KEY EXECUTIVE EMPLOYMENT AND SEVERANCE
AGREEMENT
THIS
AGREEMENT, made and entered into as of the 14th day of July, 2008,
by and between Oshkosh Corporation, a Wisconsin corporation
(hereinafter referred to as the “Company”), and
_________________________ (hereinafter referred to as the
“Executive”).
W I T N E S S E T H :
WHEREAS,
the Executive is employed by the Company and/or a subsidiary of the
Company in a key executive capacity, and the Executive’s
services are valuable to the conduct of the business of the
Company;
WHEREAS,
the Board of Directors of the Company (the “Board”)
recognizes that circumstances may arise in which a change in
control of the Company occurs, through acquisition or otherwise,
thereby causing uncertainty about the Executive’s future
employment with the Company and/or any such subsidiary without
regard to the Executive’s competence or past contributions,
which uncertainty may result in the loss of valuable services of
the Executive to the detriment of the Company and its shareholders,
and the Company and the Executive wish to provide reasonable
security to the Executive against changes in the Executive’s
relationship with the Company in the event of any such change in
control;
WHEREAS,
the Company and the Executive are desirous that any proposal for a
change in control or acquisition of the Company will be considered
by the Executive objectively and with reference only to the best
interests of the Company and its shareholders; and
WHEREAS,
the Executive will be in a better position to consider the
Company’s best interests if the Executive is afforded
reasonable security, as provided in this Agreement, against altered
conditions of employment that could result from any such change in
control or acquisition.
NOW,
THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto
mutually covenant and agree as follows:
1.
Definitions . The following terms are used in this Agreement
as defined in Exhibit A :
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409A
Affiliate
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Competitive
Activity
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Perquisite
Amount
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Act
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Confidential
Information
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Person
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Accrued
Benefits
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Covered
Termination
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Prime
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Affiliate and
Associate
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Effective
Date
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Separation from
Service
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Annual Cash
Compensation
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Employer
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Termination
Date
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Cause
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Good
Reason
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Termination of
Employment
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Change in
Control
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Normal
Retirement Date
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Trade
Secrets
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Code
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Notice of
Termination
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2.
Termination or Cancellation Prior to the Effective Date .
The Company and the Executive shall each retain the right to
terminate the employment of the Executive at any time prior to the
Effective Date. If the Executive’s employment is terminated
prior to the Effective Date, then this Agreement shall be
terminated and cancelled and of no further force or effect, and any
and all rights and obligations of the parties hereunder shall
cease. In addition, this Agreement shall terminate upon the
Executive ceasing to be an officer of the Company and its
Affiliates prior to a Change in Control unless the Executive can
reasonably demonstrate that such change in status occurred under
circumstances described in clause (iii)(B)(1) or (iii)(B)(2) of the
definition of “Effective Date” in Exhibit A
.
3.
Employment Period . If the Executive is employed by the
Employer on the Effective Date, then the Company will, or will
cause the Employer to, continue thereafter to employ the Executive
during the Employment Period (as hereinafter defined), and the
Executive will remain in the employ of the Employer, in accordance
with and subject to the terms and provisions of this Agreement. For
purposes of this Agreement, the term “Employment
Period” means a period (i) commencing on the Effective Date,
and (ii) ending at 11:59 p.m. Oshkosh Time on the earlier of the
third anniversary of such date or the Executive’s Normal
Retirement Date.
4.
Duties . During the Employment Period, the Executive shall,
in the most significant capacities and positions held by the
Executive at any time during the 180-day period preceding the
Effective Date or in such other capacities and positions as may be
agreed to by the Company and the Executive in writing, devote the
Executive’s best efforts and all of the Executive’s
business time, attention and skill to the business and affairs of
the Employer, as such business and affairs now exist and as they
may hereafter be conducted.
5.
Compensation . During the Employment Period, the Executive
shall be compensated as follows:
(a)
The Executive shall receive, at reasonable intervals (but not less
often than monthly) and in accordance with such standard policies
as may be in effect immediately prior to the Effective Date, an
annual base salary in cash equivalent of not less than twelve times
the Executive’s highest monthly base salary for the
twelve-month period immediately preceding the month in which the
Effective Date occurs or, if higher, an annual base salary at the
rate in effect immediately prior to the Effective Date (determined
prior to any reduction for amounts deferred under Section 401(k) of
the Code or otherwise, or deducted pursuant to a cafeteria plan or
qualified transportation fringe benefit under Sections 125 and
132(f) of the Code), subject to upward adjustment as provided in
Section 6 (such salary amount as adjusted upward from time to time
is hereafter referred to as the “Annual Base
Salary”).
(b)
The Executive shall receive perquisites at least equal in value to
those provided for the Executive at any time during the 180-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 any executives of the Company and its
Affiliates of comparable status and position to the Executive. The
Executive shall be reimbursed, at such intervals and in accordance
with such standard policies that are most favorable to the
Executive that were in effect at any time during the 180-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 any executives of the Company and its Affiliates
of comparable status and position to the Executive, for any and all
monies advanced in connection with the Executive’s employment
for reasonable and necessary expenses incurred by the Executive on
behalf of the Company, including travel expenses.
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(c)
The Executive and/or the Executive’s family, as the case may
be, shall be included, to the extent eligible thereunder (which
eligibility shall not be conditioned on the Executive’s
salary grade or on any other requirement that excludes executives
of the Company and its Affiliates of comparable status and position
to the Executive unless such exclusion was in effect for such plan
or an equivalent plan on the date 180 days prior to the Effective
Date), in any and all welfare benefit plans, practices, policies
and programs providing benefits for the Company’s salaried
employees in general or, if more favorable to the Executive, to any
executives of the Company and its Affiliates of comparable status
and position to the Executive, including but not limited to group
life insurance, hospitalization, medical and dental plans;
provided , that , (i) in no event shall the aggregate
level of benefits under such plans, practices, policies and
programs in which the Executive is included be less than the
aggregate level of benefits under plans, practices, policies and
programs of the type referred to in this Section 5(c) in
which the Executive was participating at any time during the
180-day period immediately preceding the Effective Date and
(ii) in no event shall the aggregate level of benefits under
such plans, practices, policies and programs be less than the
aggregate level of benefits under plans, practices, policies and
programs of the type referred to in this Section 5(c)
provided at any time after the Effective Date to any executive of
the Company and its Affiliates of comparable status and position to
the Executive.
(d)
The Executive shall annually be entitled to not less than the
amount of paid vacation and not fewer than the number of paid
holidays to which the Executive was entitled annually at any time
during the 180-day period immediately preceding the Effective Date
or such greater amount of paid vacation and number of paid holidays
as may be made available annually to the Executive or any other
executive of the Company and its Affiliates of comparable status
and position to the Executive at any time after the Effective
Date.
(e)
The Executive shall be included in all plans providing additional
benefits to any executives of the Company and its Affiliates of
comparable status and position to the Executive, including but not
limited to deferred compensation, split-dollar life insurance,
retirement, supplemental retirement, stock option, stock
appreciation, stock bonus and similar or comparable plans;
provided , that , (i) in no event shall the
aggregate level of benefits under such plans be less than the
aggregate level of benefits under plans of the type referred to in
this Section 5(e) in which the Executive was participating
at any time during the 180-day period immediately preceding the
Effective Date; (ii) in no event shall the aggregate level of
benefits under such plans be less than the aggregate level of
benefits under plans of the type referred to in this
Section 5(e) provided at any time after the Effective
Date to the Executive or any executive of the Company and its
Affiliates of comparable status and position to the Executive; and
(iii) the Company’s obligation to include the Executive
in bonus or incentive compensation plans shall be determined by
Section 5(f) .
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(f)
To assure that the Executive will have an opportunity to earn
incentive compensation after the Effective Date, the Executive
shall be included in a bonus plan of the Company that shall satisfy
the standards described below (the “Bonus Plan”).
Bonuses under the Bonus Plan shall be payable with respect to
achieving such financial or other goals reasonably related to the
business of the Company, including the Employer, as the Company
shall establish (the “Goals”), all of which Goals shall
be attainable, prior to the end of the Employment Period, with
approximately the same degree of probability as the goals under the
Company’s bonus plan or plans in the form most favorable to
the Executive that was in effect at any time during the 180-day
period prior to the Effective Date (the “Existing
Plan”) and in view of the Company’s existing and
projected financial and business circumstances applicable at the
time. The amount of the bonus (the “Bonus Amount”) that
the Executive is eligible to earn under the Bonus Plan shall be no
less than the amount of the Executive’s highest maximum
potential award under the Existing Plan at any time during the
180-day period prior to the Effective Date or, if higher, any
maximum potential award under the Bonus Plan or any other bonus or
incentive compensation plan in effect after the Effective Date for
the Executive or for any executive of the Company and its
Affiliates of comparable status and position to the Executive (such
bonus amount herein referred to as the “Maximum
Bonus”), and if the Goals are not achieved (and, therefore,
the entire Maximum Bonus is not payable), then the Bonus Plan shall
provide for a payment of a Bonus Amount not less than a portion of
the Maximum Bonus reasonably related to that portion of the Goals
that were achieved. Payment of the Bonus Amount (i) shall be in
cash, unless otherwise agreed by the Executive, and (ii) shall not
be affected by any circumstance occurring subsequent to the end of
the Employment Period, including termination of the
Executive’s employment.
6.
Annual Compensation Adjustments . During the Employment
Period, the Board of Directors of the Company (or an appropriate
committee thereof) will consider and appraise, at least annually,
the contributions of the Executive to the Company, and in
accordance with the Company’s practice prior to the Effective
Date, due consideration shall be given, at least annually, to the
upward adjustment of the Executive’s Annual Base Salary (i)
commensurate with increases generally given to other executives of
the Company and its Affiliates of comparable status and position to
the Executive, and (ii) as the scope of the Company’s
operations or the Executive’s duties expand.
7.
Termination During Employment Period .
(a)
Right to Terminate . During the Employment Period,
(i) the Company shall be entitled to terminate the
Executive’s employment (A) for Cause, (B) by reason
of the Executive’s disability pursuant to Section 11 ,
or (C) for any other reason, and (ii) the Executive shall
be entitled to terminate the Executive’s employment for any
reason. Any such termination shall be subject to the procedures set
forth in Section 12 and shall be subject to any consequences
of such termination set forth in this Agreement. Any termination of
the Executive’s employment during the Employment Period by
the Employer shall be deemed a termination by the Company for
purposes of this Agreement.
(b)
Termination for Cause or Without Good Reason . If there is a
Covered Termination for Cause or due to the Executive’s
voluntarily terminating the Executive’s employment other than
for Good Reason, then the Executive shall be entitled to receive
only Accrued Benefits.
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(c)
Termination Giving Rise to a Termination Payment . If there
is a Covered Termination by the Executive for Good Reason, or by
the Company other than by reason of (i) death, (ii) disability
pursuant to Section 11 , or (iii) Cause, then the Executive
shall be entitled to receive, and the Company shall promptly pay,
Accrued Benefits and, in lieu of further base salary for periods
following the Termination Date, as liquidated damages and severance
pay and in consideration of the covenant of the Executive set forth
in Section 13(a) , the Termination Payment pursuant to
Section 8(a) .
8.
Payments Upon Termination .
(a)
Termination Payment . The “Termination Payment”
shall be an amount equal to the sum of the amounts described in
paragraphs (i), (ii), and (iii) below:
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(i)
Annual Cash Compensation multiplied by the
number of years or fractional portion thereof remaining in the
Employment Period determined as of the Termination Date, except
that the amount under this paragraph (i) shall not be less than the
amount of Annual Cash Compensation;
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(ii)
an amount equal to the present value of
pension benefits that would have accrued under the Retirement Plans
(as defined below), in addition to the most favorable benefits
provided for the Executive under any version of the Oshkosh
Corporation Salaried and Clerical Employees Retirement Plan and any
supplemental nonqualified defined benefit retirement plan or
agreement of the Company providing benefits for the Executive (or
any successors to such plans or agreements) in effect at any time
during the 180-day period prior to the Effective Date (the
“Retirement Plans”), if the Executive’s benefits
under the Retirement Plans had been fully vested on the Termination
Date and the Executive had continued to work from the Termination
Date until the end of the Employment Period at a compensation rate
equal to the Executive’s Annual Base Salary and received
annual bonus or incentive compensation awards for each fiscal year
of the Company (or portion thereof in the Employment Period) in an
amount equal to the target amount of the Executive’s annual
bonus or incentive compensation award for the fiscal year of the
Company in which the Termination Date occurred or, if greater, the
target amount of the Executive’s award for the immediately
preceding fiscal year of the Company (or the actual amount if
greater); and
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(iii)
an amount equal to the present value of
monthly payments in the amount of the Executive’s estimated
unreduced Social Security benefit at the end of the Employment
Period paid from the first day of the month immediately following
the Employment Period through the first day of the month
immediately preceding the month in which the Executive attains the
age when the Executive is eligible for unreduced Social Security
benefits.
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The values described in
paragraphs (ii) and (iii) above shall be determined using the
interest rates and mortality table used in the Oshkosh Corporation
Salaried and Clerical Employees Retirement Plan to determine lump
sum payments as of the Effective Date. The Termination Payment
shall be paid to the Executive in cash equivalent on the first day
of the seventh month following the month in which the Separation
from Service occurs and shall be accompanied by an interest payment
calculated at Prime, compounded quarterly. Such lump sum payment
shall not be reduced by any present value or similar factor, and
the Executive shall not be required to mitigate the amount of the
Termination Payment by securing other employment or otherwise, nor
will such Termination Payment be reduced by reason of the Executive
securing other employment or for any other reason. The Termination
Payment shall be in lieu of any other severance payments to which
the Executive is entitled under the severance policies and
practices of the Company and/or any subsidiary of the
Company.
(b)
Certain Additional Payments by the Company.
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(i)
Notwithstanding any other provision of this Agreement, if any
portion of the Termination Payment or any other payment under this
Agreement (including any Section 409A Gross-Up Payment under
Section 8(b)(v)), or under any other agreement with or plan of the
Company or the Employer, including, without limitation, the Oshkosh
Corporation 1990 Incentive Stock Plan, the Oshkosh Corporation 2004
Incentive Stock and Awards Plan, and any subsequently adopted
equity incentive plan (the “Incentive Stock Plans”) or
any stock option agreement (the “Stock Option
Agreements”) between the Company and the Executive entered
into pursuant to an Incentive Stock Plan (in the aggregate
“Total Payments”), would constitute an “excess
parachute payment,” then the Company shall pay the Executive
an additional amount (the “Gross-Up Payment”) such that
the net amount retained by the Executive after deduction of any
excise tax imposed by Section 4999 of the Code (or any successor
provision), and any interest charges or penalties in respect of the
imposition of such excise tax (but not any federal, state or local
income tax, or employment tax) on the Total Payments, and any
federal, state or local income tax, or employment tax, and excise
tax upon the payment provided for by this Section 8(b)(i)
shall be equal to the Total Payments. Any provisions of any
Incentive Stock Plan or the Stock Option Agreements that provide
for a reduction in payments to the Executive relating to
acceleration of vesting of stock options upon a “Change of
Control” (as such term is defined in the Incentive Stock
Plan) if such payments would result in the payment by the Executive
of any excise tax provided for in Section 280G and Section 4999 of
the Code are null and void and of no further force and effect as
they apply to the Executive. For purposes of determining the amount
of the Gross-Up Payment, the Executive shall be deemed to pay
federal income tax and employment taxes at the highest marginal
rate of federal income and employment taxation in the calendar year
in which the Gross-Up Payment is to be made and state and local
income taxes at the highest marginal rate of taxation in the state
and locality of the Executive’s domicile for income tax
purposes on the date the Gross-Up Payment is made, net of the
maximum reduction in federal income taxes that may be obtained from
the deduction of such state and local taxes.
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(ii)
For purposes of this Agreement, the terms “excess parachute
payment” and “parachute payments” shall have the
meanings assigned to them in Section 280G of the Code (or any
successor provision) and such “parachute payments”
shall be valued as provided therein. Present value for purposes of
this Agreement shall be calculated in accordance with Section
1274(b)(2) of the Code (or any successor provision). Within 40 days
following a Covered Termination or notice by one party to the other
of its belief that there is a payment or benefit due the Executive
that will result in an “excess parachute payment” as
defined in Section 280G of the Code (or any successor provision),
the Executive and the Company, at the Company’s expense,
shall obtain the opinion (which need not be unqualified) of
nationally recognized tax counsel (the “National Tax
Counsel”) selected by the Company’s independent
auditors and acceptable to the Executive in the Executive’s
sole discretion (which may be regular outside counsel to the
Company), which opinion sets forth (A) the amount of the Base
Period Income, (B) the amount and present value of Total Payments,
(C) the amount and present value of any excess parachute payments,
and (D) the amount of any Gross-Up Payment. As used in this
Section 8(b)(ii) , the term “Base Period Income”
means an amount equal to the Executive’s “annualized
includible compensation for the base period” as defined in
Section 280G(d)(1) of the Code (or any successor provision). For
purposes of such opinion, the value of any noncash benefits or any
deferred payment or benefit shall be determined by the
Company’s independent auditors in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code (or any
successor provisions), which determination shall be evidenced in a
certificate of such auditors addressed to the Company and the
Executive. The opinion of the National Tax Counsel shall be dated
as of the Termination Date and addressed to the Company and the
Executive and shall be binding upon the Company and the Executive.
If the National Tax Counsel so requests in connection with the
opinion required by this Section 8(b) , the Executive and
the Company shall obtain, at the Company’s expense, and the
National Tax Counsel may rely on in providing the opinion, the
advice of a firm of recognized executive compensation consultants
as to the reasonableness of any item of compensation to be received
by the Executive. Notwithstanding the foregoing, the provisions of
this Section 8(b) , including the calculations, notices and
opinions provided for herein, shall be based upon the conclusive
presumption that the following are reasonable: (1) the
compensation and benefits provided for in Section 5 and (2)
any other compensation, including but not limited to the Accrued
Benefits, earned prior to the Termination Date by the Executive
pursuant to the Company’s compensation programs if such
payments would have been made in the future in any event, even
though the timing of such payment is triggered by the Change in
Control or the Termination Date. The Company shall pay (or cause to
be paid) or distribute (or cause to be distributed) to or for the
benefit of the Executive such Gross-Up Payment as is then due to
Executive under this Agreement within five days after the National
Tax Counsel’s opinion is received by the Company and the
Executive, but in no event prior to the date the Termination
Payment is initially payable to the Executive; provided ,
however , that if prior to such date the Executive is
required to remit the excise tax under Section 4999 of the Code to
the Internal Revenue Service, then upon written notice by the
Executive to the Company, the Company shall promptly pay the
Gross-Up Payment (but based on the Executive’s actual rate of
taxation) to the Executive.
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(iii)
In the event that, upon any audit by the Internal Revenue Service,
or by a state or local taxing authority, of the Total Payments or
Gross-Up Payment, a change is finally determined to be required in
the amount of taxes paid by the Executive, appropriate adjustments
shall be made under this Agreement such that the net amount that is
payable to the Executive after taking into account the provisions
of Section 4999 of the Code shall reflect the intent of the parties
as expressed in this Section 8(b) , in the manner determined
by the National Tax Counsel. If the Company is required to make a
payment to the Executive, then such payment shall be paid following
the date of the final determination by a court or the Internal
Revenue Service and within 30 days after the date the Executive
provides the Company a written request for reimbursement thereof
(accompanied by proof of taxes paid), but in no event shall the
reimbursement be made later than the end of the calendar year
following the year in which the Executive remits the excise tax to
the Internal Revenue Service.
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(iv)
The Company will bear all costs associated with the National Tax
Counsel and will indemnify and hold harmless the National Tax
Counsel of and from any and all claims, damages, and expenses
resulting from or relating to the National Tax Counsel’s
determinations pursuant to this Section 8(b) , except for
claims, damages or expenses resulting from the gross negligence or
willful misconduct of such firm.
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(v)
If any portion of the Termination Payment or any other payment or
benefit (or any acceleration of any payment or benefit) made or
provided to the Executive or for the Executive’s benefit in
connection with this Agreement (including any Gross-Up Payment
under Section 8(b)(i)-(iv)) or, on or after the Effective Date, the
Executive’s employment with the Company or the termination
thereof (the “Payments”) are determined to be subject
to the interest charges and taxes imposed by Section 409A(a)(1)(B)
of the Code, or any state, local, or foreign taxes of a similar
nature, or any interest charges or penalties with respect to such
taxes (such taxes, together with any such interest charges and
penalties, are collectively referred to as the “Section 409A
Tax”), then the Company shall pay the Executive, within 30
days after the date on which the Executive provides the Company
with a written request for reimbursement thereof (accompanied by
proof of taxes paid), but in no event later than the end of the
calendar year following the year in which the Executive remits the
Section 409A tax to the Internal Revenue Service, an additional
amount (the “Section 409A Gross-Up Payment”). The
Section 409A Gross-Up Payment shall be such that the net amount
retained by the Executive after deduction of the Section 409A Tax
(but not any federal, state, or local income tax or employment tax)
and any federal, state, or local income tax, or employment tax upon
the payment provided for by this Section 8(b)(v) shall be equal to
the Payments. For purposes of determining the amount of the Section
409A Gross-Up Payment, the Executive shall be deemed to pay federal
income tax and employment taxes at the highest marginal rate of
federal income and employment taxation in the calendar year in
which the Section 409A Gross-Up Payment is to be made and state and
local income taxes at the highest marginal rate of taxation in the
state and locality of the Executive’s domicile for income tax
purposes on the date the Section 409A Gross-Up Payment is made, net
of the maximum reduction in federal income taxes that may be
obtained from the deduction of such state and local taxes. The
Company and the Executive shall reasonably cooperate with each
other in connection with any administrative or judicial proceedings
concerning the existence or amount of liability for Section 409A
Tax with respect to the Payments, and the Executive shall, if
reasonably requested by the Company, contest any obligation to pay
a Section 409A Tax. If, as a result thereof, the Executive receives
a tax refund or credit for any Section 409A Tax previously paid
with respect to any Payments, the Executive shall return to the
Company an amount equal to such refund or credit.
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(c)
Additional Benefits . If there is a Covered Termination and
the Executive is entitled to Accrued Benefits and the Termination
Payment, then the Executive shall be entitled to the following
additional benefits:
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(i)
until the earlier of the end of the Employment Period or such time
as the Executive has obtained new employment and is covered by
benefits that in the aggregate are at least equal in value to the
following benefits, the Executive shall continue to be covered, at
the expense of the Company, by the most favorable life insurance,
hospitalization, medical and dental coverage and other welfare
benefits provided to the Executive and the Executive’s family
during the 180-day period immediately preceding the Effective Date
or at any time thereafter or, if more favorable to the Executive,
coverage as was required hereunder with respect to the Executive
immediately prior to the date Notice of Termination is given,
subject to the following:
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(A)
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If applicable,
following the end of the COBRA continuation period, if such
hospitalization, medical or dental coverage is provided under a
health plan that is subject to Section 105(h) of the Code, benefits
payable under such health plan shall comply with the requirements
of Treasury regulation section 1.409A-3(i)(1)(iv)(A) and (B) and,
if necessary, the Company shall amend such health plan to comply
therewith.
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(B)
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During the
first six months following the Separation from Service, the
Executive shall pay the Company the cost of any life insurance
coverage for the Executive that provides a benefit in excess of
$50,000 under a group term life insurance policy. After the end of
such six month period, the Company shall make a cash payment to the
Executive (with interest at Prime, compounded quarterly) equal to
the aggregate premiums paid by the Executive for such coverage, and
thereafter such coverage shall be provided at the expense of the
Company for the remainder of the period.
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If the
Executive is entitled to the Termination Payment pursuant to
Section 12(b), then within ten days following the Change in
Control, the Company shall reimburse the Executive for any COBRA
premiums the Executive paid for his or her hospitalization, medical
and dental coverage under COBRA from the Termination Date through
the date of the Change in Control.
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(ii)
The Executive shall receive, until the end of the second calendar
year following the calendar year in which the Separation from
Service occurs, at the expense of the Company, outplacement
services, on an individualized basis at a level of service
commensurate with the Executive’s most senior status with the
Company during the 180-day period prior to the Effective Date (or,
if higher, at any time after the Effective Date), provided by a
nationally recognized executive placement firm selected by the
Company with the consent of the Executive, which consent will not
be unreasonably withheld; provided that the cost to the Company of
such services shall not exceed 15 percent of the Annual Base
Salary.
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(iii)
The Company shall bear up to $10,000 in the aggregate of fees and
expenses of consultants and/or legal or accounting advisors (other
than the National Tax Counsel) engaged by the Executive to advise
the Executive as to matters relating to the computation of benefits
due and payable under this Section 8 .
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(d)
Rabbi Trust . Prior to or simultaneously with a Change in
Control over which the Company has control or within three business
days of any other Change in Control, the Company shall establish an
irrevocable grantor trust (also known as a “rabbi
trust”) for the benefit of the Executive and other executives
of the Company who are parties to agreements with the Company
similar to this Agreement for the sole purpose of (i) holding
assets equal in value to the present value at any time after a
Change in Control of the maximum amount of benefits to which the
Executive may be entitled under Section 8(a) and
Section 8(b) and to which such other executives may be
entitled under similar provisions of their respective agreements
and (ii) distributing such assets as their payment becomes due.
Prior to or simultaneously with a Change in Control over which the
Company has control or within three business days of any other
Change in Control, the Company shall fund such trust with cash or
marketable securities having the value described in clause (i). The
Company shall reasonably calculate the value described in clause
(i) assuming that the date on which such calculation is made is the
Termination Date applicable to the Executive and the corresponding
date applicable to such other executives.
9.
Death .
(a)
Except as provided in Section 9(b) , in the event of a
Covered Termination due to the Executive’s death, the
Executive’s estate, heirs and beneficiaries shall receive all
the Executive’s Accrued Benefits through the Termination
Date.
(b)
If the Executive dies after a Notice of Termination is given
(i) by the Company or (ii) by the Executive for Good
Reason, then the Executive’s estate, heirs and beneficiaries
shall be entitled to the benefits described in Section 9(a)
and, subject to the provisions of this Agreement, to such
Termination Payment (and the additional benefits described in
Section 8(c) to which the Executive would have been entitled
had the Executive lived), except the Termination Payment shall be
paid within 90 days following the date of the Executive’s
death, without interest thereon. For purposes of this Section
9(b) , the Termination Date shall be the earlier of 30 days
following the giving of the Notice of Termination, subject to
extension pursuant to the definition of Termination of Employment,
or one day prior to the end of the Employment Period.
10.
Retirement . If, during the Employment Period, the Executive
and the Company shall execute an agreement providing for the early
retirement of the Executive from the Company, or the Executive
shall otherwise give notice that the Executive is voluntarily
choosing to retire early from the Company, then the Executive shall
receive Accrued Benefits through the Termination Date;
provided , that if the Executive’s employment
is terminated by the Executive for Good Reason or by the Company
other than by reason of death, disability or Cause and the
Executive also, in connection with such termination, elects
voluntary early retirement, then the Executive shall also be
entitled to receive a Termination Payment pursuant to Section
8(a) .
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11.
Termination for Disability . If, during the Employment
Period, as a result of the Executive’s disability due to
physical or mental illness or injury (regardless of whether such
illness or injury is job-related), the Executive shall have been
absent from the Executive’s duties hereunder on a full-time
basis fo
