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.


 


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(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 interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
Executive retains an amount of the Gross-Up Payment equal to the Excise Tax
imposed upon the Payments. 
Notwithstanding the foregoing provisions of this Paragraph G(i), if it shall
be determined that Executive is entitled to a Gross-Up Payment, but the
Parachute Value of Payments (as defined below) does not exceed 115% of the Safe
Harbor Amount (as defined below), then no Gross-Up Payment shall be made to
Executive and the Agreement Payments (as defined below), in the aggregate,
shall be reduced (but not below zero) such that the Parachute Value of all
Payments equals the Safe Harbor Amount, determined in such a manner as to
maximize the Value of all Payments (as defined below) actually made to
Executive.


 


(ii)           Subject to the provisions of
Paragraph G(iii), all determinations required to be made under this Paragraph
G, including whether and when a Gross- Up Payment is required and the amount of
such Gross-Up Payment and the assumptions to be utilized in arriving at such
determination, shall be made by Ernst & Young LLP or such other
certified public accounting firm reasonably acceptable to the Corporation as
may be designated by Executive (the “Accounting Firm”) which shall
provide detailed supporting calculations both to the Corporation and Executive
within 15 business days of the receipt of notice from Executive that there has
been a Payment, or such earlier time as is requested by the Corporation.  All fees and expenses of the Accounting Firm
shall be borne solely by the Corporation. 
Any determination by the Accounting Firm shall be binding upon the
Corporation and Executive.  As a result
of the uncertainty in the application of Section 4999 of the Code at the
time of 


 


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the initial determination by the Accounting
Firm hereunder, it is possible that Gross-Up Payments which will not have been
made by the Corporation should have been made (an “Underpayment”),
consistent with the calculations required to be made hereunder.  In the event that the Corporation exhausts
its remedies pursuant to Paragraph G(iii) and Executive thereafter is
required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be paid by the Corporation to or for the benefit of
Executive in a single lump sum in cash within ten (10) days of the
Accounting Firm’s determination and disclosure to the Corporation of the Underpayment.


 


(iii)          Executive shall notify the Corporation
in writing of any claim by the Internal Revenue Service that, if successful,
would require the payment by the Corporation of a Gross-Up Payment (or an
additional Gross-Up Payment).  Such
notification shall be given as soon as practicable but no later than ten
business days after Executive is informed in writing of such claim and shall
apprise the Corporation of the nature of such claim and the date on which such
claim is requested to be paid.  The Executive
shall not pay such claim prior to the expiration of the thirty (30) day period
following the date on which it gives such notice to the Corporation (or such
shorter period ending on the date that any payment of taxes with respect to
such claim is due).  If the Corporation
notifies Executive in writing prior to the expiration of such period that it
desires to contest such claim, Executive shall:


 


(A)          give the Corporation any information reasonably requested
by the Corporation relating to such claim,


 


(B)           take such action in connection with contesting such claim
as the Corporation shall reasonably request in writing from time to time,
including, without limitation, accepting legal representation with respect to
such claim by an attorney reasonably selected by the Corporation,


 


(C)           cooperate with the Corporation in good faith in order
effectively to contest such claim, and


 


(D)          permit the Corporation to participate in any proceedings
relating to such claim;


 


provided, however,
that the Corporation shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such
contest and shall indemnify and hold Executive harmless, on an after-tax basis,
for any Excise Tax or income tax (including interest and penalties with respect
thereto) imposed as a result of such representation and payment of costs and
expenses.  Without limitation of the
foregoing provisions of this Paragraph G(iii), the Corporation shall control
all proceedings taken in connection with such contest (to the extent applicable
to the Excise Tax and the Gross-Up Payment) and, at its sole option, may pursue
or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct Executive to pay the tax claimed and sue for a
refund or contest the claim in any permissible manner, and Executive agrees to
prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Corporation shall determine; provided, however, that if the Corporation directs
Executive to pay such claim and sue for a refund, the Corporation shall advance
the amount of such payment to Executive, on an interest-free basis and shall
indemnify and hold Executive harmless, on an after-tax basis, from any Excise
Tax or income tax (including interest or penalties with respect thereto)
imposed with respect to such advance or with respect to any imputed income with
respect to such advance; and further provided that any extension of the
statute of limitations relating to payment of taxes for the taxable year of 


 


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Executive with respect to which such contested amount is claimed to be
due is limited solely to such contested amount. 
Furthermore, the Corporation’s control of the contest shall be limited
to issues with respect to which a Gross-Up Payment would be payable hereunder
and Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing
authority.


 


(iv)          If, after the receipt by Executive of
an amount advanced by the Corporation pursuant to Paragraph G(iii), Executive
becomes entitled to receive any refund with respect to such claim, Executive
shall (subject to the Corporation’s complying with the requirements of
Paragraph G(iii)) promptly pay to the Corporation the amount of such refund
(together with any interest paid or credited thereon after taxes applicable
thereto).  If, after the receipt by
Executive of an amount advanced by the Corporation pursuant to Paragraph
G(iii), a determination is made that Executive shall not be entitled to any
refund with respect to such claim and the Corporation does not notify Executive
in writing of its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of Gross-Up Payment required to
be paid.


 


(v)           Subject to Paragraph H, the Corporation shall pay any
Gross-Up Payment due to Executive no later than the due date for the payment of
the Excise Tax giving rise to such Gross-Up Payment or, if earlier, the close
of Executive’s taxable year next following Executive’s taxable year in which
the Excise Tax giving rise to such Gross-Up Payment is remitted to the Internal
Revenue Service or any other applicable taxing authority.


 


(vi)          The following terms shall have the following meanings for
purposes of this Paragraph G:


 


“Agreement
Payment” means a Payment paid or payable pursuant to this Agreement
(disregarding this Paragraph G) and any payment.


 


“Net
After-Tax Amount” of a Payment means the Value of a Payment net of all
taxes imposed on the Executive with respect thereto under Sections 1 and 4999
of the Code and applicable state and local law, determined by applying the
highest marginal rates that are expected to apply to Executive’s taxable income
for the taxable year in which the Payment is made.


 


“Parachute
Value” of a Payment means the present value, as of the date of the change
of control for purposes of Section 280G of the Code, of the portion of
such Payment that constitutes a “parachute payment” under Section 280G(b)(2),
as determined by the Accounting Firm for purposes of determining whether and to
what extent the Excise Tax will apply to such Payment.


 


“Safe
Harbor Amount” means the maximum Parachute Value of all Payments that
Executive can receive without any Payments being subject to the Excise Tax.


 


“Value”
of a Payment shall mean the economic present value of a Payment as of the date
of the change of control for purposes of Section 280G of the Code, as
determined by the Accounting Firm using the discount rate required by Section 280G(d)(4) of
the Code.


 


E.                                      Compliance with Code Section 409A. 
Notwithstanding anything in this Agreement to the contrary, if any
amount or benefit that the Corporation determines would constitute non-exempt “deferred
compensation” for purposes of Section 409A of the Code would otherwise be
payable or distributable under 


 


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this
Agreement by reason of Executive’s Separation from Service, then to the extent
necessary to comply with Code Section 409A:


 


(i)            if the payment or distribution is payable in a lump sum,
Executive’s right to receive payment or distribution of such non-exempt
deferred compensation will be delayed until the earlier of Executive’s death or
the first day of the seventh month following the Executive’s Separation from
Service; and


 


(ii)           if the payment or distribution is payable over time, the
amount of such non-exempt deferred compensation that would otherwise be payable
during the six (6) month period immediately following Executive’s
Separation from Service will be accumulated and Executive’s right to receive
payment or distribution of such accumulated amount will be delayed until the
earlier of Executive’s death or the first day of the seventh month following
Executive’s Separation from Service and paid on the earlier of such dates,
without interest, and the normal payment or distribution schedule for any
remaining payments or distributions will commence.


 


To
the extent any expense reimbursement or in-kind benefit to which Executive is
or may be entitled to receive under this Agreement constitutes non-exempt “deferred
compensation” for purposes of Section 409A of the Code, then (i) such
reimbursement shall be paid to Executive as soon as administratively
practicable after Executive submits a valid claim for reimbursement, but in no
event later than the last day of Executive’s taxable year following the taxable
year in which the expense was incurred, (ii) the amount of expenses
eligible for reimbursement, or in-kind benefits provided, during any taxable
year of Executive shall not affect the expenses eligible for reimbursement, or
in-kind benefits to be provided, in any other taxable year of Executive, and (iii) Executive’s
right to reimbursement or in-kind benefits shall not be subject to liquidation
or exchange for another benefit.


 


F.                                      General.


 


(i)            Indemnification. 
If litigation shall be brought to enforce or interpret any provision
contained in this Agreement, the Corporation indemnifies the Executive for his
reasonable attorney fees and disbursements incurred in such litigation, and
agrees to pay pre-judgement interest on any money judgment obtained by the
Executive calculated at the prime interest rate in effect from time to time
from the date that payment(s) to him should have been made under this
Agreement.


 


(ii)           Payment Obligations Absolute.  Except as provided in Paragraph I(vi), upon
the occurrence of a Change of Control, the Corporation’s obligation to pay
Executive the compensation and to make the arrangements provided in this
Agreement shall be absolute and unconditional and shall not be affected by any
circumstances, including, without limitation, any set-off, counterclaim,
recoupment, defense or other right which the Corporation may have against him
or anyone else.  All amounts payable by
the Corporation under this Agreement shall be paid without notice or demand.  Except as expressly provided in this
Agreement, the Corporation waives all rights which it may now have or may
hereafter have conferred upon it, by statute or otherwise, to terminate, cancel
or rescind this Agreement in whole or in part. 
Every payment made under this Agreement by the Corporation shall be
final and the Corporation will not seek to recover all or any part of such
payment from Executive or anyone else who may be entitled to the payments for
any reason whatsoever.


 


(iii)          Successors. 
This Agreement shall be binding upon and inure to the benefit of
Executive and his estate, and the Corporation and any successor of the
Corporation, but neither this Agreement nor any rights arising hereunder may be
assigned or pledged by Executive.


 


(iv)          Severability. 
Any provision in this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating or
affecting the remaining provisions hereof, and any such 


 


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prohibition
or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.


 


(v)           Controlling Law. 
This Agreement shall in all respects be governed by, and construed in
accordance with, the laws of the State of Delaware.


 


(vi)          Modification or Termination.  At any time prior to a Change of Control, the
Board of Directors of the Corporation may, in its absolute discretion, and
without the consent of the Executive, amend, modify or terminate this Agreement
upon written notice tot he Executive. The Board may also terminate this
Agreement at any time with respect to the Executive if the Executive is
directly or indirectly affiliated (as defined in Rule 12b-2 of the
Securities Exchange Act of 1934) with the “group” which has consummated a
Change of Control under Paragraph E(i)


 


The parties have executed
this Agreement as of December 31, 2008.


 


	
   

  	
   

  	
  CARLISLE
  COMPANIES INCORPORATED

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
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