EXHIBIT 10.13
CHANGE IN CONTROL AGREEMENT
____________ [date]
Dear ________________:
Greyhound Lines, Inc. (the "Company") considers it essential to the
best interests of the Company and its shareholders that, in the event of a
"Change in Control" (as defined in Section 2 hereof), its management be
encouraged to remain with the Company and to continue to devote full attention
to the Company's business.
This letter agreement ("Agreement") sets forth the severance benefits
which the Company agrees will be provided to you in the event your employment
with the Company is terminated either by you for "Good Reason" or by the Company
"Without Cause" (both as defined in Section 3 hereof) within a two year period
immediately following any Change in Control of the Company. In the event that a
Change in Control of the Company does not occur, no benefits shall be payable
under this Agreement.
1. CONTINUED EMPLOYMENT. Nothing in this Agreement shall be
construed so as to give you any right to continued employment by the Company.
Notwithstanding the foregoing, by entering into this Agreement you are
confirming that in consideration of, among other things, the Company's entering
into this Agreement with you, it is your present intention to remain in the
employ of the Company.
2. CHANGE IN CONTROL. No benefits shall be payable hereunder
unless:
(i) a Change in Control of the Company
occurs; and
(ii) your employment with the Company is
terminated within two years thereafter either by you
for Good Reason or by the Company Without Cause.
This Agreement is not intended to apply to termination of your
employment by reason of Death, Disability or Cause (as defined in Section 3
hereof).
For purposes of this Agreement, a "Change in Control"of the Company
shall mean:
(a) The acquisition by any person (defined for the purposes of
this definition to mean any person within the meaning of Section 13(d) of the
Securities Exchange Act of 1934 and the regulations thereunder (the "Exchange
Act")), other than the Company or an employee benefit plan created by the Board
of Directors of the Company (the "Board")for the benefit of its employees,
either directly or indirectly, of the beneficial ownership (determined under
Rule 13d-3 of the regulations promulgated by the SEC under Section 13(d) of the
Exchange Act) of
securities issued by the Company having 30% or more of the voting power of all
the voting securities issued by the Company in the election of directors at the
next meeting of the holders of voting securities to be held for such purpose; or
(b) The election of a majority of the directors to the Board
elected at any meeting of the holders of voting securities of the Company who
are persons who were not nominated for such election by the Board or a duly
constituted committee of the Board having authority in such matters; or
(c) The approval by the stockholders of the Company of a merger or
consolidation with another person, other than a merger or consolidation in which
the holders of the Company's voting securities issued and outstanding
immediately before such merger or consolidation continue to hold voting
securities in the surviving or resulting corporation (in the same relative
proportions to each other as existed before such event) comprising 80% or more
of the voting power for all purposes of the surviving or resulting corporation;
or
(d) The approval by the stockholders of the Company of a transfer
of substantially all of the assets of the Company to another person other than a
transfer to a transferee, 80% or more of the voting power of which is owned or
controlled by the Company or by the holders of the Company's voting securities
issued and outstanding immediately before such transfer in the same relative
proportions to each other as existed before such event.
The first date upon which a Change in Control as defined above takes
place shall be known as the "Effective Date." Anything in this Agreement to the
contrary notwithstanding, if a Change in Control occurs and if your employment
with the Company is terminated prior to the date on which the Change in Control
occurs, and if it is reasonably demonstrated by you that such termination (i)
was at the request of a third party who had taken steps reasonably calculated to
effect a Change in Control or (ii) was by the Company and arose with or in
anticipation of a Change in Control, then for all purposes of this Agreement
your employment shall be deemed to have been terminated by the Company Without
Cause under Section 3(e) of this Agreement.
3. TERMINATION OF EMPLOYMENT. Your employment with the Company
shall or may be terminated, as the case may be, for any of the following
reasons:
(a) Death. Termination of your employment with the
Company due to your death;
(b) Disability. Termination of your employment with the
Company either by you or the Company after you are physically or mentally
incapacitated for a period of (i) 180 consecutive days, or (ii) 180 days in any
360 day period, such that you cannot substantially perform your duties of
employment with the Company on a full-time basis with reasonable accomodation;
(c) Cause. Termination of your employment with the
Company at any time for Cause. For purposes of this Agreement, "Cause" shall
mean:
(i) Any act or omission constituting fraud under
the laws of the State of Texas [or the state of your
employment]; or
(ii) Conviction of, or a plea of nolo contendere
to, a felony; or
(iii) Use of illegal drugs; or
(iv) Embezzlement of Company property or
funds; or
(v) Gross neglect of your duties with the
Company.
(d) Good Reason. You may terminate your employment with
the Company for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean:
(i) a substantial diminishment of your duties
and authority (except at your request),
other than an isolated, insubstantial and
inadvertent action not taken in bad faith
and which is remedied by the Company
promptly after the receipt of notice thereof
given by you; or
(ii) any failure by the Company to continue to
provide you with an annual base salary,
employee benefits and an opportunity to earn
incentive and bonus compensation equal or
greater to that which was provided to you by
the Company immediately prior to the
Effective Date, other than an isolated,
insubstantial and inadvertent failure not
occurring in bad faith and which is remedied
by the Company promptly after the receipt of
notice thereof given by you; or
(iii) [OPTIONAL PROVISION TO BE INCLUDED IN
AGREEMENTS APPLICABLE TO DALLAS-BASED
EMPLOYEES] the Company is requiring you
without your written consent to be based at
or generally work from any location more
than 25 miles outside of Dallas County,
Texas; or
(iv) any failure by the Company to comply with
and satisfy Section 10 of this Agreement.
(e) Without Cause. The Company may terminate your employment with
the Company Without Cause. For purposes of this Agreement the term "Without
Cause" shall mean termination of your employment for reasons other than for
Death, Disability or Cause.
4. SEVERANCE PAY. If a Change in Control of the Company occurs
and within two years thereafter your employment with the Company is terminated
either by you for Good
Reason or by the Company Without Cause, the Company shall pay to you as
severance pay, in a lump sum on or before the thirtieth day following the date
of termination, the following amounts:
(a) your full base salary and benefits earned and payable
through the date your employment is terminated, plus the dollar amount of your
"target" payout under the Company's Management Incentive Plan ("MIP") in effect
on the date your employment is terminated, prorated from the beginning of the
then-current plan year through the date your employment is terminated; and
(b) two (2) times the sum of (i) your then-current annual
base salary and (ii) the dollar amount of your "target" payout under the
Company's Management Incentive Plan ("MIP") in effect on the Effective Date.
5. EMPLOYEE BENEFITS. If a Change in Control of the Company
occurs and within two years thereafter your employment with the Company is
terminated either by you for Good Reason or by the Company Without Cause, then
in addition to all other benefits which you have earned prior to such
termination or to which you are otherwise entitled, the provisions of this
Section 5 shall apply. For a period of two years following the date of
termination of your employment, the Company shall continue to make available to
you and to your dependents the same medical, dental and vision plan coverage as
was in effect immediately prior to your termination at the same cost that such
coverage is provided for active employees of the Company. This extended medical,
dental and vision plan coverage shall run concurrently with any COBRA
continuation medical, dental and vision plan coverage rights that you or your
dependents have under Section 4980B of the Internal Revenue Code; therefore, you
and your dependents will be required to elect such COBRA coverage on a timely
basis in order to receive such continued medical, dental and vision plan
coverage. Notwithstanding the foregoing, the availability of the extended
medical, dental and vision plan coverage described in this Section 5 will
terminate prior to the end of the two year period in the event that the rights
to continuation coverage of you or your dependents terminate under COBRA. In the
event that medical, dental and vision plan coverage is revised or terminated for
active employees of the Company, such revisions or termination shall apply to
medical, dental and vision plan coverage described in this Section 5. In
addition to continued medical, dental and vision plan coverage, for the two year
period immediately following the termination of your employment, the Company
will reimburse you for the premium costs for any disability plan coverage
provided to you by the Company immediately prior to the termination of your
employment, but only to the extent that you have an individual right to convert
such disability plan coverage to individual coverage following your termination
of employment and only in the event you exercise such conversion privilege.
Finally, for the two year period following the termination of your employment,
the Company shall reimburse you for the premium cost for any executive life
insurance policy that is in place for you immediately prior to your termination
and pursuant to which you have a right to convert such policy to an individual
policy and you exercise such conversion privilege.
6. NO MITIGATION REQUIRED. You shall not be required to mitigate
the amount of any payment or benefit provided for in Sections 4 or 5 by seeking
other employment or otherwise, nor will any profits, income, earnings or other
benefits from any source whatsoever create any mitigation, offset, reduction or
other obligation on your part hereunder or otherwise.
7. CONFIDENTIAL INFORMATION. You hereby agree that you shall not
at any time (whether employed by the Company or not), either directly or
indirectly, disclose or make known to any person or entity any confidential
information, trade secret, or proprietary information that you acquired during
the course of your employment with the Company which shall not have become
public knowledge (other than by your actions in violation of this Agreement).
You further agree that upon the termination of your employment with the Company
or at any time upon the request of the Company you shall deliver to the Company
any and all literature, documents, correspondence, and other materials and
records furnished to or acquired by you from the Company during the course of
your employment with the Company.
8. EXCESS PARACHUTE PAYMENT LIMIT. Anything in this Agreement to
the contrary notwithstanding, if it is determined that any payment or
distribution by the Company to or for your benefit (whether paid or payable or
distributed or distributable pursuant to the terms of this Agreement or
otherwise) (a "Payment") would be nondeductible by the Company for federal
income tax purposes because of Section 280G of the Internal Revenue Code but for
the application of this sentence, then the aggregate present value of amounts
payable or distributable to or for your benefit pursuant to this Agreement (such
payments pursuant to this Agreement are hereinafter referred to as "Agreement
Payments" for purposes of this Section 8) shall be reduced (but not below zero)
to the Reduced Amount. The "Reduced Amount" shall be an amount expressed in
present value which maximizes the aggregate present value of Agreement Payments
without causing any Payment to be nondeductible by the Company because of
Section 280G of the Internal Revenue Code. For purposes of this Section 8,
present value shall be determined in accordance with Section 280G(d)(4) of the
Internal Revenue Code. All determinations required to be made under this Section
8 shall be made at the expense of the Company, if requested by you or the
Company, by an accounting firm mutually agreeable to you and the Company (the
"Accounting Firm") which shall provide detailed supporting calculations both to
the Company and to you within 30 days after the date on which the request has
been made. The Company and you shall cooperate with each other and the
Accounting Firm and will provide necessary information so that the Accounting
Firm may make all such determinations. All such determinations by the Accounting
Firm shall be final and binding upon the Company and you. The fact that your
right to Agreement Payments may be reduced by reason of the limitations
contained in this Section 8 shall not of itself limit or otherwise affect any
other of your rights other than pursuant to this Agreement. In the event that
any Agreement Payment intended to be provided under this Agreement or otherwise
is required to be reduced pursuant to this Section 8, you shall be entitled to
designate the Agreement Payments to be so reduced in order to give effect to
this Section 8. The Company shall provide you with all information reasonably
requested by you to permit you to make such designation. In the event that you
fail to make such designation within 10 business days of the date of termination
of your employment, the Company may effect such reduction in any manner it deems
appropriate. As a result of the uncertainty in the application of Section 280G
of the Internal Revenue Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Agreement Payments will be made
by the Company which should not have been made ("Overpayment") or that
additional Agreement Payments will not be made by the Company which could have
been made ("Underpayment"), in each case, consistent with the calculations
required to be made hereunder. In the event that the
Accounting Firm or a court of competent jurisdiction (in a final judgment as to
which the time for appeal has lapsed or no appeal is available) determines at
any time that an Overpayment has been made, any such Overpayment shall be
treated for all purposes as a loan to you which you shall repay to the Company
together with interest at the applicable short-term federal rate provided for in
Section 1274(d)(1) of the Internal Revenue Code, compounded semi-annually;
provided, however, that no amount shall be payable by you to the Company (or if
paid by you to the Company, such payment shall be returned to you) if and to the
extent such payment would not reduce the amount which is subject to taxation
under Section 4999 of the Internal Revenue Code. In the event that the
Accounting Firm or a court of competent jurisdiction (in a final judgment as to
which the time for appeal has lapsed or no appeal is available) determines at
any time that an Underpayment has occurred, any such Underpayment shall be
promptly paid by the Company to or for the benefit of you together with interest
at the applicable short-term federal rate provided for in Section 1274(d)(1) of
the Internal Revenue Code, compounded semi-annually.
9. TAXES; WITHHOLDING OF TAXES. Without limiting the right of the
Company to withhold taxes pursuant to this Section, you shall be responsible for
all income, excise, and other taxes (federal, state, city, or other) imposed on
or incurred by you as a result of receiving the payments and benefits provided
in this Agreement. The Company may withhold from any amounts payable under this
Agreement all federal, state, city, or other taxes as the Company shall
determine to be appropriate pursuant to any law or government regulation or
ruling.
10. SUCCESSORS, BINDING AGREEMENT. The Company shall require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company to expressly assume and agree to perform this Agreement in the same
manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. Failure of the Company to obtain such
agreement prior to the effectiveness of any such succession shall be a breach of
this Agreement and shall entitle you to compensation from the Company in the
same amount and on the same terms as you would be entitled hereunder if the
Company had terminated your employment after a Change in Control of the Company
occurring at the time of succession. As used in this Agreement "Company" shall
mean the Company as hereinbefore defined and any successor to its business
and/or assets or which otherwise becomes bound by all the terms and provisions
of this Agreement by operation of law. This Agreement shall inure to the benefit
of and be enforceable by your personal or legal representatives, executors,
administrators. successors, heirs, distributees, devisees and legatees. If you
should die while any amounts would still be payable to you hereunder if you had
continued to live, all such amounts, unless otherwise provided herein, shall be
paid in accordance with the terms of this Agreement to your devises, legates, or
other designee or, if there be no such designee, to your estate.
11. NOTICE. Notices and all other communications provided for in
this Agreement shall be in writing and shall be deemed to have been duty given
when delivered or mailed by United States registered mail, return receipt
requested, postage prepaid, addressed to the respective addresses set forth on
the last page of this Agreement, provided that all notices to the
Company shall be directed to the attention of the Secretary of the Company, or
to such other address as either party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective only upon receipt.
12. MISCELLANEOUS. No provisions of this Agreement may be
modified, waived or discharged unless such modification, waiver or discharge is
agreed to in writing signed by you and such officer as may be specifically
designated by the Board. No waiver by either party hereto at any time of any
breach by the other party hereto of, or compliance with, any condition or
provision of this Agreement to be performed by such other party shall be deemed
a waiver of similar or dissimilar provisions or conditions at the same or at any
prior or subsequent time. Any specific compensation program (other than a
severance pay program) that provides for benefits upon a change in control
relative to that program, including without limitation, the Company's stock
option plans and Supplemental Executive Retirement Plan, shall remain in effect,
notwithstanding this Agreement. However, benefits payable to you under this
Agreement shall be in complete substitution for any severance pay benefits you
might be entitled to receive under the Company's Severance Pay Program dated
January 28, 1994, as amended and under the Company's Change in Control Severance
Pay Program dated _______________________, 1998, as amended. The validity,
interpretation, construction and performance of this Agreement shall be governed
by the laws of the State of Delaware.
13. VALIDITY. The invalidity or unenforceability of any one or
more provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
15. JURISDICTION. In the event of any dispute or controversy
arising under or in connection with this Agreement you and the Company hereby
irrevocably consent to the jurisdiction of the State Courts located in Dallas
County, Texas or the United States District Court for the Northern District of
Texas.
16. LEGAL FEES AND EXPENSES. If it should appear to you that the
Company has failed to comply with any of its obligations under this Agreement or
in the event the Company or any other person takes any action to declare this
Agreement void or unenforceable, or institutes any arbitration or litigation
designed to deny, or to recover from, you the benefits intended to be provided
to you hereunder, the Company irrevocably authorizes you from time to time to
retain counsel of your choice, to represent you in connection with the
initiation or defense of any arbitration, litigation, other legal action or
negotiation to resolve any disputes whether by or against the Company or any
director, officer, shareholder or other person affiliated with the Company. The
Company shall pay or cause to be paid and shall be solely responsible for any
and all attorneys' and related fees and expenses incurred by you as a result of
the Company's failure to perform this Agreement or any provision hereof
(including this Section 16) or as a result of the Company or any person
contesting the validly or enforceability of this Agreement or any
provision hereof, up to a maximum amount of twenty-five thousand dollars
($25,000). Any such fees and expenses incurred by you in excess of such
twenty-five thousand dollar ($25,000) maximum amount shall not be payable by the
Company and you hereby agree to indemnify and hold the Company harmless for any
amounts exceeding such maximum, including any amounts awarded to you or to your
counsel or other advisers by any court of competent jurisdiction.
If this letter correctly sets forth our agreement on the subject matter
hereof, kindly sign and return to the Company the enclosed copy of the letter
which will then constitute our agreement on this subject.
Sincerely,
By:_______________________________________
Title: ____________________________________
GREYHOUND LINES, INC.
00000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
ACCEPTED AND AGREED TO AS OF ____________________, 1998
____________________________________
type name and address of employee
_________________________________________
