First Amended and Restated Change in Control Severance Plan of Miller Industries, Inc., effective November 11, 2024
As Approved by Compensation Committee
effective as of November 11, 2024
MILLER INDUSTRIES, INC.
FIRST AMENDED AND RESTATED
CHANGE IN CONTROL SEVERANCE PLAN
Effective November 11, 2024
TABLE OF CONTENTS
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FOREWORD
Capitalized terms used throughout the Plan have the meanings set forth in Article II, except as they are otherwise defined in the Plan or where the context clearly requires otherwise.
DEFINITIONS
For purposes of this Plan, the terms listed below shall have the meanings specified herein:
“Accounting Firm” means a nationally recognized accounting firm, or actuarial, benefits, or compensation consulting firm, in each case with experience in performing calculations regarding the applicability of Code Section 280G and of the tax imposed by Code Section 4999, as selected by the Company prior to a Change in Control.
“Accrued Obligations” means any accrued and unpaid Base Salary, any unused vacation or paid time off that is payable under the Company’s policy upon a termination of employment, and other accrued benefits through the date of termination, paid on the same basis as paid upon any voluntary termination of employment.
“Administrator” means the Committee. The Committee may delegate its duties and authority as Administrator to executive officers of the Company.
“Annual Bonus” means, prior to January 1, 2026, an amount in cash equal to the average annual bonus received by the Participant under the Annual Incentive Plan for the two years prior to the qualifying event including only the cash portion of such annual bonus and any amounts that were subject to withholding, taxes, and deductions. After January 1, 2026, the definition of
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“Annual Bonus” means an amount in cash equal to the average annual bonus received by the Participant under the Annual Incentive Plan for the three years prior to the qualifying event including only the cash portion of such annual bonus and any amounts that were subject to withholding, taxes, and deductions.
“Annual Incentive Plan” means, with respect to a Participant, the Company’s annual cash incentive plan in which the Participant participates at the time of the Qualifying Event, if any.
“Base Salary” means, with respect to a Participant, the Participant’s annual base salary in effect on the date of the Qualifying Event; provided, however, that if the Participant’s Separation from Service is for Good Reason due to a reduction in the Participant’s annual base salary, the Participant’s Base Salary will be the Participant’s annual base salary in effect immediately before such reduction.
“Board” means the Board of Directors of the Company.
“Cause” means the following with respect to a Participant:
For purposes of this Plan, no act or failure to act by the Participant shall be deemed to be “willful” unless done or omitted to be done by the Participant not in good faith and without reasonable belief that the Participant’s action or omission was in the best interest of the Company.
“Change in Control” means the occurrence of any of the following events:
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For purposes of this definition, “Affiliate” shall have the meaning ascribed to such term in Rule 12b-2 under the Exchange Act, and “Stock” means the common stock of the Company, $0.01 par value per share.
Notwithstanding anything in this Plan to the contrary, to the extent any provision of this Plan would cause a payment of an amount subject to Section 409A (and not otherwise exempt from Section 409A) to be made because of the occurrence of a Change in Control, then such payment shall not be made unless such Change in Control also constitutes a “change in ownership,” “change in effective control” or “change in ownership of a substantial portion of the Company’s assets” within the meaning of Section 409A. Other Participant rights that are tied to a Change in Control, such as vesting, shall not be affected by this paragraph.
“Code” means the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder. Reference to any section or subsection of the Code includes reference to any comparable or succeeding provisions of any legislation that amends, supplements, or replaces such section or subsection.
“Committee” means the Compensation Committee of the Board.
“Company” means Miller Industries, Inc., a Tennessee corporation, or its successor or assignee.
“Company Group” means the Company and each of its Subsidiaries.
“Director” means a member of the Board.
“Effective Date” means the date on which this Plan is effective, November 11, 2024.
“Employer” means the Company or Subsidiary, as applicable, that employs a Participant.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and the regulations promulgated thereunder. Reference to any section or subsection of ERISA includes
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reference to any comparable or succeeding provisions of any legislation that amends, supplements, or replaces such section or subsection.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the regulations promulgated thereunder. Reference to any section or subsection of the Exchange Act includes reference to any comparable or succeeding provisions of any legislation that amends, supplements, or replaces such section or subsection.
“Excise Tax” shall mean, collectively, (i) the tax imposed by Code Section 4999, if any, by reason of a payment being “contingent on a change in ownership or control” of the Company, within the meaning of Code Section 280G, (ii) any similar tax imposed by state or local law, and (iii)any interest or penalties with respect to any tax described in clause (i) or (ii).
“Good Reason” means the occurrence of any of the following events without the Participant’s written consent:
provided that a Participant will only have Good Reason if, within ninety (90) days following the first occurrence of any of the events set forth in this definition, the Participant (i) delivers Notice of Termination to the Company of his or her intention to terminate his or her employment for Good Reason, which notice specifies in reasonable detail the circumstances claimed to give rise to Participant’s right to terminate employment for Good Reason, (ii) provides the Company with at least thirty (30) days to cure the circumstances, and (iii) if the Company is not successful in curing the circumstances, Participant terminates employment within sixty (60) days of Company’s failure to cure such circumstances. A Participant’s failure to timely give Notice of Termination of the occurrence of a specific event that would otherwise constitute Good Reason will not constitute a waiver of the Participant’s right to give notice of any new subsequent event that would constitute Good Reason that occurs after such prior event (regardless of whether the new subsequent event is of the same or different nature as the preceding event).
“Incumbent Board” means the portion of the Board constituted of the individuals who are members of the Board as of the Effective Date and any individual who becomes a director of the Company after the Effective Date and whose election or appointment by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least a majority of the
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directors then constituting the Incumbent Board, but excluding, for this purpose, any such individual whose initial assumption of office occurs as a result of an actual or threatened election contest with respect to the election or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Incumbent Board.
“Notice of Termination” means a written notice of termination of employment for Cause given by the Employer to a Participant or a written notice of termination of employment for Good Reason given by a Participant to the Company, in either case in the manner specified in Section 6.10, which states the specific termination provision in the Plan relied upon for the termination, sets forth in reasonable detail the facts and circumstances claimed to provide the basis for termination under the provision so indicated, and specifies the Participant’s date of termination.
“Participant” means each individual who has become a Participant pursuant to Section 3.01 and who has not ceased to be a Participant under Section 3.02.
“Participation Letter” means a letter delivered to an eligible executive by the Administrator to a Participant notifying the Participant of his or her designation as a Participant in the Plan and, the acceptance thereof, evidencing such Participant’s agreement to participate in the Plan and to comply with the terms, conditions, and restrictions within the Plan.
“Payment” means any payment or benefit in the nature of compensation (within the meaning of Code Section 280G(b)(2)) received or to be received by a Participant or for the benefit of a Participant, whether payable under the terms of this Plan or any other plan, arrangement or agreement with the Employer or an affiliate of the Employer (including the accelerated vesting of any equity awards held by a Participant).
“Person” means any “person” or “group” as those terms are used in Sections 13(d) and 14(d) of the Exchange Act.
“Plan” means this First Amended and Restated Miller Industries, Inc. Change in Control Severance Plan as set forth herein and as it may be amended from time to time, or any successor plan, program, or arrangement thereto.
“Qualifying Event” means, with respect to a Participant, the first to occur of either (A) a Change in Control or (B) the Participant’s Separation from Service that is (y) initiated by the Employer without Cause, or (z) initiated by the Participant for Good Reason.
“Release” means an agreement in which the Participant releases any and all claims against the Company and all members of the Company Group in connection with a termination of the Participant’s employment with the Employer. The specific terms of the Release for a Participant shall be based upon the form of release used by the Employer at the time of the termination of employment, which shall be substantially similar to the form of Release attached hereto as Exhibit A.
“Release Consideration Period” means the period of time specified by the Release, not to exceed forty-five (45) days (or such longer period as may be required by applicable law), following the date of the Qualifying Event during which the affected Participant is permitted to consider whether or not to sign the Release.
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“Release Revocation Period” means the period of time specified by the Release, not to exceed seven (7) days (or such longer period as may be required by applicable law), during which the Participant is permitted to revoke the signed Release.
“Section 409A” means Section 409A of the Code and the Department of Treasury and Internal Revenue Service guidance thereunder.
“Separation from Service” means “separation from service” from the Employer and all affiliated companies as described under Section 409A(a)(2)(A)(i). A Participant who is both an employee and a Director will not have a Separation from Service until he or she has a Separation from Service with respect to both his or her employment and his or her Board membership. For this purpose, the term “affiliated companies” means the Employer and any affiliate with which any entity comprising the Employer is treated as a single employer under Code Section 414(b) or 414(c).
“Severance Benefits” means the severance pay, Change in Control payments, or the other benefits payable to a Participant pursuant to Article IV of the Plan.
“Subsidiary” means any entity in which the Company, directly or indirectly, beneficially owns more than fifty percent (50%) of such entity’s equity interest by vote and value.
“Tier Level Multiplier” means the multiple of Base Salary and Annual Bonus payable under Section 4.02 that is established by the Committee for a Participant and reflected in the Participant’s Participation Letter. Participants shall generally be placed at a level of 2X, 2.5X, or 2.99X by the Committee.
ELIGIBILITY AND PARTICIPATION
SEVERANCE AND CHANGE IN CONTROL BENEFITS
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AMENDMENT AND TERMINATION
The Committee, in all respects, shall have the right at any time and from time to time, by instrument in writing, to amend, modify, alter, or terminate the Plan in whole or in part. Notwithstanding the foregoing or anything in this Plan to the contrary, the Committee may not amend, modify, alter, or terminate this Plan so as to adversely affect payments or benefits then payable, or which could become payable, to a Participant under the Plan, except to the minimum extent required to comply with any applicable law, without the express written consent of the Participant.
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MISCELLANEOUS
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EXHIBIT A
FORM OF RELEASE1
RELEASE AGREEMENT
1 The Parties agree that the Company may revise the release in light of additional statutes or claims so that the Company receives the benefit of the fullest legally permissible release of claims and may also change the timing, if required, to obtain such release. This footnote and the other footnotes are part of the form of release and are to be removed only when the Company finalizes the letter agreement for execution.
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For purposes of this Release, the term “Released Parties” means the Company, and each of its respective parents, subsidiaries, and affiliates, and all of the current and former employees, officers, directors, trustees, agents, representatives, shareholders, attorneys, accountants, partners, insurers, advisors, partnerships, joint venturers, successors and assigns, employee benefit programs (and the trustees, administrators, fiduciaries, and insurers of such programs) of any of them, in their individual and official capacities, and the respective heirs and personal representatives of any of them, and any other persons acting by, through, under, or in concert with, any of them.
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Signatures on Following Page
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EMPLOYEE’S ACCEPTANCE OF RELEASE
I have read this Release and I understand all of its terms. I acknowledge and agree that this Release is executed voluntarily, without coercion, with full knowledge of its significance. I further acknowledge that I have been given [twenty-one (21)] days during which to decide whether to execute this Release, and have used that time to the extent I wish to do so and that I have been advised to consult with an attorney before signing it. I understand that my execution of this Release constitutes a full, unconditional general release of any and all known or unknown claims that I may have against any Released Party, despite the fact that I may become aware of claims in the future that I did not consider prior to signing this Release.
Date:
Employee Signature
Print Employee’s Name
Accepted:
Miller Industries, Inc.
By:
Name:
Title:
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