Michigan (State or other jurisdiction of incorporation) | 1-9804 (Commission File Number) | 38-2766606 (IRS Employer Identification No.) |
[ ] | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
[ ] | Soliciting material pursuant to Rule lea-12 under the Exchange Act (17 CFR 240.14a-12) | |
[ ] | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
[ ] | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
(b) | On November 30, 2012, PulteGroup, Inc. (the “Company”) entered into a Severance Agreement (the “Agreement”) with John B. Bertero III, Area President - East, in connection with Mr. Bertero's separation from the Company. Under the Agreement, Mr. Bertero's last day of employment was November 30, 2012. Pursuant to the terms of the Agreement, in exchange for Mr. Bertero signing a general release of claims in favor of the Company, Mr. Bertero will receive (i) a payment in the amount of $1,563,000 and (ii) his 2012 annual bonus, if any, based on the actual performance of the Company for 2012 and prorated through his date of separation. Mr. Bertero is also entitled, in accordance with the terms of the Company's Long Term Incentive Program under the 2008 Senior Management Incentive Plan, to amounts, if any, for the 2011- 2013 and 2012-2014 performance cycles based on the actual performance of the Company and prorated through his date of separation. |
Date: December 4, 2012 | PULTEGROUP, INC. | |||
By: | /s/ Steven M. Cook | |||
Name: | Steven M. Cook | |||
Title: | Senior Vice President, General Counsel and Secretary |
1. | Date of job termination: The date of Your termination is November 30, 2012. |
2. | Severance Benefits: |
A. | Severance Pay: Your Severance Pay will be $1,595,542.38 less applicable deductions for taxes and as otherwise required by law and/or authorized by You, provided there is no material breach by You of this Agreement. Your Severance Pay equals the sum of the following: |
i. | $825,000.00 which is 78 weeks of Your base salary, plus |
ii. | $738,000.00 which is additional consideration for signing this Agreement, plus |
iii. | $32,542.38, which is the amount of COBRA allowance for which You are eligible. |
B. | Annual Bonus: You will be eligible for a prorated portion of your 2012 Bonus provided You do not materially breach this Agreement. Your Bonus Pay, if any, is based on the actual performance of the Company and will be prorated through Your termination date [prorated based on 335 days employed in 2012 out of 366 days] payable not later than March 15, 2013. |
C. | LTIP Awards: You will be eligible for Long Term Incentive Awards according to the terms and conditions of the Plan, Program and LTI Agreements, provided You do not materially breach this Agreement, for the following performance periods: |
• | 2011-2013:* Actual payout, if any, not later than March 15, 2014 |
• | 2012-2014:* Actual payout, if any, not later than March 15, 2015 |
D. | Supplemental Executive Retirement Plan: Your accrued benefits election under the Supplemental Executive Retirement Plan will be paid pursuant to the provisions of the Centex Corporation Supplemental Executive Retirement Plan. |
E. | Outplacement Services: You will be provided certain outplacement services at the expense of the Company. The outplacement services are intended to provide You resources in obtaining Your next position of employment. These services, which are limited to those defined in the agreement between the outplacement services company and the Company, are for a period of one year and must be initiated within a period of thirty days following Your termination date. You are not entitled to cash in lieu of outplacement services. |
3. | Other Benefits: |
A. | Equity Awards: Any outstanding stock options and restricted awards will vest or be forfeited according to the original terms and conditions of the grants pursuant to the governing plans and option agreements. See Optionee Statement attached as Exhibit A. |
B. | Vacation Pay: You will receive payment for accrued but unused vacation as of Your termination date. |
C. | Benefits: If You are covered under a medical, dental, vision and/or HealthCare Choice account benefits plan sponsored by the Company on Your termination date, You have the option to continue Your coverage under COBRA. Information regarding Your rights under COBRA will be mailed to You. If You are eligible for COBRA continuation and wish to continue medical, dental and/or vision coverage, You will be responsible for the cost of COBRA continuation after Your termination date. You may also continue Your HealthCare Choice account under COBRA at Your expense under the terms and conditions outlined. You must complete and sign the COBRA election form to initiate COBRA coverage. All other benefits provided through the Company will cease on Your termination date. |
D. | No Other Compensation: Other than the amounts specifically described in this Agreement, You agree that You will receive no other compensation for service to the Company. You further authorize Company to deduct from the Severance Pay any indebtedness that You owe to the Company, including, but not limited to, advances, loans, credit card charges, and any other obligations. |
4. | Company Property; Expenses: On Your termination date You will return to the Company all documents and other property belonging to the Company, including items such as keys, telephone credit cards, pagers, computers and phones which have not already been returned by You and receipt acknowledged by the Company. You agree not to make or retain any copies, electronic or otherwise, of the Company’s confidential information, as defined below. The parties agree that the Company’s obligation to make the severance payments is contingent upon Your return of all property. |
5. | Cooperation in Investigations and Litigation: In the event the Company becomes involved in investigations or legal proceedings of any nature, related directly or indirectly to events which occurred during Your employment and about which You have personal knowledge, You agree that You will, at any future time, be available upon reasonable notice from the Company, with or without subpoena, to answer discovery requests, give depositions, or testify, with respect to matters of which You have or may have knowledge as a result of or in connection with Your employment relationship with the Company. In performing Your obligations under this paragraph to testify or otherwise provide information, You agree that You will truthfully, forthrightly, and completely provide the information requested. You further agree that You will not be compensated in any way by the Company for Your cooperation with the Company in connection with any litigation or other activity covered by this paragraph, except that You shall be reimbursed as permitted by law for any reasonable expenses that You incur in providing testimony or other assistance to the Company under this paragraph. If You are (i) specifically made aware of any non-public proceedings or non-public matters related to the Company, (ii) requested in writing by a third party to provide non-public information regarding the Company, or (iii) called by a third party as a witness to testify in any matter related to the Company, You will promptly notify the Company to give it a reasonable opportunity to respond. |
6. | Non-disparagement: You will not disparage the Company, its agents or employees in any manner following Your termination. You shall not post blogs of any nature referencing or representing the Company or any other information arising out of Your employment with the Company. |
7. | Indemnification: Nothing in this Agreement is intended to affect any obligation the Company may have under applicable law or its governing documents to indemnify You. |
8. | Confidentiality: You shall maintain for all time as confidential, and shall not directly or indirectly use and/or disclose in any manner, any of the following types of information of the Company: any information that is not generally known in the trade and industry and that the Company considers to be of a confidential or proprietary nature including that relating in any way to the Company’s related entities, purchasing or other business methodologies, business plans (including land), pricing, customers, marketing, sales methods, information systems, consultants, products, product development, personnel information and/or trade secrets. Additionally, You shall maintain as confidential (except as to Your attorney, spouse and accountant, each of whom You shall instruct to maintain as confidential) both the existence and contents of this Agreement as well as all discussions or negotiations leading up to this Agreement. |
9. | Confidentiality, Non-Competition and Non-Solicitation: The Confidentiality, Non-Competition and Non-Solicitation Agreement executed by you on September 10, 2009 remains in full force and effect. |
10. | Release: Except as specifically set forth above, in consideration of the Severance Benefits, You waive all rights and claims You may have for any personal or monetary relief including salary, bonus, deferred compensation, severance pay, commissions or other employee benefits or compensation arising from Your employment with the Company, or the termination of Your employment with the Company. Nothing in this Agreement shall be construed as an admission of any liability by the Company. |
11. | Certain Tax Matters: This Agreement is intended to comply with the requirements of Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), and shall be interpreted and construed consistently with such intent. The payments to You pursuant to this Agreement are also intended to be exempt from Section 409A of the Code to the maximum extent possible, under either the separation pay exemption pursuant to Treasury regulation §1.409A-1(b)(9) |
12. | Miscellaneous provisions: You represent and warrant that You have the sole right and exclusive authority to execute this Agreement; and that You have not sold, signed, transferred, conveyed or otherwise disposed of any claim or demand relating to any matter covered in this Agreement. |
13. | Governing Law: Michigan law, including Michigan law regarding choice of law and conflicts of law, shall govern this Agreement. |
THE COMPANY | ||||
By | /s/ Cara L. Tryban | |||
Its | Director - Benefits |
Employee Signature | /s/ John B. Bertero III | |||
John B. Bertero III | ||||
Date | November 30, 2012 |
Optionee Statement | Exercisable as of 11/30/2012 | Exhibit A | ||||||||||
John B. Bertero III | ||||||||||||
Rule of 5 | ||||||||||||
Non Compete signed 9-10-09 | ||||||||||||
Grant Date | Expire Date | Plan ID | Grant Type | Options Granted | Grant Price | Outstanding | Exercisable | |||||
8/18/2009 | 8/18/2019 | 2004 PE | NQ | Y | 40,000 | $12.34 | 40,000 | 30,000 | 10,000 Forfeited | |||
8/18/2009 | 5/11/2013 | CTX03 | NQ | 6,572 | $56.58 | 6,572 | 6,572 | current | ||||
8/18/2009 | 5/10/2014 | CTX03 | NQ | 18,342 | $46.70 | 18,342 | 18,342 | current | ||||
8/18/2009 | 5/7/2015 | CTX03 | NQ | 24,651 | $22.65 | 24,651 | 24,651 | current | ||||
2/11/2010 | 2/11/2020 | 2004 PE | NQ | Y | 25,000 | $11.45 | 25,000 | 12,500 | 12,500 Forfeited | |||
2/11/2010 | 2/11/2013 | 2004R PE | RSA | NA | 20,000 | $0.00 | 20,000 | — | Forfeited | |||
2/10/2011 | 2/10/2014 | 2004R PE | RSA | NA | 26,000 | $0.00 | 26,000 | — | Forfeited | |||
2/9/2012 | 2/9/2015 | 2004R PE | RSA | NA | 31,092 | $0.00 | 31,092 | — | Forfeited | |||
Optionee Totals | 191,657 | 191,657 | 92,065 | |||||||||