Exhibit 10.11
CHANGE OF CONTROL AGREEMENT
This Agreement is entered into between Wisconsin Central
Transportation Corporation, a Delaware corporation (the "Company"), and Xxxxxx
X. Power, Jr. ("Executive"), as of the 25th day of January, 2001.
RECITALS
WHEREAS, Executive has been employed as President and Chief Executive Officer of
the Company and has served as a director of the Company, as well as chief
executive officer and a director of subsidiaries that are directly or indirectly
wholly owned by the Company ("Subsidiaries").
WHEREAS, the Company is in the process of negotiating a possible merger of the
Company with a wholly-owned subsidiary of Canadian National Railway Company
("Merger").
WHEREAS, the Company desires to have Executive continue his employment with the
Company during the negotiation process through the date of consummation of the
Merger or any earlier date on which a Change in Control (defined below) occurs
("Closing Date").
WHEREAS, the Company does not currently propose to have Executive remain as an
employee, officer or director of the company resulting from the proposed merger
or any earlier Change in Control.
WHEREAS, for purposes of this Agreement the Term "Change in Control" means the
occurrence of one of the following events either before the Merger is approved
by the stockholders of the Company or after the Merger agreement is terminated
in accordance with its terms:
(i) The acquisition by an entity, person or group (including all
affiliates or associates of such entity, person or group, but
excluding any person who on the date of this Agreement was the
beneficial owner of capital stock of the Company entitled to
exercise 30% or more of the Voting Power (as defined below)) of
beneficial ownership, as that term is defined in Rule 13d-3 under
the Securities Exchange Act of 1934, of capital stock of the
Company, if after such acquisition such entity, person or group
is entitled to exercise more than 30% of the outstanding voting
power of all capital stock of the Company entitled to vote in
elections of directors ("Voting Power");
(ii) The effective time of (1) a merger or consolidation of the
Company with one or more other corporations as a result of which
the holders of the outstanding Voting Power of the Company
immediately prior to such merger or consolidation (other than the
surviving or resulting corporation or any affiliate or associate
thereof) hold less than 50% of the Voting Power of the surviving
or resulting corporation, or (2) a transfer of 30% of the Voting
Power, or a substantial portion of the property (at least 50% of
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book value), of the Company other than to an entity of which the
Company owns at least 50% of the Voting Power; or
(iii) During any 24-month period, individuals who at the beginning of
such period constituted the Board of Directors of the Company
(together with any new directors whose election by the Board of
Directors or nomination for election by the Company's
stockholders was approved by a vote of at least a majority of
the directors who either were directors at the beginning of such
period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a
majority of the Company's Board of Directors.
Notwithstanding the foregoing, a Change in Control shall not be deemed to take
place by virtue of any transaction in which Executive is a participant in a
group effecting an acquisition of the Company if, after such acquisition,
Executive holds an equity interest in the entity that has acquired the Company.
AGREEMENT
Now, therefore, for good and valuable consideration, the receipt of which is
hereby acknowledged by both parties, the Company and Executive agree as follows:
I. CONTINGENT RIGHTS AND OBLIGATIONS
If the Executive has not resigned prior to the Closing Date, the following
rights and obligations shall exist:
1. RESIGNATION. Executive shall resign from all positions and employment
with the Company and its Subsidiaries effective the Closing Date.
2. PAYMENT. In consideration of the agreements and subject to Executive's
performance of the undertakings set forth in this Agreement, the
Company, in full and final settlement of all of Executive's stated and
unstated claims, including any claim for severance, reimbursement of
vacation or sick pay, incentive compensation under the Company's
management incentive compensation plan for the year in which the
Closing Date occurs or otherwise but excluding any claims relating to
deferred compensation, stock options or phantom stock, agrees to make
the following payments to Executive:
(a) The Company shall pay Executive the amount of earned and
previously unpaid salary for the period ending on the Closing
Date in accordance with its customary practice.
(b) On the Closing Date, the Company shall make a $2,025,000 cash
payment to Executive.
(c) If federal excise taxes are applicable to the payment described
in paragraph 2(b), on the Closing Date the Company shall make an
additional payment to Executive equal
Ex. 10.11 - Page 2
to the amount required for Executive to have received and
retained $2,025,000 after payment of (i) the federal excise taxes
applicable to all payments under this paragraph 2 (including the
payments under this paragraph 2(c)) and (ii) the federal and
state income taxes applicable to any additional payment made
pursuant to this paragraph 2(c), but before payment of the
federal and state income taxes applicable to the $2,025,000
payment.
3. EXPENSE REIMBURSEMENT. The Company will reimburse Executive for business
expenses he incurred on its behalf prior to the Closing Date, subject to
compliance with the Company's existing expense reimbursement policies; provided
that any such request for reimbursement shall be made prior to the date 30 days
following the Closing Date.
4. WITHHOLDING. All amounts otherwise payable under this Agreement shall be
subject to customary tax withholding and other employment taxes and shall be
subject to such other withholding as may be required in accordance with
applicable law.
5. BENEFIT PLANS. The Company shall take such steps, whether pursuant or
supplemental to its existing employee benefit plans, to provide to Executive,
from the date of the Closing Date until he attains age 65, the same or
comparable insurance and welfare benefit arrangements in which he currently
participates.
6. AUTOMOBILE. The Company shall transfer to Executive, without charge, title
to the automobile used by Executive immediately prior to the Closing, free of
any liens.
7. NON-COMPETITION. For the period beginning on the Closing Date and ending on
the first anniversary of the Closing Date, Executive agrees that he will not
(other than on behalf of one of the Class 1 railroads in the United States or
Canada) directly or indirectly engage in, assist, perform services for,
establish, or have any equity interest (other than ownership of 1% or less of
the outstanding stock of any corporation listed on the New York or American
Stock Exchanges or included in the NASDAQ National Market System) in, whether as
an employee, officer, director, agent, security holder, creditor, consultant or
otherwise, any entity or person which conducts rail operations in the State of
Wisconsin, the Upper Peninsula of Michigan, the Chicago Switching District, the
Minneapolis-St. Xxxx Switching District, the Province of Ontario, the United
Kingdom, New Zealand, Australia or Jordan. Of the cash payments made pursuant to
this Agreement, $1,200,000 ($400,000 per year) is allocated as payment in
consideration of Executive's agreement not to compete as set forth in this
paragraph.
8. CONFIDENTIALITY. Executive agrees that he will not, without the prior
written consent of the Company, directly or indirectly disclose to any
individual, corporation or other entity (other than the Company, its
Subsidiaries or Affiliates or their respective officers, directors or employees
entitled to such information) or use for his own or such another's benefit, any
information, whether or not reduced to written or other tangible form, which (a)
is not generally known to the public or in the industry; (b) has been treated by
the Company or any of its Subsidiaries or Affiliates as confidential or
proprietary; and (c) is of competitive advantage to the Company or any of its
Subsidiaries or Affiliates (such information being referred to in this paragraph
as "Confidential Information"). Confidential Information which becomes generally
known to the public without violation of this Agreement shall cease to be
subject to the restrictions of this paragraph.
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9. COVENANTS GENERALLY. The parties agree and acknowledge that the duration,
scope and geographic areas applicable to the covenants set forth in paragraphs 7
and 8 of this Agreement are fair, reasonable and necessary and that adequate
compensation has been received by Executive for these obligations. If, however,
for any reason any court determines that the restrictions in this Agreement are
not reasonable, that the consideration to Executive therefor is inadequate or
that Executive has been prevented from earning a livelihood, such restrictions
shall be deemed without further action by the parties to be interpreted,
modified or rewritten to include as much of the duration, scope and geographic
area of such restrictions as are valid and enforceable.
10. NON-DISPARAGEMENT.
a. Executive agrees that he shall not make any disparaging statements
about the Company, its Subsidiaries or Affiliates (including any
successor thereto) or the directors, officers or employees of any of
them; provided that the provisions of this clause shall not apply to
truthful testimony as a witness, compliance with other legal
obligations, or truthful assertion of or defense against any claim of
breach of this Agreement, or to his truthful statements or disclosures
to officers or directors of the Company, and shall not require
Executive to make false statements or disclosures; and provided
further that, at any period after nine months following the Closing
Date, he may, in good faith, make fair and truthful comment about the
Company, its Subsidiaries or Affiliates or the directors, officers or
employees or any of them with respect to events arising or
circumstances existing after the Closing Date.
b. The Company agrees that neither the directors nor the officers of the
Company or its Subsidiaries nor any spokesperson for any of them shall
make any disparaging statements about Executive; provided that the
provisions of this clause shall not apply to truthful testimony as a
witness, compliance with other legal obligations, truthful assertion
of or defense against any claim of breach of this Agreement or
truthful statements or disclosures to Executive, and shall not require
false statements or disclosures to be made; and provided further that
the Company may, in good faith, make fair and truthful comment in
response to any statements that may be made by Executive pursuant (or
purportedly pursuant) to the last proviso of paragraph 10(a) of this
Agreement.
11. RELEASE. Except for a claim based upon a breach of this Agreement or a
claim based on the claims specifically excluded in paragraph 2 of this
Agreement, effective as of the Closing Date Executive shall release the
Released Parties (as defined below) from any and all claims, suits,
demands, actions or causes of action of any kind or nature whatsoever,
whether the underlying facts are known or unknown, which Executive has or
now claims, or might have or claim, pertaining to or arising out of
Executive's employment by the Company or his separation therefrom or under
any local, state or federal common law, statute, regulation or ordinance,
including without limitation those claims dealing with employment
discrimination, including without limitation, Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. Section 2000e ET SEQ., 42 U.S.C.
Section 1981,Americans with Disabilities Act, the Illinois Human Rights Act
or claims for breach of contract, for misrepresentation, for defamation,
for wrongful discharge under the common law of any state, for infliction
of emotional distress or for any
Ex. 10.11 - Page 4
other tort under the common law of any state. This release shall run to the
Company and each of its Subsidiaries and Affiliates, and all predecessors,
successors and assigns thereof and each of their members, trustees,
shareholders, partners, principals, members, directors, officers, trustees,
employees, agents and attorneys, past or present, and all predecessors,
successors, heirs and assigns thereof (collectively, "Released Parties").
This release shall also be binding upon Executive and his heirs and
assigns. In exchange for this general release and waiver hereunder, as of
the Closing Date Executive shall acknowledge that he has received separate
consideration beyond that which he is otherwise entitled to under the
Company's policy or applicable law.
12. COVENANT NOT TO XXX. To the maximum extent permitted by law, Executive
covenants not to xxx or to institute or cause to be instituted any action
in any federal, state or local agency or court against the Released Parties
regarding the matters covered by the release contained in paragraph 11
above (except to enforce the terms of this Agreement). If Executive
breaches the terms of the release and covenant not to xxx, then the
Released Parties shall be entitled to recover their costs, including
reasonable attorneys' fees incurred in defending such action.
13. SPECIFIC ENFORCEMENT. Executive agrees that any breach by him of paragraphs
7 through 11 of this Agreement will cause the Company great injury which
will be difficult, if not impossible, to measure and that such injury will
be immediate and irreparable for which the Company will have no adequate
remedy at law. Consequently, Executive agrees that any material breach by
Executive of the foregoing paragraphs 7 through 11 of this Agreement shall
entitle the Company to injunctive relief, and shall entitle the Company to
cancel its obligations under this Agreement, provided that if a material
breach occurs, the Company shall notify Executive of such breach and
Executive may, if possible, attempt to cure such material breach. Executive
agrees that, in the event of a breach by Executive of the foregoing
provisions of this Agreement the Company would be more harmed by the denial
of an injunction or other equitable relief than Executive would be harmed
by the issuance of an injunction or other equitable relief and that the
public interest would be furthered by the issuance of an injunction or
other equitable relief to prevent further or additional breach of the
foregoing provisions of this Agreement.
14. THIRD PARTY LEGAL PROCEEDINGS. Executive agrees to cooperate, at reasonable
times and on reasonable notice, with the Company in the truthful and honest
prosecution or defense of any claim in which the Released Parties may have
an interest (subject to reasonable limitations concerning time and place),
which may include without limitation making himself available to
participate in any proceeding involving any of the Released Parties,
allowing himself to be interviewed by representatives of the Company,
appearing for depositions and testimony without requiring a subpoena, and
producing and providing any documents or names of other persons with
relevant information.
15. NO MITIGATION. Executive shall have no obligation to seek or accept
employment, and any compensation earned or provided to Executive from any
person or entity other than the Company and its Subsidiaries for the
performance of such employment or other services shall not reduce or
otherwise affect the amount due to Executive from the Company in accordance
with this Agreement, so long as such employment or service does not violate
Executive's obligations under paragraphs 7 and 8 of this Agreement.
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16. INDEMNIFICATION; INSURANCE. Executive shall continue to be eligible for
indemnification from the Company with respect to acts or omissions on or
prior to the Closing Date pursuant to the indemnification provisions of the
Company's charter and/or bylaws to the same extent as other current or
former directors and officers of the Company. Executive shall be entitled
to coverage with respect to acts or omissions on or prior to the Closing
Date under the directors and officers liability insurance coverage
maintained by the Company (at the Closing Date and as may be in effect from
time to time thereafter) to the same extent as other current or former
officers and directors of the Company.
17. COMPANY PROPERTY. After the Closing Date, Executive shall return any
material personal property to the Company or its Subsidiary or Affiliate,
as the case may be, except that Executive may retain the two Company fax
machines and laptop computer that he has been using; provided, however,
that his retention of the laptop computer is subject to his obligations
under paragraph 8 of this Agreement with respect to any Confidential
Information contained therein.
II. MISCELLANEOUS.
18. INTEREST. If any payment to be made under this Agreement by the Company is
not paid within 30 days after it has become due, the Company will pay
interest on such unpaid amount at the Company's then cost of borrowings.
19. MODIFICATION. No modification of this Agreement shall be valid unless
signed by the party against whom such modification is sought to be
enforced.
20. LEGAL COUNSEL. Executive acknowledges that he has carefully read and fully
understands the terms and provisions of this Agreement and all of his
rights and obligations thereunder, has had an opportunity to be represented
by legal counsel of his choosing prior to executing this Agreement which
contains a general release and waiver and that his execution of this
Agreement is voluntary.
21. NO ADMISSION. Executive agrees that neither this Agreement nor performance
hereunder constitutes an admission by the Company of any violation of any
federal, state or local law, regulation, common law, of any breach of any
contract or any other wrongdoing of any type.
22. NOTICES. Notices and all other communications provided for in this
Agreement shall be in writing and shall be delivered personally or sent by
registered or certified mail, return receipt requested, postage prepaid, or
sent by facsimile or prepaid overnight courier to the parties at the
addresses set forth below (or such other addresses as shall be specified by
the parties by like notice). Such notices, demands, claims and other
communications shall be deemed given:
a. in the case of delivery by overnight service with guaranteed next day
delivery, the next day or the day designated for delivery;
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b. in the case of certified or registered U.S. mail, five days after deposit
in the U.S. mail; or
c. in the case of facsimile, the date upon which the transmitting party
received confirmation of receipt by facsimile, telephone or otherwise;
provided, however, that in no event shall any such communications be deemed
to be given later than the date they are actually received. Communications
that are to be delivered by the U.S. mail or by overnight service are to be
delivered to the addresses set forth below:
If to the Company:
Wisconsin Central Transportation Corporation
One X'Xxxx Centre, Suite 9000
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
If to Executive:
Xxxxxx X. Power, Jr.
0000 Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Phone: 000-000-0000
Facsimile: 000-000-0000
Each party, by written notice furnished to the other party, may modify the
applicable delivery address, except that notice of change of address shall
be effective only upon receipt.
23. ENTIRE AGREEMENT. This instrument constitutes the entire agreement between
the parties.
24. SEVERABILITY. If any provision, section, subsection or other portion of
this Agreement shall be determined by any court of competent jurisdiction
to be invalid, illegal or unenforceable in whole or in part, and such
determination shall become final, such provision or portion shall be deemed
to be severed or limited, but only to the extent required to render the
remaining provisions and portions of this Agreement enforceable. This
Agreement as thus amended shall be enforced so as to give effect of the
intention of the parties insofar as that is possible. In addition, the
parties hereby expressly empower a court of competent jurisdiction to
modify any term or provision of this Agreement to the extent necessary to
comply with existing law and to enforce this Agreement as modified.
25. GOVERNING LAW. This Agreement shall be construed in accordance with the
laws of the State of Illinois.
26. COUNTERPARTS. This Agreement may be signed in multiple counterparts, each
of which shall be deemed to be an original for all purposes.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
WISCONSIN CENTRAL
TRANSPORTATION CORPORATION
By: /s/ Xxxxxx X. Xxxx
--------------------------------------
Printed Name: Xxxxxx X. Xxxx
Its: Executive Vice President and Chief
Financial Officer
EXECUTIVE
/s/ Xxxxxx X. Power, Jr.
-----------------------------------------
Name: Xxxxxx X. Power, Jr.
Ex. 10.11 - Page 9
