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EXHIBIT 9
AMENDED AND RESTATED
SEVERANCE AGREEMENT
THIS AGREEMENT is made by and between JEVIC TRANSPORTATION, INC., a
New Jersey corporation (the "Company"), and RAYMOND M. CONLIN (the
"Executive").
WHEREAS, the Company considers it essential to the best interests of
its stockholders to foster the continuous employment of key management
personnel; and
WHEREAS, the Board of Directors of the Company (the "Board")
recognizes that, as is the case with many publicly held corporations, the
possibility of a Change in Control (as defined in the last Section hereof)
exists and that such possibility, and the uncertainty and questions which it
may raise among management, may result in the departure or distraction of
management personnel to the detriment of the Company and its stockholders; and
WHEREAS, the Board has determined that appropriate steps should be
taken to reinforce and encourage the continued attention and dedication of
members of the Company's management, including the Executive, to their assigned
duties without distraction in the face of potentially disturbing circumstances
arising from the possibility of a Change in Control; and
WHEREAS, the Company and Executive entered into a severance agreement
relating to the same matters, dated as of April 5, 1999 ("Prior
Agreement"); and
WHEREAS, the Company and Executive wish to and do hereby amend and
restate the Prior Agreement, which is specifically superseded by the terms
hereof;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, this Company and the Executive hereby agree as
follows:
1. Defined Terms. The definition of capitalized terms used in, this
Agreement is provided in the last Section hereof.
2. Term of Agreement. This Agreement shall commence on the date on
which shares of common stock of the Company are purchased pursuant to the
tender offer by Yellow Corporation and/or a subsidiary of Yellow Corporation
("Effective Date"), and shall continue in effect through December 31, 2001;
provided, however, that commencing on January 1, 2002 and each January 1
thereafter, the term of this Agreement shall automatically be extended for one
additional year unless, not later than September 30 of the preceding year, the
Company or the Executive shall have given notice not to extend this Agreement
or a Change in Control shall have occurred prior to such January 1; and further
provided, however, if a Change in Control shall have occurred during the term
of this Agreement, this Agreement shall continue in effect for a period ending
on the last day of the twenty-fourth calendar month beginning after the month
in which such Change in Control occurred.
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3. Company's Covenants Summarized. To induce the Executive to remain
in the employ of the Company and in consideration of the Executive's covenants
set forth in Section 4 hereof, the Company agrees, under the conditions
described herein, to pay the Executive the Severance Payments described in
Section 6.1 hereof and the other payments and benefits described herein in the
event the Executive's employment with the Company is terminated following a
Change in Control and during the term of this Agreement. Except as provided in
Article 5, Section 9.1, or Section 6.2 hereof, no amount or benefit shall be
payable under this Agreement unless there shall have been (or, pursuant to
Section 6.1 hereof, there shall be deemed to have been) a termination of the
Executive's employment with the Company following a Change in Control. This
Agreement shall not be construed as creating an express or implied contract of
employment and, except as otherwise agreed in writing between the Executive and
the Company, the Executive shall not have any right to be retained in the
employ of the Company.
4. The Executive's Covenants.
4.1. The Executive agrees that, subject to the terms and conditions
of this Agreement, in the event of a Potential Change in Control during the
term of this Agreement, the Executive will remain in the employ of the Company
until the earliest of (i) a date which is three (3) months after the date of
such Potential Change in Control, (ii) the date of a Change in Control, (iii)
the date of termination by the Executive of the Executive's employment for Good
Reason (determined by treating the Potential Change in Control as a Change in
Control in applying the definition of Good Reason under Section 15(M)(i)
through (vii) hereof) or by reason of death, Disability or retirement, or (iv)
the termination by the Company of the Executive's employment for any reason.
4.2. While the Executive is employed by the Company and for a
period of one year after the effective date of Executive's termination of
employment if Executive's employment is terminated following a Change in
Control (or before a Change in Control but following a Potential Change in
Control under the circumstances set forth in Section 6.1) and Executive
receives any payment under Section 6.1 of this Agreement, the Executive
covenants and agrees that he will not, whether for himself or for any other
person, business, partnership, association, firm, company or corporation,
directly or indirectly, call upon, solicit, divert or take away or attempt to
solicit, divert or take away, any of the customers or employees of the Company
that are or were customers or employees at any time during his employment with
the Company. The Executive acknowledges that the Company would be irreparably
injured by a violation of this Section 4.2, and agrees that the Company, in
addition to other remedies available to it for such breach or threatened
breach, shall be entitled to a preliminary injunction, temporary restraining
order or other equitable relief restraining the Executive from any actual or
threatened breach of this Section 4.2 without any bond or other security being
required.
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5. Compensation Other Than Severance Payments.
5.1. Following a Change in Control and during the term of this
Agreement, during any period that the Executive fails to perform the
Executive's full-time duties with the Company as a result of incapacity due to
physical or mental illness, the Company shall pay the Executive's full salary
to the Executive at the rate in effect at the commencement of any such period,
together with all compensation and benefits payable to the Executive under the
terms of any compensation or benefit plan, program or arrangement maintained by
the Company during such period, until the Executive's employment is terminated
by the Company for Disability. Nothing in this Section 5.1 shall entitle
Executive to any Company-provided insured or uninsured disability, sick pay or
other similar wage replacement benefits in addition to the Company's payment of
salary during the period of illness.
5.2. If the Executive's employment shall be terminated for any
reason following a Change in Control and during the term of this Agreement, the
Company shall pay the Executive's full salary to the Executive through the Date
of Termination at the rate in effect at the time the Notice of Termination is
given, together with all compensation and benefits payable to the Executive
through the Date of Termination under the terms of any compensation or benefit
plan, program or arrangement maintained by the Company during such period.
5.3. If the Executive's employment shall be terminated for any
reason following a Change in Control and during the term of this Agreement, the
Company shall pay the Executive's normal post-termination compensation and
benefits to the Executive and such payments become due. Such post-termination
compensation and benefits shall be determined under, and paid in accordance
with, this Company's retirement, insurance and other compensation or benefit
plans, programs and arrangements.
5.4. Whether or not the Executive's employment has been terminated,
following a Change in Control, the Company (or any successor to the Company in
connection with such Change in Control) shall upon the Executive's demand
purchase from the Executive any shares of Company or successor company stock
then held by the Executive (the "Shares"). The Company and any successor shall
not be under any such obligation at any time that there exists an established
market for the Shares. The Company also shall not be under any such obligation
at any time that the Executive's right to demand the purchase of the Shares, or
the exercise of that right, would prohibit pooling of interests accounting in
any acquisition of or by the Company. The price of such Shares shall be the
greater of their fair market value or the per share consideration paid in
connection with such Change in Control, if any. The purchase price for such
Shares shall be paid by the Company or any successor in a single sum of cash
within seven days following such demand, except as the Executive and Company
may agree otherwise.
5.5. Whether or not the Executive's employment is later terminated,
upon purchase of shares of common stock of the Company pursuant to the tender
offer by Yellow
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Corporation and/or a subsidiary of Yellow Corporation, the Company shall pay to
the Executive a single sum of $55,000, less any required withholding as
further set forth in Section 11.
6. Severance Payments.
6.1. The Company shall pay the Executive the payments described in
this Section 6.1 (the "Severance Payments") upon the termination of the
Executive's employment following a Change in Control and during the term of
this Agreement, in addition to the payments and benefits described in Section 5
hereof, unless such termination is (i) by the Company for Cause, (ii) by reason
of death or Disability more than six months following the Change in Control, or
(iii) by the Executive without Good Reason. The Company shall pay the Executive
the Severance Payments upon termination of the Executive's employment following
a Potential Change in Control but before a Change in Control and during the
term of this Agreement, in addition to the payments and benefits described in
Section 5 hereof, if:
(i) the termination is initiated, caused or directed by any
Person who has initiated a transaction the consummation of which would result
in a Change in Control; and
(ii) the termination would have been by the Executive for Good
Reason or by the Company without Cause if a Change in Control had occurred on
the date of the Potential Change in Control.
(A) In lieu of any further salary payments to the Executive
for periods subsequent to the Date of Termination and in lieu of any severance
benefit otherwise payable to the Executive, the Company shall pay to the
Executive a lump sum severance payment, in cash, equal to the Applicable
Multiplier times the sum of (i) the highest of the Executive's annual base
salary in effect immediately prior to the occurrence of the event or
circumstance upon which the Notice of Termination is based, or such salary in
effect immediately prior to the Change in Control, or such salary in effect
immediately prior to a Potential Change in Control, and (ii) the higher of (x)
the target bonus for the year in which the Notice of Termination is provided or
(y) the highest of the actual bonuses paid or payable to the Executive for any
of the five years completed immediately prior to the occurrence of the event or
circumstance upon which the Notice of Termination is based.
(B) Notwithstanding any provision of any bonus plan, the
Company shall pay to the Executive a lump sum amount, in cash, equal to the sum
of (i) any bonus amount which has been allocated or awarded to the Executive
for a completed fiscal year or other measuring period preceding the Date of
Termination but has not yet been paid (pursuant to Section 5.2 hereof or
otherwise) and (ii) a pro rata portion to the Date of Termination of the
aggregate value of all contingent bonus awards to the Executive for all
uncompleted periods calculated as to each such award by assuming the
achievement of the target performance level
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within the performance range established with respect to such award and basing
such pro-rata portion upon the portion of the award period that has elapsed as
of the Date of Termination;
(C) For (i) a twelve (12) month period after the Date of
Termination if Executive has one year or less of continuous service as an
employee of the Company, (ii) a twenty-four (24) month period after the Date of
Termination if Executive has more than one year but not more than two years of
continuous service as an employee of the Company, and (iii) a thirty-six (36)
month period after the Date of Termination if Executive has more than two years
of continuous service as an employee of the Company, the Company shall arrange
to provide the Executive with life, disability, accident and health insurance
benefits (and specifically including Executive's split-dollar life insurance
arrangement now in effect), and all other material benefits or perquisites
substantially similar to those which the Executive is receiving immediately
prior to the Notice of Termination (without giving effect to any reduction in
such benefits subsequent to a Change in Control if such reduction constitutes
Good Reason); Notwithstanding any other provision of this Agreement, the
Company shall continue to fund Executive's split-dollar life insurance
arrangement until dividends payable under the policy are sufficient to pay
premiums under the policy. Benefits otherwise receivable by the Executive
pursuant to this Section 6.1(C) shall be reduced to the extent comparable
benefits are actually received by or made available to the Executive without
cost during the above-referenced period. In addition, any such benefits
actually received by the Executive shall be reported to the Company by the
Executive.
6.2. (A) Whether or not the Executive becomes entitled to the
Severance Payments, if any of the Total Payments will be subject to the Excise
Tax, the Company shall pay to the Executive an additional amount (the "Gross-Up
Payment") such that the net amount retained by the Executive, after deduction
of any Excise Tax on the Total Payments and any federal, state and local income
tax and Excise Tax upon the payment provided for by this Section 6.2, shall be
equal to the excess of the Total Payments over the payment provided for by this
Section 6.2.
(B) For purposes of determining whether any of the Total
Payments will be subject to the Excise Tax and the amount of such Excise Tax,
(i) any payments or benefits received or to be received by the Executive in
connection with a Change in Control or the Executive's termination of
employment, whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any Person whose actions result in a
Change in Control or any Person affiliated with the Company or such Person (the
"Total Payments"), shall be treated as "parachute payments" (within the meaning
of section 280G(b)(2) of the Code) unless, in the opinion of tax counsel
selected by the Company's independent auditors and reasonably, acceptable to
the Executive, such payments or benefits (in whole or in part) do not
constitute parachute payments, including by reason of section 280G(b)(4)(A) of
the Code, and all "excess parachute payments" (within the meaning of section
280G(b)(1) of the Code) shall be treated as subject to the Excise Tax unless,
in the opinion of such tax counsel, such excess parachute payments (in whole or
in part) represent reasonable compensation for
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services actually rendered (within the meaning of section 280G(b)(4)(B) of the
Code), or are otherwise not subject to the Excise Tax, and (ii) the value of
any noncash benefits or any deferred payment or benefit shall be determined by
the Company's independent auditors in accordance with the principles of actions
280G(d)(3) and (4) of the Code. For purposes of determining the amount of the
Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at
the highest marginal rate of federal income taxation in the calendar year in
which the Gross-Up Payment is to be made, FICA taxes at the highest rate
applicable with respect to wages in excess of the Social Security taxable wage
base in effect for the year of payment, and state and local income taxes at the
highest marginal rate of taxation in the state and locality of the Executive's
residence on the Date of Termination (or such other time as is hereinafter
described), net of the maximum reduction in federal income taxes which could be
obtained from deduction of such state and local taxes.
(C) In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at the time
of termination of the Executive's employment (or such other time as is
hereinafter described), the Executive shall repay to the Company, at the time
that the amount of such reduction in Excise Tax is finally determined, the
portion of the Gross-Up Payment attributable to such reduction (plus that
portion of the Gross-Up Payment attributable to the Excise Tax and federal,
state and local income tax imposed on the Gross-Up Payment being repaid by the
Executive to the extent that such repayment results in a reduction in Excise
Tax or a federal, state or local income tax deduction) plus interest on the
amount of such repayment at the rate provided in section 1274(b)(2)(3) of the
Code. In the event that the Excise Tax is determined to exceed the amount taken
into account hereunder at the time of the termination of the Executive's
employment (or such other time as is hereinafter described) (including by
reason of any payment the existence or amount of which cannot be determined at
the time of the Gross-Up Payment), the Company shall make an additional
Gross-Up Payment in respect of such excess (plus any interest, penalties or
addition payable by the Executive with respect to such excess) at the time that
the amount of such excess is finally determined. The Executive and the Company
shall each reasonably cooperate with the other in connection with any
administrative or judicial proceedings concerning the existence or amount of
liability for Excise Tax with respect to the Total Payments. If an Executive
who remains in the employ of the Company becomes entitled to the payment
provided for by this paragraph, such payment shall be made no later than the
later of (i) the fifth day following the date on which the Executive notifies
the Company that he is subject to the Excise Tax and (ii) twenty days prior to
the date on which the Excise Tax is initially due.
6.3. The payments provided for in Section 6.1 hereof (other than
Section 6.1(C)), in Section 6.2 hereof, and in Section 5.5 hereof shall be made
not later than the fifth day following the Date of Termination, unless
Executive elects a later date of payment for all or any part thereof; provided,
however, that, if the amounts of such payments cannot be finally determined on
or before such day, the Company shall pay to the Executive on such day an
estimate, as determined in good faith by the Company of the minimum amount of
such payments to which the Executive is clearly entitled and shall pay the
remainder of such payments (together
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with interest at the rate provided in section 1274(b)(2)(B) of the Code) as
soon as the amount thereof can be determined but in no event later than the
thirtieth (30th) day after the Date of Termination. In the event that the
amount of the estimated payments exceeds the amount subsequently determined to
have been due, such excess shall constitute a loan by the Company to the
Executive, payable on the fifth (5th) business day after demand by the Company
(together with interest at the rate provided in section 1274(b)(2)(9) of the
Code). At the time that payments are made under this section, the Company shall
provide the Executive with a written statement setting forth the manner in
which such payments were calculated and the basis for such calculations
including, without limitation, any opinions or other advice the Company has
received from outside counsel, auditors or consultants (and any such opinions
or advice which are in writing shall be attached to the statement).
6.4. The Company also shall pay to the Executive all legal fees and
expenses incurred in good faith by the Executive as a result of a termination
of the Executive's employment following a Change in Control and during the term
of this Agreement (including all such fees and expenses, if any, incurred in
disputing in good faith any such termination or in seeking in good faith to
obtain or enforce any benefit or right provided by this Agreement or in
connection with any tax audit or proceeding to the extent attributable to the
application of section 4999 of the Code to any payment or benefit provided
hereunder). For purposes of this Section 6.4, an Executive shall be deemed to
have acted in good faith unless an arbitrator finds that the Executive's action
resulting in such legal fees and expenses was excessive. Such payments shall be
made within five (5) business days after delivery of the Executive's written
request for payment accompanied with such evidence of fees and expenses
incurred as the Company reasonably may require.
7. Termination Procedures and Compensation During Dispute.
7.1. After a Change in Control and during the term of this
Agreement, any purported termination of the Executive's employment (other than
by reason of death) shall be communicated by written Notice of Termination from
one party hereto to the other party hereto in accordance with Section 10
hereof. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this
Agreement relied upon and shall set 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. Further, a Notice of Termination
for Cause issued by the Company is required to include a copy of a resolution
duly adopted by the affirmative vote of not less than three-quarters (3/4) of
the entire membership of the Board at a meeting of the Board which was called
and held for the purpose of considering such termination (after reasonable
notice to the Executive and an opportunity for the Executive, together with the
Executive's Counsel, to be heard before the Board) finding that, in the good
faith opinion of the Board, the Executive engaged in conduct set forth in
clause (i) or (ii) of the definition of Cause herein, and specifying the
particulars thereof in detail.
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7.2. "Date of Termination," with respect to any purported
termination of the Executive's employment after a Change in Control and during
the term of this Agreement,
shall mean (i) If the Executive's employment is terminated for Disability,
thirty (30) days after Notice of Termination is given (provided that the
Executive shall not have returned to the full-time performance of the
Executive's duties during such thirty (30) day period), and (ii) if the
Executive's employment is terminated by for any other reason, the date
specified in the Notice of Termination (which, in the case of a termination by
the Company, shall not be less than thirty (30) days (except in the case of a
termination for Cause) and, in the case of a termination by the Executive,
shall not be less than fifteen (15) days nor more than sixty (60) days from the
date such Notice of Termination is given).
7.3. If within fifteen (15) days after any Notice of Termination is
given or, if later, prior to the Date of Termination (as determined without
regard to this Section 7.3), either party notifies the other party that a
dispute exists concerning the termination, the Date of Termination shall be the
date on which the dispute is finally resolved, either by mutual written
agreement of the parties or by a final judgment, order or decree of a court of
competent jurisdiction (which is not appealable or with respect to which the
time for appeal therefrom has expired and no appeal has been perfected);
provided, however, that the Date of Termination shall be extended by a notice
of dispute provided by the Executive only if such notice in given in good faith
and the Executive pursues the resolution of such dispute with reasonable
diligence.
7.4. If a purported termination occurs following a Change in
Control and during the term of this Agreement, and such termination is disputed
in accordance with Section 7.3 hereof, the Company shall continue to pay the
Executive the full compensation in effect when the notice giving rise to the
dispute was given (including, but not limited to, salary) and continue the
Executive as a participant in all compensation, benefit and insurance plans in
which the Executive was participating when the notice giving rise to the
dispute was given until the Date of Termination, determined in accordance with
Section 7.3 hereof. Amounts paid under this Section 7.4 are in addition to all
other amounts due under this Agreement (other than those due under Section 5.2
hereof) and shall not be offset against or reduce any other amounts due under
this Agreement.
8. No Mitigation. The Company agrees that, if the Executive's
employment by the Company is terminated during the term of this Agreement, the
Executive is not required to seek other employment or to attempt in any way to
reduce any amounts payable to the Executive by the Company pursuant to Section
6 or Section 7.4 hereof. Further, the amount of any payment or benefit provided
for in such Section 6 (other than Section 6.1(C)) or such Section 7.4 shall not
be reduced by any compensation earned by the Executive as the result of
employment by another employer, by retirement benefits, by offset against any
amount claimed to be owed by the Executive to the Company, or otherwise.
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9. Successors; Binding Agreement.
9.1. In addition to any obligations imposed by law upon any
successor to the Company, the Company will require any such successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business 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 assumption and agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle the Executive to compensation from the Company in
the same amount and on the same terms as the Executive would be entitled to
hereunder if the Executive were to terminate the Executive's employment for
Good Reason after a Change in Control, except that, for purposes of
implementing the foregoing, the date on which any such succession becomes
effective shall be deemed the Date of Termination.
9.2. This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive shall die while any amount would still be payable to the Executive
hereunder (other than amounts which, by their terms, terminate upon the death
of the Executive) if the Executive had continued to live, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to the executors, personal representatives or administrators of
the Executive's estate.
10. Notices. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when personally delivered or mailed by United
states registered mail, return receipt requested, postage prepaid, addressed to
the respective addresses set forth below, or to such other address as either
party may have furnished to the other in writing in accordance herewith, except
that notice of change of address shall be effective only upon actual receipt:
To the Company:
Jevic Transportation, Inc.
700 Creek Road
P.O. Box 5157
Delanco, NJ 08075
To the Executive:
Name
Address
City, State ZIP
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11. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the Executive 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 he deemed
a waiver of similar or dissimilar provisions or conditions at the same or at
any prior or subsequent time. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not expressly set forth in this Agreement.
The validity, interpretation, and construction of this Agreement shall be
governed by the laws of the State of New Jersey. Payments provided for
hereunder shall be paid net withholding required under federal, state or local
law and any additional withholding to which the Executive has agreed. The
obligations of the Company and the Executive under Sections 5, 6, and 7 which
arise during the term of this Agreement shall survive the expiration of the
term of this Agreement.
12. Validity. The invalidity or unenforceability of any provision 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.
13. Counterparts; Coordination with Employment Agreement.
13.1. This Agreement may be executed in several counterparts, each
of which shall be deemed to be an original but all of which together will
constitute one and the same instruments.
13.2. The terms of this Agreement shall be coordinated with and
applied in conjunction with the terms of the Executive's employment agreement,
if any, with the Company. In general, it is the intent of the parties that,
subsequent to a Change in Control and during the term of this Agreement, the
provisions of this Agreement shall supersede and substitute for those
provisions of the employment agreement relating to the Executive's entitlement
to benefits in connection with any termination of the Executive's employment,
but shall not supersede for any period the provisions of such employment
agreement pertaining to the terms of the Executive's employment. Except for
circumstances relating to a termination of employment following a Change in
Control during the term of this Agreement, as provided for herein, all terms
and conditions of the Executive's employment with the Company shall be governed
by the terms of the Executive's employment agreement (including but not limited
to any such term granting additional years of service to the Executive for
purposes of any of the Company's employee benefit plans).
14. Settlement of Disputes; Arbitration. All claims by the Executive
for benefits under this Agreement shall be directed to and determined by the
Board and shall be in writing. Any denial by the Board of a claim for benefits
under this Agreement shall be delivered to the Executive in writing and shall
set forth the specific reasons for the denial and the specific
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provisions of this Agreement relied upon. The Board shall afford a reasonable
opportunity to the Executive for a review of the decision denying a claim and
shall further allow the Executive to appeal to the Board a decision of the
Board within sixty (60) days after notification by the Board that the
Executive's claim has been denied. Any further dispute or controversy arising
under or in connection with this Agreement shall be settled exclusively by
arbitration in Burlington County, New Jersey in accordance with the rules of
the American Arbitration Association then in effect. Judgment may be entered on
the arbitrator's award in any court having jurisdiction; provided, however,
that the Executive shall be entitled to seek specific performance of the
Executive's right to be paid until the Date of Termination during the pendency
of any dispute or controversy arising under or in connection with this
Agreement.
15. Definitions. For purposes of this Agreement, the following terms
shall have the meanings indicated below:
(A) "Applicable Multiplier" means two, except as otherwise
specifically provided herein with the consent of the Executive.
(B) "Base Amount" shall have the meaning defined in section
280G(b)(3) of the Code.
(C) "Board" shall mean the Board of Directors of the Company.
(D) "Cause" for termination by the Company of the Executive's
employment, after any Potential Change in Control or Change in Control, shall
mean the willful and continued failure by the Executive to substantially
perform the Executive's duties with the Company (other than any such failure
resulting from the Executive's incapacity due to physical or mental illness or
any such actual or anticipated failure after the issuance of a Notice of
Termination for Good Reason by the Executive pursuant to Section 7.1 hereof)
after a written demand for substantial performance is delivered to the
Executive by the Board, which demand specifically identifies the manner in
which the Board believes that the Executive has not substantially performed the
Executive's duties. For purposes of this definition, no act, or failure to act,
on the Executive's part shall be "willful" unless done, or omitted to be done,
by the Executive not in good faith and without reasonable belief that the
Executive's act, or failure to act, was in the best interest of the Company.
(E) A "Change in Control" shall be deemed to have occurred if
the events set forth in any one of the following paragraphs shall have
occurred:
(i) The acquisition in one or more transactions by any
"Person" (as the term person is used for purposes of Sections 13(d) or 14(d) of
the Securities Exchange Act of 1934, as amended (the "1934 Act")) of
"Beneficial Ownership" (as the term beneficial ownership is used for purposes
of Rule 13d-3 promulgated under the 1934 Act) of fifty
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percent (50%) or more of the combined voting power of the Company's then
outstanding voting securities (the "Voting Securities"); or
(ii) Approval by shareholders of the Company of (A) a
merger, reorganization or consolidation involving the Company if the
shareholders of the Company immediately before such merger, reorganization or
consolidation do not or will not own directly or indirectly immediately
following such merger, reorganization or consolidation, more than fifty percent
(50%) of the combined voting power of the outstanding voting securities of the
corporation resulting from or surviving such merger, reorganization or
consolidation in substantially the same proportion as their ownership of the
Voting Securities immediately before such merger, reorganization or
consolidation, or (B) (1) a complete liquidation or dissolution of the Company
or (2) an agreement for the sale or other disposition of all or substantially
all of the assets of the Company; or
(iii) Acceptance by shareholders of the Company of shares
in a share exchange if the shareholders of the Company immediately before such
share exchange do not or will not own directly or indirectly immediately
following such share exchange more than fifty percent (50%) of the combined
voting power of the outstanding voting securities of the corporation resulting
from or surviving such share exchange in substantially the same proportion as
the ownership of the Voting Securities outstanding immediately before such
share exchange.
Notwithstanding the foregoing, a Change in Control shall not
include any event, circumstance or transaction occurring during the six-month
period following a Potential Change in Control which Potential Change in
Control results from the action of any entity or group which includes the
Executive (a "Management Group").
(F) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time. References to specific sections of the code shall
include any successors thereto.
(G) "Company" shall mean Jevic Transportation, Inc., a New
Jersey corporation, and any successor to its business or assets which assumes
and agrees to perform this Agreement by operation of law, or otherwise (except
in determining, under Section 15(E) hereof, whether or not any Change in
Control of the Company has occurred in connection with such succession).
(H) "Date of Termination" shall have the meaning stated in
Section 7.2 hereof.
(I) "Disability" shall be deemed the reason for the
termination by the Company of the Executive's employment if the Executive is
absent from full-time employment and qualifies for disability benefits under
the Company's long-term disability plan
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(or would so qualify but for any waiting period under that plan). In the
absence of any such plan, the determination of Disability shall be made by the
Board.
(J) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
(K) "Excise Tax" shall mean any excise tax imposed under
section 4999 of the Code.
(L) "Executive" shall mean the individual named in the first
paragraph of this Agreement.
(M) "Good Reason" for termination by the Executive of the
Executive's employment shall mean the occurrence (without the Executive's
express written consent) of any one of the following acts by the Company, or
failures by the Company to act, unless, in the case of any act or failure to
act described in paragraph (i), (v), (vi) or (vii) hereof, such act or failure
to act is corrected prior to the Date of Termination specified in the Notice of
Termination given in respect thereof:
(i) the assignment by the Company to the Executive of any
duties inconsistent with the Executive's status as an executive of the Company
or a material adverse alteration in the nature or status of the Executive's
responsibilities from those in effect immediately prior to the Change in
Control or Potential Change in Control or any change in Executive's title or
status;
(ii) any reduction by the Company in the Executive's
annual base salary as in affect on the date hereof or as the same may be
increased from time to time;
(iii) the relocation by the Company of its principal
executive offices to a location more than 30 miles from the location of such
office immediately prior to the Change in Control or the Company's requiring
the Executive to be based anywhere other than the Company's principal executive
offices except for required travel on the Company's business to an extent
substantially consistent with the Executive's present business travel
obligations;
(iv) the failure by the Company to pay to the Executive
any portion of the Executive's current compensation, or to pay to the Executive
any portion of an installment of deferred compensation under any deferred
compensation program of the Company, within seven (7) days of the date such
compensation is due;
(v) the failure by the Company to continue in effect any
compensation plan in which the Executive participates immediately prior to the
Change in
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Control which is material to the Executive's total compensation, including but
not limited to any bonus plan and any similar or substitute plan adopted prior
to the Change in Control, unless an equitable arrangement (embodied in an
ongoing substitute or alternative plan) has been made with respect to such
plan, or the failure by the Company to continue the Executive's participation
therein (or in such substitute or alternative plan) on a basis not materially
less favorable, both in terms of the amount of benefits provided and the level
of the Executive's participation relative to other participants, as existed at
the time of the Change in Control;
(vi) the failure by the Company to continue to provide
the Executive with benefits substantially similar to those enjoyed by the
Executive under any of the Company's pension, life insurance, medical, health
and accident, disability or other material benefit or perquisite plan in which
the Executive was participating at the time of the Change in Control, and
specifically including those benefits set forth in Section 6.1(c) hereof, the
taking of any action by the Company which would directly or indirectly
materially reduce any of such benefits or deprive the Executive of any material
fringe benefit enjoyed by the Executive at the time of the Change in Control,
or the failure by the Company to provide the Executive with the number of paid
vacation days to which the Executive is entitled on the basis of years of
service with the Company in accordance, with the Company's normal vacation
policy in effect at the time of the Change in Control; or
(vii) any purported termination by the Company of the
Executive's employment which is not effected for Cause and pursuant to a Notice
of Termination satisfying the requirements of Section 7.1; for purposes of this
Agreement, no such purported termination shall be effective.
The Executive's right to terminate the Executive's employment for
Good Reason shall not be affected by the Executive's incapacity due to physical
or mental illness. The Executive's continued employment shall not constitute
consent to, or a waiver of rights with respect to, any act or failure to act
constituting Good Reason hereunder.
(N) "Gross-Up Payment" shall have the meaning given in Section
6.2 hereof.
(O) "Notice of Termination" shall have the meaning stated in
Section 7.1 hereof.
(P) "Person" shall have the meaning given in section 3(a)(9)
of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof;
provided, however, that a Person shall not include (i) the Company or any of
its subsidiaries, (ii) a trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any of its subsidiaries, (iii) an
underwriter temporarily holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions as their
ownership of stock of the Company.
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(Q) "Potential Change in Control" shall be deemed to have
occurred if the events set forth in any one of the following paragraphs shall
have occurred:
(i) the Company enters into an agreement, the consummation
of which would result in the occurrence of a Change in Control;
(ii) the Company or any Person publicly announces an
intention to take or to consider taking actions which, if consummated, would
constitute a Change in Control;
(iii) any Person who both (x) is on the date hereof or
subsequently becomes the Beneficial Owner, directly or indirectly, of
securities of the Company representing at least 10% or more of the combined
voting power of the Company's then outstanding securities and (y) increases his
or her beneficial ownership of such securities by 5% or more over the
percentage so owned by such Person on the date hereof; or
(iv) the Board adopts a resolution to the effect that, for
purposes of this Agreement, a Potential Change in Control has occurred.
(R) "Severance Payments" shall mean those payments described
in Section 6.1 hereof.
(S) "Total Payments" shall mean those payments described in
Section 6.2 hereof.
16. Prior Agreements Superseded. Effective on the Effective Date, this
Agreement supersedes and replaces any previous Agreement between the Company
and Executive on the same subject.
IN WITNESS WHEREOF, this Agreement has been executed as of the 6th day
of June, 1999, on behalf of this Company by its duly authorized officer and by
the Executive.
ATTEST: JEVIC TRANSPORTATION, INC.
/s/ KAREN B. MUHLSCHLEGEL By: /s/ HARRY J. MUHLSCHLEGEL
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Secretary Harry J. Muhlschlegel
Chief Executive Officer
EXECUTIVE
By: /s/ RAYMOND M. CONLIN
-------------------------------------
Raymond M. Conlin
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