Exhibit 10.15
[XXXXXX DODGE CORPORATION LOGO]
Xxx X. Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000 (602) 366-8100
Date
Dear :
CHANGE OF CONTROL AGREEMENT
Xxxxxx Dodge Corporation (the "Corporation") considers the maintenance of
a sound and vital senior management organization to be essential to protecting
and enhancing the best interests of the Corporation and to providing value to
its shareholders. The Corporation recognizes that, as is the case with many
publicly held corporations, the continuing possibility of an unsolicited tender
offer or other takeover bid for the Corporation is unsettling to you and other
senior executives of the Corporation and its principal subsidiaries, and may
result in the departure or distraction of key management personnel to the
detriment of the Corporation and its shareholders. The Board of Directors of the
Corporation (the "Board") and the Compensation and Management Development
Committee (the "Committee") of the Board have previously determined that it is
in the best interests of the Corporation and its shareholders for the
Corporation to minimize these concerns by entering into an agreement (a "Change
of Control Agreement") which would provide you with certain benefits in the
event your employment with the Corporation terminates under certain limited
circumstances related to a Change of Control. The Corporation has had in place
for certain individuals similar agreements that expire on December 31, 2002.
Accordingly, the Corporation has determined that it is appropriate to replace
those expiring agreements with the arrangements set forth in this Change of
Control Agreement.
These arrangements are being made and entered into to help assure a
continuing dedication by you to your duties to the Corporation, notwithstanding
the occurrence of a tender offer or other takeover bid. In particular, the Board
and the Committee believe it important, should the Corporation receive proposals
from third parties with respect to its future, to enable you, without being
influenced or distracted by the uncertainties of your own situation, to assess
and advise the Board whether such
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proposals would be in the best interests of the Corporation and its
shareholders, and to take such other action regarding such proposals as the
Board might determine to be appropriate. The Board and the Committee understand
that in the event of a tender offer or other takeover bid that certain senior
managers are at risk with respect to continuing employment opportunities with
the Corporation. In recognition of that, the Board and the Committee wish to
demonstrate to the senior executives that it is the intent of the Board and
Committee, in the event of a Change of Control, to assure that senior executives
are treated fairly in those circumstances.
In view of the foregoing, in order to induce you to remain in the employ
of the Corporation or one of its principal subsidiaries and in further
consideration of your continued employment with the Corporation, the Corporation
and you agree to a Change of Control Agreement as follows:
1. TERMINATION BENEFITS.
In the event your employment with the Corporation or any subsidiary of the
Corporation terminates by reason of a "Qualifying Termination" (as the term
"Qualifying Termination" is defined below) within two years after a "Change of
Control" of the Corporation (as "Change of Control" is defined below), you shall
receive the benefits set forth in this Change of Control Agreement, subject to
the "Cap" described in Section 6 below.
(a) TERMINATION PAYMENTS. The Corporation will pay you as
termination compensation within ten calendar days after your employment with the
Corporation (or any subsidiary) terminates a lump sum amount equal to the sum
of: (i) two times your highest annual base salary (not including any bonuses
under the Corporation's Annual Incentive Compensation Plan) paid or payable by
the Corporation or any subsidiary of the Corporation to you during the three
calendar years ending with the year your employment with the Corporation
terminates; plus (ii) two times your Target Bonus; less (iii) any severance,
termination, or other cash compensation payable to you under your Severance
Agreement with the Corporation or pursuant to any severance policy, plan, or
program sponsored by the Corporation or any subsidiary of the Corporation. For
purposes of the calculation set forth in this Section 1.(a), Target Bonus shall
mean your highest annual base salary during the twelve (12) months immediately
preceding your termination of employment times the highest target bonus
percentage assigned by the Corporation's Annual Incentive Compensation Plan to
any position you held during the twelve (12) months immediately preceding your
termination of employment.
If after the effective date of this Change of Control Agreement, the
Corporation's Annual Incentive Compensation Plan is replaced by another
incentive compensation or bonus program, your Target Bonus for purposes of this
Section 1, will be the greater of (i) the Target Bonus as determined under
Section 1.(a) as of the date of the Change of Control; (ii) the Target Bonus as
determined under Section 1.(a) as of your termination date; or (iii) the Target
Bonus as determined under Section 1.(a) except that your
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Target Bonus will be calculated using the highest target bonus percentage
assigned by the replacement program to any position you held during the twelve
(12) months immediately preceding your termination of employment.
(b) BENEFITS CONTINUATION. You will continue to receive medical,
dental, vision, long-term disability, and life insurance benefits as described
in this Section 1. (b).
(i) Group Medical, Dental, and Vision. You will receive group
medical, dental, and vision coverage in accordance with the terms and conditions
of the special insured group medical, dental, and vision plans sponsored by the
Corporation for certain senior executives (collectively, the "Insured Plans").
The Insured Plans are designed to be similar to the Corporation's then in effect
self-insured active group medical, dental, and vision plans. You will be
eligible to participate in the Insured Plans until the earlier of (i) the end of
the period of twenty-four (24) months following your termination of employment
or (ii) the day on which you become eligible to receive any group medical,
dental, and vision care benefits, as the case may be, under any plan or program
of any other employer for active employees. The twenty-four (24)-month period
referred to above shall run concurrently with the number of months, if any, for
which you are entitled to receive continued benefits under your Severance
Agreement with the Corporation or pursuant to any severance policy, plan, or
program sponsored by the Corporation or any subsidiary of the Corporation. You
will be responsible to contribute to the cost of the Insured Plans at the same
level, if any, you were required to contribute to receive the similar benefits
under the Corporation's group medical, dental, and vision plans as of your
termination date. In lieu of the benefits provided above, you may elect to
receive eighteen (18) months of Corporation paid continuation of coverage under
the Corporation's group medical, dental, and vision plans pursuant to Section
601 et seq. of the Employee Retirement Income Security Act of 1974, as it may be
amended or replaced from time to time.
(ii) Retiree Medical Insurance. If during the two year period
after the date of the Change of Control, but after the date of your termination
of employment (which entitles you to benefits under this Change of Control
Agreement), you would have been eligible for early or normal retirement under
the terms and conditions of any pension or retirement plan sponsored by the
Corporation (or any subsidiary of the Corporation) in which you participate,
then you will be eligible to participate in any insured medical plan that the
Corporation has in place to provide medical benefits similar to those provided
by the Corporation's retiree medical plan (the "Retiree Insured Plan"). You will
be eligible to participate in the Retiree Insured Plan beginning on the date you
would have been eligible for an early or normal retirement had your employment
not been terminated and continuing until such time (if any) as the Corporation
ceases to provide retiree medical insurance, or the insurance available under
the Retiree Insured Plan is no longer available. Until the end of the
twenty-four (24)-month period following your termination date, the Corporation
will pay your full cost of the Retiree Insured Plan. If as of your employment
termination date (because of your Qualifying Termination within the required
time period), you are eligible to participate in
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the Corporation's retiree medical plan, if any, the cost of your participation
in the applicable retiree medical plan will be paid by the Corporation for the
twenty-four (24)-month period following your termination date. After the end of
this twenty-four (24)-month period, you will be responsible to pay the
applicable retiree contribution percentage to participate in the Corporation's
retiree medical plan. Similarly, if you are participating in the Retiree Insured
Plan, you will be required to pay the equivalent contribution as if you had been
eligible to participate in the Corporation's retiree medical plan. The
Corporation reserves the right to amend or terminate its retiree medical plan at
any time. Any such amendment or termination that applies equally to all covered
individuals also will apply to you. The Corporation also reserves the right to
amend or terminate any Retiree Insured Plan as long as a comparable amendment or
termination is being made at the same time to the Corporation's retiree medical
plan. A Retiree Insured Plan also may be amended if such amendment is required
by the insurer and a Retiree Insured Plan may be terminated if the underlying
insurance cannot be obtained from a reputable insurer.
(iii) Long-Term Disability. With respect to your long-term
disability insurance coverage, you will be eligible to purchase an individual
long-term disability conversion policy directly from the insurer providing the
group benefits under the Corporation's Long-Term Disability Plan as of your
termination date. To be eligible for this coverage, you must satisfy the
insurer's requirements for coverage, in effect on your termination date, and any
such conversion coverage is subject to coverage and other limitations imposed by
the insurer. The disability benefits and amount of coverage under the conversion
policy may be different than those provided to you under the Corporation's
Long-Term Disability Plan in effect on your termination date. The Corporation
will pay the cost to continue any long-term disability conversion coverage for a
period of twenty-four (24) months following your termination date. You will be
responsible for the cost of any long-term disability conversion coverage in
excess of twenty-four (24) months.
(iv) Life Insurance. The disposition of your life insurance
policy or policies (the "Policies") issued under the Corporation's Executive
Life Insurance Plan ("ELIP") will be in accordance with the terms and conditions
of the ELIP. The Corporation, within ten calendar days after the date your
employment with the Corporation (or any subsidiary) terminates, will pay the
insurer of the Policies an amount sufficient to fund the Policies for a period
of twenty-four (24) months after your termination date. The Corporation will
fund the Policies for this twenty-four (24) month period in a manner similar to
the funding level before the Change of Control such that the Policies are funded
for the Policies' death benefit and the contribution towards the retiree life
insurance portion of the Policies. At the end of this twenty-four (24) month
period any additional funding required by the Policies will be your obligation.
In lieu of the payment method described above, you may elect, prior to any
payment being made, to have the Corporation fund the Policies to the same level
with annual installment payments over a two (2) year period. To the extent that
any of your life insurance coverage under the ELIP is insured under the
Corporation's group term life insurance plan, in accordance with the terms and
conditions of that insurance coverage
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you will be eligible to convert this coverage to individual non-term conversion
coverage as of your termination date. To be eligible to receive this conversion
coverage you must submit an application to the insurer. Any available conversion
coverage is subject to such limitations as may be imposed by the insurer. Should
you elect this individual conversion coverage, the Corporation will pay the cost
to continue your conversion coverage for a period of twenty-four (24) months
following your termination date. You will be responsible for the cost of any
conversion coverage in excess of twenty-four (24) months.
2. OTHER BENEFITS; LOANS.
(a) INCENTIVE COMPENSATION PLAN. Generally, your participation in
the Corporation's Annual Incentive Compensation Plan ("AICP"), and any right
that you may have to receive a bonus thereunder for the year in which your
employment with the Corporation or any subsidiary of the Corporation terminates
or any prior year shall be governed by the terms of the AICP. If you were a
participant in the AICP at any time during the calendar year in which a Change
of Control occurs, however, you will receive at least a pro rated incentive
compensation payment for the year in which the Change of Control occurs. Your
pro rated incentive compensation payment will be calculated in two steps. The
first step will be to calculate the incentive compensation to which you would be
entitled under the AICP, calculated on the basis of the following assumptions:
(i) the annual performance period ends on the date of the Change of Control;
(ii) the financial performance of the Corporation or any of its subsidiaries for
the relevant performance period will be equal to the financial performance
measured as of the date of the Change of Control, annualized; and (iii) you
satisfy all individual subjective performance goals or measures set for you
under the AICP at the "target" performance level. The second step will be to
multiply the amount determined pursuant to the first step by a fraction, the
numerator of which is the number of days that have elapsed in the calendar year
prior to the day of the Change of Control and the denominator of which is 365.
(b) RETIREMENT AND SAVINGS PLANS. Any participation by you in, and
any terminating distributions and vested rights under, the Xxxxxx Dodge
Retirement Plan, the Xxxxxx Dodge Employee Savings Plan, the Xxxxxx Dodge
Corporation Supplemental Retirement Plan, and the Xxxxxx Dodge Corporation
Supplemental Savings Plan, or any other retirement or savings plan sponsored by
the Corporation, regardless of whether such plan qualifies for favorable tax
treatment, shall be governed by the terms and conditions of those respective
plans, as they may be amended from time to time.
(c) LOANS. Any permitted indebtedness owed by you to the Corporation
or any subsidiary of the Corporation on account of advances or loans shall
become due and payable and may be deducted from the payment referred to in
Section 1 above.
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(d) OUTPLACEMENT SERVICES. You will be eligible to receive
outplacement services for a period of up to one year after your termination date
at an outplacement firm selected by the Corporation. The cost of these
outplacement services will be paid by the Corporation directly to the
outplacement firm selected, up to a maximum amount of fifteen percent (15%) of
your highest annual base salary in effect during the twelve (12) months
immediately preceding your termination date.
(e) EXECUTIVE PHYSICALS. You will be eligible for coverage under the
Corporation's Executive Physical program for a maximum of twenty-four (24)
months after your termination date. The benefits to which you will be eligible,
will be the executive physical benefits that were in effect on the date of the
Change of Control and any executive physical benefits received will be subject
to the terms and conditions of the Executive Physical program as in effect on
the date of the Change of Control.
(f) FINANCIAL COUNSELING. To the extent you were eligible for
financial counseling paid by the Corporation on the date of the Change of
Control, you will be eligible to continue receiving such services paid by the
Corporation for an additional twenty-four (24) months after your termination
date. The Corporation will pay the cost of these financial counseling services
directly to the applicable financial counseling firm.
3. CONFIDENTIALITY.
In the event your employment with the Corporation or any subsidiary of the
Corporation terminates under the circumstances specified in Section 1, you shall
retain in confidence any confidential, proprietary, or trade secret information
known to you concerning the Corporation and its subsidiaries and their
businesses so long as such information is not publicly disclosed by the
Corporation or any subsidiary of the Corporation.
4. CHANGE OF CONTROL DEFINED.
For purposes of this Change of Control Agreement, a "Change of
Control" shall be deemed to have taken place at the time:
(a) when any "person" or "group" of persons (as such terms are used
in Section 13 and 14 of the Securities Exchange Act of 1934, as amended from
time to time (the "Exchange Act")), other than the Corporation or any employee
benefit plan sponsored by the Corporation, becomes the "beneficial owner" (as
such term is used in Section 13 of the Exchange Act) of 25% or more of the total
number of the Corporation's common shares at the time outstanding; or
(b) of the approval by the vote of the Corporation's stockholders
holding at least 50% (or such greater percentage as may be required by the
Certificate of Incorporation or By-Laws of the Corporation or by law) of the
voting stock of the Corporation of any merger or consolidation with any other
corporation (other than a
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merger or consolidation which would result in the voting securities of the
Corporation outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities of
the entity surviving such merger or consolidation (the "Surviving Entity") or
its direct or indirect parent (the "Survivor Parent")), at least 80% of the
combined voting power of the securities of the Corporation or the Surviving
Entity or Survivor Parent outstanding immediately after such merger or
consolidation); sale of assets; liquidation; or reorganization in which the
Corporation will not survive as a publicly owned corporation (the transactions
described above being collectively referred to as the "Transaction"); provided
that a Change of Control will occur in the circumstances described above only if
the Transaction is ultimately consummated; or
(c) when the individuals who, at the beginning of any period of two
years or less, constituted the Board of Directors of the Corporation cease, for
any reason, to constitute at least a majority thereof, unless the election or
nomination for election of each new director was approved by the vote of at
least two-thirds of the directors then still in office who were directors at the
beginning of such period.
5. QUALIFYING TERMINATION DEFINED.
(a) QUALIFYING TERMINATION. For purposes of this Change of Control
Agreement, the term "Qualifying Termination" means a termination of your
employment with the Corporation or any subsidiary of the Corporation (under
circumstances where you are no longer employed by the Corporation or any such
subsidiary) (i) by you for Good Reason, or (ii) by the Corporation or a
subsidiary without Cause, and (iii) prior to your death or Disability.
(b) CAUSE. "Cause" means willful misconduct in the performance of
your duties as an employee which results in a material detriment to the
Corporation, and its subsidiaries, taken as a whole.
(c) DISABILITY. For purposes of this Change of Control Agreement,
the term "Disability" shall have the meaning given to that term in the Xxxxxx
Dodge Corporation Long-Term Disability Plan.
(d) GOOD REASON. For purposes of this Change of Control Agreement,
the term "Good Reason" means that you have terminated your employment with the
Corporation and all subsidiaries of the Corporation under any of the following
circumstances:
(i) such termination occurs more than 180 days following the
time when a Change of Control takes place and such Change of
Control has not been approved by a resolution adopted by the
Board as constituted immediately prior to such Change of
Control; or
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(ii) you terminate your employment on account of one or more
of the following events (and you have not agreed to such event
in writing):
(A) the assignment to you of any duties inconsistent, in
a way materially adverse to you, with your positions,
duties, responsibilities and status with the Corporation
and its subsidiaries immediately prior to a Change of
Control, or a material reduction in the duties and
responsibilities you held immediately prior to such
Change of Control; or a change in your reporting
responsibilities, titles or offices as in effect
immediately prior to such Change of Control; or any
removal of you from or any failure to re-elect you to
any position with the Corporation or any subsidiary that
you held immediately prior to such Change of Control
except in connection with your promotion or the
termination of your employment; or
(B) a reduction by the Corporation or any subsidiary of
the Corporation in your base salary as in effect
immediately prior to such Change of Control; the failure
by the Corporation or any such subsidiary to continue in
effect any employee benefit plan or compensation plan
(including any incentive compensation or bonus programs)
in which you are participating immediately prior to such
Change of Control unless you are permitted to
participate in other plans providing you with
substantially comparable benefits; or the taking of any
action by the Corporation or any such subsidiary which
would adversely affect your participation in or
materially reduce your benefits under any such employee
benefit or compensation plan; or
(C) the Corporation's or any subsidiary's requiring you
to be based anywhere other than a location within 50
miles of your location immediately prior to such Change
of Control; or the Corporation's or any subsidiary's
requiring you to travel on the Corporation's or any
subsidiary's business to an extent substantially more
burdensome than your travel obligations immediately
prior to such Change of Control.
(e) EMPLOYMENT BY SUCCESSORS. For purposes of this Change of Control
Agreement, employment by a successor of the Corporation, or a successor of any
subsidiary of the Corporation, that has assumed this Change of Control Agreement
pursuant to Section 10 shall be considered to be employment by the Corporation
or one of its subsidiaries. As a result, if you are employed by such a successor
following a
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Change of Control, you will not be entitled to receive the benefits provided by
Sections 1 and 2 unless your employment with the successor is subsequently
terminated in a Qualifying Termination within two (2) years after a Change of
Control. Solely for purposes of applying the provisions of Sections 1 and 2 and
the definitions set forth in Section 5, the successor shall be deemed to be a
subsidiary of the Corporation.
6. CAP ON PAYMENTS.
(a) GENERAL RULES. The Internal Revenue Code (the "Code") places
significant tax burdens on you and the Corporation if the total payments made to
you due to a Change of Control exceed prescribed limits. For example, if your
"Base Period Income" (as defined below) is $100,000, your limit or "Cap" is
$299,999. If your "Total Payments" exceed the Cap by even $1.00, you are subject
to an excise tax under Section 4999 of the Code of 20% of all amounts paid to
you in excess of $100,000. In other words, if your Cap is $299,999, you will not
be subject to an excise tax if you receive exactly $299,999. If you receive
$300,000, you will be subject to an excise tax of $40,000 (20% of $200,000). In
order to avoid this excise tax and the related adverse tax consequences for the
Corporation, by signing this Agreement, you will be agreeing that, subject to
the exception noted below, the present value (determined in accordance with the
applicable regulations) of your Total Payments will not exceed an amount equal
to your Cap.
(b) SPECIAL DEFINITIONS. For purposes of this Section, the following
specialized terms will have the following meanings:
(i) "BASE PERIOD INCOME". "Base Period Income" is an amount
equal to your "annualized includable compensation" for the "base period" as
defined in Sections 280G(d)(1) and (2) of the Code and the regulations adopted
thereunder. Generally, your "annualized includable compensation" is the average
of your annual taxable income from the Corporation for the "base period", which
generally is the five calendar years prior to the year in which the Change of
Control occurs. These concepts are complicated and technical and all of the
rules set forth in Section 280G of the Code and the applicable regulations apply
for purposes of this Agreement.
(ii) "CAP" OR "280G CAP". "Cap" or "280G Cap" shall mean an
amount equal to $1.00 less than three times your "Base Period Income." This is
the maximum amount which you may receive without becoming subject to the excise
tax imposed by Section 4999 of the Code or which the Corporation may pay without
loss of deduction under Section 280G of the Code.
(iii) "TOTAL PAYMENTS". The "Total Payments" include any
"payments in the nature of compensation" (as defined in Section 280G of the Code
and the regulations adopted thereunder), made pursuant to this Agreement or
otherwise, to or for your benefit, the receipt of which is contingent on a
"change in ownership or effective control" of the Corporation or a "change in
the ownership of a substantial portion of the assets of the Corporation" (as
those phrases are defined in Code Section
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280G and the regulations adopted thereunder) and to which Section 280G of the
Code applies.
(c) CALCULATING THE CAP. If the Corporation believes that these
rules will result in a reduction of the payments to which you are entitled under
this Agreement, it will so notify you as soon as possible. The Corporation will
then, at its expense, retain a "Consultant" (which shall be a law firm, a
certified public accounting firm, and/or a firm nationally recognized as
providing executive compensation consulting services) to provide an opinion or
opinions concerning whether your Total Payments exceed the limit discussed
above. The Corporation will select the Consultant.
At a minimum, the opinions required by this Section must set forth
the amount of your Base Period Income, the items included in the calculation of
the Total Payments, the present value of the Total Payments, and the amount and
present value of any excess parachute payments.
If the opinions state that there would be an excess parachute
payment, your payments under this Agreement will be reduced to the extent
necessary to eliminate the excess. You will be allowed to choose the payment
that should be reduced or eliminated, but the payment you choose to reduce or
eliminate must be a payment determined by such Consultant to be includable in
Total Payments. You will make your decision in writing and deliver it to the
Corporation within 30 days of your receipt of such opinions. If you fail to so
notify the Corporation, it will decide which payments to reduce or eliminate.
If the Consultant selected to provide the opinions referred to above
so requests in connection with the opinion required by this Section, a firm of
recognized executive compensation consultants selected by the Corporation shall
provide an opinion, upon which such Consultant may rely, as to the
reasonableness of any item of compensation as reasonable compensation for
services rendered before or after the Change of Control.
If the Corporation believes that your Total Payments will exceed the
limitations of this Section, it will nonetheless make payments to you, at the
times stated above, in the maximum amount that it believes may be paid without
exceeding such limitations. The balance, if any, will then be paid after the
opinions called for above have been received.
If the amount paid to you by the Corporation is ultimately
determined, pursuant to the opinion referred to above or by the Internal Revenue
Service, to have exceeded the limitation of this Section, the excess will be
treated as a loan to you by the Corporation and shall be repayable on the 90th
day following demand by the Corporation, together with interest at the lowest
"applicable federal rate" provided in Section 1274(d) of the Code. If it is
ultimately determined, pursuant to the opinion referred to above or by the
Internal Revenue Service, that a greater payment should
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have been made to you, the Corporation shall pay you the amount of the
deficiency, together with interest thereon from the date such amount should have
been paid to the date of such payment, at the interest rate set forth above, so
that you will have received or be entitled to receive the maximum amount to
which you are entitled under this Agreement.
(d) EFFECT OF REPEAL. In the event that the provisions of Sections
280G and 4999 of the Code are repealed without succession, this Section shall be
of no further force or effect.
(e) EXCEPTION. The Consultant selected pursuant to Section 6(c) will
calculate your "Uncapped Benefit" and your "Capped Benefit". The limitations of
Section 6(a) will not apply to you if your Uncapped Benefit is at least 120% of
your Capped Benefit. For this purpose, your "Uncapped Benefit" is the amount to
which you will be entitled pursuant to Sections 1 and 2, as applicable, without
regard to the limitations of Section 6(a). Your "Capped Benefit" is the amount
to which you will be entitled pursuant to Sections 1 and 2, as applicable, after
the application of the limitations of Section 6(a).
7. TAX GROSS-UP.
(a) GROSS-UP PAYMENT. If the Cap imposed by Section 6(a) does not
apply to you because of the exception provided by Section 6(e), the Corporation
will provide you with a "Gross-Up Payment" if an excise tax is imposed on you
pursuant to Section 4999 of the Code. This Gross-Up Payment will be calculated
in accordance with the provisions of this Section 7. Except as otherwise noted
below, this Gross-Up Payment will consist of a single lump sum payment to you.
This lump sum payment will be in such an amount that after you have paid (i) the
"total presumed federal and state taxes;" and (ii) the excise taxes imposed by
Code Section 4999 with respect to the Gross-Up Payment (and any interest or
penalties actually imposed), you retain an amount of the Gross-Up Payment equal
to the remaining excise taxes imposed by Code Section 4999 on your Total
Payments (calculated before the Gross-Up Payment). For purposes of calculating
your Gross-Up Payment, your actual federal and state income taxes will not be
used. Instead, we will use your "total presumed federal and state taxes." For
purposes of this Change of Control Agreement, your "total presumed federal and
state taxes" shall be conclusively calculated using a combined tax rate equal to
the sum of the maximum marginal federal and applicable state income tax rates
and the hospital insurance (or "HI") portion of F.I.C.A. Based on the rates in
effect for 2002 for an Arizona resident, the "total presumed federal and state
tax rate" is 45.09% (38.6% federal income tax rate plus 5.04% Arizona state
income tax rate plus 1.45% HI tax rate). The state tax rate for your actual
principal place of residence will be used and no adjustments will be made for
the deduction of state taxes on the federal return, any deduction of federal
taxes on a state return, the loss of itemized deductions or exemptions, or for
any other purpose.
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(b) CALCULATIONS. All determinations concerning whether a Gross-Up
Payment is required pursuant to this Change of Control Agreement and the amount
of any Gross-Up Payment (as well as any assumptions to be used in making such
determinations) shall be made by the Consultant selected pursuant to Section
6(c). The Consultant shall provide you and the Corporation with a written notice
of the amount of the excise taxes that you are required to pay and the amount of
the Gross-Up Payment. The notice from the Consultant shall include any necessary
calculations in support of its conclusions. All fees and expenses of the
Consultant shall be borne by the Corporation. Any Gross-Up Payment shall be made
by the Corporation within fifteen (15) calendar days after the mailing of such
notice.
As a general rule, the Consultant's determination shall be binding on you
and the Corporation. The application of the excise tax rules of Code Section
4999, however, is complex and uncertain and, as a result, the Internal Revenue
Service may disagree with the Consultant concerning the amount, if any, of the
excise taxes that are due. If the Internal Revenue Service determines that
excise taxes are due, or that the amount of the excise taxes that are due is
greater than the amount determined by the Consultant, the Gross-Up Payment will
be recalculated by the Consultant to reflect the actual excise taxes that you
are required to pay (and any related interest and penalties). Any deficiency
will then be paid to you by the Corporation within fifteen (15) calendar days of
the receipt of the revised calculations from the Consultant. If the Internal
Revenue Service determines that the amount of excise taxes that you paid exceeds
the amount due, you shall return the excess to the Corporation (along with any
interest paid to you on the overpayment) immediately upon receipt from the
Internal Revenue Service or other taxing authority.
The Corporation has the right to challenge any excise tax determinations
made by the Internal Revenue Service. If the Corporation agrees to indemnify you
from any taxes, interest and penalties that may be imposed upon you (including
any taxes, interest and penalties on the amounts paid pursuant to the
Corporation's indemnification agreement), you must cooperate fully with the
Corporation in connection with any such challenge. The Corporation shall bear
all costs associated with the challenge of any determination made by the
Internal Revenue Service and the Corporation shall control all such challenges.
The additional Gross-Up Payments called for by the preceding paragraph shall not
be made until the Corporation has either exhausted its (or your) rights to
challenge the determination or indicated that it intends to concede or settle
the excise tax determination.
You must notify the Corporation in writing of any claim or determination
by the Internal Revenue Service that, if upheld, would result in the payment of
excise taxes in amounts different from the amount initially specified by the
Consultant. Such notice shall be given as soon as possible but in no event later
than fifteen (15) calendar days following your receipt of notice of the Internal
Revenue Service's position.
(c) DISCRETIONARY GROSS-UPS. The Corporation also may provide you
with a tax gross-up, at the Corporation's sole discretion, covering income
and/or
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excise taxes in other situations ("Discretionary Gross-Up"). The Corporation,
however, is not obligated to do so and may only do so pursuant to a resolution
duly adopted by the Board or the Committee. The payment of a Discretionary
Gross-Up to any other individual having a Change of Control Agreement with the
Corporation shall not entitle you to receive a Discretionary Gross-Up.
8. TERM OF AGREEMENT.
This Change of Control Agreement is effective as of January 1, 2003 and
will continue in effect until the later of (a) December 31, 2007 or (b) two
years following a Change of Control that occurs prior to December 31, 2007.
9. TERMINATION NOTICE AND PROCEDURE.
Any termination of your employment by the Corporation or you within two
(2) years after a Change of Control shall be communicated by written notice of
termination, all in accordance with the following procedures:
(a) The notice of termination shall indicate the specific
termination provision in this Change of Control Agreement relied upon and shall
set forth in reasonable detail the facts and circumstances alleged to provide a
basis for termination.
(b) If the Corporation notifies you of your termination for Cause
and you in good faith notify the Corporation that a dispute exists concerning
such termination within fifteen (15) calendar days following your receipt of
such notice, you may elect to continue your employment during such dispute. If
it is thereafter determined that Cause did exist, your termination date shall be
the earlier of (i) the date on which the dispute is finally determined, either
by mutual written agreement of the parties or pursuant to the arbitration
provisions set out below, or (ii) the date of your death. If it is determined
that Cause did not exist, your employment shall continue as if the Corporation
had not delivered its notice of termination.
(c) If the Corporation notifies you of your termination by reason of
Disability and you in good faith notify the Corporation that a dispute exists
concerning such termination within fifteen (15) calendar days following your
receipt of such notice, you also may elect to continue your employment during
such dispute. The dispute relating to the existence of a Disability shall be
resolved by the opinion of the licensed physician selected by the Corporation;
provided, however, that if you do not accept the opinion of the licensed
physician selected by the Corporation, the dispute shall be resolved by the
opinion of a licensed physician who shall be selected by you; provided further,
however, that if the Corporation does not accept the opinion of the licensed
physician selected by you, the dispute shall be finally resolved by the opinion
of a licensed physician selected by the licensed physicians selected by the
Corporation and you, respectively. If it is thereafter determined that a
Disability did exist, your termination date shall be the earlier of (i) the date
on which the dispute is resolved or (ii)
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the date of your death. If it is determined that a Disability did not exist,
your employment shall continue as if the Corporation had not delivered its
notice of termination.
(d) If you in good faith notify the Corporation of your termination
for Good Reason and the Corporation notifies you that a dispute exists
concerning the termination within fifteen (15) calendar days following the
Corporation's receipt of such notice, you may elect to continue your employment
during such dispute. If it is thereafter determined that Good Reason did exist,
your termination date shall be the earlier of (i) the date on which the dispute
is finally determined, either by mutual written agreement of the parties or
pursuant to the arbitration provisions set out below, (ii) the date of your
death, or (iii) one day prior to the second anniversary of a Change of Control,
and your payments hereunder shall reflect events occurring after you delivered
notice of termination. If it is determined that Good Reason did not exist, your
employment shall continue after such determination as if you had not delivered
the notice of termination asserting Good Reason.
(e) If you do not elect to continue employment pending resolution of
a dispute regarding a notice of termination, and it is finally determined that
the reason for termination set forth in such notice of termination did not
exist, if such notice was delivered by you, you shall be deemed to have
voluntarily terminated your employment other than for Good Reason and if
delivered by the Corporation, the Corporation will be deemed to have terminated
you without Cause.
(f) For purposes of this Change of Control Agreement, a transfer
from the Corporation to one of its subsidiaries or a transfer from a subsidiary
to the Corporation or another subsidiary shall not be treated as a termination
of employment.
(g) If you elect to continue your employment pending the resolution
of a dispute pursuant to Sections 9 (b), (c), or (d), the Corporation, in its
discretion, may place you on a paid administrative leave until the dispute is
resolved.
10. ASSUMPTION BY SUCCESSORS.
The Corporation will require any successor (whether direct or indirect, by
purchase, merger, consolidation, acquisition, or otherwise) to all or
substantially all of the business and/or assets of the Corporation or any of its
subsidiaries to expressly assume and agree to perform this Change of Control
Agreement in the same manner and to the same extent that the Corporation or any
subsidiary would be required to perform it if no such succession had taken
place. Failure of the Corporation to obtain such assumption and agreement prior
to the effectiveness of any such succession shall be a breach of this Change of
Control Agreement and shall entitle you to compensation from the Corporation in
the same amount and on the same terms to which you would be entitled hereunder
if you terminate your employment for Good Reason following a Change of Control,
except that for purposes of implementing the foregoing, the date on which any
such succession becomes effective shall be deemed your termination date.
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11. MISCELLANEOUS.
(a) ARBITRATION; RELATED EXPENSES. Any dispute or controversy
arising under or in connection with this Change of Control Agreement shall be
settled exclusively by arbitration held in accordance with the rules of the
American Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. The Corporation shall pay
on a current basis all legal expenses (including attorney's fees) incurred by
you in connection with such arbitration and the entering of such award if you
prevail, or substantially prevail, in such proceeding.
(b) REPLACEMENT OF OTHER AGREEMENTS. This Change of Control
Agreement replaces and supersedes any agreement previously entered into between
you and the Corporation regarding the payment of compensation or benefits
following a Change of Control. This Change of Control Agreement does not replace
or supersede your Severance Agreement with the Corporation or any provision in
any stock option or restricted stock plan or agreement or any plan or program to
provide retirement or savings benefits.
(c) EMPLOYMENT AT WILL. This Change of Control Agreement shall
neither obligate the Corporation or any subsidiary of the Corporation to
continue you in its employ (or to employ you in any particular office or to
perform any specified responsibility) nor obligate you to continue in the employ
of the Corporation or any subsidiary of the Corporation.
(d) SUCCESSORS. This Change of Control Agreement shall be binding
upon and inure to the benefit of you, your estate and the Corporation and any
successor of the Corporation, but neither this Change of Control Agreement nor
any rights arising hereunder may be assigned or pledged by you.
(e) GOVERNING LAW. This Change of Control Agreement shall be
governed by the laws of the State of New York.
(f) SEVERABILITY. If any provision of this Change of Control
Agreement as applied to either party or to any circumstances shall be adjudged
by a court of competent jurisdiction to be void or unenforceable, the same shall
in no way affect any other provision of this Change of Control Agreement or the
validity or enforceability of this Change of Control Agreement.
(g) AMENDMENT OR WAIVER. Except as otherwise provided in Section 11
(j) of this Change of Control Agreement, no provision of this Change of Control
Agreement may be modified, waived or discharged unless such modification, waiver
or discharge is agreed to in a writing signed by you and such officer as may be
designated by the Board or a duly authorized Committee thereof. No waiver by
either party hereto at any time of any breach by the other party hereto of any
condition or provision of this
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Change of Control Agreement to be performed by such other party shall be deemed
a waiver of any other condition or provision at any time.
(h) NO DUTY TO MITIGATE. For purposes of receiving payments under
this Change of Control Agreement, you are not under any duty to mitigate the
damages resulting from your termination of employment. As a result, you will
receive the payments and other benefits provided by this Change of Control
Agreement regardless of whether you search for or obtain other work. As provided
in Section 1(b), however, your right to receive continued group medical, dental,
and vision insurance benefits will terminate if you become eligible to receive
any such medical, dental, or vision benefits under any other plan or program of
any subsequent employer.
(i) FUNDING. The Corporation shall establish a trust to provide for
the funding of the Corporation's obligations under this and similar agreements
with other executives. The trustee of the trust shall be chosen by the
Corporation or any individual or committee to whom the Corporation delegates
that responsibility, but the trustee must be a national or state bank or trust
company. Prior to the day on which a Change of Control occurs, the Corporation
shall transfer to the trustee of the trust an amount equal to the Corporation's
total potential liability to you pursuant to Sections 1(a), 2(a), 2(d), 2(e),
2(f), 7, and 11(a). Such amount shall be determined by the Corporation acting in
good faith. If it is discovered at any time that the amount initially
transferred is less than the total amount called for by the preceding sentence,
the shortfall shall be transferred to the trustee immediately upon the discovery
of such error. Under the terms of the trust, the trustee shall be obligated to
pay to you the amount to which you are entitled pursuant to Sections 1(a), 2(a),
2(d), 2(e), 2(f), 7, and 11(a) unless such amounts are paid in a timely manner
by the Corporation or its successors. The other terms and provisions of the
trust agreement shall be determined by the Corporation and the trustee.
(j) EFFECT OF CHANGE OF LAW. If at any time during the term of this
Change of Control Agreement any federal or state law or regulation is adopted or
modified in any way that will increase the cost of this Change of Control
Agreement to the Corporation, the Corporation reserves the right to unilaterally
modify any provision of the Agreement in any manner which it deems appropriate
to eliminate the cost increase to the Corporation, including but not limited to
eliminating the offending provision or provisions in their entirety.
(k) AMERICAN JOBS CREATION ACT OF 2004. The Corporation and you
acknowledge and agree that all payments under this Change of Control Agreement
will be made in compliance with and subject to the applicable requirements of
Code Section 409A and the regulations and guidance of the Department of the
Treasury interpreting and implementing Code Section 409A.
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If you are in agreement with the foregoing, please so indicate by signing and
returning to the Corporation the enclosed copy of this letter, whereupon this
letter shall constitute a binding agreement between you and the Corporation.
Very truly yours,
XXXXXX DODGE CORPORATION
By ___________________________________
Senior Vice President, Human Resources
Agreed:
______________________________________________ ____________________________
Date
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