Exhibit 10.3
CHANGE OF CONTROL EMPLOYMENT
AGREEMENT
AMENDMENT AND
RESTATEMENT
THIS AGREEMENT by
and between TUPPERWARE BRANDS CORPORATION, a Delaware corporation
(the “Company”), and
(the “Executive”), is an amendment and restatement of
the agreement entered into by the parties and dated as of the
11 th day of December, 2008, and
amending and restating the agreement entered into as of the 13th
day of February, 2007.
The Board of Directors of the
Company (the “Board”) has determined that it is in the
best interests of the Company and its shareholders to assure that
the Company will have the continued dedication of the Executive,
notwithstanding the possibility, threat or occurrence of a Change
of Control (as defined below) of the Company. The Board believes it
is imperative to diminish the inevitable distraction of the
Executive by virtue of the personal uncertainties and risks created
by a pending or threatened Change of Control and to encourage the
Executive’s full attention and dedication to the Company
currently and in the event of any threatened or pending Change of
Control, and to provide the Executive with compensation and
benefits arrangements upon a Change of Control which ensure that
the compensation and benefits expectations of the Executive will be
satisfied and which are competitive with those of other
corporations. Therefore, in order to accomplish these objectives
and to conform the agreement dated February 13, 2007 to the
requirements of Section 409A of the Internal Revenue Code of
1986, as amended (the “Code”), and the regulations
promulgated thereunder, the Board has caused the Company to enter
into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED
AS FOLLOWS:
1. Certain Definitions
.
(a) The “Effective Date”
shall be the first date during the Protection Period (as defined in
Section 1(b)) on which a Change of Control occurs. Anything in
this Agreement to the contrary notwithstanding, if a Change of
Control occurs and if the Executive’s employment with the
Company is terminated prior to the date on which the Change of
Control occurs, and if it is reasonably demonstrated by the
Executive that such termination of employment (i) was at the
request of a third party who has taken steps reasonably calculated
to effect the Change of Control or (ii) otherwise arose in
connection with or anticipation of the Change of Control, then for
all purposes of this Agreement the “Effective Date”
shall mean the date immediately prior to the date of such
termination of employment.
(b) The “Protection
Period” shall be the period commencing on the date hereof and
ending on the second anniversary of such date; provided, however,
that commencing on the date one year after the date hereof, and on
each annual anniversary of such date (such date and each annual
anniversary thereof shall be hereinafter referred to as the
“Renewal Date”), the Protection Period shall be
automatically extended so as to terminate two years from such
Renewal Date, unless at least 60 days prior to the Renewal Date the
Company shall give notice to the Executive that the Protection
Period shall not be so extended.
2. Change of Control . For
the purpose of this Agreement, a “Change of Control”
shall mean:
(a) The acquisition by any
individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”)) (a
“Person”) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (i) the then outstanding shares of common stock of the
Company (the “Outstanding Company Common Stock”) or
(ii) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the
election of directors (the “Outstanding Company Voting
Securities”); provided, however, that for purposes of this
subsection (a), the following acquisitions shall not constitute a
Change of Control: (i) any acquisition directly from the
Company, (ii) any acquisition by the Company, (iii) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation
controlled by the Company or (iv) any acquisition by any
corporation pursuant to a transaction which complies with clauses
(i), (ii) and (iii) of subsection (c) of this
Section 2; or
(b) Individuals who, as of the date
hereof, constitute the Board (the “Incumbent Board”)
cease for any reason to constitute at least a majority of the
Board, provided that any individual becoming a director subsequent
to the date hereof whose election, or nomination for election by
the Company’s shareholders, was approved by a vote of at
least a majority of the directors then comprising the Incumbent
Board shall be considered as though such individual were a member
of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office is in connection with
an actual or threatened election contest or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board; or
(c) Consummation by the Company of a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the
Company, the acquisition of assets of another corporation, a
statutory share exchange or other similar transactions (a
“Corporate Transaction”), in each case, unless,
following such Corporate Transaction, (i) all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
Corporate Transaction beneficially own, directly or indirectly,
more than 50% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of
directors, as the case may be, of the corporation resulting from
such Corporate Transaction (including, without limitation, a
corporation which as a result of such transaction owns the Company
or all or substantially all of the Company’s assets either
directly or through one or more subsidiaries) in substantially the
same proportions as their ownership, immediately prior to such
Corporate Transaction of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be,
(ii) no Person (excluding any employee benefit plan (or
related trust) of the Company or such corporation resulting from
such Corporate Transaction) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation resulting from such
Corporate Transaction or the combined voting power of the then
outstanding voting securities of such corporation except to the
extent that such ownership existed prior to the Corporate
Transaction
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and (iii) at least a majority of the
members of the board of directors of the corporation resulting from
such Corporate Transaction were members of the Incumbent Board at
the time of the execution of the initial agreement, or at the time
of the action of the Board, providing for such Corporate
Transaction; or
(d) Approval by the shareholders of
the Company of a complete liquidation or dissolution of the
Company.
3. Employment Period . The
Company hereby agrees to continue the Executive in its employ or
the employ of one of its subsidiaries, and the Executive hereby
agrees to remain in such employ of the Company subject to the terms
and conditions of this Agreement, for the period commencing on the
Effective Date and ending on the second anniversary of such date
(the “Employment Period”).
4. Terms of Employment.
(a) Position and Duties
.
(i) During the Employment Period,
(A) the Executive’s position (including status, offices,
titles and reporting requirements), authority, duties and
responsibilities shall be at least commensurate in all material
respects with the most significant of those held, exercised and
assigned at any time during the 90-day period immediately preceding
the Effective Date and (B) the Executive’s services
shall be performed at the location where the Executive was employed
immediately preceding the Effective Date or any office or location
less than 35 miles from the Executive’s primary residence
immediately prior to any relocation.
Such position, authority, duties and
responsibilities shall be regarded as not commensurate and as
inconsistent and result in a diminution for purposes of
Section 5(c)(i) if, as a result of a Change of Control, (I),
the Company becomes a direct or indirect subsidiary of another
corporation or becomes controlled, directly or indirectly, by an
unincorporated entity (such ultimate parent corporation or
unincorporated entity is hereinafter referred to as a “parent
company”), or (II) all or substantially all of the assets of
the Company are acquired by another corporation or corporations or
unincorporated entity or entities owned or controlled, directly or
indirectly, by another corporation or unincorporated entity (such
ultimate parent corporation or unincorporated entity is also
hereinafter referred to as a “parent company”), unless,
in each of (I) and (II), (x) Section 12 (c) of
this Agreement shall have been complied with by any such parent
company and (y) the Executive shall have assumed a position
with such parent company and the Executive’s position,
authority, duties and responsibilities with such parent company are
at least commensurate in all material respects with the most
significant of those held, exercised and assigned with the Company
at any time during the 90-day period immediately preceding the
Effective Date, or (III) the Company becomes owned or controlled,
directly or indirectly, by more than one other corporation and/or
unincorporated entity, as the case may be, which are not owned or
controlled, directly or indirectly, by a single parent company or
(IV) more than one unrelated corporation or unincorporated entity
acquires a significant portion of the assets of the Corporation and
such unrelated corporations or unincorporated entities, as the case
may be, are not owned or controlled, directly or indirectly, by a
single parent company.
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(ii) During the Employment Period,
and excluding any periods of vacation and sick leave to which the
Executive is entitled, the Executive agrees to devote reasonable
attention and time during normal business hours to the business and
affairs of the Company and, to the extent necessary to discharge
the responsibilities assigned to the Executive hereunder, to use
the Executive’s reasonable best efforts to perform faithfully
and efficiently such responsibilities. During the Employment Period
it shall not be a violation of this Agreement for the Executive to
(A) serve on corporate, civic or charitable boards or
committees, (B) deliver lectures, fulfill speaking engagements
or teach at educational institutions and (C) manage personal
investments, so long as such activities do not significantly
interfere with the performance of the Executive’s
responsibilities as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that to the
extent that any such activities have been conducted by the
Executive prior to the Effective Date, the continued conduct of
such activities (or the conduct of activities similar in nature and
scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the
Executive’s responsibilities to the Company.
(b) Compensation .
(i) Base Salary . During the
Employment Period, the Executive shall receive an annual base
salary (“Annual Base Salary”), which shall be paid at a
monthly rate, at least equal to twelve times the highest monthly
base salary paid or payable, including any base salary which has
been earned but deferred in accordance with Section 409A of
the Code, to the Executive by the Company and its affiliated
companies in respect of the twelve-month period immediately
preceding the month in which the Effective Date occurs. During the
Employment Period, the Annual Base Salary shall be reviewed at
least annually and shall be increased at any time and from time to
time as shall be substantially consistent with increases in base
salary generally awarded in the ordinary course of business to
other peer executives of the Company and its affiliated companies.
Any increase in Annual Base Salary shall not serve to limit or
reduce any other obligation to the Executive under this Agreement.
Annual Base Salary shall not be reduced after any such increase and
the term Annual Base Salary as utilized in this Agreement shall
refer to Annual Base Salary as so increased. As used in this
Agreement, the term “affiliated companies” shall
include any company controlled by, controlling or under common
control with the Company.
(ii) Incentive Awards . In
addition to Annual Base Salary, the Executive shall be awarded, for
each fiscal year ending during the Employment Period, an annual
incentive award (the “Annual Incentive Award”) and a
long-term incentive award (which may be designated as a performance
unit award) (the “Long-Term Cash Incentive Award” and
together with the Annual Incentive Award, the “Incentive
Awards”) in cash at least equal to the average annualized
(for any fiscal year consisting of less than twelve full months or
with respect to which the Executive has been employed by the
Company for less than twelve full months) annual incentive award
and long-term cash incentive award, respectively, paid or payable,
including by reason of any deferral, to the Executive by the
Company and its affiliated companies in respect of the three fiscal
years immediately preceding the fiscal year in which the Effective
Date occurs (together, the “Recent Incentive Awards”);
provided, however, that for any year of such three-year period in
which the actual incentive awards were less than the target level
of such incentive awards, then the target levels of such incentive
awards shall be used for
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purposes of the foregoing formula. Each such
Annual Incentive Award and Long-Term Cash Incentive Award shall be
paid no later than two and one-half months after the fiscal year
for which the Annual Incentive Award or the Long-Term Cash
Incentive Award, as the case may be, is awarded, unless the
Executive shall elect to defer the receipt of such Annual Incentive
Award or Long-Term Cash Incentive Award, which deferrals shall be
made in accordance with the provisions of Section 409A of the
Code.
(iii) Profit Sharing, Thrift,
Savings and Pension Plans . In addition to Annual Base Salary
and Incentive Awards payable as hereinabove provided, the Executive
shall be entitled to participate during the Employment Period in
all profit sharing, thrift, savings and pension plans, practices,
policies and programs generally applicable to other peer executives
of the Company and its affiliated companies, but in no event shall
such plans, practices, policies and programs provide the Executive
with profit sharing opportunities (measured with respect to both
regular and special profit sharing opportunities), thrift
opportunities, savings opportunities and pension benefits
opportunities, in each case, less favorable, in the aggregate, than
the most favorable of those provided by the Company and its
affiliated companies for the Executive under such plans, practices,
policies and programs as in effect at any time during the 90-day
period immediately preceding the Effective Date or if more
favorable to the Executive, those provided generally at any time
after the Effective Date to other peer executives of the Company
and its affiliated companies.
(iv) Welfare Benefit Plans .
During the Employment Period, the Executive and/or the
Executive’s family, as the case may be, shall be eligible for
participation in and shall receive all benefits under welfare
benefit plans, practices, policies and programs provided by the
Company and its affiliated companies (including, without
limitation, medical, prescription, dental, disability, salary
continuance, employee life, group life, accidental death and travel
accident insurance plans and programs) to the extent generally
applicable to other peer executives of the Company and its
affiliated companies, but in no event shall such plans, practices,
policies and programs provide benefits which are less favorable, in
the aggregate, than the most favorable of such plans, practices,
policies and programs in effect for the Executive at any time
during the 90-day period immediately preceding the Effective Date
or if more favorable to the Executive, those provided generally at
any time after the Effective Date to other peer executives of the
Company and its affiliated companies.
(v) Expenses . During the
Employment Period, the Executive shall be entitled to receive
prompt reimbursement for all reasonable expenses incurred by the
Executive in accordance with the most favorable policies, practices
and procedures of the Company and its affiliated companies in
effect for the Executive at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to
the Executive, as in effect at any time thereafter generally with
respect to other peer executives of the Company and its affiliated
companies.
(vi) Perquisites . During the
Employment Period, the Executive shall be entitled to perquisites
in accordance with the most favorable plans, practices, programs
and policies of the Company and its affiliated companies in effect
for the Executive at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as in effect at any time thereafter generally with
respect to other peer executives of the Company and its affiliated
companies.
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(vii) Office and Support
Staff . During the Employment Period, the Executive shall be
entitled to an office or offices of a size and with furnishings and
other appointments, and to exclusive personal secretarial and other
assistance, at least equal to the most favorable of the foregoing
provided to the Executive by the Company and its affiliated
companies at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as provided at any time thereafter generally with
respect to other peer executives of the Company and its affiliated
companies.
(viii) Vacation . During the
Employment Period, the Executive shall be entitled to paid vacation
in accordance with the most favorable plans, policies, programs and
practices of the Company and its affiliated companies as in effect
for the Executive at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as in effect at any time thereafter generally with
respect to other peer executives of the Company and its affiliated
companies.
5. Termination of Employment
.
(a) Death or Disability . The
Executive’s employment shall terminate automatically upon the
Executive’s death during the Employment Period. If the
Company determines in good faith that the Disability of the
Executive has occurred during the Employment Period (pursuant to
the definition of “Disability” set forth below), it may
give to the Executive written notice in accordance with
Section 13(b) of this Agreement of its intention to terminate
the Executive’s employment. In such event, the
Executive’s employment with the Company shall terminate
effective on the 30th day after receipt of such notice by the
Executive (the “Disability Effective Date”), provided
that, within the 30 days after such receipt, the Executive shall
not have returned to full-time performance of the Executive’s
duties. For purposes of this Agreement, “Disability”
means the absence of the Executive from the Executive’s
duties with the Company on a substantially full-time basis for 180
consecutive business days as a result of incapacity due to mental
or physical illness which is determined to be total and permanent
by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive’s legal
representative (such agreement as to acceptability not to be
withheld unreasonably).
(b) Cause . The Company may
terminate the Executive’s employment during the Employment
Period for Cause. For purposes of this Agreement,
“Cause” shall mean:
(i) the willful and continued
failure of the Executive to perform substantially the
Executive’s duties with the Company or one of its affiliates
(other than any such failure resulting from incapacity due to
physical or mental illness), after a written demand for substantial
performance is delivered to the Executive by the Board or the Chief
Executive Officer of the Company which specifically identifies the
manner in which the Board or Chief Executive Officer believes that
the Executive has not substantially performed the Executive’s
duties, or
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(ii) the willful engaging by the
Executive in illegal conduct or gross misconduct which is
materially and demonstrably injurious to the Company.
For purposes of this provision, no
act or failure to act, on the part of the Executive, shall be
considered “willful” unless it is done, or omitted to
be done, by the Executive in bad faith or without reasonable belief
that the Executive’s action or omission was in the best
interests of the Company. Any act, or failure to act, based upon
authority given pursuant to a resolution duly adopted by the Board
or upon the instructions of the Chief Executive Officer or a senior
officer of the Company or based upon the advice of counsel for the
Company shall be conclusively presumed to be done, or omitted to be
done, by the Executive in good faith and in the best interests of
the Company. The cessation of employment of the Executive shall not
be deemed to be for Cause 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 three-quarters of the entire
membership of the Board at a meeting of the Board or, if the
Company is not the ultimate parent corporation of its affiliated
companies and is not publicly-traded, the ultimate parent of the
Company (excluding the Executive, if the Executive is a member of
such board) at a meeting of such board called and held for such
purpose (after reasonable notice is provided to the Executive and
the Executive is given an opportunity, together with counsel, to be
heard before the Board), finding that, in the good faith opinion of
the applicable board, the Executive is guilty of the conduct
described in subparagraph (i) or (ii) above, and
specifying the particulars thereof in detail.
(c) Good Reason . The
Executive’s employment may be terminated during the
Employment Period by the Executive for Good Reason. For purposes of
this Agreement, “Good Reason” shall mean
(i) the assignment to the Executive
of any duties materially inconsistent in any respect with the
Executive’s position (including a material negative change
regarding the Executive’s status, offices, titles or
reporting requirements), authority, duties or responsibilities as
contemplated by Section 4(a) of this Agreement, or any other
action by the Company which results in a material diminution in
such position, authority, duties or responsibilities (but not
occurring solely as a result of the Company’s ceasing to be a
publicly traded entity), excluding for this purpose an isolated,
insubstantial and inadvertent action not taken in bad faith and
which is remedied by the Company promptly after receipt of notice
thereof given by the Executive;
(ii) any material failure by the
Company to comply with any of the provisions of Section 4(b)
of this Agreement, other than an isolated, insubstantial and
inadvertent failure not occurring in bad faith and which is
remedied by the Company promptly after receipt of notice thereof
given by the Executive;
(iii) the Company’s requiring
the Executive (i) to be based at any office or location other
than that described in Section 4(a)(i)(B) hereof, (ii) to
be based at a location other than the principal executive offices
of the Company if the Executive was employed at such location
immediately preceding the Effective Date, or (iii) to travel
on Company business to a substantially greater extent than required
immediately prior to the Effective Date;
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(iv) any purported termination by
the Company of the Executive’s employment otherwise than as
expressly permitted by this Agreement; or
(v) any failure by the Company or
any successor to comply with and satisfy Section 12(c) of this
Agreement, provided that such successor has received at least ten
days prior written notice from the Company or the Executive of the
requirements of Section 12(c) of this Agreement.
For purposes of this
Section 5(c), any good faith determination of “Good
Reason” made by the Executive shall be conclusive. The
Executive’s mental or physical incapacity following the
occurrence of an event described in above clauses (i) through
(v) shall not affect the Executive’s ability to
terminate employment for Good Reason.
(d) Notice of Termination .
Any termination by the Company for Cause, or by the Executive for
Good Reason, shall be communicated by Notice of Termination to the
other party hereto given in accordance with Section 13(b) of
this Agreement. For purposes of this Agreement, a “Notice of
Termination” shall mean a written notice which
(i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets
forth in reasonable detail the facts and circumstances claimed to
provide a basis for termination of the Executive’s employment
under the provision so indicated and (iii) if the Date of
Termination (as defined below) is other than the date of receipt of
such notice, specifies the termination date (which date shall be
not more than fifteen days after the giving of such notice). The
failure by the Executive or the Company to set forth in the Notice
of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause, as the case may be, shall not
waive any right of the Executive or the Company, respectively,
hereunder or preclude the Executive or the Company, respectively,
from asserting such fact or circumstance in enforcing the
Executive’s or the Company’s rights
hereunder.
(e) Date of Termination .
“Date of Termination” and references to
“termination of employment” and similar terms shall
mean a separation from service within the meaning of Treasury
Regulation § 1.409A-1(h).
6. Obligations of the Company
upon Termination . (a) Good Reason; Other than for
Cause or Disability . If, during the Employment Period, the
Company shall terminate the Executive’s employment other than
for Cause or Disability or the Executive shall terminate employment
for Good Reason, the Company shall have the following
obligations.
(i) The Company shall pay to the
Executive in a lump sum in cash within 30 days after the Date of
Termination the aggregate of the following amounts:
(A) the amount equal to the product
of (x) three and (y) the sum of the Executive’s
Annual Base Salary and the Executive’s Annual Incentive Award
at the target level for the year of termination; provided, however,
that such amount shall be paid in lieu of, and the Executive hereby
waives the right to receive, any other amount of severance relating
to salary or bonus continuation to be received by the Executive
upon such termination of employment under any severance plan,
policy or arrangement of the Company; and
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(B) the amount equal to the sum of:
(x) the product of (I) the target level Annual Incentive
Award that would have been available to the Executive under the
applicable incentive plans of the Company and the policies and
procedures thereunder for the fiscal year of the Company in which
the Change of Control occurs or, if greater, the fiscal year in
which the Date of Termination occurs and (II) a fraction, the
numerator of which is the number of days in the current fiscal year
through the Date of Termination, and the denominator of which is
365; and (y) the product of (I) the target level
Long-Term Cash Incentive Award that would have been available to
the Executive under the applicable incentive plans of the Company
and the policies and procedures thereunder for performance cycles
outstanding as of the Date of Termination and (II) a fraction, the
numerator of which is the number of days in the applicable
Long-Term Cash Incentive Award cycle through the Date of
Termination, and the denominator of which is the number of days in
such cycle; provided, however, that no payout under this Agreement
shall be made which would result in a duplicate payment under the
plans governing the Annual Incentive Award and/or the Long-Term
Cash Incentive Award for any period for which such plans, by their
terms, have resulted in an accelerated payment in the event of a
Change of Control; and
(C) the amount of the
Executive’s Annual Base Salary through the Date of
Termination to the extent not theretofore paid and the amount of
any compensation previously deferred by the Executive (together
with any accrued interest thereon) and not yet paid by the Company
and any accrued vacation pay of the Executive not yet paid by the
Company.
For purposes of this Agreement, the
aggregate of the amounts described in clauses (A), (B) and
(C) of this Section 6(a) shall hereafter be referred to
as the “Special Termination Amount.” The sum of the
amounts described in clauses (B) and (C) of this
Section 6(a) shall be hereinafter referred to as the
“Accrued Obligations”.
(ii) For three years after the Date
of Termination, or such longer period as may be provided by the
terms of the applicable plan, program, practice or policy, the
Company shall continue benefits to the Executive and, where
applicable, the Executive’s family at least equal to those
which would have been provided to them in accordance with the
plans, programs, practices and policies described in
Section 4(b)(iv) of this Agreement if the Executive’s
employment had not been terminated in accordance with the most
favorable plans, practices, programs or policies of the Company and
its affiliated companies generally applicable to other peer
executives and their families during the 90-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, as in effect at any time thereafter generally with
respect to other peer executives of the Company and its affiliated
companies and their families (for purposes of determining
eligibility of the Executive for retiree benefits pursuant to such
plans, practices, programs and policies, the Executive shall be
considered to have remained employed until the end of the
Employment Period and to have retired on the last day of such
period); provided, however, that in the event the Executive becomes
reemployed with another employer and is eligible to receive medical
or other welfare benefits under any employer provided plan, the
medical and other welfare benefits described herein shall not be
provided by the Company during such applicable period of
eligibility, but shall resume if such period of eligibility shall
terminate. The amount eligible for reimbursement, or available for
benefits, under any such plan, program, practice or policy of the
Company in any year that is unused in such year may not be carried
over to any other year or be liquidated.
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(iii) To the extent not theretofore
paid or provided, the Company shall timely pay or provide to the
Executive any other amounts or benefits required to be paid or
provided or which the Executive is eligible to receive under any
plan, program, policy or practice or contract or agreement of the
Company and its affiliated companies (such other amounts and
benefits shall be hereinafter referred to as the “Other
Benefits”).
(iv) The Company shall, at its sole
expense as incurred, provide the Executive with outplacement
services the scope and provider of which shall be selected by the
Executive in the Executive’s sole discretion, provided that
the cost of such outplacement shall not exceed $50,000 and the
services are provided within the two year period following the end
of the year in which the Executive’s Date of Termination
occurs.
Notwithstanding the foregoing
provisions of this Section 6(a), to the extent required in
order to comply with Section 409A of the Code, amounts and
benefits to be paid or provided under this Section 6(a) shall
be paid or provided to the Executive on the first business day
after the date that is six months following the Date of
Termination.
(b) Death . If the
Executive’s employment is terminated by reason of the
Executive’s death during the Employment Period, this
Agreement shall terminate without further obligations to the
Executive’s legal representatives under this Agreement, other
than the payment by the Company of the Special Termination Amount,
provided however, that the amount of such payment determined under
Section 6(a)(i)(A) shall be adjusted as follows. The amount
set forth in clause (A) shall be offset in all cases by the
basic life insurance benefit paid or payable in respect of the
Executive’s death and, in addition, if the death occurs after
the one year anniversary following the Change of Control, it shall
be offset by the amount of any salary payments made to the
Executive for any periods of employment following the Change of
Control. The Special Termination Amount shall be paid to the
Executive’s estate or beneficiary, as applicable, in a lump
sum in cash within 30 days of the Date of Termination. Anything in
this Agreement to the contrary notwithstanding, the
Executive’s family shall be entitled to receive benefits at
least equal to the most favorable benefits provided generally by
the Company and any of its affiliated companies to surviving
families of peer executives of the Company and such affiliated
companies under such plans, programs, practices and policies
relating to family death benefits, if any, as in effect generally
with respect to other peer executives and their families at any
time during the 90-day period immediately preceding the Effective
Date or, if more favorable to the Executive and/or the
Executive’s family, as in effect on the date of the
Executive’s death generally with respect to other peer
executives of the Company and its affiliated companies and their
families.
(c) Disability . If the
Executive’s employment is terminated by reason of the
Executive’s Disability during the Employment Period, this
Agreement shall terminate without further obligations to the
Executive, other than the payment by the Company of the Special
Termination Amount. The Special Termination Amount shall be paid to
the Executive in a lump sum in cash within 30 days of the Date of
Termination. Anything in this Agreement to the contrary
notwithstanding, the Executive shall be entitled after the
Disability Effective Date to
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receive disability and other benefits at least
equal to the most favorable of those generally provided by the
Company and its affiliated companies to disabled executives and/or
their families in accordance with such plans, programs, practices
and policies relating to disability, if any, as in effect generally
with respect to other peer executives and their families at any
time during the 90-day period immediately preceding the Effective
Date or, if more favorable to the Executive and/or the
Executive’s family, as in effect at any time thereafter
through the Date of Termination generally with respect to other
peer executives of the Company and its affiliated companies and
their families. The amount of any such benefit that is unused in
any year may not be carried over to any future year or be
liquidated. Notwithstanding the foregoing provisions of this
Section 6(c), to the extent required in order to comply with
Section 409A of the Code, amounts and benefits to be paid or
provided under this Section 6(c) shall be paid or provided to
the Executive on the first business day after the date that is six
months following the Date of Termination.
(d) Cause; Other than for Good
Reason . If the Executive’s employment shall be
terminated for Cause during the Employment Period, this Agreement
shall terminate without further obligations to the Executive other
than the obligation to pay to the Executive Annual Base Salary
through the Date of Termination plus the amount of any compensation
previously deferred by the Executive, in each case to the extent
theretofore unpaid. If the Executive terminates employment during
the Employment Period, excluding a termination for Good Reason,
this Agreement shall terminate without further obligations to the
Executive, other than for the Accrued Obligations, all of which
such Accrued Obligations shall be paid to the Executive in a lump
sum in cash within 30 days of the Date of Termination.
(e) Rabbi Trust . In the
event that the Executive becomes entitled to benefits under
Section 6(a) or (c) of this Agreement, the Compensation
Committee of the Board of Directors shall have the authority to
fund a rabbi trust immediately prior to the Change of Control or
the applicable Date of Termination in an amount equal to 100
percent of the maximum aggregate benefits payable to the Executive
under such Section 6(a) or (c) and any estimated Gross-Up
Payment as provided for under Section 9 of this
Agreement.
7. Non-exclusivity of Rights
. Except as explicitly modified or otherwise explicitly provided by
this Agreement, (i) nothing in this Agreement shall prevent or
limit the Executive’s continuing or future participation in
any benefit, bonus, incentive or other plans, programs, policies or
practices provided by the Company or any of its affiliated
companies and for which the Executive may qualify, nor shall
anything herein limit or otherwise affect such rights as the
Executive may have under any other agreements with the Company or
any of its affiliated companies and (ii) amounts which are
vested benefits or which the Executive is otherwise entitled to
receive under any plan, policy, practice or program of the Company
or any of its affiliated companies at or subsequent to the Date of
Termination shall be payable in accordance with such plan, policy,
practice or program except as explicitly modified by this
Agreement.
8. Full Settlement . The
Company’s obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder
shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have
against the Executive or others. In no event shall the Executive
be
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obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement and, except
as provided in Section 6(d)(ii) of this Agreement, such
amounts shall not be reduced whether or not the Executive obtains
other employment. The Company agrees to pay, to the full extent
permitted by law, all legal fees and expenses which the Executive
may reasonably incur as a result of any contest (regardless of the
outcome thereof) by the Company, the Executive or others of the
validity or enforceability of, or liability under, any provision of
this Agreement or any guarantee of performance thereof (including
as a result of any contest by the Executive about the amount of any
payment pursuant to this Agreement), plus in each case interest on
any delayed payment at the applicable Federal rate provided for in
Section 7872(f)(2)(A) of the Code.
9. Certain Additional Payments by
the Company .
(a) Anything in this Agreement to
the contrary notwithstanding, in the event it shall be determined
that as a result, directly or indirectly, of any payment or
distribution by the Company 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 (a “Payment”),
the Executive would be subject to the excise tax imposed by
Section 4999 of the Code or any interest or penalties are
incurred by the Executive with respect to such excise tax (such
excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the “Excise
Tax”), then the Executive shall be entitled to promptly
receive an additional payment (a “Gross-Up Payment”) 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, without limitation, any income taxes (and any
interest and penalties imposed with respec
