Common use of Existing Entitlements Clause in Contracts

Existing Entitlements. (a) Upon the Effective Date, this Agreement shall replace and supersede in its entirety the Prior Agreement, which shall have no further force or effect; provided, however, that the Executive Chairman shall continue to be entitled to the payments and benefits under the Prior Agreement that are described in Section 4(b) hereof. In addition, the Company shall, and shall cause its subsidiaries (including the Prior Employer) to, honor, in accordance with their terms, the Executive Chairman’s existing entitlements under each plan or arrangement described in Section 4(c) hereof. (b) The Executive Chairman shall remain entitled to, or otherwise agrees to modify, the following payments and benefits under the Prior Agreement as set forth in this Section 4(b), which such payments and benefits shall, for the avoidance of doubt, survive a termination of the Executive Chairman’s employment and a termination of this Agreement for any reason. (i) Notwithstanding the occurrence of a “separation from service” (within the meaning of Section 409A of the Code and the regulations thereunder) from the Prior Employer as of the Effective Date, immediately following the Effective Date, the Executive Chairman hereby waives his entitlement to the Severance Payment (as defined in Section 4.2(b) of the Prior Agreement); provided, however, that, solely for purposes of calculating the amount payable to the Executive Chairman under the Prior Employer’s Supplemental Executive Retirement Plan (the “SERP”), the Executive Chairman shall be considered to have been entitled to receive such Severance Payment as a result of the separation from service. (ii) Immediately following the Effective Date, the Executive Chairman hereby waives his entitlement to the Gross-Up Payment (as defined in Section 4.2(e) of the Prior Agreement) in respect of the Merger. (iii) To the extent not previously paid by the Prior Employer, the Executive Chairman shall be entitled to reimbursement for any legal fees and expenses incurred and payable in accordance with Section 4.2(d) of the Prior Agreement, which, notwithstanding the waiver under Section 4(b)(ii) hereof, shall include the application of Section 4999 of the Code to all payments and benefits under this Agreement in connection with the Merger. (iv) In the event the Executive Chairman’s employment is terminated by the Company other than for Cause (including, solely for purposes of this Section 4(b)(iv), a termination for any reason upon the third anniversary of the Effective Date), by the Executive Chairman for Good Reason or due to death or Disability, the provisions of Section 4.2(c) of the Prior Agreement shall apply with respect to all the outstanding restricted stock (and restricted stock units) and stock option awards granted to the Executive Chairman prior to the Closing (which, upon Closing, shall be converted into awards in respect of the common stock of the Company at Closing in accordance with the terms of the Merger Agreement and shall otherwise continue in accordance with the terms and conditions of such awards as were applicable immediately prior to the Closing, subject to the provisions of Sections 4.2(c) (as provided above) and 5.1 of the Prior Agreement); provided, however, that, for the avoidance of doubt and notwithstanding any provisions of the Prior Agreement or this Agreement to the contrary, the Executive Chairman agrees that his separation of service from the Prior Employer at the time of the Closing shall not constitute Good Reason under the Prior Agreement for purposes of applying Section 4.2(c) of the Prior Agreement at Closing; provided further, however, that, notwithstanding any provisions of the Merger Agreement to the contrary, the Executive Chairman agrees that all outstanding restricted stock and restricted stock units granted to the Executive Chairman prior to the Closing shall not vest immediately prior to the Closing and, instead, shall be converted into, and shall constitute, a restricted share or restricted stock unit, as applicable, with respect to Company common stock, the number of shares of Company common stock, rounded down to the nearest whole share, determined by multiplying the number of shares of Prior Employer common stock subject to such restricted shares and restricted stock units, as applicable, by the Exchange Ratio (as defined in the Merger Agreement). (c) In addition, the Executive Chairman shall receive the following payments and benefits pursuant to the Prior Agreement or other applicable Prior Employer plan or policy: (i) to the extent not previously paid by the Prior Employer, a payment of $3,750,000 in respect of the Prior Employer’s Executive Annual Incentive Plan for 2009, which shall be payable promptly but no later than 15 days after the Effective Date; (ii) to the extent not previously paid by the Prior Employer, a payment of $4,725,000 in respect of the Prior Employer’s 2008 Executive Long-Term Incentive Retention Plan, which shall be payable promptly but no later than 15 days after the Effective Date; and (iii) all amounts owed to the Executive Chairman under the Prior Employer’s SERP, Supplemental Pension Plan and the Supplemental Retirement Savings Plan, which (A) shall be payable in accordance with any election previously made by the Executive Chairman (or the Prior Employer), and in the absence of such election a lump sum on the Closing, but in no event earlier than the earliest date permissible in accordance with Section 409A of the Code and (B) solely with respect to the SERP, shall be determined without regard to the waiver of the Severance Payment under Section 4(b)(i) hereof; and (iv) retiree medical benefit coverage for the Executive Chairman and his spouse, to the extent the Executive Chairman is eligible to receive such benefit coverage upon his retirement under the applicable plans of the Prior Employer as in effect on the Effective Date, in accordance with the terms of such plans as in effect on the Execution Date.