EXHIBIT 10.19
RETENTION AGREEMENT
AGREEMENT by and among Tyco Acquisition Corp. XIX (NV), a Nevada corporation
("Acquiror"), The CIT Group, Inc., a Delaware corporation (the "Company") and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. (the "Executive") dated as of the 12th day of March, 2001.
Acquiror has determined that because of the unique nature of the Executive's
services to the Company it is in the best interests of Acquiror and its parent
company, Tyco International Ltd., a Bermuda company ("Parent") and Parent's
shareholders to assure that the Company will have the continued dedication of
the Executive and his critical assistance pending the completion of the
acquisition by Acquiror of the Company (the "Acquisition") pursuant to the
Agreement and Plan of Merger dated as of March 12, 2001, and to provide the
Company with the continuity of management Acquiror considers crucial to ensuring
the Company's continued success. Therefore, in order to accomplish these
objectives, the Boards of Directors of Acquiror and the Company have caused
Acquiror and the Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. EFFECTIVE DATE. The "Effective Date" shall mean the effective date of
the Acquisition.
2. RETENTION PERIOD. The Company hereby agrees to employ the Executive,
and the Executive hereby agrees to be employed by the Company subject to the
terms and conditions of this Agreement, for the period commencing on the
Effective Date and ending on the third anniversary thereof (the "Retention
Period").
3. TERMS OF EMPLOYMENT. (a) POSITION AND DUTIES. (i) During the Retention
Period (A) the Executive shall serve as the Chief Executive Officer of the
Company with such authority, duties and responsibilities as are commensurate
with such position and as may be consistent with such position, reporting
directly to the Chief Executive Officer of Parent, (B) the Executive's services
shall be performed in Livingston, New Jersey, and (C) the Executive shall be
appointed to serve as a member of the Board of Directors of Parent (the "Board")
as soon as permitted by Parent's by-laws and until such appointment shall attend
the meetings of Parent's Board of Directors as an observer.
(ii) During the Retention Period, and excluding any periods of vacation
and sick leave to which the Executive is entitled, the Executive agrees to
devote substantially all of his attention and time during normal business hours
to the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive hereunder, to use the
Executive's reasonable best efforts to perform faithfully and efficiently such
responsibilities. During the Retention Period, it shall not be a violation of
this Agreement for the Executive to (A) serve on corporate, civic or charitable
boards or committees, (B) deliver lectures, fulfill speaking engagements or
teach at educational institutions and (C) manage personal investments, so long
as such activities do not significantly interfere with the performance of the
Executive's responsibilities as an employee of the Company in accordance with
this Agreement. It is expressly understood and agreed that to the extent that
any such activities have been conducted by the Executive prior to the Effective
Date, the continued conduct of such activities (or the conduct of activities
similar in nature and scope thereto) subsequent to the Effective Date shall not
thereafter be deemed to interfere with the performance of the Executive's
responsibilities to the Company.
(b) COMPENSATION. (i) BASE SALARY. During the Retention Period, the
Executive shall receive an annual base salary ("Annual Base Salary") of no less
than $1,000,000. During the Retention Period, the Annual Base Salary shall be
reviewed at the time that the salaries of all of the executive officers of the
Company are reviewed. Any increase in Annual Base Salary shall not serve to
limit or reduce any other obligation to the Executive under this Agreement.
Annual Base Salary shall not be reduced after any such increase and the term
Annual Base Salary as utilized in this Agreement shall refer to Annual Base
Salary as so increased.
(ii) ANNUAL BONUS. For each complete fiscal year during the Retention
Period, the Executive shall receive an annual cash bonus ("Annual Bonus") based
upon performance targets with respect to the Company that are mutually
established by and acceptable to the Executive and the Chief Executive Officer
of Parent. In addition, the Executive shall receive a cash bonus in the amount
of $1,000,000 on September 30, 2001, provided that the Company has achieved by
such date the mutually agreed-upon target financial projections established by
the Executive and the Chief Executive Officer of Parent on or prior to the
Effective Date.
(iii) SPECIAL CASH BONUS. On September 30, 2002, the Executive shall
receive a cash payment of $3,000,000 (the "Special Cash Bonus"), provided that
the Company has achieved at least fifteen percent (15%) growth in its net income
from the prior annual period.
(iv) INCENTIVE AWARDS. On the Effective Date, Parent shall grant to the
Executive 300,000 restricted shares of Parent's common stock (the "Restricted
Stock") pursuant to the terms of Parent's stock incentive plan. Except as
otherwise provided herein, all restrictions on the shares of Restricted Stock
shall lapse, and the shares shall be fully vested, on the third anniversary of
the Effective Date. On the Effective Date, Parent shall also grant to the
Executive an option to acquire 1,200,000 shares of Parent's common stock (the
"Option"). The Option will have an exercise price equal to the fair market value
of the stock subject thereto on the date of grant (determined in accordance with
the terms of and standard practice under Parent's stock incentive plan) and
shall remain exercisable for a term not to extend beyond the earlier of the
tenth anniversary of the date of grant or the third anniversary of the
Executive's Date of Termination, whether or not the Executive remains employed
by the Company. Except as otherwise provided herein, the Option shall vest with
respect to one third ( 1/3) of the Option shares on the first anniversary of the
date of grant, one third ( 1/3) of the Option shares on the second anniversary
of the date of grant, and one third ( 1/3) of the Option shares on the third
anniversary of the date of grant. As soon as practicable following the Effective
Date, Parent and the Executive shall enter into a written stock option and
restricted stock agreement under the terms of Parent's stock incentive plan
containing the terms and provisions not inconsistent with those set forth
herein. Without limiting the generality of Section 3(b)(v) hereof, the Executive
shall also be eligible for additional equity and non-equity awards under
Parent's stock incentive and other long-term incentive compensation plans during
the Retention Period as determined by the Board or its delegate in its (or its
delegate's) sole discretion.
(v) OTHER BENEFITS. During the Retention Period, the Executive shall be
entitled to participate in all employee pension, welfare, perquisites, fringe
benefit, and other benefit plans, practices, policies and programs generally
applicable to the most senior executives of the Company on a basis and on terms
no less favorable than that provided to the Executive immediately prior to the
Effective Date. In addition, the Executive shall receive during the Retention
Period all "expense reimbursement" and "additional benefits" specifically
provided to the Executive pursuant to Section 3(c) and (e) of the Employment
Agreement between the Executive and the Company dated as of November 1, 1999
(the "Prior Agreement"), which shall be provided by the Company to the Executive
on the same basis as such benefits were provided to the Executive immediately
prior to the Effective Date. In addition, the Executive shall be entitled to
continued participation in the Company's Executive Retirement Program and all
other supplemental and excess retirement plans existing on the date of this
Agreement during the Retention Period, at economic levels at least equal to the
levels of Executive's participation in such plans or programs as of the date
immediately prior to the Effective Date. In addition, the Executive and his
spouse shall be eligible to receive benefits under the current Company retiree
medical and life insurance plan (as existing on the date of this Agreement) for
the remainder of the lives of the Executive and his spouse provided that the
Company may substitute coverage on a no less favorable basis under another plan
covering employees and former employees of Parent or its subsidiaries in the
event the medical and/or life insurance plan of the Company is terminated. The
Company shall not
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withhold its consent to the Executive's "retirement" at any time after the
Effective Date for purposes of any such plans and programs.
(vi) EXPENSES. During the Retention Period, the Executive shall be
entitled to receive prompt reimbursement for all expenses incurred by the
Executive in accordance with the Company's expense reimbursement policies.
(vii) VACATION. During the Retention Period, the Executive shall be
entitled to paid vacation in accordance with the plans, policies, programs and
practices of the Company as in effect with respect to the senior executives of
the Company.
4. TERMINATION OF EMPLOYMENT. (a) DEATH OR DISABILITY. The Executive's
employment shall terminate automatically upon the Executive's death during the
Retention Period. If the Company determines in good faith that the Disability of
the Executive has occurred during the Retention Period (pursuant to the
definition of Disability set forth below), it may give to the Executive written
notice in accordance with Section 11(a) of this Agreement of its intention to
terminate the Executive's employment. In such event, the Executive's employment
with the Company shall terminate effective on the 30th day after receipt of such
notice by the Executive (the "Disability Effective Date"), provided that, within
the 30 days after such receipt, the Executive shall not have returned to
full-time performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
with the Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive's legal representative.
(b) CAUSE. The Company may terminate the Executive's employment during the
Retention Period for Cause. For purposes of this Agreement, "Cause" shall mean:
(i) the willful and continued failure of the Executive to perform
substantially the Executive's duties with the Company or one of its
affiliates (other than any such failure resulting from incapacity due to
physical or mental illness), after a written demand for substantial
performance is delivered to the Executive by the Board or the Chief
Executive Officer of Parent which specifically identifies the manner in
which the Board or Chief Executive Officer of Parent believes that the
Executive has not substantially performed the Executive's duties, or
(ii) the willful engaging by the Executive in illegal conduct or gross
misconduct which is materially and demonstrably injurious to the Company or
its affiliates, or
(iii) conviction of a felony or guilty or nolo contendere plea by the
Executive with respect thereto; or
(iv) a material breach of Section 9 of this Agreement.
For purposes of this provision, no act or failure to act on the part of the
Executive shall be considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable belief that the
Executive's action or omission was in the best interests of the Company. Any
act, or failure to act, based upon express authority given pursuant to a
resolution duly adopted by the Board with respect to such act or omission or
upon the instructions of the Chief Executive Officer of Parent or a senior
officer of Parent or based upon the advice of counsel for Parent or the
Company shall be conclusively presumed to be done, or omitted to be done, by
the Executive in good faith and in the best interests of the Company.
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(c) GOOD REASON. The Executive's employment may be terminated by the
Executive for Good Reason. For purposes of this Agreement, "Good Reason" shall
mean in the absence of a written consent of the Executive:
(i) the assignment to the Executive of any duties materially
inconsistent in any respect with the Executive's position (including status,
offices, titles and reporting requirements), authority, duties or
responsibilities as contemplated by Section 3(a) of this Agreement, or any
other action by the Company which results in a material diminution in such
position, authority, duties or responsibilities, excluding for this purpose
and an action not taken in bad faith and which is remedied by the Company
promptly after receipt of notice thereof given by the Executive;
(ii) any failure by the Company to comply with any of the provisions of
Section 3(b) of this Agreement, other than failure not occurring in bad
faith and which is remedied by the Company promptly after receipt of notice
thereof given by the Executive;
(iii) the Company's requiring the Executive to be based at any office or
location more than 50 miles from that provided in Section 3(a)(i)(B) hereof,
provided that reasonable travel required in connection with Executive's
reporting relationships and responsibilities to the Board shall not be
deemed a breach hereof;
(iv) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement; or
(v) any failure by the Company to comply with and satisfy Section 10(b)
of this Agreement.
(d) NOTICE OF TERMINATION. Any termination by the Company for Cause, or by
the Executive for Good Reason, shall be communicated by Notice of Termination to
the other party hereto given in accordance with Section 11(a) of this Agreement.
For purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) to the extent applicable, sets forth in reasonable detail the facts
and circumstances claimed to provide a basis for termination of the Executive's
employment under the provision so indicated and (iii) if the Date of Termination
(as defined below) is other than the date of receipt of such notice, specifies
the termination date (which date shall be not more than thirty days after the
giving of such notice). The failure by the Executive or the Company to set forth
in the Notice of Termination any fact or circumstance which contributes to a
showing of Good Reason or Cause shall not waive any right of the Executive or
the Company, respectively, hereunder or preclude the Executive or the Company,
respectively, from asserting such fact or circumstance in enforcing the
Executive's or the Company's rights hereunder.
(e) DATE OF TERMINATION. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein within 30 days of such notice, as the case may
be, (ii) if the Executive's employment is terminated by the Company other than
for Cause or Disability, the Date of Termination shall be the date on which the
Company notifies the Executive of such termination and (iii) if the Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be.
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5. OBLIGATIONS OF THE COMPANY UPON TERMINATION. (a) GOOD REASON; OTHER
THAN FOR CAUSE. If, during the Retention Period, the Company shall terminate
the Executive's employment other than for Cause or the Executive shall terminate
employment for Good Reason:
(i) except as specified below, the Company shall pay to the Executive in
a lump sum in cash within 30 days after the Date of Termination the
aggregate of the following amounts:
A. the sum of (1) the Executive's Annual Base Salary through the Date
of Termination to the extent not theretofore paid, and (2) the product of
(x) the $1,000,000 and (y) a fraction, the numerator of which is the
number of days in the fiscal year in which the Date of Termination occurs
through the Date of Termination, and the denominator of which is 365, in
each case to the extent not theretofore paid (the sum of the amounts
described in clauses (1) and (2), shall be hereinafter referred to as the
"Accrued Obligations"); and
B. the amount equal to the product of (x) three (3) and (y) the sum
of (I) the Executive's Annual Base Salary and (II) $1,000,000 which shall
be paid in accordance with Executive's normal payroll periods immediately
prior to the Date of Termination in equal installments for a period of
three (3) years, subject to Section 9; and
(ii) to the extent not previously paid, the Company shall pay to the
Executive the Special Cash Bonus (without regard to the financial
performance of the Company) in a lump sum in cash within 30 days of the Date
of Termination; and
(iii) the Options and the Restricted Stock and any other stock
incentives held by the Executive shall vest immediately; and
(iv) to the extent not theretofore paid or provided, the Company shall
timely pay or provide to the Executive any other amounts or benefits
required to be paid or provided or which the Executive is eligible to
receive under any plan, program, policy or practice or contract or agreement
of the Company and its affiliates, including but not limited to provision of
benefits under the Company's retiree medical plan as provided in
Section 3(b)(v) hereof (such amounts and benefits, the "Other Benefits") in
accordance with the terms and normal procedures of each such plan, program,
policy or practice; and
(v) to the extent permitted by applicable law, the Executive shall be
credited with age and service credit under all relevant Company retirement
plans (including qualified, supplemental and excess plans) through the third
anniversary of the Effective Date (the "Retirement Benefit").
(b) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's employment shall
be terminated for Cause or the Executive terminates his employment without Good
Reason during the Retention Period, this Agreement shall terminate without
further obligations to the Executive other than the obligation to pay or provide
to the Executive an amount equal to the amount set forth in clause (1) of
Section 5(a)(i)(A) above, and the timely payment or provision of the Other
Benefits, in each case to the extent theretofore unpaid. In the event the
Executive's employment terminates after the expiration of the Retention Period,
the Company shall provide the Executive (and his spouse, as applicable) with the
Other Benefits.
(c) DEATH. If the Executive's employment is terminated by reason of the
Executive's death during the Retention Period, this Agreement shall terminate
without further obligations to the Executive's legal representatives under this
Agreement, other than for payment of Accrued Obligations, and the timely payment
or provision of the Other Benefits. In addition, the Restricted Stock and
Options shall vest immediately. Accrued Obligations shall be paid to the
Executive's estate or beneficiary, as applicable, in a lump sum in cash within
30 days of the Date of Termination.
(d) DISABILITY; RETIREMENT. If the Executive's employment is terminated by
reason of the Executive's Disability or his retirement under the terms of the
applicable the Company or Company
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retirement plan during the Retention Period, this Agreement shall terminate
without further obligations to the Executive, other than for payment of Accrued
Obligations, the Retirement Benefit, and the timely payment or provision of
Other Benefits. In addition, in the case of Disability (but not for retirement)
the Restricted Stock and Options shall vest immediately, and the Executive shall
continue to accrue age and service credit through retirement under the Company's
qualified and nonqualified retirement plans and shall be paid a lump sum cash
payment equal to three times the Executive's Annual Base Salary. Accrued
Obligations shall be paid to the Executive in a lump sum in cash within 30 days
of the Date of Termination.
6. NON-EXCLUSIVITY OF RIGHTS. Except as specifically provided, nothing in
this Agreement shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided by the Company,
or any of its affiliates and for which the Executive may qualify, nor, subject
to Section 11(e), shall anything herein limit or otherwise affect such rights as
the Executive may have under any contract or agreement with the Company, or its
affiliates. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan, policy, practice or program of or
any contract or agreement with the Company or its affiliates at or subsequent to
the Date of Termination shall be payable in accordance with such plan, policy,
practice or program or contract or agreement except as explicitly modified by
this Agreement. As used in this Agreement, the terms "affiliated companies" and
"affiliates" shall include any company controlled by, controlling or under
common control with the Company.
7. FULL SETTLEMENT. The Company's obligation to make the payments provided
for in this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action which the Company may have against the Executive or
others. In no event shall the Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to the
Executive under any of the provisions of this Agreement and, such amounts shall
not be reduced whether or not the Executive obtains other employment. The
Company agrees to pay, to the full extent permitted by law, all legal fees and
expenses which the Executive may reasonably incur as a result of any contest by
the Company, the Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee of performance
thereof (including as a result of any contest by the Executive about the amount
of any payment pursuant to this Agreement), plus in each case interest on any
delayed payment at the applicable Federal rate provided for in
Section 7872(f)(2)(A) of the Internal Revenue Code of 1986, as amended (the
"Code"), if the Executive prevails on any material claim made by him, and
disputed by the Company or Acquiror under the terms of this Agreement.
8. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY. If at any time for any
reason any payment or distribution (a "Payment") by the Company or any other
person or entity to or for the benefit of the Executive is determined to be a
"parachute payment" (within the meaning of Section 280G (b) (2) of the Code),
whether paid or copayable or distributed or distributable pursuant to the terms
of this Agreement or otherwise in connection with or arising out of his
employment with the Company or a change in ownership or excise tax imposed by
Section 4999 of the Code (the "Excise Tax"), within a reasonable period of time
after such determination is reached the Company shall pay to the executive an
additional payment (the "Gross-Up Payment") in an amount such that the net
amount retained by the Executive, after deduction of any Excise Tax on such
Payment and any federal, state or local income or employment tax or other taxes
and Excise Tax on the Gross-Up Payment, shall equal the amount of such Payment
(including any interest or penalties with respect to any of the foregoing). All
determinations concerning the application of the foregoing shall be made by a
nationally recognized firm of independent accountants (together with legal
counsel of its choosing), selected by the Company after consultation with the
Executive (which may be the Company's independent auditors), whose determination
shall be conclusive and binding on all parties. The fees and expenses of such
accountants and counsel shall be borne by the Company. If the Accounting Firm
determines that no Excise Tax is
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payable by the Executive, it shall furnish the Executive with an opinion that
the Executive has substantial authority not to report any Excise Tax on his
Federal income tax return. In the event the Internal Revenue Service assesses
the Executive an amount of Excise Tax in excess of that determined in accordance
with the foregoing, the Company shall pay to the Executive an additional
Gross-Up Payment, calculated as described above in respect of such excess Excise
Tax, including a Gross-Up Payment in respect of any interest or penalties
imposed by the Internal Revenue Service with respect to such excess Excise Tax.
9. CONFIDENTIALITY AND COMPETITIVE ACTIVITY. (a) The Executive
acknowledges that he has acquired and will continue to acquire during the
Retention Period confidential information regarding the business of the Company
and its respective affiliates. Accordingly, the Executive agrees that, without
the written consent of the Board, he will not, at any time, disclose to any
unauthorized person or otherwise use any such confidential information. For this
purpose, confidential information means non-public information concerning the
financial data, business strategies, product development (and proprietary
product data), customer lists, marketing plans, and other proprietary
information concerning the Company and its respective affiliates, except for
specific items which have become publicly available other than as a result of
the Executive's breach of this agreement.
(b) During the Retention Period and for two years after the Date of
Termination (three years in the case of a termination by the Company without
Cause or by the Executive for Good Reason), the Executive will not, without the
written consent of the Board, directly or indirectly, (A) knowingly engage or be
interested in (as owner, partner, stockholder, employee, director, officer,
agent, consultant or otherwise), with or without compensation, any business in
the United States which is in competition with any line of business actively
being conducted on the Date of Termination by the Company; (B) whether or not
the Executive's termination of employment occurred without Cause or for Good
Reason, hire any person who was employed by the Company or any of its
subsidiaries or affiliates (other than persons employed in a clerical or other
non-professional position) within the six-month period preceding the date of
such hiring, or solicit, entice, persuade or induce any person or entity doing
business with the Company or its respective affiliates, to terminate such
relationship or to refrain from extending or renewing the same, and
(C) disparage or publicly criticize Parent, Acquiror, the Company or any of
their affiliates. Nothing herein, however, will prohibit the Executive from
acquiring or holding not more than one percent of any class of publicly traded
securities of any such business; provided that such securities entitle the
Executive to not more than one percent of the total outstanding votes entitled
to be cast by securityholders of such business in matters on which such
securityholders are entitled to vote.
(c) The Executive hereby acknowledges that the provisions of this Section 9
are reasonable and necessary for the protection of the Company and its
respective affiliates. In addition, he further acknowledges that the Company and
its respective affiliates will be irrevocably damaged if such covenants are not
specifically enforced. Accordingly, the Executive agrees that, in addition to
any other relief to which the Company may be entitled, the Company will be
entitled to seek and obtain injunctive relief (without the requirement of any
bond) from a court of competent jurisdiction for the purposes of restraining him
from an actual or threatened breach of such covenants. In addition, and without
limiting the Company's other remedies, in the event of any breach by the
Executive of such covenants, the Company will have no obligation to pay any of
the amounts that continue to remain payable to the Executive after the date of
such breach under Section 5 hereof.
10. SUCCESSORS. (a) This Agreement is personal to the Executive and
without the prior written consent of the Company shall not be assignable by the
Executive otherwise than by will or the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive's
legal representatives. This Agreement shall inure to the benefit of and be
binding upon the Company and Acquiror and its respective successors and assigns.
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(b) Acquiror and the Company will 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 Acquiror or the Company to
assume expressly and agree to perform this Agreement in the same manner and to
the same extent that Acquiror and the Company would be required to perform it if
no such succession had taken place. As used in this Agreement, "Acquiror" and
"Company" shall mean the Company as hereinbefore defined and any successor to
their respective business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
11. MISCELLANEOUS. (a) This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without reference to
principles of conflict of laws. The parties hereto irrevocably agree to submit
to the jurisdiction and venue of the courts of the State of New York, in the
City of New York, in any action or proceeding brought with respect to or in
connection with this Agreement. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended or modified otherwise than by a written agreement executed by the
parties hereto or their respective successors and legal representatives. All
notices and other communications hereunder shall be in writing and shall be
given by hand delivery to the other party or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
IF TO THE EXECUTIVE:
At the most recent address on file for the Executive at the Company;
IF TO ACQUIROR:
▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
IF TO THE COMPANY:
▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(b) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
(c) The Company may withhold from any amounts payable under this Agreement
such Federal, state, or local taxes as shall be required to be withheld pursuant
to any applicable law or regulation.
(d) The Executive's or the Company's failure to insist upon strict
compliance with any provision of this Agreement or the failure to assert any
right the Executive or the Company may have hereunder, including, without
limitation, the right of the Executive to terminate employment for Good Reason
pursuant to Section 4 of this Agreement, shall not be deemed to be a waiver of
such provision or right or any other provision or right of this Agreement.
(e) From and after the Effective Date this Agreement shall supersede any
other employment, severance or change of control agreement between the parties
(including, for this purpose, between the Executive and the Company) with
respect to the subject matter hereof, including, without limitation, the Prior
Agreement, except as expressly provided herein. The Executive acknowledges and
agrees that the benefits provided to him pursuant to this Agreement are made to
the Executive in lieu of and in substitution for his receipt of any such "change
of control" bonus or other "special" cash payment pursuant to the Prior
Agreement.
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IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand and,
pursuant to the authorization from their respective Boards of Directors,
Acquiror and the Company have caused these presents to be executed in their name
and on their behalf, all as of the day and year first above written.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
TYCO ACQUISITION CORP. XIX (NV)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President
THE CIT GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Executive Vice President
and Chief Administrative Officer
AGREED AND ACKNOWLEDGED AS A
GUARANTOR OF PERFORMANCE:
TYCO INTERNATIONAL LTD.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
and Chief Financial Officer
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FORM OF
RETENTION AGREEMENT AMENDMENT
RETENTION AGREEMENT AMENDMENT ("Agreement"), dated as of June , 2002, by
and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., (the "Executive"), and Tyco Capital
Holding, Inc. (formerly known as Tyco Acquisition Corp. XIX (NV)), a Nevada
corporation (the "Company").
WHEREAS, the Company and the Executive have previously entered into a
Retention Agreement dated as of March 12, 2001 ("
Retention Agreement"); and
WHEREAS, in connection with the initial public offering of CIT stock, CIT
Group Inc., a Nevada corporation ("CIT Nevada") will be merged with and into the
Company and immediately thereafter the Company will be merged with and into CIT
Group Inc. (Del) ("CIT") (the mergers are collectively herein referred to as the
"Mergers"); and
WHEREAS, the
Retention Agreement requires that Executive consult with the
Board of Directors of Tyco International Ltd. ("Tyco") prior to taking certain
actions; and
WHEREAS, as a result of the IPO and the separation of CIT from Tyco, the
parties wish to amend all references to the Board in the
Retention Agreement to
mean the Board of Directors of CIT,
NOW THEREFORE, in consideration of the foregoing and of the mutual
agreements contained herein, the parties agree as follows:
1. AMENDMENT TO
RETENTION AGREEMENT. The
Retention Agreement shall be and
hereby is amended to change the defined term "Board" to mean the Board of
Directors of CIT Group Inc. (Del), a Delaware corporation.
2. EFFECT OF AMENDMENT. This Amendment supplements and amends the
Retention
Agreement only to the extent and in the manner specifically set forth herein and
in all other respects the Retention Agreement will remain in full force and
effect.
3. EFFECTIVE TIME. This Amendment shall become effective upon the
consummation of the Mergers.
4. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Retention Agreement as of the date first above written.
CIT GROUP INC. (DEL)
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Executive Vice President
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