Delaware | 001-35674 | 20-8050955 | ||||
(State or Other Jurisdiction of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
Delaware | 333-148153 | 20-4381990 | ||||
(State or Other Jurisdiction of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02. | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
• | an amount equal to one times the sum of the Participant’s annual base salary and target annual cash incentive payment, payable in twelve equal monthly installments; |
• | a pro-rated annual cash incentive payment for the year of termination based on the Company’s actual performance and payable at such time such incentive payments are payable to other employees of the Company; |
• | the continuation of medical and dental benefits for the Participant and his or her dependents for a period of up to eighteen months under the program or policy in effect from time to time at the Company; and |
• | outplacement services for a period of up to twelve months, the value of such services not to exceed $50,000. |
• | an amount equal to two times the sum of the Participant’s annual base salary and target annual cash incentive payment, payable in lump sum; |
• | a pro-rated annual cash incentive payment for the year of termination based on the Participant’s target annual cash incentive payment, payable in lump sum; |
• | the continuation of medical and dental benefits for the Participant and his or her dependents for a period of up to eighteen months under the program or policy in effect from time to time at the Company; and |
• | outplacement services for a period of up to twelve months, the value of such services not to exceed $50,000. |
Item 9.01. | Financial Statements and Exhibits. | ||
(d) | Exhibits | ||
Exhibit No. | Description | ||
10.1 | Realogy Holdings Corp. Severance Pay Plan for Executives | ||
10.2 | Realogy Holdings Corp. Change in Control Plan for Executives | ||
10.3 | Realogy Holdings Corp. Executive Restrictive Covenant Agreement |
REALOGY HOLDINGS CORP. | ||
By: | /s/ Timothy B. Gustavson | |
Timothy B. Gustavson, Senior Vice President, Interim Chief Financial Officer, Chief Accounting Officer, Controller and Treasurer |
REALOGY GROUP LLC | ||
By: | /s/ Timothy B. Gustavson | |
Timothy B. Gustavson, Senior Vice President, Interim Chief Financial Officer, Chief Accounting Officer, Controller and Treasurer |
(a) | “Accrued Compensation” means (i) any accrued and unpaid Base Salary as of the Termination Date; (ii) any annual bonus earned but unpaid in respect of any completed fiscal year ending on or preceding the Termination Date; (iii) reimbursement for any and all monies advanced or expenses incurred in connection with a Participant’s employment for reasonable and necessary expenses incurred by the Participant on behalf of the Company for the period ending on the Termination Date in accordance with the Company’s expense reimbursement and travel and entertainment policies in effect from time to time; (iv) any accrued and unpaid vacation pay in accordance with the terms of the Company’s vacation policy as in effect from time to time; (v) any previous compensation that a Participant has deferred (including any interest earned or credited thereon), in accordance with the terms and conditions of the applicable deferred compensation plans or arrangements then in effect, to the extent vested as of Participant’s Termination Date; (vi) and any amount or benefit as provided under any plan, program, agreement or corporate governance document of the Company or its Affiliates that are then-applicable, in accordance with the terms thereof. |
(b) | “Affiliate” means: (i) in the case of the Company, a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Company; and (ii) in the case of an individual: (A) any member of the immediate family of a Participant, including parents, siblings, spouse and children (including those by adoption); the parents, siblings, spouse, or children (including those by adoption) of such immediate family member, and in any such case any trust whose primary beneficiary is such individual or one or more members |
(c) | “Base Salary” means a Participant’s annual base salary or wages immediately prior to the Termination Date (without regard to any reduction therein which constitutes Good Reason, if applicable). |
(d) | “Board” means the Board of Directors of the Company. |
(e) | “Cause” means (i) a Participant’s willful failure to substantially perform his or her duties as an employee of the Company (other than any such failure resulting from incapacity due to physical or mental illness), (ii) any act of fraud, misappropriation, dishonesty, embezzlement or similar conduct against the Company, (iii) a Participant’s conviction of, or plea of guilty or nolo contendere to a charge of commission of, a felony or crime involving moral turpitude, (iv) a Participant’s indictment for a charge of commission of a felony or any crime involving moral turpitude, (v) a Participant’s gross negligence in the performance of his or her duties, (vi) a Participant purposefully or negligently makes (or has been found to have made) a false certification to the Company pertaining to its financial statements, (vii) the habitual use of drugs or habitual, excessive use of alcohol to the extent that any of such uses in the Board’s good faith determination materially interferes with the performance of a Participant’s duties to the Company, (viii) a breach of fiduciary duty and/or (ix) a material breach by a Participant of any of the terms and conditions of his or her employment, the Realogy Holdings Corp. Restrictive Covenant Agreement or a material breach of any of Participant’s representations to the Company. |
(f) | “Change in Control” means one of the following events: (i) the acquisition (other than from the Company), by any person (as such term is defined in Section 13(c) or 14(d) of the Securities and Exchange Act of 1934, as amended, of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Securities and Exchange Act of 1934, as amended) of more than fifty percent (50%) of the combined voting power of the Company’s then outstanding voting securities; or (ii) the members of the Incumbent Board, cease for any reason to constitute at least a majority of the Board; or (iii) there is consummated a merger or consolidation of the Company or any direct or indirect subsidiary of the Company with any other corporation or other entity, if (1) the shareholders of the Company, immediately before such merger or consolidation, do not, as a result of such merger or consolidation, own, directly or indirectly, more than fifty percent (50%) of the combined voting power of the then outstanding voting securities of the entity resulting from such merger or consolidation in substantially the same proportion as their ownership of the combined voting power of the voting securities of the Company outstanding immediately before such merger or consolidation or (2) immediately following the merger or consolidation, the individuals who comprised the Board immediately prior thereto do not constitute at least a majority of the board of directors of the entity resulting from such merger or consolidation (or, if the entity resulting from such merger or consolidation is then a subsidiary, the ultimate parent thereof); or (iv) a complete liquidation or dissolution of the Company or the closing of an agreement for the sale or other disposition of all or substantially all of the assets of the Company. |
(g) | “COBRA” means The Consolidated Omnibus Budget Reconciliation Act of 1985. |
(h) | “Code” means the Internal Revenue Code of 1986, as amended. |
(i) | “Company” means Realogy Holdings Corp., its majority owned United States subsidiaries, its Affiliates, and any successors thereto. |
(j) | “Director” means any individual who is a member of the Board. |
(k) | “Disability” means (i) a Participant’s inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that |
(l) | “Effective Date” means October 31, 2018. |
(m) | “ERISA” means the Employee Retirement Income Security Act of 1974, as amended. |
(n) | “Excise Tax” means any excise tax imposed under Section 4999 of the Code or any successor provision thereto. |
(o) | “Good Reason” means any of the following actions taken by the Company without Participant’s consent: (i) a reduction in Base Salary (not including any diminution in Base Salary up to 10% in connection with a broader compensation reduction that applies similarly to all senior executives of the Company) without Participant’s consent and (ii) a material reduction of Participant’s duties and responsibilities to the Company, other than any such reduction resulting from incapacity due to physical or mental illness (but which would not include any promotion or lateral assignment). |
(p) | “Incentive Compensation” means a Participant’s individual target eligible funding as indicated in Appendix I hereto. |
(q) | “Incumbent Board” means the Directors who, as of the Effective Date, are members of the Board and any new Director (other than a Director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of members of the Board of the Company) whose appointment or election by the Board or nomination for election by the Company’s shareholders was approved or recommended by a vote of at least a majority of the Board then still in office who either were Directors on the date hereof or whose appointment, election or nomination for election was previously so approved or recommended. |
(r) | “Notice of Participation” means the Notice of Participation in the form provided by the Company to a Participant, which if executed by such Participant will acknowledge his or her acceptance to be bound by the terms of the Plan. |
(s) | “Notice of Termination” means a notice that indicates a termination date, the specific termination provision relied upon and sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of Participant’s employment under the provision so indicated. For purposes of this Plan, no purported termination |
(t) | “Participant” means an individual who: (i) is listed in Appendix I hereto; (ii) has signed and provided to the Company a Notice of Participation; (iii) has entered into a Realogy Holdings Corp. Executive Restrictive Covenant Agreement with the Company; and (iv) is not subject to an individual executive severance agreement with the Company. An individual shall cease being a Participant under this Plan once payment of all Severance Pay and other benefits due to the Participant under the Plan has been completed (or upon the death of the Participant, if earlier) and no person shall have any further rights under the Plan with respect to such former Participant. |
(u) | “Plan” means the Realogy Holdings Corp. Severance Pay Plan for Executives, as set forth herein, as may be amended from time to time. |
(v) | “Plan Administrator” means the Board or such other person or committee appointed from time to time by the Board to administer the Plan. |
(w) | “Pro-Rata Bonus” means an amount equal to the Incentive Compensation that a Participant would have been entitled to receive in respect of the fiscal year in which Participant’s Termination Date occurs, had Participant continued in employment through the date the payment is made, which amount, determined based on the Company’s actual performance for such year relative to the performance goals applicable to Participant shall be multiplied by a fraction (i) the numerator of which is the number of days in such fiscal year through Termination Date and (ii) the denominator of which is 365. |
(x) | “Realogy Holdings Corp. Executive Restrictive Covenant Agreement” means the Realogy Holdings Corp. Executive Restrictive Covenant Agreement, in the form provided by the Company to a Participant, which if executed by such Participant will acknowledge his or her acceptance to be bound by its terms. |
(y) | “Retirement” means a Termination (other than for Cause) after attaining eligibility for Retirement. Participant attains eligibility for Retirement upon the earlier of (i) age 65 or (ii) age 55 with at least ten (10) whole years of consecutive service with the Company and all Affiliates. For the avoidance of doubt, the phrase “consecutive service” in the preceding sentence shall not include time spent by the Participant: (x) as a consultant or advisor to the Company or its Affiliates following a “separation from service” within the meaning of Section 409A of the Code; (y) engaged as an independent sales agent affiliated with one of the Company’s or its Affiliates’ real estate brands; or (z) employed with or providing services to any business acquired by the Company or any Affiliate prior to the time such business was acquired by the Company or any Affiliate or employed with or providing services to any business after the time such business was divested by the Company or any Affiliate. |
(z) | “Severance Pay” means the payment determined pursuant to Article III hereof. |
(aa) | “Separation Agreement and General Release of Claims” means the Separation Agreement and General Release of Claims in a form that is satisfactory to the Company provided by the Company to a Participant in connection with his or her termination of employment with the Company, which if executed by the Participant (and not timely revoked), will acknowledge his or her termination of employment with the Company and release the Company from liability for any and all claims. The Separation Agreement and General Release of Claims also may, in the complete and sole discretion of the Company, include provisions on: non-competition; non-solicitation of customers, employees and other parties; confidentiality of the Separation Agreement and General Release of Claims; confidentiality of Company information; non-disparagement of the Company and its affiliated parties and individuals; return of Company property; cooperation with litigation; and such other provisions the Company deems necessary to protect its interest and those of its Affiliates. |
(ab) | “Termination” means the termination of a Participant’s employment by the Company or the Participant for any reason specified in Sections 3.1 through 3.6 of the Plan. A Participant will not be considered to have incurred a Termination for purposes of the Plan if he or she is entitled to a payment or benefit under the Realogy Holdings Corp. Change in Control Plan for Executives. |
(ac) | “Termination Date” means the date on which a Participant incurs a Termination. |
(ad) | “Total Payment” means the amount or benefit paid or distributed to a Participant pursuant to this Plan, taken together with any amounts or benefits otherwise paid to the Participant by the Company or any Affiliate of the Company. |
(ae) | “Without Cause” means the termination of a Participant’s employment by the Company for reasons other than Cause, Disability or death. |
(a) | the Accrued Compensation, payable as soon as practicable following such termination of employment in accordance with applicable law; and |
(b) | the Pro-Rata Bonus, payable in a lump sum payment at the time such bonus or incentive awards are payable to other senior level executives. |
(a) | the Accrued Compensation, payable as soon as practicable following such termination of employment in accordance with applicable law; |
(b) | the Pro-Rata Bonus payable in a lump sum at the time such bonus or incentive awards are payable to other senior level executives; and |
(c) | a death insurance benefit in the amount of two and a half times the Participant’s Base Salary at the time of death (which shall be inclusive of any Company provided life insurance policy and/or Company sponsored accidental death and dismemberment insurance plans applicable to the Participant) up to $2 million, subject to the Participant’s eligibility of insurability. |
(a) | the Accrued Compensation, payable as soon as practicable following such termination of employment in accordance with applicable law; |
(b) | Subject to Participant’s compliance with Section 3.7 hereof and the Realogy Holdings Corp. Executive Restrictive Covenant Agreement, the Pro-Rata Bonus payable in a lump sum at the time such bonus or incentive awards are payable to other employees; |
(c) | Subject to Participant’s compliance with Section 3.7 hereof and the Realogy Holdings Corp. Executive Restrictive Covenant Agreement, one (1) times the sum of the Participant’s Base Salary and Incentive Compensation, which shall be made in twelve (12) equal monthly installments, with the first installment payable in the first regular payroll occurring following the sixtieth (60th) day following the Termination Date; |
(d) | Subject to Participant’s compliance with Section 3.7 hereof and the Realogy Holdings Corp. Executive Restrictive Covenant Agreement, continued coverage for the Participant and the Participant’s dependents, if applicable, under the terms of the medical or dental program or policy as in effect from time to time at the Company for eighteen (18) months following Termination (which such 18 month period shall run concurrently with the COBRA period and which coverage shall become secondary to any Medicare coverage for which Participant becomes eligible) and the Participant shall pay for such benefits at the same cost that active employees of the Company are required to pay for such benefits from time to time; provided, however, the Company and the Participant shall cooperate such that the continued coverage is, to the extent practicable, provided in a manner so as to minimize adverse tax consequences to the Company under Section 4980D of the Code; provided, further, continued coverage shall cease at such time as the Participant becomes eligible for coverage with a subsequent employer; and |
(e) | Subject to Participant’s compliance with Section 3.7 hereof and the Realogy Holdings Corp. Executive Restrictive Covenant Agreement, outplacement services that are directly related to the type of services the Participant provided to the Company and are actually provided by an outplacement services firm for the 12-month period beginning on the Participant’s Termination Date on, or until Participant begins other full-time employment with a new employer, whichever occurs first, paid by the Company; provided, however, the cost of the outplacement services may not exceed $50,000. |
(a) | the Accrued Compensation, payable as soon as practicable following such termination of employment in accordance with applicable law; and |
(b) | Subject to Participant’s compliance with Section 3.7 hereof and the Realogy Holdings Corp. Executive Restrictive Covenant Agreement, the Pro-Rata Bonus payable in a lump sum at the time such bonus or incentive awards are payable to other senior level executives. |
(a) | the specific reasons for the adverse determination; |
(b) | reference to the specific Plan provisions on which the determination is based; |
(c) | a description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; and |
(d) | a description of the Plan’s review procedures and the time limits applicable to such procedures. |
(a) | the specific reason or reasons for the adverse determination; |
(b) | reference to the specific Plan provisions on which the benefit determination is based; and |
(c) | a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for benefits. |
(a) | Initial Denial. If a claim for a Disability benefit under the Plan is denied in whole or in part, the Plan Administrator will notify the claimant of its decision within 45 days of the date the claim was filed, unless an extension of time is necessary or the claimant voluntarily agrees to an extension. If, prior to the expiration of the initial 45-day period, the Plan Administrator determines that a decision cannot be made within that initial 45-day period due to matters beyond the control of the Plan, the Plan Administrator will notify the claimant before the end of the 45-day review period that a 30-day extension of time is necessary. If, prior to the end of the first 30-day extension period, the Plan Administrator determines that a decision cannot be made within that first 30-day extension period due to matters beyond the control of the Plan, the Plan Administrator will notify the claimant before the end of the first 30-day extension period that an additional 30-day extension of time is necessary. Any notice of an extension of time shall: |
(i) | specify the circumstances requiring the extension of time and the date a decision is expected to be rendered; |
(ii) | explain the standards on which entitlement to a Disability benefit is based; |
(iii) | state the unresolved issues that prevent a decision on the claim; and |
(iv) | describe any additional information needed to resolve those issues. |
(b) | Notice of Denial. If a Disability benefit claim is denied, the notice shall contain the following information: |
(i) | the specific reasons for the denial; |
(ii) | reference to the specific Plan provisions on which the denial is based; |
(iii) | a description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; |
(iv) | a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records and other information relevant to the claim; |
(v) | either (1) if the claim denial is based on an internal rule, guideline, protocol, or other similar provision, either the specific rule, guideline, protocol, or other similar criterion or a statement that such a rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination and that a copy thereof is available upon request, free of charge or (2) an affirmative statement that the claim denial is not based on an internal rule, guideline, protocol, or other similar criterion; |
(vi) | if the claim denial is based on a medical necessity or experimental treatment or similar exclusion or limit, either an explanation of the scientific or clinical judgment for the determination, applying the terms of the plan to the |
(vii) | a discussion of the decision, including an explanation for disagreeing with or not following (1) the views presented by the claimant of health care professionals who treated the claimant and vocational professionals who evaluated the claimant (2) the views of medical or vocational experts whose advice was obtained on behalf of the Plan in connection with the adverse benefit determination, without regard to whether the advice was relied on in making the determination; and (3) any Disability determinations made by the Social Security Administration; |
(viii) | a description of the review (i.e., appeal) procedures, the time limits applicable to such procedures, and in the event of an adverse review decision, a statement describing any voluntary review procedures and your right to obtain copies of such procedures; and (i) a statement that if the claimants request a review of the Plan Administrator’s decision and the review is adverse to the claimant, that there is no further administrative review following such initial review, and that the claimant will have a right to bring a civil action under ERISA §502(a). |
(c) | Right to Appeal. Within the 180-day period beginning on the date the notice regarding disposition of the claim is received by the claimant, the claimant may request that the claim denial be reviewed by filing with the Plan Administrator a written request for such review. The written request for such review shall contain the following information: |
(i) | the date on which the request was received by the Plan Administrator; |
(ii) | the specific portions of the denial of the claim which is requested to be reviewed; |
(iii | a statement setting forth the basis upon which the claimant believes the Plan Administrator’s denial of the claim should be reversed and the claim should be accepted; and |
(iv) | any other written information (offered as exhibits) which the claimant wants to be considered to explain his or her position, without regard to whether such information was submitted or considered in the initial Disability benefit determination. |
(d) | Review by Alternate Reviewer. Review of a Disability benefit claim that has been denied under the procedures described herein will be conducted by a reviewer who is neither the individual who made the adverse benefit determination that is the subject of the appeal, nor the subordinate of such individual. The reviewer will not afford deference to the initial adverse benefit determination, but will take into account all comments, documents, records, and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination. If the adverse benefit determination was based on a medical judgment, the reviewer will consult with an appropriate health care professional who (i) was not consulted on the original adverse benefit determination, (ii) is not subordinate to someone who was consulted on the original adverse benefit determination, and (iii) has appropriate training and experience in the field of medicine involved in the medical judgment. The reviewer will either (A) provide claimant with a list of any experts whose advice was obtained on the original adverse determination, without regard to whether the advice was relied upon in making the determination or (B) notify claimant that he or she may request, in writing, a list of such experts. The claimant shall be provided reasonable access to, and copies of, all documents, records and other information relevant to the claim. No fee may be charged for such access and/or copies. |
(e) | Review on Appeal. An appeal of an adverse Disability benefit determination will be reviewed within 45 days of the date it is received by the Plan Administrator (unless special circumstances require an extension to 90 days and the claimant so notified before the end of the 45-day review period). The reviewer will conduct a full and fair review of the Plan Administrator’s decision denying the claim for Disability benefits and will render its written decision. If the reviewer anticipates denying the appeal, whether in whole or in part, based on new or additional evidence or a new or additional rationale, the reviewer shall provide the claimant with: |
(i) | the new or additional evidence considered, relied upon, or generated by or at the direction of the Plan, the insurer, the reviewer, or any other person making the Disability benefit determination and/or |
(ii) | the new or additional rationale for the determination. |
(i) | the specific reasons for the denial; |
(ii) | reference to specific Plan provisions on which the denial is based; |
(iii) | a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claim; |
(iv) | either (1) if the claim denial is based on an internal rule, guideline, protocol, or other similar criterion, either the specific rule, guideline, protocol, or other similar criterion or a statement that such rule, guideline, protocol, or other similar criterion was relied upon in making the adverse determination and that a copy of the rule, guideline, protocol, or other similar criterion is available upon request, free of charge or (2) an affirmative statement that the claim denial is not based on an internal rule, guideline, protocol, or other similar criterion; |
(v) | if the claim denial is based on a medical necessity or experimental treatment or similar exclusion or limit, either an explanation of the scientific or clinical judgment for the determination, applying the terms of the Plan to the claimant’s medical circumstances, or a statement that such explanation is available upon request, free of charge; |
(vi) | a discussion of the decision, including an explanation for disagreeing with or not following (1) the views presented by the claimant of health care professionals who treated the claimant and vocational professionals who evaluated the claimant; (2) the views of medical or vocational experts whose advice was obtained on behalf of the Plan in connection with the adverse benefit determination, without regard to whether the advice was relied on in making the determination; and (3) any Disability determinations made by the Social Security Administration; |
(vii) | a statement describing any voluntary review procedures and the claimant’s right to obtain copies of such procedures; and |
(viii) | a statement that the claimant has a right to bring a civil action under ERISA §502(a). |
(a) | The headings and subheadings set forth in this Agreement are inserted for the convenience of reference only and are to be ignored in any construction of the terms set forth herein. |
(b) | Wherever applicable, the neuter, feminine or masculine pronoun as used herein shall also include the masculine or feminine, as the case may be. |
(c) | The term “including” is not limiting and means “including without limitation.” |
(d) | References in the Plan to any statute or statutory provisions include a reference to such statute or statutory provisions as from time to time amended, modified, reenacted, extended, consolidated or replaced (whether before or after the date of this Plan) and to any subordinate legislation made from time to time under such statute or statutory provision. |
(e) | References to “writing” or “written” include any non-transient means of representing or copying words legibly, including by facsimile or electronic mail. |
Name | Incentive Compensation |
REALOGY HOLDINGS CORP. | ||||
By: | Name: | |||
Dated: | Dated: |
(a) | “Accrued Compensation” means (i) any accrued and unpaid Base Salary as of the Change in Control Termination Date; (ii) any annual bonus earned but unpaid in respect of any completed fiscal year ending on or preceding the Change in Control Termination Date; (iii) reimbursement for any and all monies advanced or expenses incurred in connection with a Participant’s employment for reasonable and necessary expenses incurred by the Participant on behalf of the Company for the period ending on the Change in Control Termination Date in accordance with the Company’s expense reimbursement and travel and entertainment policies in effect from time to time; (iv) any accrued and unpaid vacation pay in accordance with the terms of the Company’s vacation policy as in effect from time to time; (v) any previous compensation that a Participant has deferred (including any interest earned or credited thereon), in accordance with the terms and conditions of the applicable deferred compensation plans or arrangements then in effect, to the extent vested as of Participant’s Change in Control Termination Date; (vi) and any amount or benefit as provided under any plan, program, agreement or corporate governance document of the Company or its Affiliates that are then-applicable, in accordance with the terms thereof. |
(b) | “Affiliate” means: (i) in the case of the Company, a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Company; and (ii) in the case of an individual: (A) any member of |
(c) | “Base Salary” means a Participant’s annual base salary or wages immediately prior to the Change in Control Termination Date (without regard to any reduction therein which constitutes Good Reason, if applicable). |
(d) | “Board” means the Board of Directors of the Company. |
(e) | “Cause” means (i) a Participant’s willful failure to substantially perform his or her duties as an employee of the Company (other than any such failure resulting from incapacity due to physical or mental illness), (ii) any act of fraud, misappropriation, dishonesty, embezzlement or similar conduct against the Company, (iii) a Participant’s conviction of, or plea of guilty or nolo contendere to a charge of commission of, a felony or crime involving moral turpitude, (iv) a Participant’s indictment for a charge of commission of a felony or any crime involving moral turpitude, (v) a Participant’s gross negligence in the performance of his or her duties, (vi) a Participant purposefully or negligently makes (or has been found to have made) a false certification to the Company pertaining to its financial statements, (vii) the habitual use of drugs or habitual, excessive use of alcohol to the extent that any of such uses in the Board’s good faith determination materially interferes with the performance of a Participant’s duties to the Company, (viii) a breach of fiduciary duty and/or (ix) a material breach by a Participant of any of the terms and conditions of his or her employment, the Realogy Holdings Corp. Restrictive Covenant Agreement or a material breach of any of Participant’s representations to the Company. |
(f) | “Change in Control” means one of the following events: (i) the acquisition (other than from the Company), by any person (as such term is defined in Section 13(c) or 14(d) of the Securities and Exchange Act of 1934, as amended, of beneficial ownership (within the meaning of Rule 13d-3 promulgated under the Securities and Exchange Act of 1934, as amended) of more than fifty percent (50%) of the combined voting power of the Company’s then outstanding voting securities; or (ii) the members of the Incumbent Board, cease for any reason to constitute at least a majority of the Board; or (iii) there is consummated a merger or consolidation of the Company or any direct or indirect subsidiary of the Company with any other corporation or other entity, if (1) the shareholders of the Company, immediately before such merger or consolidation, do not, as a result of such merger or consolidation, own, directly or indirectly, more than fifty percent (50%) of the combined voting power of the then outstanding voting securities of the entity resulting from such merger or consolidation in substantially the same proportion as their ownership of the combined voting power of the voting securities of the Company outstanding immediately before such merger or consolidation or (2) immediately following the merger or consolidation, the individuals who comprised the Board immediately prior thereto do not constitute at least a majority of the board of directors of the entity resulting from such merger or consolidation (or, if the entity resulting from such merger or consolidation is then a subsidiary, the ultimate parent thereof); or (iv) a complete liquidation or dissolution of the Company or the closing of an agreement for the sale or other disposition of all or substantially all of the assets of the Company. |
(g) | “Change in Control Termination Date” means the date on which a Participant incurs a CIC Termination. |
(h) | “Change in Control Severance Pay” means the payment determined pursuant to Section 3.1 hereof. |
(i) | “CIC Termination” means (i) the Participant’s employment is terminated by the Company without Cause within twenty-four (24) calendar months following a |
(j) | “COBRA” means The Consolidated Omnibus Budget Reconciliation Act of 1985. |
(k) | “Code” means the Internal Revenue Code of 1986, as amended. |
(l) | “Company” means Realogy Holdings Corp., its majority owned United States subsidiaries, its Affiliates, and any successors thereto. |
(m) | “Director” means any individual who is a member of the Board. |
(n) | “Disability” has the same definition as provided under the Company’s Severance Pay Plan for Executives, as in effect from time to time. |
(o) | “Effective Date” means October 31, 2018. |
(p) | “ERISA” means the Employee Retirement Income Security Act of 1974, as amended. |
(q) | “Excise Tax” means any excise tax imposed under Section 4999 of the Code or any successor provision thereto. |
(r) | “Good Reason” means any of the following actions taken by the Company without Participant’s consent: (i) a reduction in Base Salary (not including any diminution in Base Salary up to 10% in connection with a broader compensation reduction that applies similarly to all senior executives of the Company); (ii) a material reduction of Participant’s duties and responsibilities to the Company, other than any such reduction resulting from incapacity due to physical or mental illness (but which would not include any promotion or lateral assignment); or (iii) the relocation of Participant’s primary office to a location more than thirty-five (35) miles from the prior location and Participant’s commute increases as a result of such relocation. |
(s) | “Incentive Compensation” means a Participant’s individual target eligible funding as indicated in Appendix I hereto. |
(t) | “Incumbent Board” means the Directors who, as of the Effective Date, are members of the Board and any new Director (other than a Director whose initial assumption of office is in connection with an actual or threatened election contest, including but not limited to a consent solicitation, relating to the election of members of the Board of the Company) whose appointment or election by the Board or nomination for election by the Company’s shareholders was approved or recommended by a vote of at least a majority of the Board then still in office who either were Directors on the date hereof or whose appointment, election or nomination for election was previously so approved or recommended. |
(u) | “Notice of Participation” means the Notice of Participation in the form provided by the Company to a Participant, which if executed by such Participant will acknowledge his or her acceptance to be bound by the terms of the Plan. |
(v) | “Participant” means an individual who: (i) is listed in Appendix I hereto; (ii) has signed and provided to the Company a Notice of Participation; (iii) has entered into a Realogy Holdings Corp. Executive Restrictive Covenant Agreement with the Company; and (iv) is not subject to an individual executive severance agreement with the Company. An individual shall cease being a Participant under this Plan once payment of all Change in Control Severance Pay and other benefits due to the Participant under the Plan has been completed (or upon the death of the Participant, if earlier) and no person shall have any further rights under the Plan with respect to such former Participant. |
(w) | “Plan” means the Realogy Holdings Corp. Change in Control Plan for Participants, as set forth herein, as may be amended from time to time. |
(x) | “Plan Administrator” means the Board or such other person or committee appointed from time to time by the Board to administer the Plan. |
(y) | “Pro-Rata Bonus” means an amount equal to the product of a Participant’s Incentive Compensation multiplied by a fraction (i) the numerator of which is the number of days in such fiscal year through such Participant’s Change in Control Termination Date and (ii) the denominator of which is 365. |
(z) | “Realogy Holdings Corp. Executive Restrictive Covenant Agreement” means the Realogy Holdings Corp. Executive Restrictive Covenant Agreement, in the form provided by the Company to a Participant, which if executed by such Participant will acknowledge his or her acceptance to be bound by its terms. |
(aa) | “Separation Agreement and General Release of Claims” means the Separation Agreement and General Release of Claims in a form that is satisfactory to the Company provided by the Company to a Participant in connection with his or her termination of employment with the Company, which if executed by the Participant (and not timely revoked), will acknowledge his or her termination of employment with the Company and release the Company from liability for any and all claims. |
(ab) | “Total Payment” means the amount or benefit paid or distributed to a Participant pursuant to this Plan, taken together with any amounts or benefits otherwise paid to the Participant by the Company or any Affiliate of the Company. |
(ac) | “Without Cause” means the termination of a Participant’s employment by the Company for reasons other than Cause, Disability or death. |
(a) | the Accrued Compensation, payable as soon as practicable following such termination of employment in accordance with applicable law; |
(b) | Subject to Participant’s compliance with Section 3.2 hereof and the Realogy Holdings Corp. Executive Restrictive Covenant Agreement, the Pro-Rata Bonus payable in a lump sum in the first regular payroll occurring following the sixtieth (60th) day following such Participant’s Change in Control Termination Date; |
(c) | Subject to Participant’s compliance with Section 3.2 hereof and the Realogy Holdings Corp. Executive Restrictive Covenant Agreement, two (2) times the sum of the Participant’s Base Salary and Incentive Compensation, payable in a lump sum in the first regular payroll occurring following the sixtieth (60th) day following such termination of employment; provided, however, if the Change in Control is not a change in the ownership or effective control of the Company or a change in ownership of a substantial portion of the assets of the Company under Section 409A of the Code, then the payments shall be made in twenty-four (24) equal monthly installments; |
(d) | Subject to Participant’s compliance with Section 3.2 hereof and the Realogy Holdings Corp. Executive Restrictive Covenant Agreement, the Company shall provide Participant and Participant’s dependents, if applicable, with continued coverage under the terms of the medical or dental program or policy as in effect from time to time at the Company for eighteen (18) months following the Participant’s Change in Control Termination Date (which such 18 month period shall run concurrently with the COBRA period and which coverage shall become secondary |
(e) | Subject to Participant’s compliance with Section 3.2 hereof and the Realogy Holdings Corp. Executive Restrictive Covenant Agreement, outplacement services that are directly related to the type of services the Participant provided to the Company and are actually provided by an outplacement services firm for the 12-month period beginning on the Participant’s Change in Control Termination Date on, or until Participant begins other full-time employment with a new employer, whichever occurs first, paid by the Company; provided, however, the cost of the outplacement services may not exceed $50,000. |
(a) | the specific reasons for the adverse determination; |
(b) | reference to the specific Plan provisions on which the determination is based; |
(c) | a description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; and |
(d) | a description of the Plan’s review procedures and the time limits applicable to such procedures. |
(a) | the specific reason or reasons for the adverse determination; |
(b) | reference to the specific Plan provisions on which the benefit determination is based; and |
(c) | a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant’s claim for benefits. |
(a) | The headings and subheadings set forth in this Agreement are inserted for the convenience of reference only and are to be ignored in any construction of the terms set forth herein. |
(b) | Wherever applicable, the neuter, feminine or masculine pronoun as used herein shall also include the masculine or feminine, as the case may be. |
(c) | The term “including” is not limiting and means “including without limitation.” |
(d) | References in the Plan to any statute or statutory provisions include a reference to such statute or statutory provisions as from time to time amended, modified, reenacted, extended, consolidated or replaced (whether before or after the date of this Plan) and to any subordinate legislation made from time to time under such statute or statutory provision. |
(e) | References to “writing” or “written” include any non-transient means of representing or copying words legibly, including by facsimile or electronic mail. |
Name | Incentive Compensation |
REALOGY HOLDINGS CORP. | ||||
By: | Name: | |||
Dated: | Dated: |
(a) | For purposes of this Agreement, “Affiliates” means: |
(1) | in the case of the Company, a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Company; and |
(2) | in the case of an individual: (i) any member of the immediate family of Executive, including parents, siblings, spouse and children (including those by adoption); the parents, siblings, spouse, or children (including those by adoption) of such immediate family member, and in any such case any trust whose primary beneficiary is such individual or one or more members of such immediate family and/or Executive’s lineal descendants; (ii) the legal representative or guardian of the individual or of any such immediate family member in the event the individual or any such immediate family member becomes mentally incompetent; and (iii) any Person controlling, controlled by or under common control with Executive. |
(b) | For purposes of this Agreement, “Company” means Realogy Holdings Corp., its majority owned United States subsidiaries, its Affiliates, and any successors thereto. |
(c) | For purposes of this Agreement, “Confidential Information” means information that is not generally known to the public (except for information known to the public because of Executive’s violation of Section 4 of this Agreement) and that is used, developed or obtained by the Company in connection with its business, including, but not limited to, information, observations and data obtained by Executive while employed by the Company or any predecessors thereof (including those obtained prior to the date of this Agreement) concerning (i) the business or affairs of the Company (or such predecessors), (ii) products or services, (iii) fees, costs and pricing structures, (iv) designs, (v) analyses, (vi) drawings, photographs and reports, (vii) computer software, including operating systems, applications and program listings, (viii) flow charts, manuals and documentation, (ix) databases, (x) accounting and business methods, (xi) inventions, devices, new developments, methods and processes, whether patentable or unpatentable and whether or not reduced to practice, (xii) customers and clients and customer or client lists, (xiii) other copyrightable works, (xiv) all production methods, processes, technology and trade secrets, and (xv) all similar and related information in whatever form. Confidential Information will not include any information that has been published in a form generally available to the public prior to the date Executive proposes to disclose or use such information. Confidential Information will not be deemed to have been published or otherwise disclosed merely because individual portions of the information have been separately published, but only if all material features comprising such information have been published in combination. For purposes of this definition, the “Company” shall mean the Company collectively with its Affiliates. |
(d) | For purposes of this Agreement, “Effective Date” means the date upon which this Agreement is executed by the Executive and the Company. |
(e) | For purposes of this Agreement, “Person” shall be construed broadly and shall include, without limitation, an individual, a partnership, a limited liability company, a corporation, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof. |
(f) | For purposes of this Agreement, “Work Product” means all inventions, innovations, improvements, technical information, systems, software developments, methods, designs, analyses, drawings, reports, service marks, trademarks, trade names, logos and all similar or related information (whether patentable or unpatentable) that relates to the Company’s or any of its Affiliates’ actual or anticipated business, research and development or existing or future products or services and that are conceived, developed or made by Executive (whether or not during usual business hours and whether or not alone or in conjunction with any other person) while employed by the Company or any of its Affiliates (including those conceived, developed or made |
REALOGY HOLDINGS CORP. | ||||
By: | Name: | |||
Dated: | Dated: |