent provided in Section 14) or the Stock Unit Expiration Date; provided that the number of shares shall be reduced
by the value of all taxes which the Company is required by law to withhold by reason of such delivery. The Employee shall not be entitled to receive any shares of Common Stock with respect to unvested Stock Units, and the Employee shall have no
further rights with regard to a Stock Unit once the underlying share of Common Stock has been delivered with respect to that Stock Unit.
-2-
Notwithstanding the foregoing and solely to the extent required by Section 409A of the
Internal Revenue Code of 1986, as amended (the “Code”), if the Employee is a “specified employee” (within the meaning of Code Section 409A and the regulations and guidance issued thereunder (“Section 409A”)) and if
delivery of shares is being made in connection with the Employee’s separation from service other than by reason of the Employee’s death, delivery of the shares shall be delayed until six months and one day after the Employee’s
separation from service with the Company (or, if earlier than the end of the six-month period, the date of the Employee’s death).
6.
Cancellation of Stock Units.
(a) Termination of Employment. All Stock Units granted to the Employee that have not vested as
of the date of the Employee’s termination of employment shall automatically be cancelled upon the Employee’s termination of employment. Unvested Stock Units shall also be cancelled in connection with an event that results in the
Employee’s employer ceasing to be a Subsidiary of the Company.
(b) Forfeiture of Stock Units/Recovery of Common Stock.
Pursuant to its recoupment policy, the Company may forfeit an Employee’s Stock Units or recover shares of Common Stock issued in connection with a Stock Unit. Generally, under the Company’s recoupment policy, if the Company is required to
prepare an accounting restatement due to the material noncompliance of the Company with any financial reporting requirement under the securities laws, and the Committee determines that:
-3-
(i) the fraud or intentional misconduct of the Employee contributed (either
directly or indirectly) to the noncompliance that resulted in the obligation to restate the Company’s financial statements; and
(ii) a lower award of Stock Units would have been made to the Employee had it been based upon the restated financial results;
then the Company may, to the extent permitted by applicable law, and subject to the approval of the Committee, forfeit Stock Units awarded to the
Employee or seek to recoup shares of Common Stock issued in connection with Stock Units in excess of the amount that would have been received under the accounting restatement. In each such instance, the Company may seek to forfeit the
Employee’s relevant Stock Units or seek to recover the relevant Common Stock issued in connection with a Stock Unit granted or issued during the three-year period preceding the date the Company is required to prepare the accounting restatement,
regardless of whether the Employee is then employed by the Company. In addition, the Company may assert any other remedies that may be available to the Company, including, without limitation, those available under Section 304 of the
Sarbanes-Oxley Act of 2002.
7. Death, Disability, Retirement. In lieu of the Vesting Schedule set forth in the Award Agreement, in
the event that the Employee’s employment terminates on or prior to the Stock Unit Expiration Date by reason of death, permanent disability (as determined under the Company’s Long Term Disability Plan), termination of employment after
attaining age 65, or termination of employment after both attaining age 55 and completing at least 5 years of service, the Employee (or in the case of the Employee’s death, the Employee’s estate or designated beneficiary) shall be become
vested in a number of Stock Units equal to the product of (i) the total number of Stock Units in which the Employee would have become vested upon the expiration of the Incentive Period had the Employee’s employment not terminated, and
(ii) a fraction, the numerator of which shall be the
-4-
number of full calendar months between the Stock Unit Commencement Date and the date that employment terminated, and the denominator of which shall be the number of full calendar months from the
Stock Unit Commencement Date to the Stock Unit Expiration Date.
8. Non-Assignability. Stock Units may not be transferred,
assigned, pledged or hypothecated, whether by operation of law or otherwise, nor may the Stock Units be made subject to execution, attachment or similar process.
9. Rights as a Shareholder. The Employee shall have no rights as a shareholder by reason of the Stock Units.
10. Discretionary Plan; Employment. The Plan is discretionary in nature and may be suspended or terminated by the Company at any time.
With respect to the Plan, (a) each grant of Stock Units is a one-time benefit which does not create any contractual or other right to receive future grants of Stock Units, or benefits in lieu of Stock Units; (b) all determinations with
respect to any such future grants, including, but not limited to, the times when the Stock Units shall be granted, the number of Stock Units, and the Incentive Period, will be at the sole discretion of the Company; (c) the Employee’s
participation in the Plan shall not create a right to further employment with the Employee’s employer and shall not interfere with the ability of the Employee’s employer to terminate the Employee’s employment relationship at any time
with or without cause; (d) the Employee’s participation in the Plan is voluntary; (e) the Stock Units are not part of normal and expected compensation for purposes of calculating any severance, resignation, redundancy, end of service
payment, bonuses, long-service awards, pension or retirement benefits, or similar payments; and (f) the future value of the Stock Units is unknown and cannot be predicted with certainty.
11. Effect of Plan and these Terms and Conditions. The Plan is hereby incorporated by reference into these Terms and Conditions, and
these Terms and Conditions are subject in all respects to the provisions of the Plan, including without limitation the authority of the Executive
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Compensation Committee of the Company (the “Committee”) in its sole discretion to adjust awards and to make interpretations and other determinations with respect to all matters relating
to the applicable Award Agreements, these Terms and Conditions, the Plan and awards made pursuant thereto. These Terms and Conditions shall apply to the grant of Stock Units made to the Employee on the date hereof and shall not apply to any future
grants of Stock Units made to the Employee.
12. Notices. Notices hereunder shall be in writing and if to the Company shall be
addressed to the Secretary of the Company at 7950 Jones Branch Drive, McLean, Virginia 22107, and if to the Employee shall be addressed to the Employee at his or her address as it appears on the Company’s records.
13. Successors and Assigns. The applicable Award Agreement and these Terms and Conditions shall be binding upon and inure to the
benefit of the successors and assigns of the Company and, to the extent provided in Section 6 hereof, to the estate or designated beneficiary of the Employee.
14. Change in Control Provisions.
Notwithstanding anything to the contrary in these Terms and Conditions, the following provisions shall apply to all Stock Units granted under
the attached Award Agreement.
(a) Definitions.
As used in Article 15 of the Plan and in these Terms and Conditions, a “Change in Control” shall mean the first to occur of the
following:
(i) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) (a “Person”) of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of either (A) the then-outstanding shares of common stock
of the Company (the “Outstanding Company Common Stock”) or (B) the combined voting power of the then-outstanding voting securities of the Company
-6-
entitled to vote generally in the election of directors (the “Outstanding Company Voting Securities”); provided, however, that, for purposes of this Section, the following acquisitions
shall not constitute a Change in 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 one of its affiliates or (iv) any acquisition pursuant to a transaction that complies with Sections 14(a)(iii)(A), 14(a)(iii)(B) and 14(a)(iii)(C);
(ii) 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 stockholders 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;
(iii) consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the
Company or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or stock of another entity by the Company or any of its subsidiaries (each, a “Business
Combination”), in each case, unless, following such Business Combination, (A) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company
Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of the then-outstanding shares of common stock and the combined voting power of the then-outstanding voting securities entitled
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to vote generally in the election of directors, as the case may be, of the corporation or entity resulting from such Business Combination (including, without limitation, a corporation or entity
that, 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 the Outstanding Company Voting Securities, as the case may be, (B) no Person (excluding any employee benefit plan (or related trust) of the Company or any corporation or entity
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 or entity resulting from such Business Combination or the combined
voting power of the then-outstanding voting securities of such corporation or entity, except to the extent that such ownership existed prior to the Business Combination, and (C) at least a majority of the members of the board of directors of
the corporation or entity 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
(iv) approval by the stockholders of the Company of a complete liquidation or dissolution of the Company.
(b) Acceleration Provisions. In the event of the occurrence of a Change in Control, the Stock Units that have not been cancelled shall
become fully vested, and, if such Change in Control constitutes a “change in control event” within the meaning of Section 409A of the Code, there shall be paid out to the Employee as soon as administratively practicable following the
effective date of the Change in Control, the full number of shares of Common Stock subject to the Stock Units. In the event of the occurrence of a Change in Control that is not a “change in control event” within the meaning of
Section 409A of the Code, the vested Stock Units shall be paid out as soon as
-8-
administratively practicable after the earlier of the Employee’s termination of employment (subject to the six month delay for specified employees set forth in Section 4, if applicable)
or the Stock Unit Expiration Date.
(c) Legal Fees. The Company shall pay all legal fees, court costs, fees of experts and other
costs and expenses when incurred by Employee in connection with any actual, threatened or contemplated litigation or legal, administrative or other proceedings involving the provisions of this Section 14, whether or not initiated by the
Employee. The Company agrees to pay such amounts within 10 days following the Company’s receipt of an invoice from the Employee, provided that the Employee shall have submitted an invoice for such amounts at least 30 days before the end of the
calendar year next following the calendar year in which such fees and disbursements were incurred.
15. Employment Agreements. The
provisions of Sections 1, 3, 5, 6, 7 and 14 of these Terms and Conditions shall not be applied to or interpreted in a manner which would decrease the rights held by, or the payments owing to, an Employee under an employment agreement with the
Company that pre-exists the Grant Date and contains specific provisions applying to Plan awards in the case of any change in control or similar event or termination of employment, and if there is any conflict between the terms of such employment
agreement and the terms of Sections 1, 3, 5, 6, 7 and 14, the employment agreement shall control.
16. Grant Subject to Applicable
Regulatory Approvals. Any grant of Stock Units under the Plan is specifically conditioned on, and subject to, any regulatory approvals required in the Employee’s country. These approvals cannot be assured. If necessary approvals for grant
or payment are not obtained, the Stock Units may be cancelled or rescinded, or they may expire, as determined by the Company in its sole and absolute discretion.
17. Applicable Laws and Consent to Jurisdiction. The validity, construction, interpretation and enforceability of this Agreement shall
be determined and governed by the laws of
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the State of Delaware without giving effect to the principles of conflicts of law. For the purpose of litigating any dispute that arises under this Agreement, the parties hereby consent to
exclusive jurisdiction in Virginia and agree that such litigation shall be conducted in the courts of Fairfax County, Virginia or the federal courts of the United States for the Eastern District of Virginia.
18. Compliance with Section 409A. This Award is intended to comply with the requirements of Section 409A, and shall be
interpreted and administered in accordance with that intent (e.g., the definition of “termination of employment” (or similar term used herein) shall have the meaning ascribed to “separation from service” under Section 409A).
If any provision of these Terms and Conditions would otherwise conflict with or frustrate this intent, the provision shall not apply.
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Exhibit 10.3
GANNETT CO., INC.
2015
CHANGE IN CONTROL SEVERANCE PLAN
Table of Contents
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| INTRODUCTION |
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PURPOSE OF THE PLAN |
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1 |
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EFFECTIVE DATE |
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1 |
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ADMINISTRATION OF THE PLAN |
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1 |
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(a) |
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The Committee |
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1 |
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(b) |
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Determinations by the Committee |
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(c) |
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Delegation of Authority |
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2 |
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PARTICIPATION IN THE PLAN |
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2 |
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(a) |
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Designation of Participants |
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2 |
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(b) |
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Terminating Status as a Participant |
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2 |
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CHANGE IN CONTROL |
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ELIGIBILITY FOR BENEFITS UNDER THE PLAN |
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4 |
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(a) |
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General |
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4 |
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(b) |
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Cause |
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4 |
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(c) |
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Good Reason |
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5 |
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(d) |
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Certain Terminations Prior to a Change in Control |
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(e) |
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No Waiver |
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(f) |
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Notice of Termination After a Change in Control |
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(g) |
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Date of Termination |
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OBLIGATIONS OF THE COMPANY UPON TERMINATION |
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(a) |
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Cause; Other than for Good Reason |
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(b) |
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Termination Without Cause; Good Reason Terminations |
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(c) |
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Timing of Payments and Release Condition |
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MITIGATION |
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RESOLUTION OF DISPUTES |
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LEGAL EXPENSES AND INTEREST |
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11 |
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FUNDING |
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NO CONTRACT OF EMPLOYMENT |
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11 |
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NON-EXCLUSIVITY OF RIGHTS |
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(a) |
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Future Benefits under Company Plans |
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(b) |
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Benefits of Other Plans and Agreements |
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SUCCESSORS; BINDING AGREEMENT |
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TRANSFERABILITY AND ENFORCEMENT |
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12 |
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NOTICES |
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Table of Contents (continued)
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AMENDMENT OR TERMINATION OF THE PLAN |
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WAIVERS |
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14 |
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VALIDITY |
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GOVERNING LAW |
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SECTION 409A |
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14 |
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HEADINGS |
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ii
GANNETT CO., INC.
2015 CHANGE IN CONTROL SEVERANCE PLAN
1. Purpose of the Plan. This document establishes the Gannett Co., Inc. 2015 Change in Control Severance Plan (the “Plan”) to
assure the Company that it will have the continued dedication of, and the availability of objective advice and counsel from, key executives of the Company and its affiliates (as defined below) notwithstanding the possibility, threat or occurrence of
a Change in Control.
2. Effective Date. The 2015 Change in Control Severance Plan (the “Plan”) shall become effective on
July 28, 2015.
3. Administration of the Plan.
(a) The Committee. The Plan shall be administered (i) by such committee of non-employee directors as the Board shall appoint (the
“Committee”), or (ii) in the absence of such Committee or if the Committee is unable to act, by the Board. The members of the Committee shall be entitled to all of the rights to indemnification and payment of expenses and costs set
forth in the Bylaws of the Company. In no event may the protection afforded the Committee members in this Section 3(a) be reduced in anticipation of or following a Change in Control.
(b) Determinations by the Committee. Subject to the express provisions of the Plan and to the rights of the Participants (as defined
below) pursuant to such provisions, the Committee shall have the authority to adopt, alter and repeal such administrative rules, guidelines and practices governing the Plan as it shall, from time to time, deem advisable; to designate persons to be
covered by the Plan; to revoke such designations; to interpret the terms and provisions of the Plan (and any notices or agreements relating thereto); and otherwise to supervise the administration of the Plan in accordance with the terms hereof.
Prior to a Change in Control, all decisions made by the Committee pursuant to the Plan shall be made in its sole discretion and shall be final and binding on all persons, including the Company and Participants. The Committee’s determinations
need not be uniform, and may be made selectively among eligible employees and among Participants, whether or not they are similarly situated. Notwithstanding any provision in the Plan to the contrary, however, following a Change in Control, any act,
determination or decision of the Company or the Committee, as applicable, with regard to the administration, interpretation and application of the Plan must be reasonable, as viewed from the perspective of an unrelated party and with no deference
paid to the actual act, determination or decision of the Company or the Committee, as applicable. Furthermore, following a Change in Control, any decision by the Company or the Committee, as applicable, shall not be final and binding on a
Participant. Instead, following a Change in Control, if a
Participant disputes a decision of the Company or the Committee relating to the Plan and pursues legal action, the court shall review the decision under a “de novo” standard of review.
In addition, following a Change in Control, in the event that (i) the Company’s common stock is no longer publicly traded and (ii) any securities of the Company’s Ultimate Parent (as defined below) are publicly traded, then any
decisions by the Board with respect to whether a Participant was terminated for “Cause” shall be made by the board of directors of the Ultimate Parent. For purposes of the Plan, “Ultimate Parent” means a publicly traded
corporation or entity which, directly or indirectly through one or more affiliates, beneficially owns at least a plurality of the then-outstanding voting securities of the Company (including any successor to the Company by reason of merger,
consolidation, the purchase of all or substantially all of the Company’s assets or otherwise).
(c) Delegation of Authority.
The Committee may delegate to one or more officers or employees of the Company such duties in connection with the administration of the Plan as it deems necessary, advisable or appropriate.
4. Participation in the Plan.
(a) Designation of Participants. The Board or the Committee shall from time to time select the employees who are to participate in the
Plan (the “Participants”) from among those management or highly compensated employees of the Company and its affiliates it determines to be appropriate to include as Participants, given the purposes of the Plan and the potential effects on
the employee of a Change in Control. The Company shall notify each Participant in writing of his or her participation in the Plan. For purposes of the Plan, the term “affiliate” has the meaning set forth in Rule 12b-2 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and includes any partnership or joint venture of which the Company or any of its affiliates are general partners or co-venturers.
(b) Terminating Status as a Participant. A person shall cease to be a Participant upon (i) the termination of his or her
employment by the Company and any affiliate for any reason prior to a Change in Control, or (ii) the date that the Company notifies the Participant in writing that such individual’s status as a Participant has been revoked; provided that
such revocation shall not become effective until 12 months from the date that the revocation notice is provided. Except as specifically provided herein, the Committee shall have absolute discretion in the selection of Participants and in revoking
their status as Participants. Notwithstanding the foregoing, no revocation by the Committee of any person’s designation as a Participant shall be effective if made (i) on the day of, or within 24 months after, a Change in Control,
(ii) prior to a Change in Control, but at the request of any third party participating in or causing the Change in Control or (iii) otherwise in connection with, in relation to, or in anticipation of a Change in Control.
- 2 -
5. Change in Control. For purposes of the Plan, “Change in Control” means the
first to occur of the following:
(a) the acquisition by any individual, entity or group (within the meaning of Section 13(d)(3) or
14(d)(2) of the Exchange Act) (a “Person”) of beneficial ownership (within the meaning of Rule 13d 3 promulgated under the Exchange Act) of 20% or more of either (i) the then-outstanding shares of common stock of the 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 Section, the following acquisitions shall not constitute a Change in Control: (A) any acquisition directly from the Company, (B) any acquisition by the Company, (C) any
acquisition by any employee benefit plan (or related trust) sponsored or maintained by the Company or one of its affiliates or (D) any acquisition pursuant to a transaction that complies with Sections 5(c)(i), 5(c)(ii) and 5(c)(iii);
(b) individuals who, as of the Effective 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 stockholders 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;
(c) consummation of a reorganization, merger, statutory share exchange or consolidation or similar corporate transaction involving the Company
or any of its subsidiaries, a sale or other disposition of all or substantially all of the assets of the Company, or the acquisition of assets or stock of another entity by the Company or any of its subsidiaries (each, a “Business
Combination”), in each case, unless, following such Business Combination, (i) all or substantially all of the individuals and entities that were the beneficial owners of the Outstanding Company Common Stock and the Outstanding Company
Voting Securities immediately prior to such Business Combination beneficially own, directly or indirectly, more than 50% of 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 or entity resulting from such Business Combination (including, without limitation, a corporation or entity that, 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 the Outstanding Company Voting Securities, as the case may be, (ii) no Person (excluding any employee benefit plan (or related trust) of the Company or any corporation or entity 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 or entity resulting from such Business Combination or the combined voting power of the then-outstanding voting securities of
such
- 3 -
corporation or entity, 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 or entity 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 stockholders of the Company of a complete liquidation or dissolution of the Company.
No Participant in this Plan who participates in any group conducting a management buyout of the Company under the terms of which the Company ceases to be a
public company may claim that such buyout is a Change in Control under this Plan and no such Participant shall be entitled to any payments or other benefits under this Plan as a result of such buyout. For purposes of the Plan, no Participant in this
Plan shall be deemed to have participated in a group conducting a management buyout of the Company unless, following the consummation of the transaction, such Participant was the beneficial owner of more than 10% of the then-outstanding voting
securities of the Company or any successor corporation or entity resulting from such transaction.
6. Eligibility for Benefits under
the Plan.
(a) General. If a Change in Control shall have occurred, each person who is a Participant on the date of the Change
in Control shall be entitled to the compensation and benefits provided in Section 7(b) upon the subsequent termination of the Participant’s employment, provided that such termination occurs prior to the second anniversary of the Change in
Control, unless such termination is (i) because of the Participant’s death or disability (as determined under the Company’s Long Term Disability Plan in effect immediately prior to the Change in Control), (ii) by the Company or
its affiliate for Cause, or (iii) by the Participant other than for Good Reason.
(b) Cause . For purposes of the Plan,
“Cause” means:
(i) any material misappropriation of funds or property of the Company or its affiliate by the
Participant;
(ii) unreasonable and persistent neglect or refusal by the Participant to perform his or her duties which is
demonstrably willful and deliberate on the Participant’s part, which is committed in bad faith or without reasonable belief that such breach is in the best interests of the Company and which is not remedied in a reasonable period of time after
receipt of written notice from the Company specifying such breach;
(iii) conviction of the Participant of a securities law
violation or a felony involving moral turpitude; or
- 4 -
(iv) found by a court of competent jurisdiction in a civil action or by the
Securities and Exchange Commission to have violated any Federal or State securities law.
Notwithstanding the foregoing provisions of this
Section 6(b), the Participant shall not be deemed to have been terminated for Cause after a Change in Control unless and until there shall have been delivered to the Participant a copy of a resolution duly adopted by the affirmative vote of not
less than three quarters of the entire membership of the Board at a meeting of the Board (after reasonable notice to the Participant and an opportunity for Participant, together with his or her counsel, to be heard before the Board), finding that,
in the good faith opinion of the Board, the Participant was guilty of conduct set forth above in this Section 6(b) and specifying the particulars thereof in detail.
(c) Good Reason. For purposes of the Plan, “Good Reason” means the occurrence after a Change in Control of any of the
following circumstances without the Participant’s express written consent, unless such circumstances are fully corrected prior to the Date of Termination (as defined below) specified in the Notice of Termination (as defined below) given in
respect thereof:
(i) the material diminution of the Participant’s duties, authorities or responsibilities from those
in effect immediately prior to the Change in Control;
(ii) a material reduction in the Participant’s base salary or
target bonus opportunity as in effect on the date immediately prior to the Change in Control;
(iii) the relocation of the
Participant’s office from the location at which the Participant is principally employed immediately prior to the date of the Change in Control to a location 35 or more miles farther from the Participant’s residence immediately prior to the
Change in Control, and recognizing that the Participant shall be expected to travel on the Company’s business to an extent substantially consistent with the Participant’s business travel obligations prior to the Change in Control;
(iv) the failure by the Company or its affiliate to pay any material compensation or benefits due to the Participant;
(v) (A) the failure of the Company to obtain a satisfactory agreement from any successor to assume and agree to perform
the Plan, as contemplated in Section 14, or, (B) if the business of the Company for which the Participant’s services are principally performed is sold at any time within 24 months after a Change in Control, there is a material
diminution of the Participant’s duties, authorities or responsibilities from those in effect immediately prior to the Change in Control; or
(vi) any purported termination of the Participant’s employment that is not effected pursuant to a Notice of Termination
satisfying the requirements of the Plan.
- 5 -
(d) Certain Terminations Prior to a Change in Control. Anything in the Plan to the
contrary notwithstanding, if a Change in Control occurs and if the Participant’s employment with the Company terminated prior to the date on which the Change in Control occurs, and if it is reasonably demonstrated by the Participant that such
termination of employment (i) was at the request of any third party participating in or causing the Change in Control or (ii) otherwise arose in connection with, in relation to, or in anticipation of the Change in Control, then the
Participant shall be entitled to all payments and benefits under the Plan as though the Participant had terminated his or her employment for Good Reason on the day after the Change in Control. For purposes of this Section 6(d), a Change in
Control means a Change in Control that is also a change in ownership or effective control of the Company or a change in the ownership of a substantial portion of the assets of the Company within the meaning of Section 409A(a)(2)(A)(v) of the
Internal Revenue Code of 1986, as amended, (the “Code”) and the Treasury regulations and guidance issued thereunder (“Section 409A”).
(e) No Waiver. The Participant’s continued employment shall not constitute consent to, or a waiver of rights with respect to, any
circumstance constituting Good Reason hereunder.
(f) Notice of Termination After a Change in Control. Any termination by the
Company, or by the Participant for Good Reason, shall be communicated by Notice of Termination given in accordance with the Plan. For purposes of the Plan, a “Notice of Termination” means a written notice that (i) indicates the
specific termination provision in the Plan relied upon, and (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. With respect to a Notice of Termination given by a Participant in connection with a termination for “Good Reason” such notice must be provided within ninety (90) days after the event that created the “Good
Reason”.
(g) Date of Termination. For purposes of the Plan, “Date of Termination” means (i) if the
Participant’s employment is terminated by the Company for Cause, the date on which the Notice of Termination is given or any later date specified therein (which, however, shall not be more than 15 days later), (ii) if the
Participant’s employment is terminated by the Participant for Good Reason, the date specified in the Notice of Termination (which, however, shall not be less than 30 days or more than 45 days later than the date on which the Notice of
Termination is given), or (iii) if the Participant’s employment is terminated by the Company other than for Cause, the date on which the Company notifies the Participant of such termination. In all instances, the Date of Termination shall
mean the date of the Participant’s separation from service within the meaning of Section 409A.
7. Obligations of the Company
upon Termination.
- 6 -
(a) Cause; Other than for Good Reason. If the Participant’s employment shall be
terminated for Cause, or if the Participant terminates his or her employment other than for Good Reason, the Company shall pay the Participant his or her annual salary through the Date of Termination, to the extent not already paid, at the rate in
effect at the time Notice of Termination is given, plus all other amounts to which the Participant is entitled under any compensation, benefit or other plan or policy of the Company at the time such amounts are due, and the Company shall have no
further obligations to the Participant under the Plan.
(b) Termination Without Cause; Good Reason Terminations. Any Participant
who becomes eligible for compensation and benefits pursuant to Section 6(a) shall be paid or provided the following:
(i) his or her annual base salary through the Date of Termination, to the extent not already paid, at the rate in effect at the
time Notice of Termination is given and annual bonus for the fiscal year prior to the Date of Termination, to the extent not already paid;
(ii) as severance pay and in lieu of any further salary or bonus for the period following the Date of Termination, the
Participant shall receive a lump sum payment equal to his or her “Annual Compensation” (as defined below) multiplied by the “Multiplier” (as defined below).
For purposes of the Plan: (i) for Participants who formerly participated in the Company’s 2015 Transitional
Compensation Plan immediately prior to commencing participation in this Plan, “Multiplier” means three (3); and (ii) for other Participants the “Multiplier” shall be either two (2) or one (1) as assigned to the
Participant by the Board or the Committee.
For purposes of the Plan, “Annual Compensation” means the sum of
(A) the Participant’s annual base salary at the highest rate of salary during the 12-month period immediately prior to the Date of Termination or, if higher, during the 12 month period immediately prior to the Change in Control (in each
case, as determined without regard for any reduction for deferred compensation, 401(k) Plan contributions and similar items), and (B) the higher of (1) the average annual bonus the Participant earned with respect to the three fiscal years
immediately prior to the fiscal year in which the Change in Control occurs; and (2) the average annual bonus the Participant earned with respect to three fiscal years immediately prior to the fiscal year in which the Date of Termination occurs.
For purposes of this calculation, annual bonuses include bonuses the Participant received prior to the separation of TEGNA Inc. and the Company on June 29, 2015;
(iii) with respect to Participants who are “Grandfathered Participants” under the Company’s Supplemental
Retirement Plan (as that term is defined in the Company’s Supplemental Retirement Plan) payment by the Company to such a Participant of the value of a monthly amount (calculated as a single life annuity) equal to the difference
- 7 -
between (A) the monthly annuity payable under the Company’s Retirement Plan and the Company’s Supplemental Retirement Plan as of (1) the date of the Change in Control, or
(2) the Date of Termination, whichever monthly annuity amount may be higher, and (B) that which would have been paid under such plan(s) had the Participant remained in the employ of the Company through the third year anniversary of the
date of the Change in Control. For purposes of calculating this benefit, the Participant shall be credited with the service that the Participant would have performed if the Participant had remained employed through the third year anniversary of the
date of the Change in Control, the Participant will be treated as having the age he would have attained on the third year anniversary of the date of the Change in Control, and the Participant will be credited with the compensation that the
Participant would have received if the Participant continued to receive the same level of salary and annual bonus which the Participant received with respect to the fiscal year of the Company immediately preceding (1) the date of the Change in
Control, or (2) the Date of Termination, whichever level may be higher (assuming that such compensation was paid to the Participant through the third year anniversary of the date of the Change in Control in equal monthly installments). The
Company shall pay such benefit in the form of a lump sum distribution on the 30th day after the Date of Termination; provided that the Participant executes the agreement described in
Section 7(c) by the 30th day after the Date of Termination. Such amount shall be calculated using the same assumptions and methodology used for calculating lump sum distributions to
participants who terminate employment after a Change in Control under the Supplemental Retirement Plan;
(iv) a prorated
annual bonus for the portion of the fiscal year elapsed prior to the Date of Termination in an amount equal to the average annual bonus the Participant earned with respect to three fiscal years immediately prior to the fiscal year in which the Date
of Termination occurs prorated for the portion of the fiscal year elapsed prior to the Date of Termination;
(v) an amount
equal to the monthly COBRA cost of Executive’s medical and dental coverage in effect as of the Termination Date multiplied by the lesser of (1) 18; or (2) 24 minus the number of full months between the date of the Change in Control
and the Date of Termination;
(vi) It is the object of this subsection to provide for the maximum after-tax income to each
Participant with respect to any payment or distribution to or for the benefit of the Participant, whether paid or payable or distributed or distributable pursuant to the Plan or any other plan, arrangement or agreement, that would be subject to the
excise tax imposed by Section 4999 of the Code or any similar federal, state or local tax that may hereafter be imposed (a “Payment”) (Section 4999 of the Code or any similar federal, state or local tax are collectively referred
to as the “Excise Tax”). Accordingly, before any Payments are made under this Plan, a determination will be made as to which of two alternatives will maximize such Participant’s after-tax proceeds, and the Company must notify the
Participant in writing of such determination. The first alternative is the payment in full of all Payments potentially subject to the Excise Tax. The second alternative is the payment of only a part of the Participant’s Payments so that the
- 8 -
Participant receives the largest payment and benefits possible without causing the Excise Tax to be payable by the Participant. This second alternative is referred to in this subsection as
“Limited Payment”. The Participant’s Payments shall be paid only to the extent permitted under the alternative determined to maximize the Participant’s after-tax proceeds, and the Participant shall have no rights to any greater
payments on his or her Payments. If Limited Payment applies, Payments shall be reduced in a manner that would not result in the Participant incurring an additional tax under Section 409A of the Code. Accordingly, Payments not constituting
nonqualified deferred compensation under Section 409A shall be reduced first, in this order but only to the extent that doing so avoids the Excise Tax (e.g., accelerated vesting or payment provisions in an award will be ignored to the extent
that such provisions would trigger the Excise Tax):
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• |
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Payment of the severance amounts under Section 7(b)(ii)-(v) hereof to the extent such payments do not constitute deferred compensation under Section 409A. |
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• |
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Performance-based awards in accordance with Sections 15.3 and 15.4 of the Company’s 2015 Omnibus Incentive Compensation Plan (or any predecessor or successor plan) (the “Omnibus Plan”), but excluding
Section 409A Awards (as defined in such Plan). |
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• |
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Non-performance, service-based awards in accordance with Sections 15.3 and 15.4 of the Omnibus Plan, but excluding Section 409A Awards (as defined in such Plan). |
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• |
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Awards of Options and SARs under the Omnibus Plan in accordance with Sections 15.3 and 15.4 of the Omnibus Plan. |
Then, if the foregoing reductions are insufficient, Payments constituting deferred compensation under Section 409A shall
be reduced, in this order:
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• |
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Payment of the severance amounts under Section 7(b)(ii)-(v) hereof to the extent such payments constitute deferred compensation under Section 409A. |
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• |
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Performance-based Section 409A Awards in accordance with Sections 15.3 and 15.4 of the Omnibus Plan. |
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• |
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Non-performance, service-based Section 409A awards in accordance with Sections 15.3 and 15.4 of the Omnibus Plan. |
In the event of conflict between the order of reduction under this Plan and the order provided by any other Company document governing a
Payment, then the order under this Plan shall control.
All determinations required to be made under this Section 7(b)(vi) shall be
made by Ernst & Young LLP, or, if Ernst & Young LLP is not the Company’s nationally
- 9 -
recognized independent accounting firm immediately prior to the Change in Control, such other nationally recognized accounting firm serving as the Company’s independent accounting firm (the
“Accounting Firm”) which shall provide detailed supporting calculations both to the Company and the Participant within ten (10) business days of the termination of employment giving rise to benefits under the Plan, or such earlier
time as is requested by the Company. All fees, costs and expenses (including, but not limited to, the costs of retaining experts) of the Accounting Firm shall be borne by the Company. In the event the Accounting Firm determines that the Payments
shall be reduced, it shall furnish the Participant with a written opinion to such effect. The determination by the Accounting Firm shall be binding upon the Company and the Participant.
(c) Timing of Payments and Release Condition. All payments under Sections 7(b)(ii), 7(b)(iii), 7(b)(iv) and 7(b)(v) shall be due and
payable in a lump sum on the 30th day after the Date of Termination; provided that the Participant executes the attached agreement set forth at Exhibit A (or a substantially similar agreement) on or before the 30th day after the Date of Termination.
The Participant shall forfeit all rights under this Plan if such agreement is not executed by that date. The timing of all payments and benefits under this Plan shall be made consistent with the requirements of Section 409A, and notwithstanding
any provision of the Plan to the contrary, any amount or benefit that is payable to a Participant who is a “specified employee” (as defined in Section 409A) shall be delayed until the date which is first day of the seventh month after
the date of such Participant’s termination of employment (or, if earlier, the date of such Participant’s death), if paying such amount or benefit prior to that date would violate Section 409A.
8. Mitigation. Except as provided in Section 13(b), the Participant shall not be required to mitigate the amount of any payment
provided for in the Plan by seeking other employment or otherwise, nor shall the amount of any payment or benefit provided for in the Plan be reduced by any compensation earned by the Participant as a result of employment by another employer, by
retirement benefits, by offset against any amount claimed to be owed by the Participant to the Company, or otherwise.
9. Resolution of
Disputes. If there shall be any dispute between the Company and the Participant (a) in the event of any termination of the Participant’s employment by the Company, as to whether such termination was for Cause, or (b) in the event
of any termination of employment by the Participant, as to whether Good Reason existed, then, unless and until there is a final, nonappealable judgment by a court of competent jurisdiction declaring that such termination by the Company was for Cause
or that the determination by the Participant of the existence of Good Reason was not made in good faith, the Company shall pay all amounts, and provide all benefits, to the Participant and/or the Participant’s family or other beneficiaries, as
the case may be, that the Company would be required to pay or provide pursuant to the Plan as though such termination were by the Company without Cause or by the Participant with Good Reason; provided, however, that the Company shall not be required
to pay any disputed amount pursuant to this Section except upon receipt of a written undertaking by or on behalf of the
- 10 -
Participant to repay all such amounts to which the Participant is ultimately adjudged by such court not to be entitled. Notwithstanding the foregoing, the payment of any amount in settlement of a
dispute described in this Section shall be made in accordance with the requirements of Section 409A.
10. Legal Expenses and
Interest.
(a) If, with respect to any alleged failure by the Company to comply with any of the terms of the Plan or any dispute
between the Company and the Participant with respect to the Participant’s rights under the Plan, a Participant in good faith hires legal counsel with respect thereto or institutes any negotiations or institutes or responds to legal action to
assert or defend the validity of, to interpret, enforce his or her rights under, or recover damages for violation of the terms of the Plan, then (regardless of the outcome) the Company shall pay, as they are incurred, the Participant’s actual
expenses for attorneys’ fees and disbursements. The Company agrees to pay such amounts within 10 days following the Company’s receipt of an invoice from the Executive, provided that the Executive shall have submitted an invoice for such
amounts at least 30 days before the end of the calendar year next following the calendar year in which such fees and disbursements were incurred.
(b) To the extent permitted by law, the Company shall pay to the Participant on demand a late charge on any amount not paid in full when due
after a Change in Control under the terms of the Plan. Except as otherwise specifically provided in the Plan, the late charge shall be computed by applying to the sum of all delinquent amounts a late charge rate. The late charge rate shall be a
fixed rate per year that shall equal the sum of 3% plus the “prime rate” of Morgan Guaranty Trust Company of New York or successor institution (“Morgan”) publicly announced by Morgan to be in effect on the Date of Termination, or
if Morgan no longer publicly announces a prime rate on such date, any substantially equivalent rate announced by Morgan to be in effect on such date (or, if Morgan does not exist on such date, the prime rate published by the Wall Street Journal on
such date) (provided, however, that such rate shall not exceed any applicable legally permissible rate).
11. Funding. The Company
may, in its discretion, establish a trust to fund any of the payments which are or may become payable to Participant under the Plan, but nothing included in the Plan shall require that the Company establish such a trust or other funding arrangement.
Whether or not the Company sets any assets aside for the purposes of the Plan, such assets shall at all times prior to payment to Participants remain the assets of the Company subject to the claims of its creditors. Neither the Company nor the Board
nor the Committee shall be deemed to be a trustee or fiduciary with respect to any amount to be paid under the Plan.
12. No Contract
of Employment. The Participant and the Company acknowledge that, except as may otherwise be provided under any written agreement between the Participant and the Company, the employment of the Participant by the Company is “at will”
and, subject to such payments as may become due under the Plan, such employment may be terminated by either the Participant or the Company at any time and for any reason.
- 11 -
13. Non-exclusivity of Rights.
(a) Future Benefits under Company Plans. Nothing in the Plan shall prevent or limit the Participant’s continuing or future
participation in any plan, program, policy or practice of the Company or any of its affiliates, nor shall anything herein limit any rights or reduce any benefits the Participant may have under any agreement or arrangement with the Company or any of
its affiliates. Amounts that are vested benefits or that the Participant is otherwise entitled to receive under any plan, policy, practice or program of or any agreement or arrangement with the Company or any of its affiliates at or subsequent to
the Date of Termination shall be payable in accordance with such plan, policy, practice or program or agreement or arrangement except as explicitly modified by the Plan.
(b) Benefits of Other Plans and Agreements. If the Participant becomes entitled to receive compensation or benefits under the terms of
the Plan, such compensation or benefits will be reduced by other severance benefits payable under any plan, program, policy or practice of or agreement or other arrangement between the Participant and the Company (not including payments or
distributions under the Company’s 2015 Omnibus Incentive Compensation Plan). It is intended that the Plan provide compensation or benefits that are supplemental to severance benefits and that are actually received by the Participant pursuant to
any plan, program, policy or practice of or agreement or arrangement between the Participant and the Company, such that the net effect to the Participant of entitlement to any similar benefits that are contained both in the Plan and in any other
existing plan, program, policy or practice of or agreement or arrangement between the Participant and the Company will be to provide the Participant with the greater of the benefits under the Plan or under such other plan, program, policy, practice,
or agreement or arrangement. This Plan is not intended to modify, amend, terminate or otherwise affect the Company’s 2015 Omnibus Incentive Compensation Plan (or a successor plan), which shall remain a fully independent and separate plan.
14. Successors; Binding Agreement. 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 expressly assume and agree to perform the Plan in the same manner and to the same extent that the Company would be required to perform it if no
such succession had taken place. As used in the Plan, “Company” means the Company as herein defined and any successor to its business and/or assets which assumes and agrees to perform the Plan, by operation of law or otherwise.
15. Transferability and Enforcement.
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(a) The rights and benefits of the Company under the Plan shall be transferable, but only to a
successor of the Company, and all covenants and agreements hereunder shall inure to the benefit of and be enforceable by or against its successors and assigns. The rights and benefits of Participant under the Plan shall not be transferable other
than by the laws of descent and distribution.
(b) The Company intends the Plan to be enforceable by Participants. The rights and benefits
under the Plan shall inure to the benefit of and be enforceable by any Participant and the Participant’s personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees and legatees. If the Participant
should die while any amount would still be payable to the Participant hereunder had the Participant continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of the Plan to the
Participant’s devisee, legatee or other designee or, if there is no such designee, to the Participant’s estate.
16.
Notices. Any notices referred to herein shall be in writing and shall be deemed given if delivered in person or by facsimile transmission, telexed or sent by U.S. registered or certified mail to the Participant at his or her address on file
with the Company (or to such other address as the Participant shall specify by notice), or to the Company at its principal executive office, Attn: Secretary.
17. Amendment or Termination of the Plan. The Board reserves the right to amend, modify, suspend or terminate the Plan at any time,
provided that:
(a) without the written consent of the Participant, no such amendment, modification, suspension or termination shall
adversely affect the benefits or compensation due under the Plan to any Participant whose employment has terminated prior to such amendment, modification, suspension or termination and is entitled to benefits and compensation under
Section 7(b);
(b) no such amendment, modification, suspension or termination that has the effect of reducing or diminishing the
right of any Participant to receive any payment or benefit under the Plan will become effective prior to the first anniversary of the date on which written notice of such amendment, modification, suspension or termination was provided to the
Participant, and if such amendment, modification, suspension or termination was effected (i) on the day of or subsequent to the Change in Control, (ii) prior to the Change in Control, but at the request of any third party participating in
or causing a Change in Control or (iii) otherwise in connection with, in relation to, or in anticipation of a Change in Control, such amendment, modification, suspension or termination will not become effective until the second anniversary of
the Change in Control; and
(c) the Board’s right to amend, modify, suspend or terminate the Plan is subject to the requirements of
Section 409A to the extent such requirements apply to the Plan.
- 13 -
18. Waivers. The Participant’s or the Company’s failure to insist upon strict
compliance with any provision of the Plan or the failure to assert any right the Participant or the Company may have hereunder, including, without limitation, the right of the Participant to terminate employment for Good Reason, shall not be deemed
to be a waiver of such provision or right or any other provision or right under the Plan.
19. Validity. The invalidity or
unenforceability of any provision of the Plan shall not affect the validity or enforceability of any other provision of the Plan, and such other provisions shall remain in full force and effect to the extent permitted by law.
20. Governing Law. To the extent not preempted by federal law, all questions pertaining to the construction, regulation, validity and
effect of the provisions of the Plan shall be determined in accordance with the laws of the State of Delaware without regard to the conflict of laws principles thereof.
21. Section 409A. (a) General. It is intended that payments and benefits made or provided under this Plan shall
not result in penalty taxes or accelerated taxation pursuant to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and the Plan shall be interpreted and administered in accordance with that
intent. If any provision of the Plan would otherwise conflict with or frustrate this intent, that provision will be interpreted and deemed amended so as to avoid the conflict. Any payments that qualify for the “short-term deferral”
exception, the separation pay exception or another exception under Section 409A of the Code shall be paid under the applicable exception. For purposes of the limitations on nonqualified deferred compensation under Section 409A of the
Code, each payment of compensation under this Plan shall be treated as a separate payment of compensation for purposes of applying the exclusion under Section 409A of the Code for short-term deferral amounts, the separation pay exception or any
other exception or exclusion under Section 409A of the Code. In no event may a Participant, directly or indirectly, designate the calendar year of any payment under this Plan. Despite any contrary provision of this Plan, any
references to “termination of employment” or “Date of Termination” or similar term shall mean and refer to the date of a Participant’s “separation from service,” as that term is defined in Section 409A of the
Code and Treasury regulation Section 1.409A-1(h).
(b) Delay of Payment. Notwithstanding any other provision of this Plan
to the contrary, if a Participant is considered a “specified employee” for purposes of Section 409A of the Code (as determined in accordance with the methodology established by the Company as in effect on the termination date), any
payment that constitutes nonqualified deferred compensation within the meaning of Section 409A of the Code that is otherwise due to a Participant under this Plan during the six (6)-month period immediately following a Participant’s
separation from service (as determined in accordance with Section 409A of the Code) on account of a Participant’s separation from service shall be accumulated and paid to such Participant on the first (1st) business day of the seventh
(7th) month following such Participant’s separation from
- 14 -
service (the “Delayed Payment Date”). If such Participant dies during the postponement period, the amounts and entitlements delayed on account of Section 409A of
the Code shall be paid to the personal representative of such Participant’s estate on the first to occur of the Delayed Payment Date or thirty (30) calendar days after the date of his or her death.
(c) Reimbursement and In-Kind Benefits. Notwithstanding anything to the contrary in this Plan, all reimbursements and in-kind
benefits provided under this Plan that are subject to Section 409A of the Code shall be made in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is
for expenses incurred during the Participant’s lifetime (or, if longer, through the twentieth (20th) anniversary of the Effective Date) or during a shorter period of time specified in
this Plan); (ii) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year;
(iii) the reimbursement of an eligible expense will be made no later than the last day of the calendar year following the year in which the expense is incurred; and (iv) the right to reimbursement or in-kind benefits is not subject to
liquidation or exchange for another benefit.
22. Headings. The headings and paragraph designations of the Plan are included solely
for convenience of reference and shall in no event be construed to affect or modify any provisions of the Plan.
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| Dated: July 28, 2015 |
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GANNETT CO., INC. |
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By: |
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/s/ David Harmon |
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Name: |
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David Harmon |
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Title: |
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Chief People Officer |
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Exhibit A
Release of Claims and Restrictive Covenant Agreement
This Release of Claims and Restrictive Covenant Agreement (this “Agreement”) is entered into among
[ ] and Gannett Co., Inc. (the “Company”) in connection with your separation of employment
from the Company in accordance with the Gannett Co., Inc. 2015 Change in Control Severance Plan (the “Plan”). Capitalized terms used and not defined herein shall have the meanings provided in the Plan. The parties agree to
the following:
(1) Date of Termination. Your final day as an employee of the Company is
, 20 (the “Date of Termination”).
(2) Severance Amount. Provided that you execute this Agreement and that it becomes effective in accordance with paragraph 8
hereof, on , 20 , you will receive a lump sum cash payment in the
amount of $ , less legally-required withholdings, payable on
.
(3)
Release Deadline. You will receive the benefits described in paragraph 2 above only if you sign this Agreement on or before
, 20 . In exchange for and in consideration of the benefits
offered to you by the Company in paragraph 2 above, you agree to the terms of this Agreement.
(4) Release of Claims. You
agree that this is a full and complete Release of Claims. Accordingly, you and the Company agree as follows:
| |
(a) |
The Release of Claims means that you agree to give up forever any and all legal claims, or causes of actions, you may have, or think you have, against the Company, any of its subsidiaries, related or affiliated
companies, including any predecessor or successor entities, and their respective directors, officers, and employees (collectively, the “Company Parties”). This Release of Claims includes all legal claims that arose at
any time before or at the time you sign this Agreement; it also includes those legal claims of which you know and are aware, as well as any legal claims of which you may not know or be aware, including claims for breach of contract, claims arising
out of any employment agreement you may have or under the Plan, claims of intentional or negligent infliction of emotional distress, defamation, breach of implied covenant of good faith and fair dealing, and any other claim arising from, or related
to, your employment by the Company. In addition, the Company Parties agree to give up forever any and all legal claims, or causes of action, they may have or think they may have against you, including all legal claims that arose at any time
before or at the time you sign this Agreement, whether known to the Company Parties or not. |
Notwithstanding the foregoing,
by executing this Release of Claims, (i) you will not forfeit or release your right to receive your vested benefits under the Gannett
- 16 -
Retirement Plan, the Gannett Co., Inc. 401(k) Savings Plan, the Gannett Supplemental Retirement Plan, the Gannett Co., Inc. 2015 Omnibus Incentive Compensation Plan and the Gannett
Co., Inc. Deferred Compensation Plan (but you will forfeit your right to receive any further severance or annual bonus award); any rights to indemnification and advancement of expenses under the Company’s By-laws and/or directors’ and
officers’ liability insurance policies; any other rights under the Plan that are intended to survive a termination of employment; or any legal claims or causes of action arising out of actions allegedly taken by the Company after the date of
your execution of this Agreement; and (ii) none of the Company Parties will forfeit or release any right to recoup compensation under the claw back provisions of under any plan or policy of the Company or applicable law; any rights under the
Plan which are intended to survive a termination of employment (including, but not limited to, your restrictive covenant and confidentiality obligations); any claims based on your fraud or conduct which was committed in bad faith or arising from
your active and deliberate dishonesty; any claims for which you have no rights to indemnification and advancement of expenses under the Company’s By-laws and/or directors’ and officers’ liability insurance policies; or any legal
claims or causes of action arising out of actions allegedly taken by you after the date of your execution of this Agreement. The matters referenced in clauses (i) and (ii) of this paragraph are referred to as the “Excluded
Matters.”
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(b) |
Several laws of the United States and of the Commonwealth of Virginia create claims for employees in various circumstances. These laws include the Age Discrimination in Employment Act of 1967, as amended by the
Older Worker Benefit Protection Act, Title VII of the Civil Rights Act of 1964, the Rehabilitation Act of 1973, the Family and Medical Leave Act, the Employee Retirement Income Security Act, the Americans With Disabilities Act, the Genetic
Information Non-discrimination Act, and the Virginia Human Rights Act. Several of these laws also provide for the award of attorneys’ fees to a successful plaintiff. You agree that this Release of Claims specifically includes any
possible claims under any of these laws or similar state and federal laws, including any claims for attorneys’ fees. |
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(c) |
By referring to specific laws we do not intend to limit the Release of Claims to just those laws. All legal claims for money damages, or any other relief that relate to or are in any way connected with your
employment with the Company or any of its subsidiaries, related or affiliated companies, are included within this Release of Claims, even if they are not specifically referred to in this Agreement. The only legal claims that are not covered by
this Release of Claims are the Excluded Matters. |
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(d) |
Except for the Excluded Matters, we agree that neither party will say later that some particular legal claim or claims are not covered by this Release of Claims because we or you were unaware of the claim or claims,
because such claims were overlooked, or because you or we made an error. |
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(e) |
We specifically confirm that, as far as you or the Company know, no one has made any legal claim in any federal, state or local court or government agency relating to your employment, or the ending of your employment,
with the Company. If, at any time in the future, such a claim is made by you or the Company, or someone acting on behalf of you or the Company, or by some other person or a governmental agency, you and the Company agree that each will be
totally and completely barred from recovering any money damages or remedy of any kind, except in the case of any legal claims or causes of action arising out of any of the Excluded Matters. This provision is meant to include claims that are
solely or in part on your behalf, or on behalf of the Company, or claims which you or the Company have or have not authorized. |
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(f) |
This Agreement, and the Release of Claims, will not prevent you from filing any future administrative charges with the United States Equal Employment Opportunity Commission (“EEOC”) or a state
fair employment practices (“FEP”) agency, nor from participating in or cooperating with the EEOC or a state FEP agency in any investigation or legal action undertaken by the EEOC or a state FEP agency. However, this
Agreement, and the Release of Claims, does mean that you may not collect any monetary damages or receive any other remedies from charges filed with or actions by the EEOC or a state FEP agency. |
(5) Restrictive Covenants.
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(a) |
You agree that in consideration for the payments under paragraph 2 above, for a period of six (6) months after the Date of Termination (the
“Restricted Period”), you will not, without the written consent of the Company, obtain or seek a position with a Competitor (as defined below) in which you will use or are likely to use any confidential information or trade
secrets of the Company, or which you would have duties for such Competitor within the United States that involve Competitive Services (as defined below) and that are the same or similar to those services actually performed by you for the Company.
For purposes of this paragraph 5, “Competitive Services” means the provision of goods or services that are competitive with any goods or services offered by the Company as of the date of this Agreement, including, but not
limited to newspapers, non-daily publications, digital, Internet, and other news and information services, and “Competitor” means any individual or any entity or enterprise engaged, wholly or in part, in Competitive
Services. The parties acknowledge that the Company may from time to time during the term of this Agreement change or increase the line of goods or services it provides, and you agree to amend this Agreement from time to time to include such
different or additional goods and services to the definition of “Competitive Services” for purposes of this paragraph 5. You agree that due to your position of trust and confidence the restrictions contained in this paragraph 5(a) are
reasonable, and the benefits conferred on you in this Agreement are adequate consideration, and |
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since the nature of the Company’s business is national in scope, the geographic restriction herein is reasonable. [This restrictive covenant only applies to the Company’s Chief
Executive Officer.] |
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(b) |
You understand and agree that the relationship between the Company and each of its employees constitutes a valuable asset of the Company and may not be converted to your own use. Accordingly, you hereby agree that
during the Restricted Period, you shall not, directly or indirectly, on your own behalf or on behalf of another person, solicit or induce any employee of the Company to terminate his or her employment relationship with the Company or any affiliate
of the Company or to enter into employment with another person or entity. The foregoing shall not apply to employees who respond to solicitations of employment directed to the general public or who seek employment at their own initiative.
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(c) |
You agree that you will not make any statements, oral or written, or cause or allow to be published in your name, or under any other name, any statements, interviews, articles, books, web logs, editorials or commentary
(oral or written) that are critical or disparaging of the Company, or any of their operations, or any of their officers, employees or directors. Likewise, the Company agrees that it will not make, and will use reasonable efforts to ensure that
directors and officers of the Company do not make, any statements, oral or written, or cause to be published in the Company’s name, any statements, interviews, articles, editorials or commentary (oral or written) that are critical or
disparaging of you. It is understood that merely because a personal statement is made by a Company employee does not mean that it is made “in the Company’s name”. |
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(d) |
You agree that unless duly authorized in writing by the Company, you will not at any time divulge or use in connection with any business activity any trade secrets or confidential information first acquired by you
during and by virtue of your employment with the Company. |
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(e) |
You acknowledge that a breach of this paragraph 5 would cause irreparable injury and damage to the Company which could not be reasonably or adequately compensated by money damages, and the Company acknowledges that a
breach of paragraph 5 would cause irreparable injury and damage to you, which could not be reasonably or adequately compensated by money damages. Accordingly, each of you, the Company acknowledges that the remedies of injunction and
specific performance shall be available in the event of such a breach, and the non-breaching party shall be entitled to money damages, costs and attorneys’ fees, and other legal or equitable remedies, including an injunction pending trial,
without the posting of bond or other security. Any period of restriction set forth in this paragraph 5 shall be extended for a period of time equal to the duration of any breach or violation thereof. |
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(f) |
In the event of your breach of this paragraph 5, in addition to the injunctive relief described above, the Company’s remedy shall include the forfeiture and return to the Company of any payment made to you or on
your behalf under paragraph 2 above. |
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(g) |
In the event that any provision of this paragraph 5 is held to be in any respect an unreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates
or the geographic area to which it applies, or effect any other change to the extent necessary to render this paragraph 5 enforceable, it being acknowledged by the parties that the representations and covenants set forth herein are of the essence of
this Agreement. |
(6) Entire Agreement. You agree that this Agreement contains all of the details of the
agreement between you and the Company with respect to the subject matter hereof. Nothing has been promised to you, either in some other written document or orally, by the Company or any of its officers, employees or directors, that is not
included in this Agreement.
(7) No Admission. Nothing contained in this Agreement will be deemed or construed as an admission of
wrongdoing or liability on the part of Company Parties.
(8) Governing Law and Venue. All matters affecting this Agreement,
including the validity thereof, are to be governed by, and interpreted and construed in accordance with, the laws of the State of Delaware applicable to contracts executed in and to be performed in that State. The parties agree to submit to the
jurisdiction of the federal and state courts sitting in Delaware, for all purposes relating to the validity, interpretation, or enforcement of this Agreement.
(9) Time to Consider; Effectiveness. Please review this Agreement carefully. We advise you to talk with an attorney before
signing this Agreement. So that you may have enough opportunity to think about this offer, you may keep this Agreement for twenty-one (21) days from the date of termination of your employment. You acknowledge that this Agreement was
made in connection with your participation in the Plan and was available to you both prior to and immediately at the time of your termination of employment. For that reason you acknowledge and agree that the twenty-one (21)-day consideration
period identified in this paragraph commenced to run, without any further action by the Company immediately upon your being advised of the termination of your employment. Consequently, if you desire to execute this Agreement, you must do so no
later than , 20 . Should you accept all the terms by signing
this Agreement on or before , 20 , you may nevertheless revoke this
Agreement within seven (7) days after signing it by notifying in writing of your revocation. We will provide a
courtesy copy to your attorney, if you retain one to represent you. If you wish to accept this Agreement, please confirm your acceptance of the terms of the Agreement by signing the original of this Agreement in the space provided
below. The Agreement will become effective, and its terms will be carried out beginning on the day following the seven (7)-day revocation period.
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(10) Knowing and Voluntary. By signing this Agreement you agree that you have
carefully read this Agreement and understand its terms. You also agree that you have had a reasonable opportunity to think about your decision, to talk with an attorney or advisor of your choice, that you have voluntarily signed this Agreement,
and that you fully understand the legal effect of signing this Agreement.
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GANNETT CO., INC. |
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Exhibit 10.4
Gannett Co., Inc.
Executive Severance Plan
1. Purpose of Plan. The purpose of this Gannett Co., Inc. Executive Severance Plan (this “Plan”) is to
provide individuals who are designated as participants in the Plan by the Executive Compensation Committee (the “Committee”) of the Board of Directors of the Company (the “Board”) severance benefits in
the event of certain involuntary terminations of employment.
2. Certain Defined Terms. Certain terms used herein have the
definitions given to them in the first place in which they are used, and all other defined terms have the meanings set forth below in this Section 2.
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(a) |
“Annual Base Salary” means a Participant’s regular rate of annual base salary as in effect immediately preceding such Participant’s Qualifying Termination. |
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(b) |
“Cause” means a termination of a Participant’s employment following the occurrence of any of the following events, each of which shall constitute a “Cause” for such termination:
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(i) |
embezzlement, fraud, misappropriation of funds, breach of fiduciary duty or other act of material dishonesty committed by a Participant or at his or her direction; |
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(ii) |
failure by a Participant to perform adequately the duties of his or her position, as a result of neglect or refusal, that he or she does not remedy within thirty (30) days after receipt of written notice from the
Company; |
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(iii) |
violation of the Company’s employment policies by a Participant; |
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(iv) |
conviction of, or plea of guilty or nolo contendere by a Participant to a felony or any crime involving moral turpitude; or |
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(v) |
found by a court of competent jurisdiction in a civil action or by the Securities and Exchange Commission to have violated any Federal or State securities law. |
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(c) |
“Qualifying Termination” means an involuntary termination of a Participant’s employment by the Company (other than for
Cause). Any determination as to whether a termination is a Qualifying Termination shall be made in the reasonable, good faith discretion of the Committee. In no event shall a Participant’s voluntary termination or a termination due to
a Participant’s death or disability constitute a Qualifying Termination under this Plan. Additionally, a Qualifying Termination shall not occur if the |
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Participant’s employment is terminated in connection with a restructuring, reorganization, redundancy, merger, acquisition, sale, spinoff, outsourcing, transfer, or other similar condition
or transaction, in such circumstances where the Participant is offered employment by the Company, a successor organization or any other entity with an Annual Base Salary that is not materially less than that paid to the Participant prior to such
change. The Company shall provide written notice of the Qualifying Termination, and the date of a Qualifying Termination shall be the Participant’s separation from service with the Company in accordance with the notice. |
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(d) |
“Severance Multiple” means (i) with respect to the President and Chief Executive Officer of the Company, three (3); and (ii) for other Participants the “Severance Multiplier”
shall be either two (2) or one (1) as assigned to the Participant by the Board or the Committee. |
3. Eligible
Employees. This Plan shall apply solely with respect to the Company’s executives who are designated by the Board or the Committee as participants (the employees covered by this Plan, the
“Participants”). Designation as a Participant shall be effective as of the date of such Board or Committee action. The Committee and the Board reserve the right to add new Participants or terminate the participation
of a Participant at any time and in its sole discretion; provided that a Participant will not be removed from participation in the Plan without at least six (6) months advance notice.
4. Term of the Plan. This Plan shall be effective commencing on July 28, 2015, and shall continue until the Committee
terminates the Plan; provided, that the termination of the Plan shall not affect any unsatisfied obligations under this Plan that have arisen prior to the termination with respect to Participants who have received notice of a Qualifying
Termination prior to the termination.
5. Administration of the Plan. This Plan shall be administered by the
Committee. All actions taken and all determinations by the Committee shall be final and binding on all persons claiming any interest in or under this Plan.
6. Amendment or Termination of Plan. Following the Effective Date, the Committee and the Board reserve the right to amend or
terminate the Plan at any time; provided that the termination or amendment of this Plan shall not affect any obligations under this Plan that have arisen prior to the date of such amendment or termination and no reduction in the benefits under this
Plan through a plan amendment or plan termination shall become effective unless the Company provides at least six (6) months advance written notice to the affected Participants.
7. Benefits under this Plan. Upon a Qualifying Termination, a Participant shall, subject to the terms and conditions of this Plan
including Section 8, be entitled to receive a severance payment (the “Severance Amount”) equal to (a) the Participant’s Severance Multiple, multiplied by (b) the Participant’s Annual
Base Salary. In addition, a Participant shall be paid in accordance with normal payroll practices all earned but unpaid compensation, accrued vacation,
2
accrued but unreimbursed expenses required to be reimbursed through the date of termination and a prorated portion of the Participant’s annual bonus for the fiscal year in which the
Participant is terminated based on actual performance and paid at the time that annual bonuses are paid to similarly situated executives (the “Accrued Obligations”). Notwithstanding the foregoing, in the event that a
Participant experiences a Qualifying Termination under circumstances that entitle the Participant to compensation and benefits under the Gannett Co., Inc. 2015 Transitional Compensation Plan or the Gannett Co., Inc. 2015 Change in Control
Severance Plan (collectively, the “Transitional Plans”), the Participant shall receive compensation and benefits under the Transitional Plans and not under this Plan.
8. Release Requirement. A Participant shall not be entitled to the Severance Amount unless the Participant has signed and not
revoked, within thirty (30) days after the date of such Participant’s Qualifying Termination, a release and covenant agreement substantially in the form attached hereto as Exhibit A (the “Release and
Restrictive Covenant Agreement”).
9. Timing and Form of Payment of Severance Amount. Subject to the Release
and Restrictive Covenant Agreement becoming effective no later than the thirtieth (30th) day after the date on which a Participant’s Qualifying Termination occurs, the Severance Amount shall be payable in a lump sum on the thirtieth
(30th) day after the date of the Participant’s Qualifying Termination.
10. No Mitigation/Offset. A Participant
shall not be required to mitigate damages or the amount of any payment provided for under this Plan by seeking other employment or otherwise, nor shall any payments hereunder be subject to offset in respect of any claims that the Company may have
against a Participant, nor shall the amount of any payment provided for under this Plan be reduced by any compensation earned as a result of such Participant’s employment with another employer.
11. Legal Expenses. If, with respect to any alleged failure by the Company to comply with the terms of this Plan, a Participant
institutes or responds to legal action to assert or defend the validity of, enforce his or her rights under, or recover damages for breach of the terms of this Plan or, following termination of employment, the Release and Restrictive Covenant
Agreement, and thereafter the Company is found in a judgment no longer subject to review or appeal to have breached this Plan or, following termination of employment, the Release and Restrictive Covenant Agreement in any material respect, then the
Company shall indemnify the Participant for his or her reasonable attorneys’ fees and costs in connection with such legal action.
12. Severability; Waiver. If any provision of this Plan or the application thereof is held invalid or unenforceable, the
invalidity or unenforceability thereof shall not affect any other provisions of this Plan which can be given effect without the invalid or unenforceable provision, and to this end the provisions of this Plan are to be severable. No waiver by
either party of any breach by the other party of any provision or conditions of this Plan shall be deemed to be a waiver of any other provision or condition at the same or any prior or subsequent time.
13. Employment Status. This Plan does not constitute a contract of employment or
3
impose on a Participant or the Company or its subsidiaries any obligation to retain the Participant as an employee or change the status of such Participant’s employment to anything other
than “at will”. The Company reserves the right to terminate a Participant for any or no reason at its convenience.
14.
Tax Withholdings. The Company may withhold from any payments due to a Participant hereunder, such amounts as the Company may determine are required to be withheld under applicable federal, state and local tax laws.
15. Section 409A.
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(a) |
General. It is intended that payments and benefits made or provided under this Plan shall not result in penalty taxes or accelerated taxation pursuant to Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”), and the Plan shall be interpreted and administered in accordance with that intent. If any provision of the Plan would otherwise conflict with or frustrate this intent, that provision will
be interpreted and deemed amended so as to avoid the conflict. Any payments that qualify for the “short-term deferral” exception, the separation pay exception or another exception under Section 409A of the Code shall be paid under the
applicable exception. For purposes of the limitations on nonqualified deferred compensation under Section 409A of the Code, each payment of compensation under this Plan shall be treated as a separate payment of compensation for purposes of
applying the exclusion under Section 409A of the Code for short-term deferral amounts, the separation pay exception or any other exception or exclusion under Section 409A of the Code. In no event may a Participant, directly or
indirectly, designate the calendar year of any payment under this Plan. Despite any contrary provision of this Plan, any references to termination of employment or date of termination shall mean and refer to the date of a Participant’s
“separation from service,” as that term is defined in Section 409A of the Code and Treasury regulation Section 1.409A-1(h). |
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(b) |
Delay of Payment. Notwithstanding any other provision of this Plan to the contrary, if a Participant is considered a “specified
employee” for purposes of Section 409A of the Code (as determined in accordance with the methodology established by the Company as in effect on the termination date), any payment that constitutes nonqualified deferred compensation within
the meaning of Section 409A of the Code that is otherwise due to a Participant under this Plan during the six (6)-month period immediately following a Participant’s separation from service (as determined in accordance with
Section 409A of the Code) on account of a Participant’s separation from service shall be accumulated and paid to such Participant on the first (1st) business day of the seventh (7th) month following such Participant’s
separation from service (the “Delayed Payment Date”). If such Participant dies during the postponement period, the amounts and entitlements delayed on account of Section 409A of the Code shall be paid to
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the personal representative of such Participant’s estate on the first to occur of the Delayed Payment Date or thirty (30) calendar days after the date of his or her death.
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(c) |
Reimbursement and In-Kind Benefits. Notwithstanding anything to the contrary in this Plan, all reimbursements and in-kind benefits provided under this Plan that are subject to Section 409A of the Code
shall be made in accordance with the requirements of Section 409A of the Code, including, where applicable, the requirement that (i) any reimbursement is for expenses incurred during the Participant’s lifetime (or, if longer, through
the twentieth (20th) anniversary of the Effective Date) or during a shorter period of time specified in this Plan); (ii) the amount of expenses eligible for reimbursement, or in-kind
benefits provided, during a calendar year may not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year; (iii) the reimbursement of an eligible expense will be made no later than the last
day of the calendar year following the year in which the expense is incurred; and (iv) the right to reimbursement or in-kind benefits is not subject to liquidation or exchange for another benefit. |
16. Successors. This Plan shall be binding upon the successors and assigns of the Company.
17. Governing Law. This Plan shall be governed by and construed under and in accordance with the laws of the State of Delaware
without regard to principles of conflicts of laws.
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| Dated: July 28, 2015 |
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GANNETT CO., INC. |
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By: |
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/s/ David Harmon |
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Name: |
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David Harmon |
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Title: |
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Chief People Officer |
5
Exhibit 10-4
Exhibit A
Release of Claims and Restrictive Covenant Agreement
This Release of Claims and Restrictive Covenant Agreement (this “Agreement”) is entered into among
[ ] and Gannett Co., Inc. (the “Company”) in connection with your separation of employment
from the Company in accordance with the Gannett Co., Inc. Executive Severance Plan (the “Plan”). Capitalized terms used and not defined herein shall have the meanings provided in the Plan. The parties agree to the following:
(1) Date of Termination. Your final day as an employee of the Company is
, 20 (the “Date of Termination”).
(2) Severance Amount. Provided that you execute this Agreement and that it becomes effective, on
, 20 , you will receive a lump sum cash payment in the amount of
$ , less legally-required withholdings, payable on
.
(3)
Release Deadline. You will receive the benefits described in paragraph 2 above only if you sign this Agreement on or before
, 20 . In exchange for and in consideration of the benefits
offered to you by the Company in paragraph 2 above, you agree to the terms of this Agreement.
(4) Release of Claims. You
agree that this is a full and complete Release of Claims. Accordingly, you and the Company agree as follows:
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(a) |
The Release of Claims means that you agree to give up forever any and all legal claims, or causes of actions, you may have, or think you have, against the Company, any of its subsidiaries, related or affiliated
companies, including any predecessor or successor entities, and their respective directors, officers, and employees (collectively, the “Company Parties”). This Release of Claims includes all legal claims that arose at
any time before or at the time you sign this Agreement; it also includes those legal claims of which you know and are aware, as well as any legal claims of which you may not know or be aware, including claims for breach of contract, claims arising
out of any employment agreement you may have or under the Plan, claims of intentional or negligent infliction of emotional distress, defamation, breach of implied covenant of good faith and fair dealing, and any other claim arising from, or related
to, your employment by the Company. In addition, the Company Parties agree to give up forever any and all legal claims, or causes of action, they may have or think they may have against you, including all legal claims that arose at any time
before or at the time you sign this Agreement, whether known to the Company Parties or not. |
Notwithstanding the foregoing,
by executing this Release of Claims, (i) you will not forfeit or release your right to receive your vested benefits under the Gannett Retirement Plan, the Gannett Co., Inc. 401(k) Savings Plan, the
Gannett Supplemental Retirement Plan, the Gannett Co., Inc. 2015 Omnibus Incentive Compensation Plan, and the Gannett Co., Inc. Deferred Compensation Plan (but you will forfeit your right to
receive any further severance or annual bonus award); any rights to indemnification and advancement of expenses under the Company’s By-laws and/or directors’ and officers’ liability insurance policies; any other rights under the Plan
that are intended to survive a termination of employment; or any legal claims or causes of action arising out of actions allegedly taken by the Company after the date of your execution of this Agreement; and (ii) none of the Company Parties
will forfeit or release any right to recoup compensation under the claw back provisions of under any plan or policy of the Company or applicable law; any rights under the Plan which are intended to survive a termination of employment (including, but
not limited to, your restrictive covenant and confidentiality obligations); any claims based on your fraud or conduct which was committed in bad faith or arising from your active and deliberate dishonesty; any claims for which you have no rights to
indemnification and advancement of expenses under the Company’s By-laws and/or directors’ and officers’ liability insurance policies; or any legal claims or causes of action arising out of actions allegedly taken by you after the date
of your execution of this Agreement. The matters referenced in clauses (i) and (ii) of this paragraph are referred to as the “Excluded Matters.”
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(b) |
Several laws of the United States and of the Commonwealth of Virginia create claims for employees in various circumstances. These laws include the Age Discrimination in Employment Act of 1967, as amended by the
Older Worker Benefit Protection Act, Title VII of the Civil Rights Act of 1964, the Rehabilitation Act of 1973, the Family and Medical Leave Act, the Employee Retirement Income Security Act, the Americans With Disabilities Act, the Genetic
Information Non-discrimination Act, and the Virginia Human Rights Act. Several of these laws also provide for the award of attorneys’ fees to a successful plaintiff. You agree that this Release of Claims specifically includes any
possible claims under any of these laws or similar state and federal laws, including any claims for attorneys’ fees. |
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(c) |
By referring to specific laws we do not intend to limit the Release of Claims to just those laws. All legal claims for money damages, or any other relief that relate to or are in any way connected with your
employment with the Company or any of its subsidiaries, related or affiliated companies, are included within this Release of Claims, even if they are not specifically referred to in this Agreement. The only legal claims that are not covered by
this Release of Claims are the Excluded Matters. |
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(d) |
Except for the Excluded Matters, we agree that neither party will say later that some particular legal claim or claims are not covered by this Release of Claims because we or you were unaware of the claim or claims,
because such claims were overlooked, or because you or we made an error. |
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(e) |
We specifically confirm that, as far as you or the Company know, no one has made any legal claim in any federal, state or local court or government agency relating to your employment, or the ending of your employment,
with the Company. If, at any time in the future, such a claim is made by you or the Company, or someone acting on behalf of you or the Company, or by some other person or a governmental agency, you and the Company agree that each will be
totally and completely barred from recovering any money damages or remedy of any kind, except in the case of any legal claims or causes of action arising out of any of the Excluded Matters. This provision is meant to include claims that are
solely or in part on your behalf, or on behalf of the Company, or claims which you or the Company have or have not authorized. |
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(f) |
This Agreement, and the Release of Claims, will not prevent you from filing any future administrative charges with the United States Equal Employment Opportunity Commission (“EEOC”) or a state
fair employment practices (“FEP”) agency, nor from participating in or cooperating with the EEOC or a state FEP agency in any investigation or legal action undertaken by the EEOC or a state FEP agency. However, this
Agreement, and the Release of Claims, does mean that you may not collect any monetary damages or receive any other remedies from charges filed with or actions by the EEOC or a state FEP agency. |
(5) Restrictive Covenants.
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(a) |
You agree that in consideration for the payments under paragraph 2 above, for a period of six (6) months after the Date of Termination (the “Restricted Period”), you will not, without the
written consent of the Company, obtain or seek a position with a Competitor (as defined below) in which you will use or are likely to use any confidential information or trade secrets of the Company including, but not limited to, a position in which
you would have duties for such Competitor within the United States that involve Competitive Services (as defined below) and that are the same or similar to those duties actually performed by you for the Company. |
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(b) |
You understand and agree that the relationship between the Company and each of its employees constitutes a valuable asset of the Company and may not be converted to your own use. Accordingly, you hereby agree that
during the Restricted Period, you shall not, directly or indirectly, on your own behalf or on behalf of another person, solicit or induce any employee of the Company to terminate his or her employment relationship with the Company or any affiliate
of the Company or to enter into employment with another person or entity. The foregoing shall not apply to employees who respond to solicitations of employment directed to the general public or who seek employment at their own initiative.
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(c) |
For purposes of this paragraph 5, “Competitive Services” means the provision of goods or services that are competitive with any goods or services offered by the Company as of the date of this
Agreement, including, but not limited to newspapers, non-daily publications, digital, Internet, and other news and information services, and “Competitor” means any individual or any entity or enterprise engaged, wholly
or in part, in Competitive Services. The parties acknowledge that the Company may from time to time during the term of this Agreement change or increase the line of goods or services it provides, and you agree to amend this Agreement from time
to time to include such different or additional goods and services to the definition of “Competitive Services” for purposes of this paragraph 5. |
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(d) |
You agree that due to your position of trust and confidence the restrictions contained in this paragraph 5 are reasonable, and the benefits conferred on you in this Agreement are adequate consideration, and since the
nature of the Company’s business is national in scope, the geographic restriction herein is reasonable. |
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(e) |
You agree that you will not make any statements, oral or written, or cause or allow to be published in your name, or under any other name, any statements, interviews, articles, books, web logs, editorials or commentary
(oral or written) that are critical or disparaging of the Company, or any of their operations, or any of their officers, employees or directors. Likewise, the Company agrees that it will not make, and will use reasonable efforts to ensure that
directors and officers of the Company do not make, any statements, oral or written, or cause to be published in the Company’s name, any statements, interviews, articles, editorials or commentary (oral or written) that are critical or
disparaging of you. It is understood that merely because a personal statement is made by a Company employee does not mean that it is made “in the Company’s name”. |
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(f) |
You agree that unless duly authorized in writing by the Company, you will not at any time divulge or use in connection with any business activity any trade secrets or confidential information first acquired by you
during and by virtue of your employment with the Company. |
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(g) |
You acknowledge that a breach of this paragraph 5 would cause irreparable injury and damage to the Company which could not be reasonably or adequately
compensated by money damages, and the Company acknowledges that a breach of paragraph 5(e) would cause irreparable injury and damage to you, which could not be reasonably or adequately compensated by money damages. Accordingly, each of
you, the Company |
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acknowledges that the remedies of injunction and specific performance shall be available in the event of such a breach, and the non-breaching party shall be entitled to money damages, costs and
attorneys’ fees, and other legal or equitable remedies, including an injunction pending trial, without the posting of bond or other security. Any period of restriction set forth in this paragraph 5 shall be extended for a period of time
equal to the duration of any breach or violation thereof. |
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(h) |
In the event of your breach of this paragraph 5, in addition to the injunctive relief described above, the Company’s remedy shall include the forfeiture or return to the Company of any payment made or due to you or
on your behalf under paragraph 2 above. |
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(i) |
In the event that any provision of this paragraph 5 is held to be in any respect an unreasonable restriction, then the court so holding may modify the terms thereof, including the period of time during which it operates
or the geographic area to which it applies, or effect any other change to the extent necessary to render this paragraph 5 enforceable, it being acknowledged by the parties that the representations and covenants set forth herein are of the essence of
this Agreement. |
(6) Cooperation. You agree to fully cooperate and assist the Company in the defense of any
investigations, claims, charges, arbitrations, grievances, or lawsuits brought against the Company or any of its operations, or any officers, employees or directors the Company or any of its operations, as to matters of which you have personal
knowledge necessary, in the Company’s judgment, for the defense of the action. You agree to provide such assistance reasonably consistent with the requirements of your other obligations and the Company agrees to pay your reasonable
out-of-pocket expenses incurred in connection with this assistance and such expenses will be paid in accordance with Treasury Regulation 1.409A-3(i)(1)(iv)(A). The Company agrees to fully cooperate and assist you in the defense of any
third-party claims, charges, arbitrations, grievances or lawsuits brought against you as a co-defendant with the Company or any of its operations, officers, employees or directors, except with respect to any such matters arising out of clause
(ii) of the Excluded Matters.
(7) Entire Agreement. You agree that this Agreement contains all of the details of the
agreement between you and the Company with respect to the subject matter hereof. Nothing has been promised to you, either in some other written document or orally, by the Company or any of its officers, employees or directors, that is not
included in this Agreement.
(8) No Admission. Nothing contained in this Agreement will be deemed or construed as an admission of
wrongdoing or liability on the part of Company Parties.
(9) Governing Law and Venue. All matters affecting this Agreement,
including the validity thereof, are to be governed by, and interpreted and construed in accordance with, the laws of the State of Delaware applicable to contracts executed in and to be performed in that State. The parties agree to submit to the
jurisdiction of the federal and state courts sitting in Delaware, for all purposes relating to the validity, interpretation, or enforcement of this Agreement.
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(10) Time to Consider; Effectiveness. Please review this Agreement carefully. We
advise you to talk with an attorney before signing this Agreement. So that you may have enough opportunity to think about this offer, you may keep this Agreement for twenty-one (21) days from the date of termination of your
employment. You acknowledge that this Agreement was made in connection with your participation in the Plan and was available to you both prior to and immediately at the time of your termination of employment. For that reason you
acknowledge and agree that the twenty-one (21)-day consideration period identified in this paragraph commenced to run, without any further action by the Company immediately upon your being advised of the termination of your
employment. Consequently, if you desire to execute this Agreement, you must do so no later than ,
20 . Should you accept all the terms by signing this Agreement on or before
, 20 , you may nevertheless revoke this Agreement within seven
(7) days after signing it by notifying in writing of your revocation. We will provide a courtesy copy to your
attorney, if you retain one to represent you. If you wish to accept this Agreement, please confirm your acceptance of the terms of the Agreement by signing the original of this Agreement in the space provided below. The Agreement will
become effective, and its terms will be carried out beginning on the day following the seven (7)-day revocation period.
(11) Knowing
and Voluntary. By signing this Agreement you agree that you have carefully read this Agreement and understand its terms. You also agree that you have had a reasonable opportunity to think about your decision, to talk with an attorney
or advisor of your choice, that you have voluntarily signed this Agreement, and that you fully understand the legal effect of signing this Agreement.
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GANNETT CO., INC. |
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New Gannett (NYSE:GCI)
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