Exhibit 10.4
AMENDED AND
RESTATED
EXECUTIVE SEVERANCE
AGREEMENT
This Amended and Restated Executive
Severance Agreement (“ Agreement ”) is between
Carlisle Companies Incorporated, a Delaware corporation (the
“ Corporation ”), and
(“ Executive ”).
RECITALS
The Corporation entered into an
Executive Severance Agreement with Executive dated as of
,
(the
“ Current Agreement ”) to (i) encourage
Executive to continue in his position if the Corporation receives
any proposal from a third person concerning a possible business
combination with, or acquisition of equity securities of the
Corporation, (ii) call upon Executive to receive such
proposals, assist in the assessment of such proposals and advise
management and the Board of Directors of the Corporation as to
whether such proposals would be in the best interests of the
Corporation and its stockholders and take such other actions as the
Board of Directors might determine to be appropriate and
(iii) assure that the Corporation will have the continued
dedication of Executive and the availability of his advice and
counsel notwithstanding the possibility, threat or occurrence of a
bid to take over control of the Corporation.
The Current Agreement is subject to
the requirements of Section 409A of the Internal Revenue Code
of 1986, as amended (“ Code ”), and must be
amended no later than December 31, 2008 to comply with the
requirements of that Code Section.
The Board of Directors of the
Corporation believes that the best way to amend the Current
Agreement to comply with Code Section 409A is to amend and
restate the Current Agreement in its entirety.
Now, therefore, the Corporation and
Executive agree that the Current Agreement is amended and restated
in its entirety to read as follows:
In the event a third person begins a
tender or exchange offer, circulates a proxy to stockholders, or
takes other steps to effect a Change of Control of the Corporation
(as defined below), Executive agrees that he will not voluntarily
leave the employ of the Corporation, and will render the services
contemplated in the recitals to this Agreement until the third
person has abandoned or terminated his efforts to effect a Change
of Control or until a Change of Control has occurred.
In the event of Executive’s
Separation from Service (as defined below) for any reason (either
voluntary or involuntary, other than as a consequence of his death
or disability, or of his retirement at or after his attainment of
age sixty-five (65)) within three (3) years after a Change of
Control of the Corporation (as defined below) the Corporation will
provide:
A.
Cash Payment
. On or before
Executive’s last day of employment with the Corporation, the
Corporation will pay to Executive as compensation for services
rendered to the Corporation a lump sum cash amount (subject to any
applicable payroll or other taxes required to be withheld) equal to
three (3) times the highest annual compensation (including
base salary and annual cash bonus) paid or payable to Executive by
the Corporation for any of the three (3) years ending with the
date of Executive’s Separation from Service; provided
, however , in the event there are fewer than thirty-six
(36) whole or partial months remaining from the date of
Executive’s Separation from Service to the date he will
attain age sixty-five (65), the amount of such cash payment will be
reduced by multiplying it by a fraction the numerator of which is
the number of whole or partial months so remaining to the date he
would attain age sixty-five (65) and the denominator of which is
thirty-six (36).
B.
Stock Options and Restricted
Stock . Any
outstanding but unexercised stock options held by Executive under
any of the Corporation’s equity compensation plans and
programs will be immediately exercisable, and any unvested
restricted stock held by Executive under any of the
Corporation’s equity compensation plans and programs will be
immediately vested and free of all restrictions. In addition
all such stock options will continue to be exercisable for the
remaining original term thereof.
C.
Special Retirement
Benefits .
Executive will be eligible to receive “Special Retirement
Benefits” so that the total retirement benefits he receives
will approximate the retirement benefits he would have received had
he continued in the employ of the Corporation for three
(3) years following his Separation from Service (or until the
date he will attain age sixty-five (65), whichever is
earlier). These benefits will include all ancillary benefits,
such as early retirement, supplemental retirement and survivor
rights and benefits available at retirement. If
Executive’s credited service with the Corporation plus three
(3) years would result in vested benefits and/or eligibility
for ancillary benefits under the Corporation’s pension plans,
the amount payable to the Executive or his beneficiaries shall
equal the excess of the amount specified in paragraph (i) over
that in (ii) below:
(i)
The benefits that would be paid to the Executive or his
beneficiaries, if the three (3) years (or period to the date
he will attain age sixty-five (65), if less) following his
Separation from Service are added to his credited service under the
Corporation’s pension plan, and his earnings during such
period are equal to the amount of the cash payment specified in
Paragraph A;
(ii)
The benefit that is payable to the Executive or his beneficiaries
under the Corporation’s pension plans.
The Special Retirement Benefits are
provided on an unfunded basis and are not intended to meet the
qualification requirements of Section 401 of the Code.
The Special Retirement Benefits shall be payable solely from the
general assets of the Corporation or its appropriate
affiliate.
D.
Other Provisions
.
(i)
Insurance and Other Special Benefits .
Executive’s participation in the life, accident and health
insurance plans of the Corporation, and in fringe benefits provided
the Executive prior to the Change of Control or his Separation from
Service, shall be continued, or equivalent benefits provided, by
the Corporation, at no direct cost to him, for a period of three
(3) years from the date of his Separation from Service (or
until he attains age sixty-five (65), whichever is
sooner).
(ii)
Relocation Assistance . Should the Executive move his
residence in order to pursue other business opportunities within
two (2) years of his Separation from Service, he will be
reimbursed for any expenses incurred in that relocation (including
taxes payable on the reimbursement) which are not reimbursed by
another employer. Benefits under this provision will include
the assistance in selling the Executive’s home which was
customarily provided by the Corporation to transferred executives
prior to the Change of Control.
(iii)
Incentive Compensation . Any awards previously made to
the Executive under any long-term incentive programs of the
Corporation and not previously paid shall immediately vest on the
date of his Separation from Service and shall be paid on that date
and included as compensation in the year paid.
(iv)
Savings and Other Plans . The Executive’s
participation in any applicable savings, retirement, profit
sharing, stock option, and/or restricted stock plan of the
Corporation or any of its subsidiaries shall continue only through
his Separation from Service. Any terminating distribution
and/or vested rights under such Plans shall be governed by the
terms of those respective Plans.
2
(v)
Continuing Obligations . The Executive shall retain in
confidence any confidential information known to him concerning the
Corporation and its business so long as such information is not
publicly disclosed.
E.
Definition of Change of
Control . For the
purpose of this Agreement, a “ Change of Control
” shall be deemed to have taken place if:
(i)
any third person, including a “group” as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934,
acquires shares of the Corporation having 20% or more of the total
number of votes that may be cast for the election of Directors of
the Corporation; or
(ii)
as the result of any cash tender or exchange offer, merger or other
business combination, sale of assets or contested election, or any
combination of the foregoing transactions, the persons who were
directors of the Corporation before the transaction shall cease to
constitute a majority of the Board of Directors of the Corporation
or any successor to the Corporation.
F.
Definition of Separation from
Service . For the
purpose of this Agreement, “ Separation from Service
” means the termination of Executive’s employment with
the Corporation (including its subsidiaries), provided such
termination also constitutes a separation from service under
Section 409A of the Code.
G.
Certain Additional Payments by
the Corporation .
(i)
Anything in this Agreement to the contrary notwithstanding and
except as set forth below, in the event it shall be determined that
any payment or distribution by the Corporation to or for the
benefit of Executive (whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise,
but determined without regard to any additional payments required
under this Paragraph G) (a “ Payment ”) would be
subject to the excise tax imposed by Section 4999 of the Code
or any interest or penalties are incurred by 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 Executive shall be
entitled to receive an additional payment (a “ Gross-Up
Payment ”) in an amount such that after payment by
Executive of all taxes (including any interest or penalties imposed
with respect to such taxes), including, without limitation, any
income taxes (and any
