EXHIBIT 10(e)(ii)
AGREEMENT REGARDING
CHANGE IN CONTROL
This Agreement entered into as of the __________ day of ___________, 1998 by
and between Case Corporation, a Delaware corporation (the "Company"), and
__________________ (the "Executive"),
WITNESSETH THAT:
WHEREAS, the Company wishes to assure itself of the continuity of the
Executive's services in the event of any actual or threatened change in control
of the Company; and
WHEREAS, the Company and the Executive accordingly desire to enter into this
Agreement on the terms and conditions set forth below;
NOW, THEREFORE, in consideration of the premises and mutual covenants set
forth herein, it is hereby agreed by and between the parties as follows:
1. Term of Agreement. The "Term" of this Agreement shall commence on the date
hereof and shall continue through December 31, 1999; provided, however, that on
such date and on each December 31 thereafter, the Term of this Agreement shall
automatically be extended for one additional year unless, not later than the
preceding January 1 either party shall have given notice that such party does
not wish to extend the Term; and provided, further, that if a Change in Control
(as defined in paragraph 3 below) shall have occurred during the original or any
extended Term of this Agreement, the Term of this Agreement shall continue for a
period of twenty-four calendar months beyond the calendar month in which such
Change in Control occurs.
2. Employment After a Change or Potential Change in Control. If the Executive
is in the employ of the Company on the date of a Change in Control, the Company
hereby agrees to continue the Executive in its employ for the period commencing
on the date of the Change in Control and ending on the last day of the Term of
this Agreement. If the Executive is in the employ of the Company on the first
day of a Potential Change in Control (as defined in paragraph 4 below), the
Company hereby agrees to continue the Executive in its employ for the twelve-
month period commencing on such date and, if a Change in Control occurs during
such period agrees to continue the Executive in its employ until the last day of
the Term of this Agreement. During the period of employment described in the
foregoing provisions of this paragraph 2 (the "Employment Period"), the
Executive shall hold such position with the Company and exercise such authority
and perform such executive duties as are commensurate with his position,
authority and duties immediately prior to the Change in Control or Potential
Change in Control, as the case may be. The Executive agrees that during the
Employment Period he shall devote his full business time exclusively to the
executive duties described herein and perform such duties faithfully and
efficiently; provided, however, that nothing in this Agreement shall prevent the
Executive from voluntarily resigning from employment upon 90 days' written
notice to the Company under circumstances which do not constitute a Termination
(as defined below in paragraph 6); provided, further, however, that the
Executive agrees to remain in the employ of the Company from the date on which a
Potential Change in Control (as defined in paragraph 4 below) occurs through the
earlier of six months thereafter, or the last day of the Term of this Agreement.
3. Change in Control. For purposes of this Agreement, the term "Change in
Control" means a change in the beneficial ownership of the Company's voting
stock or a change in the composition of the Company's Board of Directors which
occurs as follows:
(a) any "person" (as such term is used in Section 13(d) and 14(d) (2) of the
Securities Exchange Act of 1934) other than:
(i) a trustee or other fiduciary of securities held under an employee
benefit plan of the Company;
(ii) a corporation owned, directly or indirectly, by the stockholders of
the Company in substantially the same proportions as their
ownership of the Company; or
(iii) any person in which the Executive has a substantial equity interest
is or becomes a beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934), directly or indirectly, of stock of the
Company representing 25% or more of the total voting power of the
Company's then outstanding stock;
(b) a tender offer is made for the stock of the Company by a person other than
a person described in subparagraph (a)(i), (ii) or (iii), and one of the
following occurs:
(i) the person making the offer owns or has accepted for payment stock of
the Company representing 25% or more of the total voting power of the
Company's stock; or
(ii) three business days before the offer is to terminate (unless the
offer is withdrawn first) such person could own, by the terms of the
offer plus any shares owned by such person, stock representing 50% or
more of the total voting power of the Company's outstanding stock
when the offer terminates;
(c) during any period of two consecutive years there shall cease to be a
majority of the Company's Board of Directors comprised as follows:
individuals who at the beginning of such period constitute the Board of
Directors and any new director(s) whose election by the Board of Directors
or nomination for election by the Company's stockholders was approved by a
vote of at least two-thirds (2/3) of the directors then still in office
who either were directors at the beginning of the period or whose election
or nomination for election was previously so approved; or
(d) the stockholders of the Company approve a merger or consolidation of the
Company with any other company other than:
(i) such a merger or consolidation which would result in the Company's
voting stock outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting stock of the surviving entity) more than 70% of the combined
voting power of the Company's or such surviving entity's outstanding
voting stock immediately after such merger or consolidation; or
(ii) such a merger or consolidation which would result in the directors of
the Company who were directors immediately prior thereto continuing
to constitute at least 50% of the directors of the surviving entity
immediately after such merger or consolidation.
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For purposes of this paragraph (d), "surviving entity" shall mean
only an entity in which all of the Company's stockholders become
stockholders by the terms of such merger or consolidation, and the
phrase "directors of the Company who were directors immediately prior
thereto" shall not include:
(A) any director of the Company who was designated by a person who
has entered into an agreement with the Company to effect a
transaction described in this paragraph or in paragraph (a)
above; or
(B) any director who was not a director at the beginning of the
24-consecutive-month period preceding the date of such merger
or consolidation
unless his election by the Board of Directors or nomination for
election by the Company's stockholders, was approved by a vote of at
least two-thirds (2/3) of the directors then still in office who were
directors before the beginning of such period.
4. Potential Change in Control. For purposes of this Agreement, a "Potential
Change in Control" shall be deemed to occur if (i) any person who is or becomes
the beneficial owner, directly or indirectly, of securities of the Company
representing 9.5% or more of the combined voting power of the Company's then
outstanding securities increases his beneficial ownership of such securities by
5% or more of the combined voting power of the Company's then outstanding
securities over the percentage so owned by such person on the date hereof; (ii)
a tender offer is made for stock of the Company representing 25% or more of the
total voting power of the Company's stock; (iii) any person makes a solicitation
of proxies for the election of directors who have not been recommended by the
Company; (iv) the Company enters into negotiations with respect to a transaction
which would upon consummation constitute a Change in Control; or (v) the Board
adopts a resolution to the effect that, for the purposes of this Agreement, a
Potential Change in Control has occurred.
5. Compensation During the Employment Period. During the Employment Period,
the Executive shall be compensated as follows:
(a) he shall receive an annual salary which is not less than his annual salary
immediately prior to the Employment Period, with an increase as of each
January 1 which is not less than the increase, if any, in the cost of
living, as measured by the Consumer Price Index for All Urban Consumers
(CPI-U), for the 12-month period ending on the preceding December 31;
(b) he shall be entitled to participate in short-term and long-term cash-based
incentive compensation plans which, in the aggregate, provide bonus
opportunities which are not materially less favorable to the Executive
than the greater of (i) the opportunities provided by the Company for
executives with comparable duties; and (ii) the opportunities provided to
the Executive under all such plans in which he was participating prior to
the Employment Period;
(c) he shall be eligible to participate in stock option, stock appreciation
rights, performance awards, restricted stock and other equity-based
incentive compensation plans on a basis not materially less favorable to
the Executive than that applicable (i) to the Executive immediately prior
to the Employment Period or (ii) to other executives of the Company with
comparable duties; and
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(d) he shall be entitled to receive employee benefits (including, but not
limited to, tax-qualified and nonqualified pension and savings plan
benefits, medical insurance, disability income protection, life insurance
coverage and death benefits) and perquisites which are not materially less
favorable to the Executive than (i) the employee benefits and perquisites
provided by the Company to executives with comparable duties or (ii) the
employee benefits and perquisites to which the Executive would be entitled
under the Company's employee benefit plans and perquisites as in effect
immediately prior to the Employment Period.
In the event of a termination of the Executive's employment for any reason
during the Employment Period, he shall be entitled to his accrued vacation as of
the date of termination, plus long-term and short-term bonuses based on the
targeted bonus amounts for the bonus period which includes his date of
termination pro rated based on the number of days elapsed in the bonus period.
6. Termination. For purposes of this Agreement, the term "Termination" shall
mean:
(a) Termination of the employment of the Executive during the Employment
Period by the Company, for any reason other than death, Disability (as
defined below), or Cause (as described below).
(b) Termination of employment of the Executive during the Employment Period by
reason of the Executive's resignation upon the occurrence of one of the
following events:
(i) a significant change in the nature or scope of the Executive's
authorities or duties from those described in paragraph 2 above, a
breach of any of the subparagraphs of paragraph 5 above, or the
breach by the Company of any other provision of this Agreement;
(ii) the relocation of the Executive's office to a location more than
fifty miles from the location of his office immediately prior to the
Employment Period;
(iii) a reasonable determination by the Executive that, as a result of a
Change in Control and a change in circumstances thereafter
significantly affecting his position, he is unable to exercise the
authorities, powers, functions or duties associated with his
position and contemplated by paragraph 2 above; or
(iv) the failure of the Company to obtain a satisfactory agreement from
any successor to assume and agree to perform this Agreement as
contemplated in paragraph 18 below.
The date of the Executive's Termination under this paragraph 6 shall be the date
specified by the Executive or the Company, as the case may be, in a written
notice to the other party complying with the requirements of paragraph 14 below.
For purposes of this Agreement, the term "Disability" means an incapacity, due
to physical injury or illness or mental illness, causing the Executive to be
unable to perform his duties with the Company on a full-time basis for a period
of at least six consecutive calendar months. For purposes of this Agreement,
the term "Cause" means a willful and material breach of this Agreement by the
Executive resulting in material injury to the Company or a willful and continued
failure of the Executive to substantially perform his duties (other than any
such failure resulting from the Executive's incapacity due to physical or mental
illness) which failure has not been corrected by the Executive within 30 days
after the Board of Directors of the Company has given the Executive written
notice of such failure. No
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act, or failure to act, on the Executive's part shall be deemed "willful" unless
done, or omitted to be done, by him not in good faith and without reasonable
belief that the action or omission was in the best interest of the Company.
7. Severance Payments. Subject to the provisions of paragraphs 8 and 9 below,
in the event of a Termination described in paragraph 6 above, in lieu of the
amount otherwise payable under paragraph 5, the Executive shall continue to
receive medical insurance, disability income protection, life insurance coverage
and death benefits and perquisites in accordance with subparagraph 5(d) above
for a period of 24 months after the date of Termination, and shall be entitled
to a lump sum payment in cash no later than ten business days after the date of
Termination equal to the sum of:
(a) an amount equal to two times the Executive's annual salary rate in effect
under subparagraph 5(a) above immediately prior to the date of
Termination;
(b) an amount equal to two times the greatest of (i) the Executive's
short-term incentive award and other bonuses payable for the calendar year
preceding the date of Termination, or (ii) the estimated amount of the
short-term incentive award and other bonuses which would otherwise be
payable to the Executive in accordance with subparagraph 5(b) above for
the year of Termination, or (iii) the targeted bonus amounts under the
short-term incentive award and other bonuses which would otherwise be
payable to the Executive in accordance with subparagraph 5(b) above for
the year of Termination;
(c) an amount equal to two times the amount of the Company's contribution to
the Case Corporation Retirement Savings Plan allocated to the Executive's
account under that plan for the calendar year preceding the year of
Termination.
8. Make-Whole Payments. If any amount payable to the Executive by the Company
or any subsidiary or affiliate thereof, whether under this Agreement or
otherwise (a "Payment"), is subject to any tax under section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code"), or any similar federal
or state law (an "Excise Tax"), the Company shall pay to the Executive an
additional amount (the "Make-Whole Amount") which is equal to (i) the amount of
the Excise Tax, plus (ii) the aggregate amount of any interest, penalties, fines
or additions to any tax which are imposed in connection with the imposition of
such Excise Tax, plus (iii) all income, excise and other applicable taxes
imposed on the Executive under the laws of any federal, state or local
government or taxing authority by reason of the payments required under clause
(i) and clause (ii) and this clause (iii).
(a) For purposes of determining the Make-Whole Amount, the Executive shall be
deemed to be taxed at the highest marginal rate under all applicable
local, state, federal and foreign income tax laws for the year in which
the Make-Whole Amount is paid. The Make-Whole Amount payable with respect
to an Excise Tax shall be paid by the Company coincident with the Payment
with respect to which such Excise Tax relates.
(b) All calculations under this paragraph 8 shall be made initially by the
Company and the Company shall provide prompt written notice thereof to the
Executive to enable the Executive to timely file all applicable tax
returns. Upon request of the Executive, the Company shall provide the
Executive with sufficient tax and compensation data to enable the
Executive or his tax advisor to independently make the calculations
described in subparagraph (a) above and the Company shall reimburse the
Executive for reasonable fees and expenses incurred for any such
verification.
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(c) If the Executive gives written notice to the Company of any objection to
the results of the Company's calculations within 60 days of the
Executive's receipt of written notice thereof, the dispute shall be
referred for determination to tax counsel selected by the independent
auditors of the Company ("Tax Counsel"). The Company shall pay all fees
and expenses of such Tax Counsel. Pending such determination by Tax
Counsel, the Company shall pay the Executive the Make-Whole Amount as
determined by it in good faith. The Company shall pay the Executive any
additional amount determined by Tax Counsel to be due under this paragraph
8 (together with interest thereon at a rate equal to 120% of the Federal
short-term rate determined under section 1274(d) of the Code) promptly
after such determination.
(d) The determination by Tax Counsel shall be conclusive and binding upon all
parties unless the Internal Revenue Service, a court of competent
jurisdiction, or such other duly empowered governmental body or agency (a
"Tax Authority") determines that the Executive owes a greater or lesser
amount of Excise Tax with respect to any Payment than the amount
determined by Tax Counsel.
(e) If a Taxing Authority makes a claim against the Executive which, if
successful, would require the Company to make a payment under this
paragraph 8, the Executive agrees to contest the claim on request of the
Company subject to the following conditions:
(i) The Executive shall notify the Company of any such claim within 10
days of becoming aware thereof. In the event that the Company desires
the claim to be contested, it shall promptly (but in no event more
than 30 days after the notice from the Executive or such shorter time
as the Taxing Authority may specify for responding to such claim)
request the Executive to contest the claim. The Executive shall not
make any payment of any tax which is the subject of the claim before
the Executive has given the notice or during the 30-day period
thereafter unless the Executive receives written instructions from
the Company to make such payment together with an advance of funds
sufficient to make the requested payment plus any amounts payable
under this paragraph 8 determined as if such advance were an Excise
Tax, in which case the Executive will act promptly in accordance with
such instructions.
(ii) If the Company so requests, the Executive will contest the claim by
either paying the tax claimed and suing for a refund in the
appropriate court or contesting the claim in the United States Tax
Court or other appropriate court, as directed by the Company;
provided, however, that any request by the Company for the Executive
to pay the tax shall be accompanied by an advance from the Company to
the Executive of funds sufficient to make the requested payment plus
any amounts payable under this paragraph 8 determined as if such
advance were an Excise Tax. If directed by the Company in writing the
Executive will take all action necessary to compromise or settle the
claim, but in no event will the Executive compromise or settle the
claim or cease to contest the claim without the written consent of
the Company; provided, however, that the Executive may take any such
action if the Executive waives in writing his right to a payment
under this paragraph 8 for any amounts payable in connection with
such claim. The Executive agrees to cooperate in good faith with the
Company in contesting the claim and to comply with any reasonable
request from the Company concerning the contest of the claim,
including the pursuit of administrative remedies, the appropriate
forum for any judicial proceedings, and the legal basis for
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contesting the claim. Upon request of the Company, the Executive
shall take appropriate appeals of any judgment or decision that would
require the Company to make a payment under this paragraph 8.
Provided that the Executive is in compliance with the provisions of
this section, the Company shall be liable for and indemnify the
Executive against any loss in connection with, and all costs and
expenses, including attorneys' fees, which may be incurred as a
result of contesting the claim, and shall provide to the Executive
within 30 days after each written request therefor by the Executive
cash advances or reimbursement for all such costs and expenses
actually incurred or reasonably expected to be incurred by the
Executive as a result of contesting the claim.
(f) Should a Tax Authority finally determine that an additional Excise Tax is
owed, then the Company shall pay an additional Make-Whole Amount to the
Executive in a manner consistent with this paragraph 8 with respect to any
additional Excise Tax and any assessed interest, fines, or penalties. If
any Excise Tax as calculated by the Company or Tax Counsel, as the case
may be, is finally determined by a Tax Authority to exceed the amount
required to be paid under applicable law, then the Executive shall repay
such excess to the Company within 30 days of such determination; provided
that such repayment shall be reduced by the amount of any taxes paid by
the Executive on such excess which is not offset by the tax benefit
attributable to the repayment.
9. Accelerated Vesting of Stock Awards. As of the date of a Change in
Control, all stock option and restricted stock awards held by the Executive
shall become vested and nonforfeitble, to the extent that such vesting is
permitted under the terms of the plans pursuant to which such awards were
granted. If such vesting is not permitted under the terms of the plans, and on
or after the date of the Change in Control the Executive forfeits unvested
options or restricted stock awarded prior to the date of the Change in Control,
the Executive shall be entitled to a cash payment equal to (i) in the case of
options, the excess of the fair market value of the option shares forfeited over
the exercise price thereof, and (ii) in the case of restricted stock, the fair
market value of such stock, with fair market value in either case determined as
of the forfeiture date in accordance with the terms of the plan pursuant to
which the award was made. Such cash payment shall be made as soon as
practicable after the date of forfeiture.
10. Withholding. All payments to the Executive under this Agreement will be
subject to all applicable withholding of state and federal taxes.
11. Non-Competition and Confidentiality. The Executive agrees that:
(a) for a period of one year after the termination of the Executive's
employment with the Company, the Executive shall not be employed by, or
otherwise engage or be interested in, any business which is competitive
with any business of the Company or of any of its subsidiaries in which
the Executive was engaged during his employment prior to his termination,
but this restriction shall apply only if such employment or activity is
likely to cause, or causes, serious damage to the Company or any of its
subsidiaries; and
(b) during and after the Executive's employment by the Company, he will not
divulge or appropriate to his own use, or the use of others, any secret or
confidential information or knowledge pertaining to the business of the
Company, or any of its subsidiaries, obtained during his employment by the
Company or any of its subsidiaries.
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12. Arbitration of All Disputes. Any controversy or claim arising out of or
relating to this Agreement or the breach thereof shall be settled by arbitration
in the City of Chicago, in accordance with the laws of the State of Illinois, by
three arbitrators appointed by the parties. If the parties cannot agree on the
appointment of the arbitrators, one shall be appointed by the Company and one by
the Executive and the third shall be appointed by the first two arbitrators. If
the first two arbitrators cannot agree on the appointment of a third arbitrator,
then the third arbitrator shall be appointed by the Chief Judge of the United
States Court of Appeals for the Seventh Circuit. The arbitration shall be
conducted in accordance with the rules of the American Arbitration Association,
except with respect to the selection of arbitrators which shall be as provided
in this paragraph 12. Judgment upon the award rendered by the arbitrators may
be entered in any court having jurisdiction thereof. In the event that it shall
be necessary or desirable for the Executive to retain legal counsel or incur
other costs and expenses in connection with enforcement of his rights under this
Agreement, the Company shall pay (or the Executive shall be entitled to recover
from the Company, as the case may be) his reasonable attorneys' fees and costs
and expenses in connection with enforcement of his rights (including the
enforcement of any arbitration award in court). Payments shall be made to the
Executive at the time such fees, costs and expenses are incurred. If, however,
the arbitrators shall determine that, under the circumstances, payment by the
Company of all or a part of any such fees and costs and expenses would be
unjust, the Executive shall repay such amounts to the Company in accordance with
the order of the arbitrators.
13. Mitigation and Set-Off. The Executive shall not be required to mitigate
the amount of any payment provided for in this Agreement by seeking other
employment or otherwise. The Company shall not be entitled to set off against
the amounts payable to the Executive under this Agreement any amounts owed to
the Company by the Executive, any amounts earned by the Executive in other
employment after termination of his employment with the Company, or any amounts
which might have been earned by the Executive in other employment had he sought
such other employment.
14. Notices. Any notice of Termination of the Executive's employment by the
Company or the Executive for any reason shall be upon no less than 15 days' and
no greater than 45 days' advance written notice to the other party. Any
notices, requests, demand and other communications provided for by this
Agreement shall be sufficient if in writing and if sent by registered or
certified mail to the Executive at the last address he has filed in writing with
the Company or, in the case of the Company, to the attention of the Secretary of
the Company, at its principal executive offices.
15. Non-Alienation. The Executive shall not have any right to pledge,
hypothecate, anticipate or in any way create a lien upon any amounts provided
under this Agreement; and no benefits payable hereunder shall be assignable in
anticipation of payment either by voluntary or involuntary acts, or by operation
of law. Nothing in this paragraph shall limit the Executive's rights or powers
to dispose of his property by will or limit any rights or powers which his
executor or administrator would otherwise have.
16. Governing Law. The provisions of this Agreement shall be construed in
accordance with the laws of the State of Illinois, without application of
conflict of laws provisions thereunder.
17. Amendment. This Agreement may be amended or canceled by mutual agreement
of the parties in writing without the consent of any other person and, so long
as the Executive lives, no person, other than the parties hereto, shall have any
rights under or interest in this Agreement or the subject matter hereof.
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18. Successors to the Company. This Agreement shall be binding upon and
inure to the benefit of the Company and any successor of the Company. 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 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 succession had taken place.
19. Severability. In the event that any provision or portion of this
Agreement shall be determined to be invalid or unenforceable for any reason, the
remaining provisions of this Agreement shall be unaffected thereby and shall
remain in full force and effect.
20. Counterparts. This Agreement may be executed in two or more
counterparts, any one of which shall be deemed the original without reference to
the others.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and, pursuant to
the authorization from its Board of Directors, the Company has caused these
presents to be executed in its name and on its behalf, and its corporate seal to
be hereunto affixed and attested by its Secretary, all as of the day and year
first above written.
________________________________
Executive
CASE CORPORATION
By _____________________________
Its ____________________________
ATTEST:
________________________________
Secretary
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