Employment Agreement

Amendment to Employment Agreement

Severance Agreement

 

 

 

EX-10.1 2 ex101to8k07319_01062010.htm

Exhibit 10.1

 

Execution Copy

 

 

EMPLOYMENT AGREEMENT

 

This EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as of January 6, 2010 (the “Effective Date”), by and between GenCorp Inc. (“GenCorp” or the “Company), having its principal place of business at Highway 50 and Aerojet Road, Rancho Cordova, California 95742 and Scott Seymour  (“Executive”, and the Company and the Executive collectively referred to herein as the “Parties”).

 

W I T N E S S E T H:

 

WHEREAS, the Company desires to hire Executive and to employ him as the Chief Executive Officer (“CEO”) of the Company, and the Parties desire to enter into this Agreement embodying the terms of such employment;

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises of the Parties contained herein, the Parties, intending to be legally bound, hereby agree as follows:

 

1.      Title and Job Duties.

 

(a)           Subject to the terms and conditions set forth in this Agreement, the Company agrees to employ Executive as CEO.  In this capacity, Executive shall have the duties, authorities and responsibilities commensurate with the duties, authorities and responsibilities of persons in similar capacities in similarly sized companies, and such other duties, authorities and responsibilities as the Board of Directors of the Company (the “Board”) shall designate from time to time that are not inconsistent with the Executive’s position as CEO. Executive shall report directly to the Board and the Chairman of the Board.  All employees of the Company shall report directly to Executive or his designee.

 

(b)           Executive accepts such employment and agrees, during the term of his employment, to devote his full business and professional time and energy to the Company.  Executive agrees to carry out and abide by all lawful directions of the Board and the Chairman of the Board that are consistent with his position as Chief Executive Officer.

 

(c)           Without limiting the generality of the foregoing, Executive shall not, without the written approval of the Company, render services of a business or commercial nature on his own behalf or on behalf of any other person, firm, or corporation, whether for compensation or otherwise, during his employment hereunder, provided that the foregoing shall not prevent the Executive from (i) serving on the boards of directors of non-profit organizations and, with the prior written approval of the Board, other for profit companies, (ii) participating in charitable, civic, educational, professional, community or industry affairs, and (iii) managing Executive’s passive personal investments so long as such activities in the aggregate do not materially interfere or conflict with Executive’s duties hereunder or create a potential business or fiduciary conflict.

 

(d)           Executive may own passive investments in Competing Businesses, defined below, (including, but not limited to, indirect investments through mutual funds), provided the securities of the Competing Business are publicly traded and Executive does not own or control more than one percent (1%) of the outstanding voting rights or equity of the Competing Business.  “Competing Business” means any corporation, partnership, limited liability company, university, government agency or other entity or person (other than the Company) which is engaged in the development, manufacture, marketing, distribution or sale of, or research directed to aerospace and defense systems and in the Eastern Sacramento area, real estate development.

 

 

 

2.      Salary and Additional Compensation.

 

(a)           Base Salary.  The Company shall pay to Executive an annual base salary of $550,000, less applicable withholdings and deductions, in accordance with the Company’s normal payroll procedures.  The Board may increase the Executive’s annual base salary from time to time in its sole and absolute discretion.

 

(b)          Bonus.  Executive shall be eligible for an annual bonus based on a target opportunity up to one-hundred and twenty-five percent (125%) of Executive’s annual Base Salary (“Target Bonus”), pursuant to the Company’s Annual Incentive Plan which shall be adopted annually by the Board.

 

(c)           Restricted Shares.  On the Effective Date, the Company shall grant to Executive 120,000 shares of the Company’s restricted common stock (“Restricted Shares”), pursuant to the GenCorp Inc. 2009 Equity and Performance Incentive Plan (the “Plan”) pursuant to terms and conditions of the Plan, this Agreement and the restricted stock award agreement attached hereto as Exhibit A (the “Restricted Stock Award Agreement”), which Restricted Shares shall vest according to the following schedule: Thirty-three percent (33%) of the Restricted Shares shall vest on the first anniversary of the Effective Date, thirty-three percent (33%) of the Restricted Shares shall vest on the second anniversary of the Effective Date, and thirty-three percent (33%) of the Restricted Shares shall vest on the third anniversary of the Effective Date.  The Company may make additional grants to Executive throughout the Term of this Agreement.

 

(d)           Options.  On the Effective Date, the Company shall grant to Executive an option to purchase 100,000 shares of the Company’s common stock (“Options”) under the Plan, pursuant to terms and conditions of the Plan, this Agreement and the stock option award agreement attached hereto as Exhibit B (the “Stock Option Agreement”), which Options shall be granted at the Fair Market Value (as such term is defined in the Plan) on the Effective Date and shall vest according to the following schedule: Thirty-three percent (33%) of the Options shall vest on the first anniversary of the Effective Date, thirty-three percent (33%) of the Options shall vest on the second anniversary of the Effective Date, and thirty-three percent (33%) of the Options shall vest on the third anniversary of the Effective Date.  

 

(e)           Future Equity Awards.  The Executive shall be eligible to participate in future grants pursuant to the Plan and other Company performance incentive plans extended to senior executives of the Company generally, at levels commensurate with Executive’s position.

 

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3.      Expenses.  In accordance with Company policy, the Company shall reimburse Executive for all reasonable business expenses properly and reasonably incurred and paid by Executive in the performance of his duties under this Agreement upon his presentment of detailed receipts in the form required by the Company’s policy.

 

4.      Benefits.

 

(a)           Vacation.  Executive shall be entitled to vacation in accordance with the Company’s standard vacation policy extended to senior executives of the Company generally, at levels commensurate with Executive’s position.

 

(b)           Health Insurance and Other Plans.  Executive shall be eligible to participate in the Company’s medical, dental, long term incentive plan, and other employee benefit programs, if any, that are provided by the Company for its employees generally, at levels commensurate with Executive’s position, in accordance with the provisions of any such plans, as the same may be in effect from time to time.

 

5.      Term.  The terms set forth in this Agreement will commence on the Effective Date hereof and shall remain in effect for five (5) years except as otherwise provided herein.

 

6.      Termination.

 

(a)           Termination at the Company’s Election.

 

(i)   For Cause.  At the election of the Company, Executive’s employment may be terminated for Cause (as defined below) upon written notice to Executive pursuant to Section 11 of this Agreement.  For purposes of this Agreement, “Cause” for termination shall mean that Executive: (A) pleads “guilty” or “no contest” to or is indicted for or convicted a felony under federal or state law or as a crime under federal or state law which involves Executive’s fraud or dishonesty; (B) in carrying out his duties, engages in conduct that constitutes gross negligence or willful misconduct; (C) fails to reasonably perform the responsibilities of his position (such reasonable performance shall be evaluated based on effort); (D) engages in misconduct that causes material harm to the reputation of the Company; or (E) materially breaches any term of this Agreement or written policy of the Company, provided that if the Company provides written notice of Cause pursuant to (C) through (E), the Executive shall be given thirty (30) days from the date of such written notice to cure such conduct.

 

(ii)     Upon Disability, Death or Without Cause.  At the election of the Company, Executive’s employment may be terminated without Cause: (A) should Executive become physically or mentally unable to perform his duties for the Company hereunder and such incapacity has continued for a total of ninety (90) consecutive days or any one hundred eighty (180) days in a period of three hundred sixty-five (365) consecutive days (a “Disability”); (B) upon Executive’s death (“Death”); or (C) upon thirty (30) days’ written notice for any other reason.

 

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(b)           Termination at Executive’s Election.

 

(i)           For Good Reason.  At Executive’s election, Executive’s employment may be terminated for Good Reason (as defined below) by providing notice to the Company pursuant to Section 11 of this Agreement.  For purposes of this Agreement, “Good Reason” shall be deemed to exist if the following actions occur without Executive’s consent: (A) a material diminution in Executive’s Base Salary; (B) a material diminution in Executive’s authority, duties or responsibilities under this Agreement, provided that removal of Executive as a director of the Board shall not constitute a material diminution in Executive’s authority, duties or responsibilities under this Agreement; or (C) any other action or inaction that constitutes a material breach of the terms of this Agreement by the Company.  In the event any of the occurrences in (A) through (C) above have occurred, the Company shall be given written notice by Executive of Executive’s intention to so terminate Executive’s employment, such notice: (i) to state in detail the particular acts or failures to act that constitute the grounds on which the proposed termination for Good Reason is based, (ii)  to be given within sixty (60) days after the first occurrence of such acts or failures to act, and (iii) the Company shall have thirty (30) days following receipt of such notice to cure such acts or failures to act in all material respects.  If the Company has not cured such acts or failures to act within the thirty (30) day cure period, then the Executive’s employment shall be immediately terminated for Good Reason.

 

(ii)          Voluntary Resignation.  Notwithstanding anything contained elsewhere in this Agreement to the contrary, Executive may terminate his employment hereunder at any time and for any reason whatsoever or for no reason at all in Executive’s sole discretion by giving thirty (30) days written notice pursuant to Section 11 of this Agreement.

 

7.      Payments Upon Termination of Employment.

 

(a)           Termination for Cause or Resignation Without Good Reason.  If, prior to the expiration of the Term, the Executive’s employment is terminated by the Company for “Cause” or if the Executive resigns from his employment hereunder other than for “Good Reason”, the Executive shall be entitled to the following amounts only: (A) payment of his Base Salary accrued up to and including the date of termination or resignation within thirty (30) days following termination, (B) payment in lieu of any accrued but unused vacation time, in accordance with the Company’s vacation policy, and (C) payment of any unreimbursed expenses in accordance with the Company’s business reimbursement policy, and (D) payments and benefits under any Company benefit plan, program or policy that Executive participated in during employment and paid pursuant to the terms of such plan, program and policy (collectively, the “Accrued Obligations”).

 

(b)           Termination for Reasons other than Cause or Voluntary Resignation.  If Executive’s employment is terminated, at his or the Company’s election at any time due to his Death or Disability, or for reasons other than Cause or Voluntary Resignation and Section 7(c) is not applicable at the time of Executive’s termination of employment, Executive shall be entitled to receive the Accrued Obligations and severance payments and benefits equal to the following: (i) subject to Section 18, one (1) year of Executive’s Base Salary paid in installments (the “Severance Payment”); (ii) subject to Section 18, a bonus payment, which shall be based upon the amount of the previous year’s bonus, prorated based on the number of months of the year that Executive worked for the Company prior to the termination paid in a lump sum (the “Bonus payment”); (iii) immediate vesting of any Restricted Shares that are scheduled to vest, pursuant to Section 2(c), within one year of the date of termination of employment; (iv) immediate vesting of any Options that are scheduled to vest, pursuant to Section 2(d), within one year of the date of termination of employment, provided that Executive may exercise vested Options until the earlier of (y) twelve (12) months following termination of employment and (z) the scheduled expiration of the Options (“Post Termination Exercise Period”);  and (v) bonuses earned but unpaid with respect to the fiscal year ending on or preceding the date of termination pursuant to Company’s Annual Incentive Plan (“Accrued Bonus”), provided, that Executive shall only receive the payment of Section 7(b)(ii) if Executive’s termination occurs on or after the first anniversary of the Effective Date.  Payment of the Base Salary component of Executive’s severance shall be made on regular paydays.  Subject to Executive’s execution and delivery of a general release (that is no longer subject to revocation under applicable law) of the Company, its parents, subsidiaries and affiliates and each of its officers, directors, employees, agents, successors and assigns in the form attached hereto as Exhibit C (the “General Release”) all payments and/or grants under this Section 7(b) shall begin within sixty (60) days following termination of employment provided, that the first payment for severance payments described in Section 7(b)(i) shall include payment of any amounts otherwise due as of the date of termination, provided, further that if Executive’s employment terminates due to Death or Disability, Executive (or his legal representative or estate) shall not be required to execute and deliver the General Release in order to receive severance payments and benefits provided in this Section 7(b).

 

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(c)           Termination in Connection of a Change in Control.  Notwithstanding Section 7(b) above, if Executive’s employment is terminated by the Company without Cause (excluding due to a Death or Disability) or by Executive for Good Reason within two (2) years following a Change in Control (as defined in the Plan) then Executive shall be entitled to the following payments and benefits: (i) the Accrued Obligations; (ii) subject to Section 18, a severance payment equal to two (2) times the sum of (y) Executive’s Base Salary and (z) Target Bonus, paid in a lump sum (the the “Change in Control Severance Payment”); (iii) to the extent unvested at the time of Executive’s termination of employment, immediate full vesting of the Restricted Shares; (iv) to the extent unvested at the time of Executive’s termination of employment immediate full vesting of the unvested Options, provided, that Executive may exercise vested Options during the Post-Termination Exercise Period; and (v) the Accrued Bonus, if any.  Subject to Executive’s execution and delivery of the General Release (provide, that such General Release was not previously executed and delivered), all payments and/or grants under this Section 7(c) shall begin within (60) days following termination of employment or, if applicable, upon the consummation of a Change in Control.

 

(d)           Termination of the Term.  If Executive’s employment terminates on the expiration of the Term as provided in Section 5, then Executive shall be entitled to the Accrued Obligations and the Accrued Bonus, if any.

 

(e)           No Mitigation; No Set-Off.  The Company’s obligation to pay Executive the amounts provided and to make the arrangements provided hereunder shall not be subject to set-off, counterclaim or recoupment of amounts owed by Executive to the Company or its affiliates.  Executive shall not be required to mitigate the amount of any payment provided for pursuant to this Agreement by seeking other employment, and no amounts otherwise earned shall be set–off against the amounts due hereunder.

 

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8.      Confidentiality Agreement and Assignment of Intellectual Property.

 

(a)           Executive understands that during the Term, he may have access to unpublished and otherwise confidential information both of a technical and non-technical nature, relating to the business of the Company and any of its parents, subsidiaries, divisions, affiliates (collectively, “Affiliated Entities”), or clients, including without limitation any of their actual or anticipated business, research or development, any of their technology or the implementation or exploitation thereof, including without limitation information Executive and others have collected, obtained or created, information pertaining to clients, accounts, vendors, prices, costs, materials, processes, codes, material results, technology, system designs, system specifications, materials of construction, trade secrets and equipment designs, including information disclosed to the Company by others under agreements to hold such information confidential (collectively, the “Confidential Information”).  Executive agrees to observe all Company policies and procedures concerning such Confidential Information.  Executive further agrees not to disclose or use, either during his employment or at any time thereafter, any Confidential Information for any purpose, including without limitation any competitive purpose, unless authorized to do so by the Company in writing, except that he may disclose and use such information in the good faith performance of his duties for the Company.  Executive’s obligations under this Agreement will continue with respect to Confidential Information, whether or not his employment is terminated, until such information becomes generally available from public sources through no fault of Executive or any representative of Executive.  Notwithstanding the foregoing, however, Executive shall be permitted to disclose Confidential Information as may be required by a subpoena or other governmental order, provided that he first notifies the Company of such subpoena, order or other requirement and such that the Company has the opportunity to obtain a protective order or other appropriate remedy.

 

(b)           During Executive’s employment, upon the Company’s request, or upon the termination of his employment for any reason, Executive will promptly deliver to the Company all documents, records, files, notebooks, manuals, letters, notes, reports, customer and supplier lists, cost and profit data, e-mail, apparatus, computers, blackberries or other PDAs, hardware, software, drawings, blueprints, and any other material of the Company or any of its Affiliated Entities or clients, including all materials pertaining to Confidential Information developed by Executive or others, and all copies of such materials, whether of a technical, business or fiscal nature, whether on the hard drive of a laptop or desktop computer, in hard copy, disk or any other format, which are in his possession, custody or control.  Executive may retain the Executive’s rolodex and similar address books, provided, that such items only include contact information.

 

(c)           Executive will promptly disclose to the Company any idea, invention, discovery or improvement, whether patentable or not (“Creations”), conceived or made by him alone or with others at any time during his employment.  Executive agrees that the Company owns any such Creations, conceived or made by Executive alone or with others at any time during his employment, and Executive hereby assigns and agrees to assign to the Company all rights he has or may acquire therein and agrees to execute any and all applications, assignments and other instruments relating thereto which the Company deems necessary or desirable.  These obligations shall continue beyond the termination of his employment with respect to Creations and derivatives of such Creations conceived or made during his employment with the Company.  The Company and Executive understand that the obligation to assign Creations to the Company shall not apply to any Creation which is developed entirely on his own time without using any of the Company’s equipment, supplies, facilities, and/or Confidential Information unless such Creation (a) relates in any way to the business or to the current or anticipated research or development of the Company or any of its Affiliated Entities; or (b) results in any way from his work at the Company.

 

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(d)           Executive will not assert any rights to any invention, discovery, idea or improvement relating to the business of the Company or any of its Affiliated Entities or to his duties hereunder as having been made or acquired by Executive prior to his work for the Company, except for the matters, if any, described in Exhibit D to this Agreement.

 

(e)           During the Term, if Executive incorporates into a product or process of the Company or any of its Affiliated Entities anything listed or described in Exhibit D, the Company is hereby granted and shall have a non-exclusive, royalty-free, irrevocable, perpetual, worldwide license (with the right to grant and authorize sublicenses) to make, have made, modify, use, sell, offer to sell, import, reproduce, distribute, publish, prepare derivative works of, display, perform publicly and by means of digital audio transmission and otherwise exploit as part of or in connection with any product, process or machine.

 

(f)           Executive agrees to cooperate fully with the Company, both during and after his employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights, patents, trademarks and other intellectual property rights (both in the United States and foreign countries) relating to such Creations.  Executive shall sign all papers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority rights and powers of attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Creations.  Executive further agrees that if the Company is unable, after reasonable effort, to secure Executive’s signature on any such papers, any officer of the Company shall be entitled to execute such papers as his agent and attorney-in-fact and Executive hereby irrevocably designates and appoints each officer of the Company as his agent and attorney-in-fact to execute any such papers on his behalf and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any Creations, under the conditions described in this paragraph.

 

9.      Legal Fees.  The Company shall pay directly to Executive’s legal counsel or reimburse Executive for up to $15,000 for legal fees incurred by Executive relating to negotiating, drafting and execution of this Agreement and any related equity award agreements.

 

10.     Representation and Warranty.  Executive represents and warrants to the Company that he is not subject to any agreement restricting his ability to enter into this Agreement and fully carry out his duties and responsibilities hereunder.  To the extent that Executive continues to be bound by confidentiality, non-disparagement obligations with regard to his former employer, the Company and Executive agree that neither shall require Executive to disclose any confidential information of any prior employer of Executive or misappropriate any intellectual property belonging to any other person or entity during the Term.

 

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11.     Notice.  Any notice or other communication required or permitted to be given to the Parties shall be deemed to have been given if personally delivered, if sent by nationally recognized overnight courier or if mailed by certified or registered mail, return receipt requested, first class postage prepaid, and addressed as follows:

 

(a)

If to Executive, to:

 

the address shown on the records of the Company.

 

 

(b)

If to the Company, to:

 

GenCorp Inc.

 

Highway 50 and Aerojet Road

 

Rancho Cordova, California 95742

 

Attention: Chairman of the Board

 

 

 

with a copy to:

 

Olshan Grundman Frome Rosenzweig & Wolosky LLP

 

65 East 55th Street

 

New York, New York 10022

 

Attention: Jeffrey S. Spindler, Esq.

 

12.     Severability.  If any provision of this Agreement is declared void or unenforceable by a court of competent jurisdiction, all other provisions shall nonetheless remain in full force and effect.

 

13.     Governing Law and Arbitration.  This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California, without regard to the conflict of laws provisions thereof.  Any action, suit or other legal proceeding which is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be submitted to final and binding arbitration pursuant to the Employment Arbitration Rules of the American Arbitration Association before a single arbitrator, who is agreed upon by the Parties, and who is a retired state or federal court judge.  The arbitration shall take place in Sacramento, California.  The arbitrator will have the authority to permit discovery and to follow the procedures that he or she determines to be appropriate.  The arbitrator will have no power to award consequential (including lost profits), punitive or exemplary damages.  Such submission to arbitrate shall be the sole and exclusive remedy available to Executive or the Company.  The filing Party shall bear filing fees for the arbitration and each Party shall bear its own legal fees and costs resulting from the arbitration.  The judgment on the award rendered by the arbitrator shall be binding upon the Parties and may be entered in any court having jurisdiction thereof.  Neither party may seek judicial review of the decision imposed by the arbitrator.

 

14.     Indemnification and Liability Insurance.  The Company shall indemnify Executive and provide Executive with liability insurance pursuant to the terms of the Amended Code of Regulations of GenCorp Inc., Amended as of March 28, 2007, or, if the terms of the Amended Code of Regulations of Gencorp Inc. are no longer in effect, then pursuant to the terms then in effect for directors and officers of the Company.

 

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15.     Waiver.  The waiver by either Party of a breach of any provision of this Agreement shall not be or be construed as a waiver of any subsequent breach.  The failure of a Party to insist upon strict adherence to any provision of this Agreement on one or more occasions shall not be considered a waiver or deprive that Party of the right thereafter to insist upon strict adherence to that provision or any other provision of this Agreement.  Any waiver must be in writing.

 

16.     Assignment.  This Agreement is a personal contract and Executive may not sell, transfer, assign, pledge or hypothecate his rights, interests and obligations hereunder.  Except as otherwise herein expressly provided, this Agreement shall be binding upon and shall inure to the benefit of Executive and his personal representatives and shall inure to the benefit of and be binding upon the Company and its successors and assigns, except that the Company may not assign this Agreement without the Executive's prior written consent, except to an acquirer of all or substantially all of the assets of the Company other than the real estate assets and upon written assumption of the obligations of this Agreement.

 

17.     Entire Agreement.  This Agreement (together with the Exhibits attached hereto) embodies all of the representations, warranties, and agreements between the Parties relating to Executive’s employment with the Company.  No other representations, warranties, covenants, understandings, or agreements exist between the Parties relating to Executive’s employment.  This Agreement shall supersede all prior agreements, written or oral, relating to Executive’s employment.  This Agreement may not be amended or modified except by a writing signed by the Parties.

 

18.     Code Section 409A Compliance.

 

(a)           The intent of the parties is that payments and benefits under this Agreement comply with, or be exempt from, Internal Revenue Code (“Code”) Section 409A and the regulations and guidance promulgated thereunder (collectively “Code Section 409A”) and, accordingly, to the maximum extent permitted, this Agreement shall be interpreted to be in compliance therewith.  If the Executive notifies the Company (with specificity as to the reason therefore) that the Executive believes that as a result of subsequent published guidance issued by the I.R.S. upon which taxpayers generally rely, any provision of this Agreement (or of any award of compensation, including equity compensation or benefits) would cause Executive to incur any additional tax or interest under Code Section 409A and the Company concurs with such belief or the Company independently makes such determination, the Company shall, after consulting with the Executive, reform such provision to try to comply with Code Section 409A through good faith modifications to the minimum extent reasonably appropriate to conform with Code Section 409A.  To the extent that any provision hereof is modified in order to comply with Code Section 409A, such modification shall be made in good faith and shall, to the maximum extent reasonably possible, maintain the original intent and economic benefit to the Executive and the Company and is tax neutral to the Company of the applicable provision without violating the provisions of Code Section 409A.

 

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(b)           A termination of employment shall not be deemed to have occurred for purposes of any provision of this Agreement providing for the payment of any amounts or benefits upon or following a termination of employment that are considered “nonqualified deferred compensation” under Code Section 409A unless such termination is also a “separation from service” within the meaning of Code Section 409A and, for purposes of any such provision of this Agreement, references to a “termination,” “termination of employment” or like terms shall mean “separation from service.”  If the Executive is deemed on the date of termination to be a “specified employee” within the meaning of that term under Code Section 409A(a)(2)(B), then with regard to any payment that is considered non-qualified deferred compensation under Code Section 409A payable on account of a “separation from service,” such payment or benefit shall be made or provided at the date which is the earlier of (A) the expiration of the six (6)-month period measured from the date of such “separation from service” of the Executive, and (B) thirty (30) days from the date of the Executive’s death (the “Delay Period”).  Upon the expiration of the Delay Period, all payments and benefits delayed pursuant to this Section 26 (whether they would have otherwise been payable in a single sum or in installments in the absence of such delay) shall be paid or reimbursed to the Executive in a lump sum with interest at the prime rate as published in The Wall Street Journal on the first business day of the Delay Period, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal payment dates specified for them herein.

 

(c)           With regard to any provision herein that provides for reimbursement of costs and expenses or in-kind benefits, except as permitted by Code Section 409A, (i) the right to reimbursement or in-kind benefits shall not be subject to liquidation or exchange for another benefit, (ii) the amount of expenses eligible for reimbursement, or in-kind benefits, provided during any taxable year shall not affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other taxable year, provided that the foregoing clause (ii) shall not be violated without regard to expenses reimbursed under any arrangement covered by Internal Revenue Code Section 105(b) solely because such expenses are subject to a limit related to the period the arrangement is in effect and (iii) such payments shall be made on or before the last day of Executive’s taxable year following the taxable year in which the expense occurred.  Any tax gross-up payment as provided herein shall be made in any event no later than the end of the calendar year immediately following the calendar year in which the Executive remits the related taxes, and any reimbursement of expenses incurred due to a tax audit or litigation shall be made no later than the end of the calendar year immediately following the calendar year in which the taxes that are the subject of the audit or litigation are remitted to the taxing authority, or, if no taxes are to be remitted, the end of the calendar year following the calendar year in which the audit or litigation is completed.

 

(d)           For purposes of Code Section 409A, the Executive’s right to receive any installment payments pursuant to this Agreement shall be treated as a right to receive a series of separate and distinct payments.  Whenever a payment under this Agreement specifies a payment period with reference to a number of days (e.g., “within sixty (60) days following the date of termination”), the actual date of payment within the specified period shall be within the sole discretion of the Company.

 

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19.     Limitation on Benefits.  Notwithstanding anything to the contrary contained in this Agreement, to the extent that any of the payments and benefits provided for under this Agreement or any other agreement or arrangement between the Company and Executive, or any arrangement or agreement with any person whose actions result in a change of ownership of effective control or a change in ownership of a substantial portion of the assets of the corporation covered by Section 280G(b)(2) (collectively, the "Payments") (i) constitute a "parachute payment" within the meaning of Section 280G of the Code and (ii) but for this Section 19, would be subject to the excise tax imposed by Section 4999 of the Code, then the Payments shall be payable either (i) in full or (ii) as to such lesser amount which would result in no portion of such Payments being subject to excise tax under Section 4999 of the Code; whichever of the foregoing amounts, taking into account the applicable federal, state and local income taxes, payroll taxes and the excise tax imposed by Section 4999, results in Executive's receipt on an after-tax basis, of the greater amount of payment and benefits. Any reduction under clause (ii) of the preceding sentence shall be done first by reducing any cash severance payments with the last payment reduced first; next any equity or equity derivatives that are included at full value rather than accelerated value; next any equity or equity derivatives based on acceleration value shall be reduced with the highest value reduced first.  Notwithstanding the foregoing, to the extent that the Company and Executive agree that it would not violate Code Section 409A or impact the ability of the parties to reduce the amounts receivable, the Executive may prescribe a different order of reduction.  Unless Executive and the Company otherwise agree in writing, any determination required under this Section shall be made in writing by the Company's independent public accountants (the "Accountants"), whose determination shall be conclusive and binding upon Executive and the Company for all purposes.  For purposes of making the calculations required by this Section, the Accountants may make reasonable assumptions and approximations concerning applicable taxes and may rely in reasonable, good faith interpretations concerning the application of Section 280G and 4999 of the Code.  The Company and Executive shall furnish to the Accountants such information and documents as the Accountants may reasonably request in order to make a determination under this Section.  The Company shall bear all costs the Accountants may reasonably incur in connection with any calculations contemplated by this Section.  If the limitation set forth in this Section 19 is applied to reduce an amount payable to Executive, and the Internal Revenue Service successfully asserts that, despite the reduction, Executive has nonetheless received payments which are in excess of the maximum amount that could have been paid to Executive without being subjected to any excise tax, then, unless it would be unlawful for the Company to make such a loan or similar extension of credit to Executive, Executive may repay such excess amount to the Company as though such amount constitutes a loan to Executive made at the date of payment of such excess amount, bearing interest at 120% of the applicable federal rate (as determined under section 1274(d) of the Code in respect of such loan), provided that if the recalculation of the higher amount was then redone based on the IRS position and the Executive would net more if no reduction took place, such reduction shall be  cancelled and the full amount paid to Executive in a lump sum within thirty (30) days of the IRS assessment becoming final, unless this proviso would negate the ability to use the reduction if this was not implemented or caused a violation of Code Section 409A, in which case this proviso shall be null and void.

 

 

 

 

 

 

EX-10.1 2 ex101to8k07319_02092011.htm

Exhibit 10.1

 

ADDENDUM

TO

EMPLOYMENT AGREEMENT BETWEEN GENCORP INC. AND SCOTT SEYMOUR

 

 

This ADDENDUM to the January 6, 2010 Employment Agreement (the “Agreement”) by and between GenCorp Inc. (“GenCorp” or the “Company”), having its principal place of business at Highway 50 and Aerojet Road, Rancho Cordova, California 95742 and Scott Seymour (“Executive”), with the Company and the Executive collectively referred to therein and herein as the “Parties,” is entered into as of February 10, 2011.

 

 

 

W I T N E S S E T H:

 

WHEREAS the Executive is entitled to certain relocation assistance benefits under the GenCorp Domestic Relocation Policy (the “Policy”) on the same basis as other similarly-situated employees of the Company; and

 

WHEREAS the Policy generally requires than a new employee’s relocation be completed within twelve (12) months from his first day of employment with the Company in order for the employee to receive full relocation assistance benefits; and

 

WHEREAS the Company desires to amend the Agreement to provide the Executive up to a total of twenty-four (24) months from the first day of employment with the Company to complete his relocation with full entitlement to the normal relocation assistance benefits under the Policy.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises of the Parties contained in the Agreement and herein, the Parties, intending to be legally bound, hereby agree as follows:

 

1.           Section 2 (“Salary and Additional Compensation”) of the Agreement is hereby amended by the addition of the following subsection (f) at the end thereof:

 

(f)           Relocation Assistance.  Notwithstanding the terms of the Company’s Domestic Relocation Policy (the “Policy”), the Executive shall have twenty-four (24) months from his first day of employment with the Company in order to complete all relocation activities and therefore be entitled to full relocation assistance benefits under the Policy.

 

2.           Except as modified by this Addendum, the terms of the Agreement remain in full force and effect.

 

 

 


 

 

IN WITNESS WHEREOF, the Parties have caused this Addendum to be duly executed and delivered on the date above.

 

 

GENCORP INC.

 

 

 

 

 

By:

/s/ James R. Henderson

 

 

James R. Henderson

 

 

Chairman of the Board

 

Agreed to and Accepted

 

 

 

 

 

/s/ Scott Seymour

 

Scott Seymour

 

 

 

2


 

 

 

 

 

 

 

 

 

EX-10.1 2 f22910exv10w1.htm EXHIBIT 10.1

 

Exhibit 10.1

SEVERANCE AGREEMENT

          THIS SEVERANCE AGREEMENT (this “Agreement”), dated as of             , is made and entered by and between GenCorp Inc., an Ohio corporation (the “Company”), and              (the “Executive”).

RECITALS:

          A. The Executive is a senior executive or a key employee of the Company or one or more of its Subsidiaries and has made and is expected to continue to make major contributions to the short - and long — term profitability, growth and financial strength of the Company;

          B. The Company recognizes that, as is the case for most publicly held companies, the possibility of a change in control exists;

          C. The Company desires to assure itself of both present and future continuity of management and desires to establish certain minimum severance benefits for certain of its senior executives and key employees, including the Executive, applicable in the circumstances herein specified;

          D. The Company wishes to ensure that its senior executives and key employees are not practically disabled from discharging their duties in respect of a proposed or actual transaction involving a Change in Control; and

          E. The Company desires to provide additional inducement for the Executive to continue to remain in the ongoing employ of the Company.

          NOW, THEREFORE, the Company and the Executive agree as follows:

          1. Certain Defined Terms. In addition to terms defined elsewhere herein, the following terms have the following meanings when used in this Agreement with initial capital letters:

      

    (a) “Base Pay” means the Executive’s annual base salary at a rate not less than the Executive’s annual fixed or base compensation as in effect for the Executive immediately prior to the occurrence of a Change in Control or such higher rate as may be determined from time to time by the Board or a committee thereof.

          (b) “Board” means the Board of Directors of the Company.

          (c) “Cause” means that, prior to any termination pursuant to Sections 2(b) or 2(c), the Executive shall have committed:

     (i) criminal violation involving fraud, embezzlement or theft in connection with his duties or in the course of his employment with the Company or any Subsidiary;

     (ii) intentional wrongful damage to property of the Company or any Subsidiary;

     (iii) intentional wrongful disclosure of secret processes or confidential information of the Company or any Subsidiary; or

     (iv) intentional wrongful engagement in any Competitive Activity;

and any such act shall have been demonstrably and materially harmful to the Company. For purposes of this Agreement, no act or failure to act on the part of the Executive shall be deemed “intentional” if it was due primarily to an error in judgment or negligence, but shall be deemed “intentional” only if done or omitted to be done by the Executive not in good faith and without reasonable belief that his action or omission was in the best interest of the Company. Notwithstanding the foregoing, the Executive shall not be deemed to have been terminated for “Cause” hereunder unless and until there shall have been delivered to the Executive a copy of a resolution duly adopted by the affirmative vote of not less than two-thirds of the Board then in office at a meeting of the Board called and held for such purpose, after reasonable notice to the Executive and an opportunity for the Executive, together with his counsel (if the Executive chooses to have counsel present at such meeting), to be heard before the Board, finding that, in the good faith opinion of the Board, the Executive had committed an act constituting “Cause” as herein defined and specifying the particulars thereof in detail. Nothing herein will limit the right of the Executive or his beneficiaries to contest the validity or propriety of any such determination.

          (d) “Change in Control” means the occurrence during the Term of any of the following events, subject to the provisions of Section 1(d)(v) hereof:

     (i) All or substantially all of the assets of the Company are sold or transferred to another corporation or entity, or the Company is merged, consolidated or reorganized into or with another corporation or entity, with the result that upon conclusion of the transaction less than 51% of the outstanding securities entitled to vote generally in the election of directors or other capital interests of the surviving, resulting or acquiring corporation or entity are beneficially owned (as that term is defined in Rule 13-d3 under the Exchange Act) (such ownership, “Beneficial Ownership”), by the shareholders of the Company immediately prior to the completion of the transaction; or

     (ii) Any person (as the term “person” is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act (a “Person”)) has become the

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Beneficial Owner of securities representing 20% or more of the combined voting power of the then-outstanding voting securities of the Company; or

     (iii) The individuals who, as of the Effective Date constituted the Board (the “Incumbent Directors”) cease for any reason, including without limitation as a result of a tender offer, proxy contest, merger or similar transaction, to constitute a majority thereof, provided that (1) any individual becoming a director of the Company subsequent to the Effective Date shall be considered an Incumbent Director if such person’s election or nomination for election was approved by a vote of at least two-thirds of the other Incumbent Directors and (2) any individual whose initial assumption of office is in connection with or as a result of an actual or threatened election contest relating to the election of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a “person” (as that term is used in Sections 13(d) and 14(d) of the Exchange Act) other than the Board, including by reason of agreement intended to avoid or settle any such actual or threatened contest or solicitation shall not be considered an Incumbent Director; or

     (iv) The Board determines that (A) any particular actual or proposed merger, consolidation, reorganization, sale or transfer of assets, accumulation of shares or tender offer for shares of the Company or other transaction or event or series of transactions or events will, or is likely to, if carried out, result in a Change in Control falling within Section 1(d)(i), (ii) or (iii) and (B) it is in the best interests of the Company and its shareholders, and will serve the intended purposes of this Agreement, if this Agreement shall thereupon become immediately operative.

     (v) Notwithstanding the foregoing provisions of this Section 1(d):

     (A) If any such merger, consolidation, reorganization, sale or transfer of assets, or tender offer or other transaction or event or series of transactions or events mentioned in Section 1(d)(iv) shall be abandoned, or any such accumulations of shares shall be dispersed or otherwise resolved, the Board may, upon a majority vote, including a majority vote of all then-continuing Incumbent Directors (such vote, a “Majority Vote”) by notice to the Executive, nullify the effect thereof and reinstate this Agreement as previously in effect, but without prejudice to any action that may have been taken prior to such nullification.

     (B) Unless otherwise determined in a specific case by the Board, a “Change in Control” shall not be deemed to have occurred for purposes of Section (1)(d)(ii) solely because (X) the Company, (Y) a Subsidiary, or (Z) any Company-sponsored employee stock ownership plan or any other employee benefit plan of the Company or any Subsidiary either files or becomes obligated to file a report or

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a proxy statement under or in response to Schedule 13D, Schedule 14D-1, Form 8-K or Schedule 14A (or any successor schedule, form or report or item therein) under the Exchange Act disclosing Beneficial Ownership by it of shares of the then-outstanding voting securities of the Company, whether in excess of 20% or otherwise, or because the Company reports that a change in control of the Company has occurred or will occur in the future by reason of such beneficial ownership. For the avoidance of doubt, the fact that a particular event may not constitute a “Change in Control” under any subparagraph of this Section 1(d) will not affect whether a Change in Control shall be determined to have occurred under any other subparagraph.

   (e) “Committee” means the Organization & Compensation Committee of the Board.

          (f) “Constructive Termination” means the Executive’s termination of employment if he has determined in good faith that an event provided in Section 2(b) has occurred prior thereto.

          (g) “Competitive Activity” means the Executive’s participation, without the written consent of an officer of the Company, in the management of any business enterprise if such enterprise engages in substantial and direct competition (a “Competitor”) with the Company’s Aerojet business, or any other business owned and operated by the Company and designated a “Competitor” for purposes of this Section 1(g) by a Majority Vote; and in any such case such enterprise’s sales of any product or service competitive with any product or service of the Company’s Aerojet business (or any such other businesses so designated) amounted to 25% of such enterprise’s net sales for its most recently completely fiscal year and if the Company’s net sales of said product or service amounted to 25% of the Company’s net sales for its most recently completed fiscal year. “Competitive Activity” will not include (i) the mere ownership of securities in any such enterprise and the exercise of rights appurtenant thereto or (ii) participation in the management of any such enterprise other than in connection with the competitive operations of such enterprise.

          (h) “Effective Date” means January 1, 2006.

          (i) “Employee Benefits” means the perquisites, benefits and service credit for benefits as provided under any and all employee retirement income and welfare benefit policies, plans, programs or arrangements in which Executive is entitled to participate, including without limitation any stock option, performance share, performance unit, stock purchase, stock appreciation, savings, pension, supplemental executive retirement, or other retirement income or welfare benefit, deferred compensation, incentive compensation, group or other life, health, medical/hospital or other insurance (whether funded by actual insurance or self-insured by the Company), disability, salary continuation, expense reimbursement and other employee benefit policies, plans, programs or arrangements that may now exist or any equivalent

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successor policies, plans, programs or arrangements that may be adopted hereafter by the Company or a Subsidiary.

          (j) “Exchange Act” means the Securities Exchange Act of 1934, as amended.

          (k) “Incentive Pay” means an annual amount equal to not less than the average of the annual bonus made or to be made in regard to services rendered in any fiscal year during the three fiscal years immediately preceding, or, if greater, 75% of the maximum bonus opportunity for, the fiscal year in which the Change in Control occurs pursuant to the Executive Incentive Compensation Program or similar annual bonus plan, program or arrangement (whether or not funded) of the Company, or any successor thereto.

          (l) “Severance Period” means the period of time commencing on the date of the first occurrence of a Change in Control and continuing until the earliest of (i) the third anniversary of the occurrence of the Change in Control, and (ii) the Executive’s death.

          (m) “Subsidiary” means a corporation, company or other entity (i) more than 50% of whose outstanding shares or securities (representing the right to vote for the election of directors or other managing authority) are, or (ii) which does not have outstanding shares or securities (as may be the case in a partnership, joint venture or unincorporated association), but more than 50% of whose ownership interest representing the right generally to make decisions for such other entity is, now or hereafter, owned or controlled, directly or indirectly, by the Company except that for purposes of determining whether any person may be a Participant for purposes of any grant of incentive stock options, “Subsidiary” means any corporation in which at the time the Company owns or controls, directly or indirectly, more than 50% of the total combined voting power represented by all classes of stock issued by such corporation.

          (n) “Term” means the period commencing as of the date hereof and expiring on the close of business on [add date that is end of full 3rd calendar year from date of Agreement]; provided, however, that (A) commencing on January 1st of each calendar year subsequent to January 1, 2007, and each January 1st thereafter, the term of this Agreement will automatically be extended for an additional year unless, not later than September 30th of the immediately preceding year, the Company or the Executive shall have given notice that it or the Executive, as the case may be, does not wish to have the Term extended, (B) if a Change in Control occurs during the Term, the Term will expire on the last day of the Severance Period, and (C) subject to the last sentence of Section 8, if, prior to a Change in Control, the Executive ceases for any reason to be an employee of the Company or any Subsidiary, thereupon without further action the Term shall be deemed to have expired and this Agreement will immediately terminate and be of no further effect.

          (o) “Termination Date” means the date on which the Executive’s employment is terminated (the effective date of which shall be the date of termination,

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or such other date that may be specified by the Executive if the termination is pursuant to Section 2(b).

          2. Termination Following a Change in Control. (a) If the Executive’s employment is terminated by the Company or any Subsidiary during the Severance Period or upon Constructive Termination, the Executive shall be entitled to the benefits provided by Section 3 unless such termination is the result of the occurrence of one or more of the following events:

     (i) The Executive’s death;

     (ii) If the Executive becomes permanently disabled within the meaning of, and begins actually to receive disability benefits pursuant to, the long-term disability plan in effect for, or applicable to, Executive immediately prior to the Change in Control; or

     (iii) Cause.

          (b) If the Executive terminates his employment with the Company and its Subsidiaries during the Severance Period, the Executive shall be entitled to the benefits provided by Section 3 if such termination follows the occurrence of one or more of the following events (regardless of whether any other reason, other than Cause as hereinabove provided, for such termination exists or has occurred, including without limitation other employment):

     (i) Failure to elect or reelect or otherwise to maintain the Executive in the office or the position, or a substantially equivalent office or position, of or with the Company and/or a Subsidiary, as the case may be, which the Executive held immediately prior to a Change in Control, or the failure to reelect or the removal of the Executive as a Director of the Company (or any successor thereto) if the Executive shall have been a Director of the Company immediately prior to the Change in Control;

     (ii) (A) A significant adverse change in the nature or scope of the authorities, powers, functions, responsibilities or duties attached to the position with the Company and any Subsidiary which the Executive held immediately prior to the Change in Control, (B) a reduction in the Executive’s Base Pay, (C) a reduction in the Executive’s opportunities for Incentive Pay (including but not limited to a reduction in target bonus percentage or target award opportunity (whether measured by dollar amount or management objectives)) provided by the Company, or (D) the termination or denial of the Executive’s rights to Employee Benefits or a reduction in the scope or aggregate value thereof, any of which is not remedied by the Company within ten calendar days after receipt by the Company of written notice from the Executive of such change, reduction or termination, as the case may be;

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     (iii) A determination by the Executive (which determination will be conclusive and binding upon the parties hereto provided it has been made in good faith and in all events will be presumed to have been made in good faith unless otherwise shown by the Company by clear and convincing evidence) that a change in circumstances has occurred following a Change in Control, including, without limitation, a change in the scope of the business or other activities for which the Executive was responsible immediately prior to the Change in Control, which has rendered the Executive substantially unable to carry out, has substantially hindered Executive’s performance of, or has caused Executive to suffer a substantial reduction in, any of the authorities, powers, functions, responsibilities or duties attached to the position held by the Executive immediately prior to the Change in Control, which situation is not remedied within ten calendar days after written notice to the Company from the Executive of such determination;

     (iv) The liquidation, dissolution, merger, consolidation or reorganization of the Company or transfer of all or substantially all of its business and/or assets, unless the successor or successors (by liquidation, merger, consolidation, reorganization, transfer or otherwise) to which all or substantially all of its business and/or assets have been transferred (directly or by operation of law) assumed all duties and obligations of the Company under this Agreement pursuant to Section 11(a);

     (v) The Company relocates its principal executive offices, or requires the Executive to have his principal location of work changed, to any location that is in excess of thirty miles from the location thereof immediately prior to the Change in Control, or requires the Executive to travel away from his office in the course of discharging his responsibilities or duties of his employment more than fourteen consecutive calendar days or an aggregate of more than ninety calendar days in any consecutive 365 calendar-day period, without, in either case, his prior written consent; or

     (vi) Without limiting the generality or effect of the foregoing, any material breach of this Agreement by the Company or any successor thereto which is not remedied by the Company within ten calendar days after receipt by the Company of written notice from the Executive of such breach.

          (c) If a Constructive Termination occurs, the Executive will be entitled to the benefits provided by Section 3 (regardless of whether any other reason, other than Cause as hereinabove provided, for such termination exists or has occurred, including without limitation other employment).

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          (d) A termination by the Company pursuant to Section 2(a) or by the Executive pursuant to Sections 2(b) or 2(c) will not affect any rights that the Executive may have pursuant to any agreement, policy, plan, program or arrangement of the Company providing Employee Benefits, which rights shall be governed by the terms thereof.

          3. Severance Compensation. (a) Severance benefits to which the Executive is entitled pursuant to Section 2 are described on Annex A. The Company will pay to the Executive the amounts described in Paragraphs (1), (2), (3), (5)(b) and (8) of Annex A within five business days after the Termination Date or, if later, upon the expiration of the revocation period provided for in Annex C. The benefits and perquisites described in Paragraphs (4), (5)(a), (6) and (7) of Annex A will be provided to the Executive as described therein.

          (b) Without limiting the rights of the Executive at law or in equity, if the Company fails to make any payment or provide any benefit required to be made or provided hereunder on a timely basis, the Company will pay interest on the amount or value thereof at an annualized rate of interest equal to the so-called composite “prime rate” as quoted from time to time during the relevant period in the New York Edition of The Wall Street Journal. Such interest will be payable as it accrues on demand. Any change in such prime rate will be effective on and as of the date of such change.

          (c) Notwithstanding any provision of this Agreement to the contrary, the parties’ respective rights and obligations under this Section 3 and under Sections 4 and 6 will survive any termination or expiration of this Agreement or the termination of the Executive’s employment following a Change in Control for any reason whatsoever.

          (d) Notwithstanding anything to the contrary in this Section 3, if an amount payable hereunder constitutes a “deferral of compensation,” that portion of the Severance Pay will be paid on the latest of (i) the date specified in this Agreement, (ii) the Participant’s “separation from service,” and (iii) if the Participant is a “specified employee,” six months after the Participant’s separation from service. “Deferral of compensation,” “separation from service” and “specified employee” have the meanings ascribed to such phrases in Code Section 409A.

          4. Certain Additional Payments by the Company. (a) Anything in this Agreement to the contrary notwithstanding, in the event that this Agreement shall become operative and it shall be determined (as hereafter provided) that any payment or distribution by the Company or any of its affiliates to or for the benefit of the Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise pursuant to or by reason of any other agreement, policy, plan, program or arrangement, including without limitation any stock option, performance share, performance unit, stock appreciation right or similar right, or the lapse or termination of any restriction on, or the vesting or exercisability of, any of the foregoing (a “Payment”), would be subject to the excise tax imposed by Section 4999 of the Internal Revenue Code of 1986, as amended (the “Code”) (or any successor provision thereto) by reason of being considered “contingent on a change in ownership

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or control” of the Company, within the meaning of Section 280G of the Code (or any successor provision thereto) or to any similar tax imposed by state or local law, or any interest or penalties with respect to such tax (such tax or taxes, together with any such interest and penalties, being hereafter collectively referred to as the “Excise Tax”), then the Executive shall be entitled to receive an additional payment or payments (collectively, a “Gross-Up Payment”); provided, however, that no Gross-up Payment shall be made with respect to the Excise Tax, if any, attributable to (i) any incentive stock option, as defined by Section 422 of the Code (“ISO”) granted prior to the execution of this Agreement or (ii) any stock appreciation or similar right, whether or not limited, granted in tandem with any ISO described in clause (i). The Gross-Up Payment shall be in an amount such that, after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the Payment.

          (b) Subject to the provisions of Section 4(f), all determinations required to be made under this Section 4, including whether an Excise Tax is payable by the Executive and the amount of such Excise Tax and whether a Gross-Up Payment is required to be paid by the Company to the Executive and the amount of such Gross-Up Payment, if any, shall be made by a nationally recognized accounting firm (the “Accounting Firm”) selected by the Executive in his sole discretion. The Executive shall direct the Accounting Firm to submit its determination and detailed supporting calculations to both the Company and the Executive within 30 calendar days after the Termination Date, if applicable, and any such other time or times as may be requested by the Company or the Executive. Subject to Section 3(d), if any Excise Tax is payable to the Executive, the Company shall pay the required Gross-Up Payment to the Executive as promptly as possible. If the Accounting Firm determines that no Excise Tax is payable by the Executive, it shall, at the same time as it makes such determination, furnish the Company and the Executive an opinion that the Executive has substantial authority not to report any Excise Tax on his federal, state or local income or other tax return. As a result of the uncertainty in the application of Section 4999 of the Code (or any successor provision thereto) and the possibility of similar uncertainty regarding applicable state or local tax law at the time of any determination by the Accounting Firm hereunder, it is possible that Gross-Up Payments which will not have been made by the Company should have been made (an “Underpayment”), consistent with the calculations required to be made hereunder. In the event that the Company exhausts or fails to pursue its remedies pursuant to Section 4(f) and the Executive thereafter is required to make a payment of any Excise Tax, the Executive shall direct the Accounting Firm to determine the amount of the Underpayment that has occurred and to submit its determination and detailed supporting calculations to both the Company and the Executive as promptly as possible. Subject to Section 3(d), any such Underpayment shall be paid as promptly as possible by the Company to, or for the benefit of, the Executive.

          (c) The Company and the Executive shall each provide the Accounting Firm access to and copies of any books, records and documents in the possession of the Company or the Executive, as the case may be, reasonably requested by the

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Accounting Firm, and otherwise cooperate with the Accounting Firm in connection with the preparation and issuance of the determinations and calculations contemplated by Section 4(b). Any determination by the Accounting Firm as to the amount of the Gross-Up Payment shall be binding upon the Company and the Executive.

          (d) The federal, state and local income or other tax returns filed by the Executive shall be prepared and filed on a consistent basis with the determination of the Accounting Firm with respect to the Excise Tax payable by the Executive. The Executive shall make proper payment of the amount of any Excise Payment, and at the request of the Company, provide to the Company true and correct copies (with any amendments) of his federal income tax return as filed with the Internal Revenue Service and corresponding state and local tax returns, if relevant, as filed with the applicable taxing authority, and such other documents reasonably requested by the Company, evidencing such payment. If prior to the filing of the Executive’s federal income tax return, or corresponding state or local tax return, if relevant, the Accounting Firm determines that the amount of the Gross-Up Payment should be reduced, the Executive shall within five business days pay to the Company the amount of such reduction.

          (e) The fees and expenses of the Accounting Firm for its services in connection with the determinations and calculations contemplated by Section 4(b) shall be borne by the Company. If such fees and expenses are initially paid by the Executive, the Company shall reimburse the Executive the full amount of such fees and expenses within five business days after receipt from the Executive of a statement therefore and reasonable evidence of his payment thereof.

          (f) The Executive shall notify the Company in writing of any claim by the Internal Revenue Service or any other taxing authority that, if successful, would require the payment by the Company of a Gross-Up Payment. Such notification shall be given as promptly as practicable but no later than ten business days after the Executive actually receives notice of such claim and the Executive shall further apprise the Company of the nature of such claim and the date on which such claim is requested to be paid (in each case, to the extent known by the Executive). The Executive shall not pay such claim prior to the earlier of (i) the expiration of the thirty calendar-day period following the date on which he gives such notice to the Company and (ii) the date that any payment of amount with respect to such claim is due. If the Company notifies the Executive in writing prior to the expiration of such period that it desires to contest such claim, the Executive shall:

     (A) provide the Company with any written records or documents in his possession relating to such claim reasonably requested by the Company;

     (B) take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including without limitation accepting legal representation with respect to such claim by an attorney competent in respect of the subject matter and reasonably selected by the Company;

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     (C) cooperate with the Company in good faith in order effectively to contest such claim; and

     (D) permit the Company to participate in any proceedings relating to such claim;

provided, however, that the Company shall bear and pay directly all costs and expenses (including interest and penalties) incurred in connection with such contest and shall indemnify and hold harmless the Executive, on an after-tax basis, for and against any Excise Tax or income tax, including interest and penalties with respect thereto, imposed as a result of such representation and payment of costs and expenses. Without limiting the foregoing provisions of this Section 4(f), the Company shall control all proceedings taken in connection with the contest of any claim contemplated by this Section 4(f) and, at its sole option, may pursue or forego any and all administrative appeals, proceedings, hearings and conferences with the taxing authority in respect of such claim (provided, however, that the Executive may participate therein at his own cost and expense) and may, at its option, either direct the Executive to pay the tax claimed and sue for a refund or contest the claim in any permissible manner, and the Executive agrees to prosecute such contest to a determination before any administrative tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the Company shall determine; provided, however, that if the Company directs the Executive to pay the tax claimed and sue for a refund, the Company shall advance, to the extent permitted by law, the amount of such payment to the Executive on an interest-free basis and shall indemnify and hold the Executive harmless, on an after-tax basis, from any Excise Tax or income or other tax, including interest or penalties with respect thereto, imposed with respect to such advance; and provided further, however, that any extension of the statute of limitations relating to payment of taxes for the taxable year of the Executive with respect to which the contested amount is claimed to be due is limited solely to such contested amount. Furthermore, the Company’s control of any such contested claim shall be limited to issues with respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be entitled to settle or contest, as the case may be, any other issue raised by the Internal Revenue Service or any other taxing authority.

          (g) If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 4(f), the Executive receives any refund with respect to such claim, the Executive shall (subject to the Company’s complying with the requirements of Section 4(f)) promptly pay to the Company the amount of such refund (together with any interest paid or credited thereon after any taxes applicable thereto). If, after the receipt by the Executive of an amount advanced by the Company pursuant to Section 4(f), a determination is made that the Executive shall not be entitled to any refund with respect to such claim and the Company does not notify the Executive in writing of its intent to contest such denial or refund prior to the expiration of thirty calendar days after such determination, then such advance shall be forgiven and shall not be required to be repaid and the amount of any such advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be paid by the Company to the Executive pursuant to this Section 4.

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          5. No Mitigation Obligation. The Company hereby acknowledges that it will be difficult and may be impossible for the Executive to find reasonably comparable employment following the Termination Date and that the non-competition covenant contained in Section 7 will further limit the employment opportunities for the Executive. In addition, the Company acknowledges that its severance pay plans applicable in general to its salaried employees do not provide for mitigation, offset or reduction of any severance payment received thereunder. Accordingly, the payment of the severance compensation by the Company to the Executive in accordance with the terms of this Agreement is hereby acknowledged by the Company to be reasonable, and the Executive will not be required to mitigate the amount of any payment provided for in this Agreement by seeking other employment or otherwise, nor will any profits, income, earnings or other benefits from any source whatsoever create any mitigation, offset, reduction or any other obligation on the part of the Executive hereunder or otherwise, except as expressly provided Paragraphs (4) and (5) of Annex A.

          6. Funding; Professional Fees and Expenses. (a) It is the intent of the Company that the Executive not be required to incur fees and related expenses for the retention of attorneys, accountants, actuaries, consultants, and/or other professionals (“professionals”) in connection with the interpretation, enforcement or defense of Executive’s rights under this Agreement by litigation or otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Executive hereunder. Accordingly, if it should appear to the Executive that the Company has failed to comply with any of its obligations under this Agreement or in the event that the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or proceeding designed to deny, or to recover from, the Executive the benefits provided or intended to be provided to the Executive hereunder, the Company irrevocably authorizes the Executive from time to time to retain one or more professionals of the Executive’s choice, at the expense of the Company as hereafter provided, to advise and represent the Executive in connection with any such interpretation, enforcement or defense, including without limitation the initiation or defense of any litigation or other legal action, whether by or against the Company or any Director, officer, stockholder or other person affiliated with the Company, in any jurisdiction. Notwithstanding any existing or prior relationship between the Company and such professional, the Company irrevocably consents to the Executive’s entering into a relationship with any such professional, and in that connection the Company and the Executive agree that a confidential relationship shall exist between the Executive and any such professional. Without respect to whether the Executive prevails, in whole or in part, in connection with any of the foregoing, the Company will pay and be solely financially responsible for any and all reasonable fees and related expenses incurred by the Executive in connection with any of the foregoing.

          (b) Without limiting the obligations of the Company pursuant to this Agreement, in the event a Change in Control occurs, the performance of the Company’s obligations under this Agreement shall be secured by amounts deposited or to be deposited in trust pursuant to certain trust agreements to which the Company shall be a party, providing, among other things for the payment of severance compensation to the

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Executive pursuant to Section 3, and the Gross-Up Payment to the Executive pursuant to Section 4, and providing that the reasonable fees and related expenses of one or more professionals selected from time to time by the Executive pursuant to Section 6(a) shall be paid, or reimbursed to the Executive if paid by the Executive, either in accordance with the terms of such trust agreements, or, if not so provided, on a regular, periodic basis upon presentation by the Executive to the trustee of a statement or statements prepared by such professional in accordance with its customary practices. Any failure by the Company to satisfy any of its obligations under this Section 6(b) shall not limit the rights of the Executive hereunder. Upon the earlier to occur of (i) a Change of a Control and (ii) a declaration by the Board that a Change in Control is imminent, the Company shall promptly to the extent it has not previously done so, and in any event within five business days:

     (A) transfer to trustees of such trust agreements to be added to the principal of the trusts a sum equal to (I) the present value on the date of the Change in Control (or on such fifth business day if the Board has declared a Change in Control to be imminent) of the payments to be made to the Executive under the provisions of Sections 3 and 4 hereof, such present value to be computed using the assumptions set forth on Annex B, less (II) the balance in the Executive’s accounts provided for in such trust agreements as of the most recent completed valuation thereof, as certified by the trustee under each trust agreement; provided, however, that if the trustee under any trust agreement, respectively, does not so certify by the end of the fourth business day after the earlier of such Change in Control or declaration, then the balance of such respective account shall be deemed to be zero. Any payments of severance compensation or other benefits hereunder by the trustee pursuant to any trust agreement shall, to the extent thereof, discharge the Company’s obligation to pay severance compensation and other benefits hereunder, it being the intent of the Company that assets in such trusts be held as security for the Company’s obligation to pay severance compensation and other benefits under this Agreement; and

     (B) transfer to the trustees to be added to the principal of the trusts under the trust agreements the sum of $500,000, less any principal in such trusts on such fifth business day dedicated to the payment of the Company’s obligations under Section 6(a) hereto. Any payments of the Executive’s reasonable professional fees and related expenses by the trustees pursuant to the trust agreements shall, to the extent thereof, discharge the Company’s obligation hereunder, it being the intent of the Company that assets in such trust be held as security for the Company’s obligation under Section 6(a) hereof. The Executive understands and acknowledges that the corpus of the trust, or separate portion thereof, dedicated to the payment of the Company’s obligations

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under Section 6(a) hereto will be $500,000 and that such amount will be available to discharge not only the obligations of the Company to the Executive under Section 6(a) hereof, but also similar obligations of the Company to other executives and employees under similar provisions of other agreements.

          (c) Subject to the foregoing, the Executive shall have the status of a general unsecured creditor of the Company and shall have no right to, or security interest in, any assets of the Company or any Subsidiary.

          (d) The Corporation shall pay, or reimburse the Participant for such fees, costs and expenses, promptly upon presentment of appropriate documentation, but only if, to the extent and at the earliest date(s) such reimbursements are permitted, in the opinion of Jones Day or any other nationally recognized law firm designated by the Committee and reasonably acceptable to the Executive (Jones Day or such other firm, “Nationally Recognized Counsel”), without violating Code Section 409A.

          7. Competitive Activity. During a period ending two years following the Termination Date, if the Executive shall have received or shall be receiving benefits under Section 3, the Executive shall not, without the prior written consent of the Company, which consent shall not be unreasonably withheld, engage in any Competitive Activity.

          8. Employment Rights. Nothing expressed or implied in this Agreement will create any right or duty on the part of the Company or the Executive to have the Executive remain in the employment of the Company or any Subsidiary prior to or following any Change in Control. Any termination of employment of the Executive or the removal of the Executive from the office or position in the Company or any Subsidiary following the commencement of any action by or discussion with a third person that ultimately results in a Change in Control shall be deemed to be a termination or removal of the Executive after a Change in Control for purposes of this Agreement entitling the Executive to severance benefits provided by Section 3.

          9. Release. Payment of the severance compensation set forth in Section 3 hereto is conditioned upon the Executive executing and delivering a release (the “Release”) substantially in the form provided in Annex C.

          10. Withholding of Taxes. The Company may withhold from any amounts payable under this Agreement all federal, state, city or other taxes as the Company is required to withhold pursuant to any law or government regulation or ruling.

          11. Successors and Binding Agreement. (a) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation, reorganization or otherwise) to all or substantially all of the business or assets of the Company, by agreement in form and substance satisfactory to the Executive, expressly to assume and agree to perform this Agreement in the same manner and to the same extent the Company would be required to perform if no such succession had taken

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place. This Agreement will be binding upon and inure to the benefit of the Company and any successor to the Company, including without limitation any persons acquiring directly or indirectly all or substantially all of the business or assets of the Company whether by purchase, merger, consolidation, reorganization or otherwise (and such successor shall thereafter be deemed the “Company” for the purposes of this Agreement), but will not otherwise be assignable, transferable or delegable by the Company.

          (b) This Agreement will inure to the benefit of and be enforceable by the Executive’s personal or legal representatives, executors, administrators, successors, heirs, distributees and legatees.

          (c) This Agreement is personal in nature and neither of the parties hereto shall, without the consent of the other, assign, transfer or delegate this Agreement or any rights or obligations hereunder except as expressly provided in Sections 11(a) and 11(b). Without limiting the generality or effect of the foregoing, the Executive’s right to receive payments hereunder will not be assignable, transferable or delegable, whether by pledge, creation of a security interest, or otherwise, other than by a transfer by Executive’s will or by the laws of descent and distribution and, in the event of any attempted assignment or transfer contrary to this Section 11(c), the Company shall have no liability to pay any amount so attempted to be assigned, transferred or delegated.

          (d) This Agreement supersedes the Agreement, if any, specified on the signature page as the Prior Agreement.

          (e) To the extent applicable, it is intended that the compensation arrangements under this Agreement comply with Section 409A of the Code. To the extent any provision in this Agreement is or will be in violation of Section 409A, the Agreement shall be amended in such manner as the parties may agree such that the Agreement is or remains in compliance with Section 409A and the intent of the parties is maintained to the maximum extent possible.

          12. Notices. For all purposes of this Agreement, all communications, including without limitation notices, consents, requests or approvals, required or permitted to be given hereunder will be in writing and will be deemed to have been duly given when hand delivered or dispatched by electronic facsimile transmission (with receipt thereof orally confirmed), or three business days after having been sent by a nationally recognized overnight courier service such as Federal Express or UPS addressed to the Company (to the attention of the Secretary of the Company) at its principal executive office and to the Executive at his principal residence, or to such other address as any party may have furnished to the other in writing and in accordance herewith, except that notices of changes of address shall be effective only upon receipt.

          13. Governing Law. The validity, interpretation, construction and performance of this Agreement will be governed by and construed in accordance with

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the substantive laws of the State of Ohio, without giving effect to the principles of conflict of laws of such State.

          14. Validity. If any provision of this Agreement or the application of any provision hereof to any person or circumstances is held invalid, unenforceable or otherwise illegal, the remainder of this Agreement and the application of such provision to any other person or circumstances will not be affected, and the provision so held to be invalid, unenforceable or otherwise illegal will be reformed to the extent (and only to the extent) necessary to make it enforceable, valid or legal.

          15. Miscellaneous. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing signed by the Executive and the Company. No waiver by either party hereto at any time of any breach by the other party hereto or compliance with any condition or provision of this Agreement to be performed by such other party will be deemed a waiver of similar or dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreements or representations, oral or otherwise, expressed or implied with respect to the subject matter hereof have been made by either party which are not set forth expressly in this Agreement. References to Sections are to references to Sections of this Agreement.

          16. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same agreement.

          IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the date first above written.

 

 

 

 

 

 

 

 

 

 

 

 

 

EXECUTIVE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Executive’s Name]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

GENCORP INC.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

By:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Title]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Signature Date:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Prior Agreement, If Any:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Annex A

Severance Compensation

          1. Base Pay and Annual Bonus. A lump sum payment in an amount equal to (a) any unpaid Base Pay through the date of the Executive’s termination of employment and (b) any annual bonus payable in the year in which the Executive’s termination of employment occurs, determined in accordance with the provisions of the Company’s executive incentive compensation program.

          2. Severance Pay. A lump sum payment in an amount equal to [two — for Vice Presidents] [three — for President and for Senior Vice Presidents] times the sum of (A) Base Pay (at the highest rate in effect for any period prior to the Termination Date), plus (B) Incentive Pay (determined in accordance with the standards set forth in Section 1(j).

          3. Performance Awards. Upon an Executive’s termination of employment pursuant to Sections 2(b) or 2(c), (1) all payments due under all equity and performance awards granted under the GenCorp Inc. 1999 Equity and Performance Incentive Plan, if any, will be made in accordance with the provisions of such plan and the awards agreements providing for the grant of such awards, and (2) if, after application of clause (1), any award has not been fully paid because it remains unvested or otherwise notwithstanding that a Change in Control as herein defined has occurred, all such awards will be deemed, without further action, to be fully vested, earned, and paid or exercisable, as the case may be.

          4. Life Insurance. For a period of 24 months following the Termination Date (the “Continuation Period”), the Company will arrange to provide the Executive with term life insurance benefits substantially similar to those that the Executive was receiving or entitled to receive immediately prior to the Termination Date (or, if greater, immediately prior to the reduction, termination, or denial described in Section 2(b)(ii)), except that the level of such benefit to be provided to the Executive may be reduced in the event of a corresponding reduction generally applicable to all recipients of or participants in such benefits. If and to the extent that any benefit described in this Paragraph 4 is not or cannot be paid or provided under any policy, plan, program or arrangement of the Company or any Subsidiary, as the case may be, then the Company will itself pay or provide for the payment to the Executive, his dependents and beneficiaries, of such benefits. Without otherwise limiting the purposes or effect of Section 5, benefits otherwise receivable by the Executive pursuant to this Paragraph 4 will be reduced to the extent comparable benefits are actually received by the Executive from another employer during the Continuation Period following the Executive’s Termination Date, and any such benefits actually received by the Executive shall be reported by the Executive to the Company.

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5. Health Benefits.

               (a) For a period of eighteen (18) months following the Termination Date (the “COBRA Period”), the Company will arrange to provide the Executive, at no cost to the Executive, with health benefits substantially similar to those that the Executive was receiving or entitled to receive immediately prior to the Termination Date (or, if greater, immediately prior to the reduction, termination, or denial described in Section 2(b)(ii)), except that the level of such benefit to be provided to the Executive may be reduced in the event of a corresponding reduction generally applicable to all recipients of or participants in such benefits. The COBRA Period shall be considered to be the period during which the Executive shall be eligible for continuation coverage under Section 4980B of the Code, and the Company shall reimburse the Executive for the amount of the premiums for such continuation coverage; provided, however, that without otherwise limiting the purposes or effect of Section 5, the benefits otherwise receivable by the Executive pursuant to this Paragraph 5 will be reduced to the extent comparable benefits are actually received by the Executive from another employer during the COBRA Period following the Executive’s Termination Date, and any such benefits actually received by the Executive shall be reported by the Executive to the Company. If and to the extent that any benefit described in this Paragraph 5 is not or cannot be paid or provided under any policy, plan, program or arrangement of the Company or any Subsidiary, as the case may be, then the Company will itself pay or provide for the payment to the Executive, his dependents and beneficiaries, of such benefits. Notwithstanding the foregoing, if the Company determines that the provision of benefits under this Paragraph 5 is likely to result in negative tax consequences to the Executive, the Company will use its reasonable best efforts to make other arrangements to provide a substantially similar benefit to the Executive that does not have such negative tax consequences, which may include, making a lump sum payment at the earliest time permitted under Section 409A of the Code, in an amount equal to the Company’s reasonable determination of the present value of any such benefits that, if provided, would result in negative tax consequences to the Executive and/or providing such benefit through insurance coverage on the Executive’s behalf.

               (b) The Executive will also be entitled to a lump sum payment in an amount equal to the present value of the cost of health coverage for an additional six (6) months, provided that if any benefit or payment described in this Paragraph 5(b) is subject to tax, the Company will pay to the Executive an additional amount such that after payment by the Executive of all taxes so imposed on such benefits and on such payments, the Executive retains an amount equal to such taxes.

          6. Retirement Benefits. Retirement benefits under the applicable qualified pension plan sponsored by the Company or Subsidiary and the Benefits Restoration Plan for Salaried Employees of GenCorp Inc. and Certain Subsidiary Companies (“Benefits Restoration Plan”) that are accrued but not vested at the time of

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the Executive’s termination of employment will be vested in accordance with the provisions of the Benefits Restoration Plan.

     7. Outplacement Services. Outplacement services for a period of up to 12 months by a firm selected by the Executive, at the expense of the Company in an amount up to 20% of the Executive’s Base Pay.

     8. Payment for Financial Counseling. A lump sum payment in an amount equal to $15,000 in lieu of providing financial counseling benefits to the Executive during the Continuation Period.

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Annex B

Funding Assumptions

In calculating the present value of payments to be made to the Executive under Sections 3 and 4 of the Agreement, as required by Section 6(b)(B) of the Agreement, the Company shall:

     (1) Assume that all payments to be made to the Executive shall be paid on a date which is six months following the date of the Change in Control; and

     (2) Apply a discount factor which is equal to the yield to maturity, as reported in The Wall Street Journal, of the 26-week Treasury Bill most recently issued as of the date of the Change in Control.

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Annex C

Form of Release

          WHEREAS, the Executive’s employment has been terminated in accordance with Section 2 of the Severance Agreement dated as of                     , by and between       (the “Executive”) and GenCorp Inc. (the “Agreement”) under circumstances in which the Executive is entitled to severance compensation under Section 3 thereof.

          WHEREAS, the Executive is required to sign this Release in order to receive the Severance Compensation as described in Annex A of the Agreement and the other benefits described in the Agreement.

          NOW THEREFORE, in consideration of the promises and agreements contained herein and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and intending to be legally bound, the Executive agrees as follows:

          1. This Release is effective on the date hereof and will continue in effect as provided herein.

          2. In consideration of the payments to be made and the benefits to be received by the Executive pursuant to the Agreement, which the Executive acknowledges are in addition to payments and benefits which the Executive would be entitled to receive absent the Agreement, the Executive, for himself and his dependents, successors, assigns, heirs, executors and administrators (and his and their legal representatives of every kind), hereby releases, dismisses, remises and forever discharges GenCorp Inc., its predecessors, parents, subsidiaries, divisions, related or affiliated companies, officers, directors, stockholders, members, employees, heirs, successors, assigns, representatives, agents and counsel (the “Company”) from any and all arbitrations, claims, including claims for attorney’s fees, demands, damages, suits, proceedings, actions and/or causes of action of any kind and every description, whether known or unknown, which Executive now has or may have had for, upon, or by reason of any cause whatsoever (“claims”), against the Company, including but not limited to:

          (a) any and all claims arising out of or relating to Executive’s employment by or service with the Company and his termination from the Company;

          (b) any and all claims of discrimination, including but not limited to claims of discrimination on the basis of sex, race, age, national origin, marital status, religion or handicap, including, specifically, but without limiting the generality of the foregoing, any claims under the Age Discrimination in Employment Act, as amended, Title VII of the Civil Rights Act of 1964, as amended, the Americans with Disabilities Act, Ohio Revised Code Section 4101.17 and Ohio Revised Code Chapter 4112, including Sections 4112.02 and 4112.99 thereof; and

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          (c) any and all claims of wrongful or unjust discharge or breach of any contract or promise, express or implied.

          3. Executive understands and acknowledges that the Company does not admit any violation of law, liability or invasion of any of his rights and that any such violation, liability or invasion is expressly denied. The consideration provided for this Release is made for the purpose of settling and extinguishing all claims and rights (and every other similar or dissimilar matter) that Executive ever had or now may have against the Company to the extent provided in this Release. Executive further agrees and acknowledges that no representations, promises or inducements have been made by the Company other than as appear in the Agreement.

          4. Executive further agrees and acknowledges that:

          (a) The release provided for herein releases claims to and including the date of this Release;

          (b) He has been advised by the Company to consult with legal counsel prior to executing this Release, has had an opportunity to consult with and to be advised by legal counsel of his choice, fully understands the terms of this Release, and enters into this Release freely, voluntarily and intending to be bound;

          (c) He has been given a period of 21 days to review and consider the terms of this Release, prior to its execution and that he may use as much of the 21 day period as he desires; and

          (d) He may, within 7 days after execution, revoke this Release. Revocation shall be made by delivering a written notice of revocation to the Vice President of Human Resources at the Company. For such revocation to be effective, written notice must be actually received by the Vice President of Human Resources at the Company no later than the close of business on the 7th day after Executive executes this Release. If Executive does exercise his right to revoke this Release, all of the terms and conditions of the Release shall be of no force and effect and the Company shall not have any obligation to make payments or provide benefits to Executive as set forth in Sections 3, 4 and 6 of the Agreement.

          5. Executive agrees that he will never file a lawsuit or other complaint asserting any claim that is released in this Release.

          6. Executive waives and releases any claim that he has or may have to reemployment after                                          [date of termination].

          7. Notwithstanding any other provision hereof, this Release will not affect Executive’s rights under the Agreement or under any employee retirement income, welfare, stock or option benefit plan or his rights to indemnity, whether by contract, under the Company’s articles of incorporation, regulations, structure or otherwise.

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          8. The validity, interpretation, construction and performance of this Release will be governed by and construed in accordance with the substantive laws of the State of Ohio, without giving effect to the principles of conflict of laws of such State.

          IN WITNESS WHEREOF, the Executive has executed and delivered this Release on the date set forth below.

 

 

 

 

 

 

 

 

 

Dated:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Executive

 

 

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