Exhibit 10.60
MANAGEMENT RETENTION AGREEMENT
THIS MANAGEMENT RETENTION AGREEMENT (the "Agreement") is entered
into this ___ day of May, 2000, between FedEx Corporation, a Delaware
corporation (the "Corporation"), and [Name of Executive Officer]
("Executive").
WHEREAS, the Executive currently serves as [Title of Executive
Officer] of the Corporation; and
WHEREAS, the Corporation considers the establishment and maintenance
of a sound and vital management to be essential to protecting and enhancing
the best interests of the Corporation and its stockholders; and
WHEREAS, the Board (as defined in Section 2) has determined that it
is in the best interests of the Corporation and its stockholders to secure
the Executive's continued services and to ensure the Executive's continued
dedication and objectivity in the event of any threat or occurrence of, or
negotiation or other action that could lead to, or create the possibility of,
a Change in Control (as defined in Section 2) of the Corporation, without
concern as to whether the Executive might be hindered or distracted by
personal uncertainties and risks created by any such possible Change in
Control, and to encourage the Executive's full attention and dedication to
the Corporation, the Board has authorized the Corporation to enter into this
Agreement.
NOW, THEREFORE, for and in consideration of the premises and the
mutual covenants and agreements herein contained, the Corporation and the
Executive agree as follows:
1. OPERATION OF AGREEMENT.
(a) The "Effective Date" shall be the date during the "Change of
Control Period" (as defined in Section 1(b)) on which a Change of Control
occurs. Anything in this Agreement to the contrary notwithstanding, if the
Executive's employment with the Corporation terminates prior to the date on
which a Change of Control occurs, and Executive can reasonably demonstrate
that the termination:
(1) was at the request of a third party who has taken steps
reasonably calculated to effect a Change of Control, or
(2) was directly related to, arose in connection with or
occurred in anticipation of, such Change of Control,
then for all purposes of this Agreement the "Effective Date" shall mean the
date immediately prior to the date of such termination.
(b) The "Change of Control Period" is the period commencing on the
date of this Agreement and ending on the second anniversary of such date;
PROVIDED, HOWEVER, that commencing on the date one year after the date of
this Agreement, and on each annual anniversary of that date (such date and
each annual anniversary thereof is referred to as the "Renewal Date"), the
Change of Control Period will be automatically extended so as to terminate
two years from such Renewal Date, unless at least 180 days prior to the
Renewal Date the Corporation gives the Executive notice that the Change of
Control Period will not be extended. The Corporation may not, however, give
the Executive any non-extension notice during any period of time when the
Board has knowledge that any person has taken steps reasonably calculated to
effect a Change in Control of the Corporation until, in the Board's opinion,
such person has abandoned or terminated its efforts to effect a Change in
Control.
2. CHANGE OF CONTROL.
For purposes of this Agreement, a "Change of Control" means a change
of control during the Change of Control Period of a nature that is required
to be reported in response to Item 1(a) of the Current Report on Form 8-K, as
in effect on the date of this Agreement, pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act");
provided, that, without limitation, such a "Change of Control" shall be
deemed to have occurred if:
(a) any "person," as this term is used in Sections 3(a)(9) and 13(d)
of the Exchange Act, becomes, directly or indirectly, a "beneficial owner,"
as such term is used in Rule 13d-3 promulgated under the Exchange Act, of 20%
or more of the combined voting power of the Corporation's outstanding Voting
Securities (as defined below); or
(b) individuals who, as of the date of this Agreement, constitute
the Board of Directors of the Corporation (the "Board" generally, and as of
the date of this Agreement, the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board, PROVIDED that any person
becoming a director after the date of this Agreement whose election, or
nomination for election by the Corporation's stockholders, was approved by a
vote of at least three-quarters of the directors comprising the Incumbent
Board (other than an election or nomination of an individual whose initial
assumption of office is in connection with an actual or threatened election
contest relating to the election of the directors of the Corporation, as such
terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) will be, for purposes of this Agreement, considered as though
such person was a member of the Incumbent Board; or
(c) the Corporation adopts any plan of liquidation providing for
the distribution of all or substantially all of its assets; or
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(d) the Corporation disposes of all or substantially all of its
assets pursuant to a merger, consolidation or other transaction (unless the
holders of the Corporation's Voting Securities immediately prior to the
merger, consolidation or other transaction beneficially own, directly or
indirectly, in substantially the same proportion as they owned the
Corporation's Voting Securities, all of the voting securities or other
ownership interests of the entity or entities, if any, that succeed to the
Corporation's business); or
(e) the Corporation is merged, consolidated or reorganized into or
with, or sells all or substantially all of its assets to, another corporation
or other entity, and immediately after the transaction less than 80% of the
voting power of the then-outstanding securities of the corporation or other
entity immediately after the transaction is held in the aggregate by holders
of the Corporation's Voting Securities immediately before the transaction.
For purposes of this Agreement, the term "Voting Securities" means
any shares of the Corporation's capital stock or other securities that are
generally entitled to vote in elections of directors.
3. EMPLOYMENT PERIOD.
The Corporation agrees to continue the Executive in its employ, and
the Executive agrees to remain in the Corporation's employ, for the period
commencing on the Effective Date and ending on the third anniversary of such
date (the "Employment Period").
4. POSITION AND DUTIES.
(a) During the Employment Period:
(1) the Executive's position (including status, offices,
titles and reporting relationships), authority, duties and responsibilities
shall be at least commensurate in all material respects with the most
significant of those held, exercised and assigned at any time during the
90-day period immediately preceding the Effective Date; and
(2) the Executive's services will be performed at the
location where the Executive was employed immediately preceding the Effective
Date or any office or location less than thirty-five (35) miles from such
location.
(b) The Executive's position, authority, duties and
responsibilities shall be regarded as NOT commensurate if, as a result of a
Change of Control:
(1) the Corporation becomes a direct or indirect subsidiary
of another corporation or corporations or becomes controlled, directly or
indirectly, by one or more unincorporated entities (such other corporation or
unincorporated entity owning or controlling, directly or indirectly, the
greatest amount of equity (by vote) of the Corporation is referred to in this
Agreement as a "parent company");
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(2) all or substantially all of the Corporation's assets
are acquired by another corporation or unincorporated entity or group of
corporations or unincorporated entities owned or controlled, directly or
indirectly, by another corporation or unincorporated entity (the other
acquiring or controlling corporation or unincorporated entity is referred to
in this Agreement as a "successor"), UNLESS, in each case:
(i) Section 14 of this Agreement is complied with; and
(ii) the Executive has assumed a position with the
parent company or successor, as the case may be, and the Executive's
position, authority, duties and responsibilities with the parent company or
successor, as the case may be, are at least commensurate in all material
respects with the most significant of those held, exercised and assigned with
the Corporation at any time during the 90-day period immediately preceding
the Effective Date; or
(3) more than one unrelated corporation or unincorporated
entity acquires a significant portion of the Corporation's assets.
(c) Excluding periods of vacation and sick leave to which the
Executive is entitled, the Executive agrees to devote reasonable attention
and time during normal business hours to the Corporation's business and
affairs and, to the extent necessary to discharge the responsibilities
assigned to the Executive under this Agreement, to use the Executive's
reasonable best efforts to perform faithfully and efficiently these
responsibilities. The Executive may:
(1) serve on corporate, civic or charitable boards or
committees;
(2) deliver lectures, fulfill speaking engagements or teach
at educational institutions; and
(3) manage personal investments,
so long as, such activities do not significantly interfere with the
performance of the Executive's responsibilities. 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 these
activities (or the conduct of activities similar in nature and scope)
subsequent to the Effective Date will not thereafter be deemed to interfere
with the performance of the Executive's responsibilities to the Corporation.
5. COMPENSATION.
(a) BASE SALARY. During the Employment Period, the Executive will
receive a base salary ("Base Salary") at a monthly rate at least equal to the
highest monthly base salary paid
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to the Executive by the Corporation, together with any of its affiliate
companies, during the twelve-month period immediately preceding the month in
which the Effective Date occurs. During the Employment Period, the Base
Salary will be reviewed at least annually and will be increased at any time
and from time to time as will be consistent with increases in base salary
awarded in the ordinary course of business to other key executives. Any
increase in the Base Salary will not serve to limit or reduce any other
obligation to the Executive under this Agreement. The Base Salary will not be
reduced after any such increase. As used in this Agreement, the term
"affiliates" includes any company controlling, controlled by or under common
control with the Corporation.
(b) ANNUAL BONUS. In addition to the Base Salary, the Executive
will be awarded, for each of the Company's fiscal years ("Fiscal Year")
during the Employment Period, an annual bonus (an "Annual Bonus")(either
pursuant a bonus, profit sharing or incentive plan or program of the
Corporation or otherwise) in cash at least equal to the average bonus paid or
payable to the Executive during the three Fiscal Years immediately prior to
the Fiscal Year in which the Effective Date occurs (annualized with respect
to any such Fiscal Year for which the Executive has been employed only during
a portion thereof). Each such annual bonus will be payable within the first
60 days of the Fiscal Year next following the Fiscal Year for which the
Annual Bonus is awarded, unless the Executive otherwise elects to defer the
receipt of such Annual Bonus.
(c) INCENTIVE, SAVINGS AND RETIREMENT PLANS. In addition to the
Base Salary and Annual Bonus payable as provided above, the Executive will be
entitled to participate, during the Employment Period, in all incentive,
savings and retirement plans and programs applicable to other key executives
(including, without limitation, the Corporation's pension, profit sharing,
restricted stock and stock option plans, in each case comparable to those in
effect or as subsequently amended), but in no event will these plans and
programs, in the aggregate, provide the Executive with compensation, benefits
and reward opportunities less favorable than the most favorable of those
provided by the Corporation and its affiliates for the Executive under such
plans and programs as in effect at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to the
Executive, as provided at any time thereafter with respect to other key
executives.
(d) WELFARE BENEFIT PLANS. During the Employment Period, the
Executive and/or the Executive's family, as the case may be, will be eligible
for participation in and shall receive all benefits under each of the
Corporation's welfare benefit plans, including, without limitation, all
medical, prescription, dental, disability, salary continuance, group life,
accidental death and travel accident insurance plans and programs of the
Corporation and its affiliates, in each case comparable to those in effect at
any time during the 90-day period immediately preceding the Effective Date
which would be most favorable to the Executive or, if more favorable to the
Executive, as in effect at any time thereafter with respect to other key
executives.
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(e) EXPENSES. During the Employment Period, the Executive will be
entitled to receive prompt reimbursement for all reasonable expenses incurred
by the Executive in accordance with the most favorable policies and
procedures of the Corporation in effect at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to the
Executive, as in effect at any time thereafter with respect to other key
executives.
(f) FRINGE BENEFITS. During the Employment Period, the Executive
will be entitled to fringe benefits in accordance with the most favorable
policies of the Corporation in effect at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to the
Executive, as in effect at any time thereafter with respect to other key
executives.
(g) OFFICE AND STAFF SUPPORT. During the Employment Period, the
Executive will be entitled to an office or offices of a size and with
furnishings and other appointments, and to secretarial and other assistance,
at least equal to those provided to the Executive at any time during the
90-day period immediately preceding the Effective Date which would be most
favorable to the Executive or, if more favorable to the Executive, as
provided at any time thereafter with respect to other key executives.
(h) VACATION. During the Employment Period, the Executive will be
entitled to paid vacation in accordance with the most favorable policies of
the Corporation as in effect at any time during the 90-day period immediately
preceding the Effective Date or, if more favorable to the Executive, as in
effect at any time thereafter with respect to other key executives.
6. TERMINATION.
(a) DEATH OR DISABILITY. This Agreement will terminate
automatically upon the Executive's death. The Corporation may terminate this
Agreement, after having established the Executive's Disability (as defined
below), by giving to the Executive written notice of its intention to
terminate the Executive's employment. In such a case, the Executive's
employment with the Corporation will terminate effective on the 180th day
after receipt of such notice (the "Disability Effective Date"), provided
that, within 180 days after such receipt, the Executive shall not have
returned to full-time performance of the Executive's duties. For purposes of
this Agreement, "Disability" means disability which, after the expiration of
more than 26 weeks after its commencement, is determined to be total and
permanent by a physician selected by the Corporation or its insurers and
acceptable to the Executive or the Executive's legal representative (such
agreement to acceptability not to be withheld unreasonably).
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(b) CAUSE. The Corporation may terminate the Executive's employment
for "Cause." For purposes of this Agreement, "Cause" means:
(1) any act or acts of dishonesty taken by the Executive
and intended to result in substantial personal enrichment of the Executive;
(2) repeated material violations by the Executive of the
Executive's obligations under Section 4 of this Agreement:
(i) which are demonstrably willful and deliberate on
the Executive's part (which violations occur other than as a result of
incapacity due to the Executive's physical or mental illness), and
(ii) which result in demonstrably material economic
injury to the Corporation and which are not remedied in a reasonable period
of time after receipt of written notice from the Corporation specifying such
breach; or
(3) the conviction of the Executive of a felony.
Notwithstanding anything to the contrary set forth in this
Agreement, however, "Cause" will not exist, unless and until the Corporation
has delivered to the Executive a copy of a resolution duly adopted by
three-quarters (3/4) of the Board and to the extent applicable,
three-quarters (3/4) of the Incumbent Board, if any, at a meeting of the
Board called and held for such purpose (after reasonable notice to the
Executive and an opportunity for the Executive, together with his counsel, to
be heard before the Board), finding that in the good faith opinion of the
Board, the Executive was guilty of the conduct set forth in this Section 6(b)
and specifying the particulars in detail.
(c) GOOD REASON. The Executive's employment may be terminated by
the Executive for Good Reason. For purposes of this Agreement, "Good Reason"
means:
(1) the assignment to the Executive of any duties
inconsistent in any respect with the Executive's position (including status,
offices, titles and reporting relationships), authority, duties or
responsibilities as contemplated by Section 4 of this Agreement, or any other
action by the Corporation which results in a diminution in such position,
authority, duties or responsibilities, other than an insubstantial and
inadvertent action which is remedied by the Corporation promptly after
receipt of notice thereof given by the Executive;
(2) any failure by the Corporation to comply with any of
the provisions of Section 5 of this Agreement, other than an insubstantial
and inadvertent failure which is remedied by the Corporation promptly after
receipt of notice thereof given by the Executive;
(3) any reduction in the Executive's Base Salary or target
award opportunity as in effect within 90 days prior to the Effective Date
(including any change in performance
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criteria which impacts negatively on Executive's ability to achieve the
target) under the Corporation's annual or long-term performance incentive
plans or programs;
(4) the failure to continue the Executive's participation
in any incentive compensation plan in which he was a participant within 90
days prior to the Effective Date unless a plan providing a substantially
similar opportunity is substituted, or the termination or material reduction
of any employee benefit or perquisite enjoyed by him within 90 days prior to
the Effective Date, unless comparable benefits or perquisites (determined in
the aggregate) are substituted;
(5) the Corporation's requiring the Executive to be based
at any office or location other than as described in Section 4(a)(2), except
for travel reasonably required in the performance of the Executive's
responsibilities;
(6) any purported termination by the Corporation of the
Executive's employment otherwise than as permitted by this Agreement, it
being understood that any such purported termination will not be effective
for any purpose of this Agreement; or
(7) any failure by the Corporation to comply with and
satisfy Section 14 of this Agreement.
For purposes of this Section 6(c), any good faith determination of
"Good Reason" made by the Executive will be conclusive.
(d) NOTICE OF TERMINATION. Any termination by the Corporation for
Cause or by the Executive for Good Reason will be communicated by Notice of
Termination to the other party, given in accordance with Section 16. For
purposes of this Agreement, a "Notice of Termination" means a written notice
which:
(1) indicates the specific termination provision in this
Agreement relied upon;
(2) 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
(3) if the Date of Termination is other than the date of
receipt of such notice, specifies the Date of Termination (which shall be not
more than 15 days after the giving of such notice (except as provided in
Section 6(e) of this Agreement)).
(e) DATE OF TERMINATION. "Date of Termination" means (1) the
effective date on which the Executive's employment by the Corporation
terminates as specified in a Notice of Termination by the Corporation or the
Executive, as the case may be, or (2) if the Executive's employment by the
Corporation terminates by reason of death, the date of death of the
Executive. Notwithstanding the previous sentence, if the Executive's
employment is
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terminated for Disability (as defined in Section 6(a)), or the Executive's
employment is terminated by the Corporation other than for Cause, then such
Date of Termination will be no earlier than thirty (30) days following the
date on which a Notice of Termination is received.
7. OBLIGATIONS OF THE CORPORATION UPON TERMINATION.
(a) DEATH. If the Executive's employment terminates by reason of
the Executive's death, the Corporation will not have any further obligations
to the Executive's legal representatives under this Agreement, other than
those obligations accrued hereunder at the date of the Executive's death.
Anything to the contrary notwithstanding, the Executive's family shall be
entitled to receive benefits at least equal to the most favorable benefits
provided by the Corporation to surviving families of key executives of the
Corporation under such plans, programs and policies relating to family death
benefits, if any, as in effect at any time during the 90-day period
immediately preceding the Effective Date or, if more favorable to the
Executive and/or the Executive's family, as in effect on the date of the
Executive's death with respect to other key executives and their families.
(b) DISABILITY. If the Executive's employment is terminated by
reason of the Executive's Disability, the Executive will be entitled after
the Disability Effective Date to receive disability and other benefits at
least equal to the most favorable of those provided by the Corporation to
disabled employees and/or their families in accordance with such plans,
programs and policies relating to disability, if any, as in effect at any
time during the 90-day period immediately preceding the Effective Date or, if
more favorable to the Executive or the Executive's family, as in effect at
any time thereafter with respect to other key executives and their families.
(c) CAUSE. If the Executive's employment is terminated for Cause,
the Corporation will pay the Executive his full Base Salary through the Date
of Termination at the rate in effect at the time Notice of Termination is
given and shall have no further obligations to the Executive under this
Agreement.
(d) QUALIFYING TERMINATION. If during the Employment Period the
Executive's employment is terminated either by the Corporation other than for
Cause or Disability or by reason of the Executive's death, or by the
Executive for Good Reason, or by the Executive for any reason during the
thirty-day period commencing with the first anniversary date of the Effective
Date (a "Qualifying Termination"), then the Corporation will pay to the
Executive within thirty (30) days following the Date of Termination (except
as provided below), as compensation for services rendered to the Corporation:
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(1) a lump-sum cash amount equal to the sum of:
(i) the Executive's unpaid Base Salary through the
Date of Termination (at the rate in effect on the Date of Termination or, if
higher, at the highest rate in effect at any time within the 90-day period
preceding the Effective Date);
(ii) that portion of the target annual bonus under the
Corporation's incentive compensation plans determined by multiplying the
target annual bonus by the fraction arrived at by dividing the number of full
weeks worked by the Executive during the fiscal year in which his Date of
Termination occurred by fifty-two (52);
(iii) a pro rata portion of the target payments under
the FedEx Corporation Long Term Incentive ("LTI") Plans adopted with respect
to the current Fiscal Year and with respect to each of the immediately two
preceding Fiscal Years. In each case, the pro rata portion of the LTI payment
shall be determined by dividing the number of full weeks worked by the
Executive since the beginning of the Fiscal Year with respect to which the
relevant LTI Plan was adopted to his Date of Termination by one hundred and
fifty-six (156); PLUS
(iv) any unpaid vacation under the Corporation's
vacation policy in effect at the Date of Termination (or, if more favorable
to the Executive, under any vacation policy of the Corporation in effect at
any time within the 90-day period preceding the Effective Date).
(2) a lump-sum cash amount equal to the sum of:
(i) three (3) times the Executive's highest annual
rate of Base Salary in effect during the 12-month period prior to the Date of
Termination;
(ii) three (3) times the target annual bonus in effect
for the Fiscal Year in which the Change of Control occurs; plus
(iii) three (3) times the target LTI payment for the
Fiscal Year in which the Change of Control occurs.
Any amount paid to the Executive pursuant to this Section 7(d)(2) shall be
offset by any other amount of severance relating to salary or bonus
continuation to be received by the Executive upon termination of the
Executive's employment under any other severance plan, policy, employment
agreement or arrangement of the Corporation.
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(3) a lump-sum cash amount equal to:
(i) three (3) times the employer matching
contributions that would be made to the Federal Express Corporation Profit
Sharing Plan (the "PSP Plan") on behalf of Executive for the current fiscal
year assuming Executive made the maximum contribution to the PSP Plan;
(ii) three (3) times the most recent profit sharing
contribution that was made by the Corporation to the PSP Plan on behalf of
Executive; and
(iii) three (3) times the sum of (i) the most recent
payment made to Executive in lieu of a profit sharing contribution to the PSP
Plan and (ii) the most recent payment made to the Executive that represented
that portion of the profit sharing contribution that could not be made to the
PSP Plan due to the limitations of Section 401(a)(17) of the Internal Revenue
Code.
(4) a lump-sum cash amount equal to the actuarial present
value as of the Date of Termination of the amount required to be contributed
by the Corporation to fully fund the benefits to the Executive under the
Federal Express Corporation Employees' Pension Plan and the Federal Express
Corporation Retirement Parity Pension Plan based upon:
(i) an additional 36 months of base salary and target
annual bonus under Sections 7(d)(2)(i) and 7(d)(2)(ii) above;
(ii) an additional 36 months of age and service, or,
if greater, the number of additional months of age and service necessary to
provide the Executive with 25 years of service and an attained age of 60
under the specific plans referenced in this paragraph or any applicable
amended, successor or substitute plan or plans of the Corporation put into
effect prior to a Change in Control; and
(iii) the assumption that the Corporation's liability
under the Federal Express Retirement Parity Pension Plan was fully funded to
the Date of Termination.
For purposes of determining actuarial present value under
this Section 7(d)(4), the most current Mortality Table (assuming a blend of
50 percent of male mortality rates and 50 percent of female mortality rates)
shall be utilized.
For purposes of determining actuarial present value under this Section
7(d)(4), the interest rate on 30-year U.S. Treasury securities for the month
of May preceding the Fiscal Year in which the Date of Termination occurs
shall be used (such rate is the "applicable interest rate" under Section
417(e)(3)(A)(ii)(II) of the Internal Revenue Code).
(e) If during the Employment Period, the employment of the Executive
shall terminate, by reason of a Qualifying Termination, then for a period
ending on the earliest of:
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thirty-six (36) months following the Date of Termination; the commencement
date of equivalent benefits from a new employer; or the date on which the
Executive reaches age 60:
(1) the Corporation will continue to keep in full force and
effect (or otherwise provide) each plan and policy providing medical,
accident, disability and life coverage with respect to the Executive and his
dependents with the same level of coverage, upon the same terms and otherwise
to the same extent as, each such plan and policy in effect immediately prior
to the Date of Termination (or, if more favorable to the Executive, each such
plan and policy in effect within the 90-day period prior to the Effective
Date), and the Corporation and the Executive will share the costs of
continuing each such coverage in the same proportion as such costs were
shared immediately prior to the Date of Termination (or, if more favorable to
the Executive, within the 90-day period prior to the Effective Date); and
(2) if, on or after the end of thirty-six (36) months
following the Date of Termination, the Executive is not then receiving
equivalent medical coverage from a new employer, the Corporation will provide
the Executive with coverage equivalent to the Corporation's retiree medical
benefits program then in effect. Upon termination of any of the other
coverages discussed in this sub-section, the Executive may convert
Executive's coverage and his dependents' coverage under any such plan or
policy to individual policies or programs upon the same terms as employees of
the Corporation may apply for such conversions.
(f) If during the Employment Period, the employment of the
Executive terminates, by reason of a Qualifying Termination, then for a
period of twelve months following the Date of Termination, the Corporation
will provide, at its expense, executive level outplacement assistance to the
Executive by a nationally recognized outplacement firm acceptable to the
Executive.
8. CONSEQUENCE OF A CHANGE IN CONTROL UPON CERTAIN ENTITLEMENTS.
(a) Except as provided herein, the consequences of a Change in
Control on the Executive's stock options, restricted stock awards, or any
other award or grant of stock or rights to purchase the stock of the
Corporation (by option, warrant or otherwise) and pension, retirement,
long-term incentive or any other similar benefits, will be determined in
accordance with the provisions of the applicable plans in effect on the
Effective Date (or, if more favorable to the Executive, in effect during the
90-day period preceding the Effective Date).
(b)(1) No later than the occurrence of a Change of Control, the
Corporation will fund in full that portion, if any, of its obligations to the
Executive under the Federal Express Corporation Retirement Parity Pension
Plan that are then unfunded. Such funding will be provided through an
irrevocable trust for the benefit of the Executive which will be
established as promptly as possible following the Effective Date of this
Agreement for the purpose of receiving contributions from the Corporation
to fund such obligations.
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(2) No later than the occurrence of a Change in Control,
the Corporation will fund its obligations to provide payments and benefits
under this Agreement (other than the obligations which are provided for in
Section 8(b)(1)) by the establishment of a trust to which it contributes an
amount sufficient to meet its obligations. The trust described in this
Section 8(b)(2) may be part of the trust described in Section 8(b)(1).
(3) Any trust created pursuant to this Section 8 will
provide for distribution of amounts to the Executive in order to pay taxes,
if any, that become due prior to payment of amounts pursuant to the trust.
Following the occurrence of a Change in Control, the Corporation will make
periodic additional contributions (no less frequently than annually) to keep
the trust fully funded. The intent is that no later than the Change in
Control and annually thereafter (the "Applicable Dates") the amount of such
fund will equal at least the then present value (determined as of each
Applicable Date) of any amounts subject to the funding requirement of Section
8(b)(1) as determined by a nationally recognized firm qualified to provide
actuarial services and to fully fund the payments and benefits described in
Section 8(b)(2). The establishment and funding of any such trust will not
affect the Corporation's obligation to provide the benefits being funded.
(4) The trust may be terminated in accordance with the
trust agreement between the Corporation and the trustee and, if so
terminated, the Corporation will not be required to establish a successor
trust under this Section 8(b). The trust described in this Section 8(b) may
be part of a trust funding similar obligations for the Corporation's other
employees.
9. NO DUTY TO MITIGATE.
In no event will 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, nor will the amount
of any payment under this Agreement be reduced, except as otherwise
specifically provided herein, by any compensation earned by the Executive as
a result of employment by another employer.
10. NON-EXCLUSIVITY OF RIGHTS.
Nothing in this Agreement will prevent or limit the Executive's
continuing or future participation in any benefit, bonus, incentive or other
plan or program provided by the Corporation or any of its affiliates and for
which the Executive may qualify, nor will anything in this Agreement limit or
otherwise affect such rights as the Executive may have under any stock
option, stock warrant, restricted stock, pension, long-term incentive award
or other agreements, plans or programs with the Corporation or any of its
affiliates. Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any plan or program of the Corporation or
any of its affiliates at or subsequent to the Effective Date will be payable
in accordance with such plan or program.
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11. NO SET-OFF; NO MITIGATION.
The Corporation's obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations will not be affected
by any circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other claim, right or action which the
Corporation may have against the Executive or others. In no event will the
Executive be obligated to seek other employment or take other action by way
of mitigation of the amounts payable to the Executive under any of the
provisions of this Agreement and these amounts will not be reduced whether or
not the Executive obtains any other employment.
12. TAX PAYMENT.
(a) WITHHOLDINGS AND DEDUCTIONS. Any payment made pursuant to
Section 7(d) will be paid, less standard withholdings and other deductions
authorized by the Executive or required by law.
(b) GROSS-UP FOR CERTAIN TAXES.
(1) Subject to the provisions of Section 12(f) of this
Agreement, all determinations required to be made under this Section 12,
including whether and when a Gross-up Payment (as defined below) is required
and the amount of such Gross-up Payment and the assumptions to be utilized in
arriving at such determination, will be made by the public accounting firm
that is retained by the Corporation as of the date immediately prior to the
Effective Date (the "Accounting Firm") which will provide detailed supporting
calculations both to the Corporation and the Executive within 15 business
days of the receipt of notice from the Executive that there has been a
Payment (as defined below), or such earlier time as is requested by the
Corporation (collectively, a "Determination").
(2) In the event that the Accounting Firm is serving as
accountant or auditor for the individual, entity or group effecting the
Change in Control, the Executive will appoint another nationally recognized
public accounting firm to make the determinations required under this
Agreement (which accounting firm shall then be referred to as the Accounting
Firm ). All fees and expenses of the Accounting Firm will be borne solely by
the Company.
(3) If it is determined by the Accounting Firm that any
payment, distribution or other benefit (including any acceleration of vesting
of any benefit) received or deemed received by the Executive from the
Corporation and its affiliates pursuant to this Agreement or otherwise ( a
"Payment")(whether paid or payable or distributed or distributable pursuant
to the terms of this Agreement or otherwise, but determined without regard to
any Gross-up Payment required by this Section 12) is or will become subject
to any excise tax imposed by Section 4999 of the Internal Revenue Code or any
similar tax payable under any United States federal, state, local or other
law (such excise tax and all such similar taxes, together
14
with any interest and penalties imposed in respect thereto, are referred to
in this Agreement as the "Excise Taxes"), then the Corporation will pay the
Executive within five (5) days of receipt of the Determination, an amount
(the "Gross-up Payment") such that the net amount retained by the Executive,
after the deduction of any Excise Taxes on the Payments, and any federal,
state and local income tax, Medicare and any Excise Tax (including any
applicable interest and penalties on all such taxes), upon such Gross-up
Payment, will be equal to the amount of the Payments in the absence of the
imposition of such Excise Taxes and the Gross-up Payment.
(4) For purposes of determining the amount of the Gross-up
Payment, the Executive will 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 and local income taxes at the
highest marginal rates of taxation in the state and locality of his residence
in such calendar year.
(5) If the Accounting Firm determines that no Excise Tax is
payable by the Executive, it will furnish the Executive with a written
opinion that failure to report the Excise Tax on the Executive's applicable
federal income tax return will not result in the imposition of a negligence
or similar penalty.
(c) DETERMINATION BY THE EXECUTIVE.
(1) If at any time following determination of the Gross-up
Payment by the Accounting Firm, the Executive disputes the amount of the
Gross-up Payment, the Executive may elect to demand payment of the amount
which the Executive, in accordance with an opinion of counsel to the
Executive ("Executive Counsel Opinion"), determines to be the Gross-up
Payment. Any such demand by the Executive shall be made by delivery to the
Corporation of a written notice which specifies the Gross-up Payment
determined by the Executive and an Executive Counsel Opinion regarding such
Gross-up Payment (such written notice and opinion collectively, the
"Executive's Determination").
(2) Within 14 days after delivery of the Executive's
Determination to the Corporation, the Corporation shall either (i) pay the
Executive the Gross-up Payment set forth in the Executive's Determination
(less the portion of such amount, if any, previously paid to the Executive by
the Corporation) or (ii) deliver to the Executive a certificate specifying
the Gross-up Payment determined by the Accounting Firm, together with an
opinion of the Corporation's counsel ("Corporation Counsel Opinion"), and pay
the Executive the Gross-up Payment specified in such certificate. If for any
reason the Corporation fails to comply with clause (ii) of the preceding
sentence, the Gross-up Payment specified in the Executive's Determination
shall be controlling for all purposes.
(d) OPINION OF COUNSEL. "Executive Counsel Opinion" means a legal
opinion of nationally recognized executive compensation counsel that there is
a reasonable basis to support a conclusion that the Gross-up Payment
determined by the Executive has been
15
calculated in accordance with this Section and applicable law. "Corporation
Counsel Opinion" means a legal opinion of a nationally recognized executive
compensation counsel that (1) there is a reasonable basis to support a
conclusion that the Gross-up Payment set forth by the Accounting Firm has
been calculated in accordance with this Section and applicable law, and (2)
there is no reasonable basis for the calculation of the Gross-up Payment
determined by the Executive.
(e) ADDITIONAL GROSS-UP AMOUNTS. If, despite the initial conclusion
of the Corporation and/or the Executive that certain Payments are neither
subject to Excise Taxes nor to be counted in determining whether other
Payments are subject to Excise Taxes (any such item, a "Non-Parachute Item"),
it is later determined (pursuant to the subsequently-enacted provisions of
the Code, final regulations or published rulings of the Internal Revenue
Service, final judgment of a court of competent jurisdiction or the
Accounting Firm) that any of the Non-Parachute Items are subject to Excise
Taxes, or are to be counted in determining whether any Payments are subject
to Excise Taxes, with the result that the amount of Excise Taxes payable by
the Executive is greater than the amount determined by the Corporation or the
Executive pursuant to this Section, as applicable, then the Corporation shall
pay the Executive an additional Gross-up Payment in order to compensate the
Executive for such additional Excise Taxes, any interest, fines, penalties,
expenses or other costs incurred by the Executive as a result of having taken
a position in accordance with a determination made pursuant to Section 12(b),
and any federal, state and local income tax, Medicare and any Excise Tax upon
such additional Gross-up Payments, calculated in the manner described in
Section 12(b).
(f) AMOUNT INCREASED OR CONTESTED.
(1) The Executive shall notify the Corporation in writing
of any claim by the Internal Revenue Service or other taxing authority that,
if successful, would require the payment by the Corporation of a Gross-up
Payment. Such notice shall include the nature of such claim and the date on
which such claim is due to be paid.
(2) The Executive shall give such notice as soon as
practicable, but no later than 10 business days, after the Executive first
obtains actual knowledge of such claim; provided, however, that any failure
by the Executive to give or delay in giving such notice shall affect the
Corporation's obligations under this Section only if and to the extent that
such failure results in actual prejudice to the Corporation.
(3) The Executive shall not pay such claim less than 30
days after the Executive gives such notice to the Corporation (or, if sooner,
the date on which payment of such claim is due). If the Corporation notifies
the Executive in writing before the expiration of such period that it desires
to contest such claim, the Executive shall:
(i) give the Corporation any information that it
reasonably requests relating to such claim;
16
(ii) take such action in connection with contesting
such claim as the Corporation reasonably requests in writing from time to
time, including, without limitation, accepting legal representation with
respect to such claim by an attorney reasonably selected by the Corporation;
(iii) cooperate with the Corporation in good faith to
contest such claim; and
(iv) permit the Corporation to participate in any
proceedings relating to such claim;
PROVIDED, HOWEVER, that the Corporation shall bear and pay directly all costs
and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax, income tax or employment
tax, including related interest and penalties, imposed as a result of such
representation and payment of costs and expenses.
(4) Without limiting the foregoing, the Corporation shall
control all proceedings in connection with such contest and, at its sole
option, may pursue or forego any and all administrative appeals, proceedings,
hearings and conferences with the taxing authority in respect of such claim
and may, at its sole option, either direct the Executive to pay the tax
claimed and xxx for a refund or contest the claim in any permissible manner.
(5) The Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Corporation shall
determine; PROVIDED, HOWEVER, that if:
(i) the Corporation directs the Executive to pay such
claim and xxx for a refund, the Corporation shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify the
Executive, on an after-tax basis, for any Excise Tax , income tax or
employment tax, including related interest or penalties, imposed with respect
to such advance; and, FURTHER PROVIDED;
(ii) that any extension of the statute of limitations
relating to payment of taxes for the taxable year of the Executive with
respect to which such contested amount is claimed to be due is limited solely
to such contested amount. The Corporation's control of the contest shall be
limited to issues with respect to which a Gross-up Payment would be payable.
The Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or other taxing authority.
17
(g) REFUNDS.
(1) If, after the receipt by the Executive of an amount
advanced by the Corporation pursuant to Section 12(f), the Executive becomes
entitled to receive any refund with respect to such claim, the Executive
shall (subject to the Corporation's complying with the requirements of
Section 12(f)) promptly pay the Corporation the amount of such refund
(together with any interest paid or credited thereon after taxes applicable
thereto).
(2) If, after the receipt by the Executive of an amount
advanced by the Corporation pursuant to Section 12(f), a determination is
made that the Executive shall not be entitled to any refund with respect to
such claim and the Corporation does not notify the Executive in writing of
its intent to contest such determination before the expiration of 30 days
after such determination, then such advance shall be forgiven and shall not
be required to be repaid and the amount of such advance shall offset, to the
extent thereof, the amount of Gross-up Payment required to be paid.
(3) Any contest of a denial of refund shall be controlled
by Section 12(f).
13. CONFIDENTIAL INFORMATION; NON-COMPETITION.
(a) CONFIDENTIALITY.
(1) The Executive shall hold in a fiduciary capacity for
the benefit of the Corporation all Confidential Information (as hereinafter
defined) relating to the Corporation or any of its affiliates and their
respective businesses, which shall have been obtained by the Executive during
the Executive's employment by the Corporation or any of its affiliates.
(2) "Confidential Information" means any non-public,
proprietary information that may provide the Corporation with a competitive
advantage, including, without limitation, any trade secrets, formulas, flow
charts, computer programs and codes (including, without limitation, any
source codes), or other systems information, business, product or marketing
plans, sales and other forecasts, financial information, customer lists and
information relating to compensation and benefits, provided that such
proprietary information does not include any information which is available
to the general public or is generally available within the relevant business
or industry other than as a result of the Executive's breach of this Section
13(a).
(3) Confidential Information may be in any medium or form,
including, without limitation, physical documents, computer files, drives or
discs, videotapes, audiotapes and oral communications.
(4) Anything herein to the contrary notwithstanding, it
shall not be a violation of this Section 13(a) for the Executive to disclose
information in the ordinary course of properly carrying out his duties and
responsibilities on behalf of the Corporation or to
18
respond to an order of a court or other body having jurisdiction provided
that he gives the Corporation prior notice of any such order. In no event
shall an asserted violation of the provisions of this Section 13(a)
constitute a basis for deferring or withholding any amounts otherwise payable
to the Executive under this Agreement.
(b) NON-COMPETITION.
(1) The Executive agrees that he shall not for a period of
one (1) year following the Date of Termination, directly or indirectly own,
manage, operate, join, control, be employed by, or participate in the
ownership, management, operation or control of or be connected in any manner,
including but not limited to, holding the positions of officer, director,
shareholder, consultant, independent contractor, employee, partner or
investor, with any Competing Enterprise (as hereinafter defined); PROVIDED,
HOWEVER, that the Executive may invest without being deemed in violation of
this Section 13(b), in stocks, bonds or other securities of any corporation
or other entity (but without participating in the business thereof) if such
stocks, bonds or other securities are listed for trading on a national
securities exchange or NASDAQ and the Executive's investment does not exceed
1% of the issued and outstanding shares of capital stock, or in the case of
bonds or other securities, 1% of the aggregate principal amount thereof
issued and outstanding.
(2) For purposes of this Agreement, the term "Competing
Enterprise" shall mean an enterprise that engages in any business that, on
the Date of Termination, is engaged in by the Corporation or by any of its
affiliates if such enterprise engages in such business in any geographic
areas in which the Corporation or any of its affiliates conducts such
business.
(c) RETURN OF PROPERTY. Except as expressly provided herein,
promptly following the Executive's termination of employment, the Executive
shall return to the Corporation all property of the Corporation then in the
Executive's possession or under his control, except that the Executive may
retain his personal notes, diaries, Rolodexes (whether in electronic form or
otherwise), calendars and correspondence.
(d) IRREPARABLE INJURY. The Executive agrees that any material
breach of the terms of this Section 13 would result in irreparable injury and
damage to the Corporation for which the Corporation would have no adequate
remedy at law. The Executive further agrees that in the event of said
material breach or any reasonable threat of material breach, the Corporation
shall be entitled to an immediate injunction and restraining order to prevent
such material breach or threatened material breach. The terms of this Section
13(d) shall not prevent the Corporation from pursuing any other available
remedies for any breach or threatened breach hereof, including but not
limited to, the recovery of damages. Should a court or arbitrator determine
that any provision of this Section 13 is unreasonable, the parties agree that
such provision shall be interpreted and enforced to the maximum extent such
court or arbitrator deems reasonable.
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(e) SURVIVAL.
(1) The provisions of this Section shall survive any
termination of this Agreement and of the Employment Period, and the existence
of any claim or cause of action by the Executive against the Corporation,
whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by the Corporation of the covenants and agreements
of this Section.
(2) Anything in this Section 13(e) to the contrary
notwithstanding, the provisions of Section 13(b) shall only apply in the
event of:
(i) a termination of the Executive's employment
described in Section 1(a) hereof prior to the occurrence of a Change in
Control;
(ii) a termination of the Executive's employment
during the Employment Period that constitutes a Qualifying Termination; or
(iii) a termination for Cause at any time during the
Employment Period.
14. SUCCESSORS; BINDING AGREEMENT.
(a) This Agreement shall not be terminated by any merger or
consolidation of the Corporation whereby the Corporation is or is not the
surviving or resulting corporation or as a result of any transfer of all or
substantially all of the assets of the Corporation. In the event of any such
merger, consolidation or transfer of assets, the provisions of this Agreement
shall be binding upon the surviving or resulting corporation or the person or
entity to which such assets are transferred.
(b) The Corporation agrees that concurrently with any merger,
consolidation or transfer of assets referred to in Section 14(a) hereof, it
will cause any successor or transferee unconditionally to assume, by written
instrument delivered to the Executive (or his beneficiary or estate), all of
the obligations of the Corporation hereunder.
(c)(1) No rights or obligations of the Corporation under this
Agreement may be assigned or transferred by the Corporation except that such
rights or obligations may be assigned or transferred pursuant to a merger or
consolidation in which the Corporation is not the continuing entity, or in
connection with the sale or liquidation of all or substantially all of the
assets of the Corporation, or in connection with the disposition of all or
substantially all of the assets of the Corporation, or in connection with the
disposition of the business of the Corporation substantially as an entirety,
provided that the assignee or transferee is the successor to all or
substantially all of the assets of the Corporation and such assignee or
transferee assumes all of the liabilities, obligations and duties of the
Corporation under this Agreement, either contractually or as a matter of law.
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(2) This Agreement is personal to the Executive and,
without the prior written consent of the Corporation, 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 personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
the Executive shall die while any amounts would be payable to the Executive
hereunder had the Executive continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of this
Agreement to such person or persons appointed in writing by the Executive to
receive such amounts or, if no person is so appointed, to the Executive's
estate.
15. INDEMNIFICATION.
(a) The Corporation agrees that if the Executive is made a party to
any action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of the fact that he is or was a
director, officer or employee of the Corporation or of any of its affiliates,
the Executive shall be indemnified and held harmless by the Corporation to
the fullest extent legally permitted or authorized by the Corporation's
Amended and Restated Certificate of Incorporation, Amended and Restated
Bylaws, any Indemnification Agreement between the Corporation (or any of the
Corporation's affiliates) and the Executive or, if greater, by the laws of
the State of Delaware, against all cost, expense, liability and loss
(including, without limitation, attorneys' fees, judgments, fines, ERISA
excise taxes or penalties and amounts paid or to be paid in settlement)
reasonably incurred or suffered by the Executive in connection therewith.
(b) The Corporation agrees to continue and maintain a directors'
and officers' liability insurance policy covering the Executive to the extent
the Corporation provides such coverage for its other executive officers.
16. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without reference to principles of
conflict of laws. 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.
(b) 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:
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IF TO THE EXECUTIVE: [ Name of Executive Officer ]
[ Home address of Executive Officer ]
IF TO THE CORPORATION: FedEx Corporation
000 Xxxxx Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx
Executive Vice President,
General Counsel and Secretary
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.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other
provision of this Agreement.
(d) If any contest or dispute shall arise under this Agreement
involving termination of the Executive's employment with the Corporation or
involving the failure or refusal of the Corporation to perform fully in
accordance with the terms hereof, the Corporation shall reimburse the
Executive, on a current basis, for all legal fees and expenses, if any,
incurred by the Executive in connection with such contest or dispute
regardless of the result thereof.
(e) This Agreement contains the entire understanding between the
Corporation and the Executive with respect to the subject hereof and
supersedes and nullifies any previous change of control employment agreement
between the parties.
(f) The Executive and the Corporation acknowledge that the
employment of the Executive by the Corporation is "at will" and, prior to the
Effective Date, may be terminated by either the Executive or the Corporation
at any time. Except as specified in Section 1(a) hereof, upon a termination
of the Executive's employment or upon the Executive's ceasing to be an
officer of the Corporation, in each case, prior to the Effective Date, there
shall be no further rights under this Agreement.
(g) Any reference in this Agreement to any compensation, bonus,
profit sharing, stock option, restricted stock, pension, savings, retirement,
welfare, vacation or other similar benefit plan or program means and
includes, for purposes of this Agreement, any substitute or successor plan or
program.
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IN WITNESS WHEREOF, the Executive has hereunto set his hand and,
pursuant to the authorization from its Board of Directors, the Corporation
has caused these presents to be executed in its name on its behalf, all as of
the day and year first above written.
--------------------------------
[Name of Executive Officer]
FEDEX CORPORATION
By:
---------------------------
Name:
Title:
23
