EXHIBIT 10.18
EMPLOYMENT AGREEMENT
AGREEMENT by and among CIT Group Inc., a Delaware corporation (the
"Company") and Albert R. Gamper, Jr. (the "Executive") dated as of the 1st day
of January, 2003.
WHEREAS, Executive is a party to a retention agreement by and among the
Executive, Tyco Acquisition Corp XIX (NV), a Nevada corporation, and The CIT
Group, Inc., a Delaware corporation (the "Retention Agreement");
WHEREAS, the Company desires to continue to employ the Executive in
accordance with the following terms and conditions, and the Executive desires to
be so employed.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Effective Date. The "Effective Date" shall mean January 1, 2003.
2. Term. 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 December 31, 2004 (the "Term").
3. Terms of Employment.
(a) Position and Duties.
(i) During the Term (A) the Executive shall serve as the Chairman,
President and 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 Board of Directors of
the Company (the "Board"), (B) the Executive's services shall be performed in
Livingston, New Jersey, and (C) the Executive shall serve as a member of the
Board.
(ii) During the Term, 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 Term, 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 Term, the Executive shall receive an
annual base salary ("Annual Base Salary") of no less than $900,000.00. During
the Term, 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 calendar year during the Term,
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 Board. Executive's target bonus for the
first complete year during the Term shall be 200% ("Target Bonus"). The Target
Bonus in subsequent years of the Term shall not be less than the amount set
forth in the previous sentence.
(iii) Incentive Awards. During the Term, the Executive shall be
eligible to participate in annual and long-term incentive plans applicable to
the most senior executives of the Company.
(iv) Other Benefits. During the Term, 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. During the Term, 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 Term, 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 the Company in the event the medical and/or life insurance
plan of the Company is amended or terminated. The Company shall not withhold its
consent to the Executive's "retirement" at any time after the Effective Date for
purposes of any such plans and programs.
(v) Expense Reimbursement. During the Term, 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.
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(vi) Vacation. During the Term, 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.
(vii) Additional Benefits. In addition to the benefits described
above, the Company shall provide the following additional benefits to the
Executive:
A. Attorney and Accountant Expense Reimbursement. The Company
shall reimburse the Executive for up to $25,000.00 annually for attorneys' fees
and disbursements incurred by the Executive for tax advice or other legal
counseling and for accounting fees incurred by the Executive for tax advice or
other financial planning.
B. Car and Driver. The Company shall provide the Executive
with a car and driver substantially equivalent to that enjoyed by the Executive
under the Executive's past employment agreement.
C. Air Travel. When traveling on Company business or personal
travel, the Executive shall be authorized for security reasons to travel on the
Company's corporate aircraft. The cost of the Executive's personal travel on the
Company's corporate aircraft shall be imputed to the Executive as income. If the
Executive is flying on commercial airlines for Company business, first class is
authorized.
D. Indemnification and Insurance. The Company will provide the
Executive with suitable director's and officer's liability insurance to the
extent available on commercially reasonable terms. If the Company amends the
provisions of the Company's Certificate of Incorporation or its By-Laws with
respect to indemnification in a manner adverse to the Executive, the Executive
shall be entitled to indemnification in accordance with the indemnification
provisions prior to their amendment.
4. Termination of Employment.
(a) Death or Disability. The Executive's employment shall terminate
automatically upon the Executive's death during the Term. If the Company
determines in good faith that the Disability of the Executive has occurred
during the Term (pursuant to the definition of Disability set forth below), it
may give to the Executive written notice in accordance with Section 12(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 later of the 30th day after receipt of such notice by the Executive or the
end of the 180 day period set forth below (the "Disability Effective Date"),
provided that, within the 30 days after receipt of such notice, 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
Term for Cause. For purposes of this Agreement, "Cause" shall mean:
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(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 which specifically identifies the manner in which the
Board 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 or based upon the advice of counsel for the
Company with respect to such act or omission 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.
(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 an action not
taken in bad faith and which is remedied by the Company promptly after receipt
of notice thereof given by the Executive; or
(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; or
(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; or
(iv) any purported termination by the Company of the Executive's
employment otherwise than as expressly permitted by this Agreement; or
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(v) any failure by the Company to comply with and satisfy Section
11(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 12(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.
5. Obligations of the Company upon Termination.
(a) Good Reason; Other Than for Cause. If during the Term 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 Severance Bonus defined below and (y) a fraction, the
numerator of which is the number of days in the calendar 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. For purposes of this Agreement, "Severance Bonus" means the greater
of (I) the Executive's average Annual Bonus over the two calendar years
preceding the Date of Termination and (II) the Executive's Target Bonus.
For the purpose of calculating the Executive's average Annual Bonus
hereunder, $2,752,040 shall be the Executive's Annual Bonus for 2001, and
$750,000 plus the bonus paid to the Executive
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for the time period July 1, 2002 through December 31, 2002 shall be the
Executive's Annual Bonus for 2002; 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) the Severance Bonus,
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) pursuant to and in satisfaction of the Company's obligations
under the Retention Agreement, the Company shall pay to the Executive, in a lump
sum in cash within 30 days of the Date of Termination, (A) $1,500,000, if the
Date of Termination is prior to the date upon which the Executive is paid his
bonus for the time period July 1, 2002 through December 31, 2002, or (B)
$1,500,000 less fifty percent (50%) of the amount of the Executive's bonus for
the time period July 1, 2002 through December 31, 2002, if the Date of
Termination is after the date upon which the Executive is paid his bonus for the
time period July 1, 2002 through December 31, 2002; and
(iii) all restrictions on restricted stock held by the Executive
shall lapse and all outstanding unvested stock options, stock appreciation
rights, tandem options, tandem stock appreciation rights, performance shares,
performance units, or any similar equity share or unit 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)(iv) hereof
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 three additional years of age and service credit under all
relevant Company retirement plans (including qualified, supplemental and excess
plans, including without limitation the Company's Executive Retirement Plan and
New Executive Retirement Plan, and, for the purpose of clarity, to the extent
the Executive is a participant in the cash balance arrangement under the
Company's Retirement Plan, the cash balance account will be increased as if the
Executive had received three additional years of contributions based upon the
Executive's compensation as of the Date of Termination); and
(vi) the reasonable costs of outplacement services; a fully equipped
office located at the Company's headquarters in northern New Jersey (or, if such
headquarters are moved 15 miles from the location of the Company's headquarters
as of the Effective Date, he shall be provided with suitable office space within
10 miles of the location of the Company's headquarters as of the Effective Date)
and a secretary to be used by the Executive for up to two years; attorney and
accountant fee reimbursement as described in Section 3(b)(vii)(A) hereof for two
years; a car and driver as described in Section 3(b)(vii)(B) hereof for two
years; and, insurance and indemnification as described in Section 3(b)(vii)(D)
hereof for five years.
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(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 Term, this Agreement shall terminate without further
obligations to the Executive other than the obligation to pay to the Executive
an amount equal to the amount set forth in clause (1) of Section 5(a)(i)(A)
above and timely payment or provision of the benefits set forth in Section
5(a)(iv) above, in each case to the extent theretofore unpaid.
(c) Death. If the Executive's employment is terminated by reason of the
Executive's death during the Term, this Agreement shall terminate without
further obligations to the Executive's legal representatives under this
Agreement, other than for (i) payment of a lump sum cash amount equal to the
Executive's Annual Base Salary through the remainder of the Term to the
Executive's estate or beneficiaries; (ii) payment of the amount set forth in
Section 5(a)(i)(A) above (to the Executive's estate or beneficiary, as
applicable, in a lump sum in cash within 30 days of the Date of Termination),
and (iii) and timely payment or provision of the benefits set forth in Section
5(a)(iv) above. In addition, all restrictions on restricted stock held by the
Executive shall lapse and all outstanding unvested stock options, stock
appreciation rights, tandem options, tandem stock appreciation rights,
performance shares, performance units, or any similar equity share or unit held
by the Executive shall vest immediately.
(d) Disability. If the Executive's employment is terminated by reason of
the Executive's Disability, this Agreement shall terminate without further
obligations to the Executive, other than for (i) payment of a lump sum cash
amount equal to three (3) times the Executive's Annual Base Salary (such amount
to be offset by long term disability payments payable to the Executive for up to
three (3) years); (ii) payment of the amount set forth in Section 5(a)(i)(A)
above (in a lump sum in cash within 30 days of the Date of Termination), and
(iii) timely payment or provision of the benefits set forth in Section 5(a)(iv)
above. In addition, all restrictions on restricted stock held by the Executive
shall lapse and all outstanding unvested stock options, stock appreciation
rights, tandem options, tandem stock appreciation rights, performance shares,
performance units, or any similar equity share or unit held by the Executive
shall vest immediately. To the extent permitted by applicable law and in
accordance with the Company's Long Term Disability policy, the Executive shall
continue to accrue age and service credit through retirement under the Company's
qualified and nonqualified retirement plans.
(e) Retirement, Expiration of Term. If the Executive's employment is
terminated by reason of his retirement under the terms of the applicable Company
retirement plan during the Term or upon expiration of the Term, this Agreement
shall terminate without further obligations to the Executive, other than for
payment of the amount set forth in Section 5(a)(i)(A) above (in a lump sum in
cash within 30 days of the Date of Termination), and timely payment or provision
of the benefits set forth in Section 5(a)(iv) above. In addition, the Company
shall pay or provide to the Executive a fully equipped office located at the
Company's headquarters in northern New Jersey (or, if such headquarters are
moved 15 miles from the location of the Company's headquarters as of the
Effective Date, he shall be provided with suitable office space within 10 miles
of the location of the Company's headquarters as of the Effective Date) and a
secretary to be used by the Executive for up to two years; attorney and
accountant fee reimbursement as described in Section 3(b)(vii)(A) hereof for two
years; a car and driver as described in Section 3(b)(vii)(B) hereof for two
years; and, insurance and indemnification as described in Section 3(b)(vii)(D)
hereof for five years.
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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 12(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 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 payable by the Executive, it shall furnish the
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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 Term 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 nonpublic 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. Notwithstanding the foregoing, nothing
herein shall prevent Executive from responding to lawful subpoenas or court
orders without the Company's prior written consent; provided, that the Executive
shall have given the Company prior written notice of any such subpoena or court
order promptly following receipt thereof.
(b) During the Term 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 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 the Company or any of
its 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
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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. Change of Control.
(a) Termination. In the event of a Change of Control during the
Term, the Executive may elect to terminate his employment on the 90th day after
the Change of Control. If (i) the Executive elects to terminate his employment
on the 90th day after a Change of Control, or (ii) the Executive's employment is
terminated without Cause or if the Executive terminates his employment for Good
Reason within 90 days of a Change of Control (collectively, a "Change of Control
Termination"), Executive shall be entitled to the payments and benefits set
forth in Section 5(a) of this Agreement. Notwithstanding the provisions of
Section 5(a) of this Agreement, all payments made the Executive upon a Change of
Control Termination shall be payable in a lump sum within 30 days of the Change
of Control Termination.
(b) Change of Control Defined. For purposes of this Agreement, a
"Change of Control" shall be deemed to have occurred if:
(i) any Person or Group, as a result of a Transaction (as
defined below) or otherwise, becomes the Beneficial Owner, directly or
indirectly, of securities representing a majority of the combined voting power
of the Company's then outstanding securities generally entitled to vote for the
election of directors (capitalized terms not otherwise defined herein are used
as defined under the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder); or
(ii) as a direct or indirect result of any cash tender offer,
acquisition of securities, merger or other business combination, acquisition or
sale of assets, actual or threatened election contest (including any settlement
thereof or any agreement intended to avoid or settle such a contest) or
contractual arrangement, or any combination of the foregoing (a "Transaction"),
the persons who were directors of the Company immediately before the Transaction
(the "Incumbent Board") shall cease to constitute at least a majority of the
Board of the Company or any successor to the Company (including any entity
resulting from such Transaction or which, as a result of such Transaction,
directly or indirectly owns or controls the Company or such successor or all or
substantially all of its assets); provided that any person becoming a director
thereafter whose election as a director was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be deemed to
be a member of the Incumbent Board.
11. 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 its respective successors and
assigns.
(b) The Company requires 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 assume expressly and agree to perform
this Agreement in the same manner and to the same extent the Company would be
required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as herein before defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
12. 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 States of New York or New Jersey 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 home address on file for the Executive at the Company;
If to the Company:
1 CIT Drive
Livingston, New Jersey 07039
Attention: General Counsel
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(c) 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
and the Retention Agreement with respect to the subject matter hereof, except as
expressly provided herein.
IN WITNESS WHEREOF, the Executive has hereunto set the Executive's hand
and, pursuant to the authorization from the Company's Board of Directors 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/ Albert R. Gamper, Jr.
---------------------------------------
Albert R. Gamper, Jr.
CIT GROUP INC.
By /s/ Thomas H. Kean
------------------------------------
Thomas H. Kean
Compensation & Governance Committee
Chairman
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