EXHIBIT 10.2(d)
CHANGE OF CONTROL
SEVERANCE AGREEMENT
THIS AGREEMENT dated as of May 1, 1996 amends, restates and supersedes the
provisions of a certain Change of Control Severance Agreement or Amended and
Restated Change of Control Severance Agreement between RYDER SYSTEM, INC., a
Florida corporation (the "Corporation"), and _____________________________ (the
"Executive"), dated as of the _______day of _____________________, 19_____ (the
"Prior Agreement").
WITNESSETH:
WHEREAS, the Executive is an officer and/or key employee of the Corporation
and/or its subsidiaries or affiliates and an integral part of its management;
and
WHEREAS, in order to retain the Executive and to assure both the Executive
and the Corporation of the continuity of management in the event of any actual
or threatened Change of Control (as defined in Section 2) of the Corporation,
the Corporation desires to provide severance benefits to the Executive if the
Executive's employment with the Corporation and/or its subsidiaries or
affiliates terminates as provided herein concurrent with or subsequent to a
Change of Control;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, it is hereby agreed by and between the Corporation and the
Executive as follows:
l. TERM OF AGREEMENT. This Agreement shall become effective as of the
date hereof and shall terminate upon the occurrence of the earliest of the
events specified below; provided, however, that Section 5, including the release
referenced therein, shall survive termination of this Agreement:
(a) the last day of the Severance Period (as defined in
Section 3(f));
(b) the termination of the Executive's employment by the
Corporation or its subsidiaries or affiliates for Death, Disability or Cause, or
by the Executive other than for Good Reason (as defined in Section 3(b), (a),
and (c) respectively);
(c) one (1) year following the date of receipt of a mailing (by
overnight express mail or registered or certified mail, return receipt
requested) or hand delivery to the Executive by the Corporation of written
notice of its intent to terminate this Agreement; provided, however, that such
written notice shall have been received by the Executive prior to the date of a
Change of Control (as defined in Section 2);
(d) three (3) years following the date of a Change of Control
(as defined in Section 2) if the Executive's employment with the Corporation or
its subsidiaries or affiliates has not been terminated as of such time; or
(e) the material breach by the Executive of the provisions of
Section 5, including the release referenced therein.
Additionally, notwithstanding anything in this Agreement to the
contrary, if the Executive should die while receiving severance pay or benefits
pursuant to Section 4 as a result of the termination of the Executive's
employment by the Corporation or its subsidiaries or affiliates other than for
Death, Disability or Cause, or by the Executive for Good Reason (as defined in
Sections 3(b), (a), and (c) respectively), this Agreement shall terminate
immediately upon the Executive's death and both parties shall be released from
all obligations under this Agreement other than those under the release
referenced in Section 5(b)(II) and those relating to amounts or benefits which
are payable under this Agreement within five (5) business days after the
Executive's Date of Termination (if not already paid), are vested under any
plan, program, policy or practice, or the Executive is otherwise entitled to
receive upon his death, including, but not limited to, life insurance. Any
payment due pursuant to the preceding sentence upon the Executive's death shall
be made to the estate of the deceased Executive, unless the plan, program,
policy, practice or law provides otherwise.
2. CHANGE OF CONTROL. For the purpose of this Agreement, a "Change
of Control" shall be deemed to have occurred if:
(a) any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended
(the "1934 Act")) (a "Person") becomes the beneficial owner, directly or
indirectly, of twenty percent (20%) or more of the combined voting power of the
Corporation's outstanding voting securities ordinarily having the right to vote
for the election of directors of the Corporation; provided, however, that for
purposes of this subparagraph (a), the following acquisitions shall not
constitute a Change of Control: (i) any acquisition by any employee benefit plan
or plans (or related trust) of the Corporation and its subsidiaries and
affiliates or (ii) any acquisition by any corporation pursuant to a transaction
which complies with clauses (i), (ii) and (iii) of subparagraph (c) of this
Section 2; or
(b) the individuals who, as of August 18, 1995, constituted the
Board of Directors of the Corporation (the "Board" generally and as of August
18, 1995 the "Incumbent Board") cease for any reason to constitute at least
two-thirds (2/3) of the Board, provided that any person becoming a director
subsequent to August 18, 1995 whose election, or nomination for election, was
approved by a vote of the persons comprising at least two-thirds (2/3) of 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, as such terms are used in Rule 14a-11 of Regulation 14A
promulgated under the 0000 Xxx) shall be, for purposes of this Agreement,
considered as though such person were a member of the Incumbent Board; or
(c) there is a reorganization, merger or consolidation of the
Corporation (a "Business Combination"), in each case, unless, following such
Business Combination, (i) all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Corporation's
outstanding common stock and outstanding voting securities ordinarily having the
right to vote for the election of directors of the Corporation immediately prior
to such Business Combination beneficially own, directly or indirectly, more than
fifty percent (50%) of, respectively, the then outstanding shares of common
stock and the combined voting power of the then outstanding voting securities
ordinarily having the right to vote for the election of directors, as the case
may be, of the corporation resulting from such Business Combination (including,
without limitation, a corporation which as a result of such transaction owns the
Corporation or all or substantially all of the Corporation's assets either
directly or through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business Combination,
of the Corporation's outstanding common stock and outstanding voting securities
ordinarily having the right to vote for the election of directors of the
Corporation, as the case may be, (ii) no Person (excluding any corporation
resulting from such Business Combination or any employee benefit plan or plans
(or related trust) of the Corporation or such corporation resulting from such
Business Combination and their subsidiaries and affiliates) beneficially owns,
directly or indirectly, 20% or more of the combined voting power of the then
outstanding voting securities of the corporation resulting from such Business
Combination and (iii) at least two-thirds (2/3) of the members of the board of
directors of the corporation resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination; or
(d) there is a liquidation or dissolution of the Corporation
approved by the shareholders; or
(e) there is a sale of all or substantially all of the assets
of the Corporation.
If a Change of Control occurs and if the Executive's employment is terminated
prior to the date on which the Change of Control occurs, and if it is reasonably
demonstrated by the Executive that such termination of employment (A) was at the
request of a third party who has taken steps reasonably calculated to effect a
Change of Control or (B) otherwise arose in connection with or in anticipation
of a Change of Control, a Change of Control shall be deemed to have
retroactively occurred on the date immediately prior to the date of such
termination of employment.
3. CERTAIN DEFINITIONS.
(a) CAUSE. The Executive's employment may be terminated for
Cause only if a majority of the Incumbent Board determines that Cause (as
defined below) exists. For purposes of this Agreement, "Cause" means (i) an act
or acts of fraud, misappropriation, or embezzlement on the Executive's part
which result in or are intended to result in his or another's personal
enrichment at the expense of the Corporation or its subsidiaries or affiliates,
(ii) conviction of a felony, (iii) conviction of a misdemeanor involving moral
turpitude, or (iv) willful failure to report to work for more than thirty (30)
continuous days not attributable to eligible vacation or supported by a licensed
physician's statement.
(b) DEATH OR DISABILITY.
(i) The Executive's employment will be terminated by
the Corporation or its subsidiaries or affiliates automatically upon the
Executive's death ("Death").
(ii) After having established the Executive's Disability
(as defined below), the Corporation may give to the Executive written notice of
the Corporation's and/or its subsidiaries' or affiliates' intention to terminate
the Executive's employment for Disability. The Executive's employment will
terminate for Disability effective on the thirtieth (30th) day after the
Executive's receipt of such notice (the "Disability Effective Date") if within
such thirty (30) day period after such receipt the Executive shall fail to
return to full-time performance of his duties. For purposes of this Agreement,
"Disability" means disability which after the expiration of more than five (5)
months after its commencement is determined to be total and permanent by an
independent licensed physician mutually agreeable to the parties.
In the event of the Executive's termination for Death or
Disability, the Executive and, to the extent applicable, his legal
representatives, executors, heirs, legatees and beneficiaries, shall have no
rights under this Agreement and their sole recourse, if any, shall be under the
death or disability provisions of the plans, programs, policies and practices of
the Corporation and/or its subsidiaries and affiliates, as appropriate.
(c) GOOD REASON. For purposes of this Agreement, "Good
Reason" means:
(i) any failure by the Corporation and/or its subsidiaries
or affiliates to furnish the Executive and/or where applicable, his family, with
(A) total annual cash compensation (including annual incentive compensation),
(B) total aggregate value of perquisites, (C) total aggregate value of benefits,
or (D) total aggregate value of long term compensation, including but not
limited to, stock options, in each case at least equal to or otherwise
comparable to in the aggregate or exceeding the highest level received by the
Executive from the Corporation and/or its subsidiaries or affiliates during the
six (6) month period (or the one (1) year period for compensation, perquisites
and benefits which are paid less frequently than every six (6) months)
immediately preceding the Change of Control, other than an inadvertent failure
remedied by the Corporation within five (5) business days after receipt of
notice thereof given by the Executive;
(ii) the Corporation's and/or its subsidiaries' or
affiliates' requiring the Executive to be based or to perform services at any
site or location more than fifteen (15) miles from the site or location at which
the Executive is based at the time of the Change of Control, except for travel
reasonably required in the performance of the Executive's responsibilities
(which does not materially exceed the level of travel required of the Executive
in the six (6) month period immediately preceding the Change of Control);
(iii) any failure by the Corporation to obtain the
assumption and agreement to perform this Agreement by a successor as
contemplated by Section 8(b);
(iv) any failure by the Corporation to pay into the
Trust(s) (as defined in Section 4(c)) the amounts and at the time or times as
are required pursuant to the terms of such Trust(s);
(v) any purported termination by the Corporation or its
subsidiaries or affiliates of the Executive's employment that is not effected
pursuant to a Notice of Termination satisfying the requirements of Section 3(d),
which purported termination shall not be effective for purposes of this
Agreement; or
(vi) if the Executive is in management level 14 or above
immediately prior to the Change of Control, (A) any assignment to the Executive
of duties inconsistent in any material respect with the highest level of the
Executive's position (including titles and reporting relationships), authority,
responsibilities or status as in effect at any time during the six (6) month
period immediately preceding the Change of Control without the express prior
written consent of the Executive (which consent the Executive has the absolute
right to withhold), or (B) any other material adverse change in such position,
authority, responsibilities or status without the express prior written consent
of the Executive (which consent the Executive has the absolute right to
withhold).
For the purposes of this Section 3(c), any good faith
interpretation by the Executive of the foregoing definitions of "Good Reason"
shall be conclusive on the Corporation. Additionally, the Executive's continued
employment shall not constitute consent to, or a waiver of rights with respect
to, any circumstance constituting Good Reason hereunder.
(d) NOTICE OF TERMINATION. Any termination of the Executive's
employment by the Executive for Good Reason or by the Corporation or its
subsidiaries or affiliates for any reason other than Death shall be communicated
by a Notice of Termination to the other party, with a copy to the Trustee (as
defined in Section 4(c)) hereto given in accordance with Section 9(b). For
purposes of this Agreement, a "Notice of Termination" means a written notice
which (i) indicates the specific termination provision in this Agreement relied
upon, (ii) sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of the Executive's employment under the
provision so indicated, and (iii) if the Date of Termination (as defined below)
is other than the date of receipt of such notice, specifies the termination date
(which date shall be not more than fifteen (15) days after the giving of such
notice or, in the event of Disability, the Disability Effective Date).
(e) DATE OF TERMINATION. Date of Termination means the date of
receipt by the Executive or the Corporation or its subsidiaries or affiliates of
the Notice of Termination or any later date specified therein, as the case may
be; provided, however, that if the Executive's employment is terminated by
reason of Death or Disability, the Date of Termination shall be the date of
Death of the Executive or the Disability Effective Date, as the case may be.
(f) SEVERANCE PERIOD. Unless terminated sooner pursuant to
Section 1, the Severance Period means the period set forth below depending on
the Executive's management
level immediately preceding either the Notice of Termination or, if greater, the
Change of Control, which period shall begin on the day following the Executive's
Date of Termination:
Chief Executive Officer Three (3) years
Mgmt. Xxxxx 00 or above Three (3) years
Mgmt. Level 15-18 Two (2) years
Mgmt. Level 14 One (1) year and six (6) months
Mgmt. Level 13 One (1) year
Mgmt. Level 12 Nine (9) months
Mgmt. Level 11 Six (6) months
4. OBLIGATIONS OF THE CORPORATION.
(a) CIRCUMSTANCES OF TERMINATION.
(i) If, within the three (3) year period commencing on a
Change of Control of the Corporation, (A) the Corporation or its subsidiaries or
affiliates shall terminate the Executive's employment for any reason other than
for Death, Disability or Cause, or (B) the Executive shall terminate his
employment with the Corporation or its subsidiaries or affiliates for Good
Reason, the Corporation agrees to provide the Executive with compensation,
benefits and perquisites in accordance with the terms and provisions set forth
in Subsection (iii) below and the other provisions of this Agreement, and the
Executive agrees that he shall be subject to such terms and provisions. The
Executive shall not be deemed to have terminated his employment with the
Corporation or any of its subsidiaries or affiliates if he leaves the employ of
the Corporation or any of its subsidiaries or affiliates for immediate
reemployment with the Corporation or any of its subsidiaries or affiliates.
(ii) If during the term of this Agreement, (A) the
Corporation or its subsidiaries or affiliates shall terminate the Executive's
employment for Death, Disability or Cause or (B) the Executive shall terminate
his employment with the Corporation or its subsidiaries or affiliates other than
for Good Reason, then the Executive shall not be entitled to any of the benefits
set forth in Subsection (iii) below or in any other section of this Agreement,
except to the extent of the amounts which represent vested benefits or which the
Executive is otherwise entitled to receive under any plan, program, policy or
practice of the Corporation or any of its subsidiaries or affiliates at or
subsequent to the Executive's Date of Termination.
(iii) If the Executive is entitled to receive severance
pay and benefits under Subsection (i) above, the Corporation agrees to provide
the Executive with the following compensation, benefits and perquisites, subject
to Section 5(b):
(I) CASH ENTITLEMENT. The Corporation and/or the
Trustee (as defined in Section 4(c)) shall pay to the Executive the
aggregate of the amounts determined pursuant to clauses a through f
below:
a. UNPAID SALARY AND VACATION. If not
already paid, the Executive's base salary and unused vacation
entitlement through the Executive's Date of Termination at the rate in
effect at the time the Notice of Termination was given, or if greater,
at the highest rate in effect during the six (6) month period
immediately preceding the Change of Control.
b. SALARY MULTIPLE. The Executive's
annual base salary at the rate in effect at the time the Notice of
Termination was given, or if greater, at the highest rate in effect
during the six (6) month period immediately preceding the Change of
Control ("Annual Base Salary"), MULTIPLIED BY the following salary
multiple depending on the Executive's management level immediately
preceding either the Notice of Termination or, if greater, the Change
of Control:
Chief Executive Officer 3
Mgmt. Level 19 or above 3
Mgmt. Xxxxx 00-00 0
Xxxx. Xxxxx 00 1.5
Mgmt. Xxxxx 00 0
Xxxx. Xxxxx 00 .00
Xxxx. Xxxxx 00 .5
c. TENURE - RELATED BONUS. An amount
equal to the PRODUCT OF (i) the Executive's Annual Base Salary
MULTIPLIED BY (ii) the stated maximum bonus opportunity percentage
available to the Executive under the respective incentive compensation
plan immediately preceding either the Notice of Termination or, if
greater, the Change of Control MULTIPLIED BY (iii) the "Executive's
Three Year Average Bonus Percentage" (as defined below) (the product of
(i), (ii) and (iii) hereinafter referred to as the "Bonus Opportunity")
MULTIPLIED BY the number of the Executive's full and prorated partial
years of service with the Corporation and/or its subsidiaries or
affiliates, subject to a maximum of twelve (12) years, divided by
twelve (12).
The "Executive's Three Year Average Bonus
Percentage" is the SUM OF the bonus percentages paid to the Executive
DIVIDED BY the stated maximum bonus opportunity percentages available
to the Executive rounded to one decimal place (e.g., 86.3%) FOR EACH OF
the three (3) fiscal years immediately preceding either the Notice of
Termination or, if greater, the Change of Control DIVIDED BY three (3).
If the Executive has been employed by the
Corporation and/or its subsidiaries or affiliates for less than three
(3) fiscal years prior to the Change of Control, or if the Executive
was not eligible to receive an incentive compensation award pursuant to
an incentive compensation plan of the Corporation and/or its
subsidiaries or affiliates for one (1) or more of the three (3) fiscal
years immediately preceding either the Change of Control or the Notice
of Termination, the bonus percentage to be applied in the "Executive's
Three Year Bonus Percentage" calculation for any year in which the
Executive was not employed or eligible to receive an incentive award
will be the average bonus percentage paid for such year to all
executives in the Corporation or the Executive's respective division,
as appropriate, with a stated maximum bonus opportunity level similar
to that of the Executive immediately preceding either the Notice of
Termination or, if greater, the Change of Control DIVIDED BY the
average stated maximum bonus opportunity available to these executives
rounded to one decimal place (e.g., 86.3%).
CALCULATION EXAMPLE OF EXECUTIVE'S THREE YEAR AVERAGE
BONUS PERCENTAGE
(2)
(1) STATED (1)/(2)
BONUS MAXIMUM BONUS
PERCENTAGE BONUS OPPORTUNITY
YEAR PAID OPPORTUNITY PERCENT
---- ---------- ----------- -------
1 55.1% 60.0% 91.8%
2 71.8% 80.0% 89.8%
3 102.0% 100.0% 102.0%
------
Sum 283.6%
Executive's Three Year Average
Bonus Percentage (Sum DIVIDED BY 3) 94.5%
d. BONUS MULTIPLE. For the Chief
Executive Officer and executives in management level 17 and above ONLY,
an amount equal to the PRODUCT OF the Bonus Opportunity determined in
clause c above MULTIPLIED BY the following multiple depending on the
Executive's management level immediately preceding either the Notice of
Termination or, if greater, the Change of Control:
Chief Executive Officer 2
Mgmt. Level 17 or above 1
e. CHANGE OF CONTROL YEAR BONUS. If
the Executive has not yet been paid an incentive compensation award for
the calendar year in which the Change of Control occurred in accordance
with the terms of the respective incentive compensation plan in effect
immediately preceding the Change of Control, the Executive shall
receive an amount equal to the PRODUCT OF (i) the actual salary earned
by the Executive during the calendar year in which the Change of
Control occurred MULTIPLIED BY (ii) the sum of (a) the greater of
actual company performance or eighty percent (80%) of maximum company
performance opportunity for such calendar year under the respective
incentive compensation plan as in effect immediately preceding the
Change of Control PLUS (b) the greater of actual individual performance
or eighty percent (80%) of maximum individual performance opportunity
for the Executive for such calendar year under the respective incentive
compensation plan as in effect immediately preceding the Change of
Control; provided, however, if a "Big Six" accounting firm chosen by
the Corporation does not verify the actual company and individual
performance in accordance with the terms of the respective incentive
compensation plan in effect immediately preceding the Change of
Control, the Executive shall receive an amount equal to the PRODUCT OF
(i) above MULTIPLIED BY the sum of (a) one hundred percent (100%) of
maximum company performance opportunity for such calendar year under
the respective incentive compensation plan as in effect immediately
preceding the Change of Control PLUS (b) one hundred percent (100%) of
maximum individual performance opportunity for the Executive for such
calendar year under the respective incentive compensation plan as in
effect immediately preceding the Change of Control.
f. PRIOR YEAR BONUS. If bonuses for
the calendar year prior to the Executive's Date of Termination (other
than those payable pursuant to clause e above) have been distributed
and the Executive is entitled to and has not yet been paid his
incentive compensation award for such calendar year, and his Date of
Termination is subsequent to the incentive compensation award payment
date for such calendar year, then the Executive shall receive an
additional amount equal to the PRODUCT OF the actual salary earned by
the Executive during the prior calendar year MULTIPLIED BY the actual
bonus percentage approved for the Executive for such calendar year
under the respective incentive compensation plan.
The Corporation and/or the Trustee (as defined in
Section 4(c)) shall pay to the Executive the aggregate of the amounts
determined pursuant to clauses a through d and clause f above in a lump
sum by cashier's check within five (5) business days after the later of
the Executive's Date of Termination or the date of receipt by the
Corporation and the Trustee (as defined in Section 4(c)) of the
Executive's written demand for payment accompanied by notarized copies
of the Notice of Termination, release and, to the extent applicable,
letter of resignation (as described in Section 5(b)(II)). The
Corporation and/or the Trustee (as defined in Section 4(c)) shall pay
to the Executive the amount determined pursuant to clause e above by
cashier's check no later than (i) the first March 15th following the
calendar year in which the Change of Control occurred or (ii) five (5)
business days after the later of the Executive's Date of Termination or
the date of receipt by the Corporation and the Trustee (as defined in
Section 4(c)) of the Executive's written demand for payment accompanied
by notarized copies of the Notice of Termination, release and, to the
extent applicable, letter of resignation (as described in Section
5(b)(II)), whichever is the last to occur.
(II) MEDICAL, DENTAL, DISABILITY, LIFE INSURANCE
AND OTHER SIMILAR PLANS AND PROGRAMS. Until the earliest to occur of
(i) the last day of the Severance Period, (ii) the date on which the
Executive becomes eligible for the designated or comparable coverage as
an employee of another employer which provides or offers such coverage
to its employees, or (iii) in the case of benefits requiring employee
contributions, the date the Executive fails to make such contributions
pursuant to the Corporation's or the plan's instructions (which
instructions shall be reasonable and given to the Executive by the
Corporation within five (5) business days following the Executive's
Date of Termination) or otherwise cancels his coverage in accordance
with plan provisions (the "Benefits Continuation Period"), the
Corporation shall continue to provide all benefits which the Executive
and/or his family is or would have been entitled to receive under all
medical, dental, disability, supplemental life, group life, and
accidental death and dismemberment insurance plans and programs, and
other similar plans and programs of the Corporation and/or its
subsidiaries or affiliates not otherwise provided for in this
Agreement, in each case on a basis providing the Executive and/or his
family with the opportunity to receive benefits at least equal to the
greatest level of benefits provided by the Corporation and/or its
subsidiaries or affiliates for the Executive under such plans and
programs if and as in effect at any time during the six (6) month
period immediately preceding either the Notice of Termination or, if
greater, the Change of Control whether or not such plans or programs
were in effect at the time of the execution of this Agreement. The
non-contributory benefits will be paid for by the Corporation. The
medical and dental plan benefits, to the extent applicable, will be
provided in accordance with the provisions of the Consolidated Omnibus
Budget Reconciliation Act of 1985, as amended ("COBRA"), except that
the Corporation shall pay the COBRA premiums for the standard medical
and dental plan benefits during the Benefits Continuation Period minus
the Executive's contributory obligation determined as if the Executive
were still an executive employee of the Corporation. If the Executive's
participation in any such plan or program is barred by COBRA or for any
other reason, the Corporation shall pay or provide for payment of such
benefits or substantially similar benefits to the Executive and/or his
family. Upon termination of his coverage under this paragraph, the
Executive may be eligible under COBRA to continue some of his benefits
for an additional period of time. If such is the case, the Executive
will be responsible for the entire COBRA premium. Additionally, the
Executive has thirty-one (31) days from the last day of coverage in
which to convert his group life insurance to an individual policy. The
Executive must arrange for conversion through an agent of Standard
Insurance Company of America, or such other insurance company as is
then providing coverage.
(III) CAR. a. If, immediately prior to the Change
of Control, the Executive was assigned a car and was in management
level 14 or above, within five (5) business days after the Executive's
Date of Termination, the Corporation shall transfer to the Executive
free and clear title to the car assigned to the Executive on the
Executive's Date of Termination, if any, or if the Executive chooses,
to a car comparable to that assigned to the Executive at any time
during the six (6) month period immediately preceding the Change of
Control.
b. If, immediately prior to the Change
of Control, the Executive was assigned a car and was in management
level 13 or below, then the following provisions will apply:
If the Executive has less than one (1) full year of
service with the Corporation and/or its subsidiaries or affiliates, the
Executive may purchase from the Corporation free and clear title to the
car assigned to the Executive on the Executive's Date of Termination,
if any, or if the Executive chooses, to a car comparable to that
assigned to the Executive at any time during the six (6) month period
immediately preceding the Change of Control, for the average retail
value of the car listed in the National Automobile Dealer's
Association, Official Used Car Guide as of the date of the purchase,
less $1,000.
If the Executive has one (1) or more but fewer than
five (5) full years of service with the Corporation and/or its
subsidiaries or affiliates, the Executive may purchase from the
Corporation free and clear title to the car assigned to the Executive
on the Executive's Date of Termination, if any, or if the Executive
chooses, to a car comparable to that assigned to the Executive at any
time during the six (6) month period immediately preceding the Change
of Control, for fifty percent (50%) of the average retail value of the
car listed in the National Automobile Dealer's Association, Official
Used Car Guide as of the date of the purchase.
If the Executive has completed five (5) or more
full years of service with the Corporation and/or its subsidiaries or
affiliates, the Corporation shall transfer to the Executive free and
clear title to the car assigned to the Executive on the Executive's
Date of Termination, if any, or if the Executive chooses, to a car
comparable to that assigned to the Executive at any time during the six
(6) month period immediately preceding the Change of Control.
Purchase arrangements and title transfer must be
completed within five (5) business days after the Executive's Date of
Termination.
c. The Executive will be responsible
for the sales tax on transfer of the car as well as for all insurance,
maintenance, taxes and other liabilities associated with the car after
title transfer. Additionally, the Corporation shall assign to the
Executive all claims for breach of warranty and other similar matters
against the vendor and manufacturer of the car. The Executive agrees to
accept such car in an "As-Is" condition. THE EXECUTIVE WAS SOLELY
RESPONSIBLE FOR THE SELECTION AND MAINTENANCE OF THE CAR AND THEREFORE
ACKNOWLEDGES THAT THE CORPORATION DOES NOT MAKE ANY WARRANTY OR
REPRESENTATION, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE CAR,
INCLUDING, BUT NOT LIMITED TO THE CONDITION OR DESIGN OF
THE CAR, ANY LATENT DEFECTS OF THE CAR, THE MERCHANTABILITY OF THE CAR
OR ITS FITNESS FOR ANY PARTICULAR PURPOSE.
d. Notwithstanding the Executive's
management level, if the Executive was receiving a car allowance
immediately preceding the Change of Control, the Corporation and/or the
Trustee (as defined in Section 4(c)) shall pay to the Executive, in a
lump sum by cashier's check within five (5) business days after the
later of the Executive's Date of Termination or the date of receipt by
the Corporation and the Trustee (as defined in Section 4(c)) of the
Executive's written demand for payment accompanied by notarized copies
of the Notice of Termination, release and, to the extent applicable,
letter of resignation (as described in Section 5(b)(II)), an amount
equal to the PRODUCT OF the Executive's monthly car allowance in effect
at the time the Notice of Termination was given, or if greater, the
highest monthly car allowance in effect for the Executive during the
six (6) month period immediately preceding the Change of Control,
MULTIPLIED BY the salary multiple for the Executive set forth in clause
(I)b above MULTIPLIED BY 12.
e. The Executive shall not be entitled
to any car telephone provided by the Corporation or its subsidiaries or
affiliates and such car telephone, if applicable, shall be returned to
the Corporation immediately upon title transfer.
(IV) OUTPLACEMENT. The Corporation
and/or the Trustee (as defined in Section 4(c)) shall pay to the
Executive, in a lump sum by cashier's check within five (5) business
days after the later of the Executive's Date of Termination or the date
of receipt by the Corporation and the Trustee (as defined in Section
4(c)) of the Executive's written demand for payment accompanied by
notarized copies of the Notice of Termination, release and, to the
extent applicable, letter of resignation (as described in Section
5(b)(II)), an amount equal to twenty percent (20%) of the aggregate of
the Executive's Annual Base Salary and Bonus Opportunity (as defined in
clauses (I)b and (I)c above respectively), subject to a maximum cost of
$50,000 if the Executive was in management level 11-19 immediately
prior to either the Notice of Termination, or if greater, the Change of
Control and a maximum cost of $75,000 if the Executive was above
management level 19 or Chief Executive Officer immediately prior to
either the Notice of Termination, or if greater, the Change of Control,
which amount may be used by the Executive as he sees fit and, at his
sole discretion, in seeking new employment, including outplacement
services.
(V) PERQUISITE, COUNTRY CLUB, FINANCIAL
PLANNING/TAX PREPARATION, AND EXECUTIVE PHYSICAL ALLOWANCES. The
Corporation and/or the Trustee (as defined in Section 4(c)) shall pay
to the Executive, in a lump sum by cashier's check within five (5)
business days after the later of the Executive's Date of Termination or
the date of receipt by the Corporation and the Trustee (as defined in
Section 4(c)) of the Executive's written demand for payment accompanied
by notarized copies of the Notice of Termination, release and, to the
extent applicable, letter of resignation (as described in Section
5(b)(II)), an amount equal to the perquisite, country club, financial
planning/tax preparation and executive physical allowances, as
appropriate, the Executive would have been entitled to receive under
the plans, programs, policies and practices of the Corporation and/or
its subsidiaries or affiliates for the twelve (12) month perquisite and
financial planning/tax preparation payment period of the Corporation or
the Executive's respective division, as appropriate (i.e., January -
December or September - August), in which the Notice of Termination was
given, if not yet paid, and one (1) additional twelve (12) month period
thereafter, but in no event for longer than the Severance Period, in
each case on a basis providing the Executive with benefits at least
equal to the greatest level of benefits provided by the Corporation
and/or its subsidiaries or affiliates for the Executive under
such plans, programs, policies and practices if and as in effect at any
time during the six (6) month period immediately preceding either the
Notice of Termination, or if greater, the Change of Control.
(VI) SPLIT-DOLLAR LIFE INSURANCE AND DEFERRED
COMPENSATION. Notwithstanding anything in the applicable agreements,
plans or policies to the contrary, if the Executive is covered by the
Corporation's split-dollar life insurance with its attendant deferred
compensation benefit on his Date of Termination, and the Executive
wishes to retain both the life insurance coverage and its future
deferred compensation benefit, the Executive may purchase the policy
from the Corporation by paying the Corporation an amount equal to the
cash value of the policy. If the Executive elects to purchase the
policy from the Corporation, the Executive will have all the benefits
inherent in ownership of the whole-life policy, including the cash
value of the policy.
If the Executive wishes to retain the life
insurance coverage only, the Executive may convert the policy by
forfeiting the deferred compensation benefit. If the Executive chooses
this alternative, the Corporation will transfer ownership of the policy
to the Executive, and contemporaneously the Executive will execute an
agreement relinquishing the deferred compensation benefit. This
alternative transfers the entire cash value of the policy to the
Executive and relieves the Corporation of the administrative
record-keeping associated with the Executive's deferred compensation
benefit.
The Executive must notify the Corporation of his
election for the transfer of his split-dollar life insurance policy and
deferred compensation benefit within thirty (30) days following the
Executive's Date of Termination and the Corporation shall complete the
transfer immediately upon receipt of such notice and the required
payment or executed agreement.
(b) GROSS-UP FOR EXCISE TAX. In the event that it shall be
determined that any payment or benefit by the Corporation to or for the benefit
of the Executive pursuant to the terms of this Agreement or any other payments
or benefits received or to be received by the Executive in connection with or as
a result of the Change of Control or the Executive's termination of employment
or any event which is deemed by the Internal Revenue Service or any other taxing
authority to constitute a change in the ownership or effective control of the
Corporation, or in the ownership of a substantial portion of the assets of the
Corporation ("Change of Control Payments") shall be subject to the tax (the
"Excise Tax") imposed by Section 4999 (or any successor section) of the Internal
Revenue Code of 1986, as it may be amended from time to time (the "Code"), the
Corporation and/or the Trustee (as defined in Paragraph 4(c)) shall pay to the
Executive an additional amount (the "Gross-Up Payment") such that the net amount
retained by the Executive, after (i) payment of any Excise Tax on the Change of
Control Payments and (ii) payment of any federal and state and local income tax
and Excise Tax upon the Gross-Up Payment, shall be equal to the Change of
Control Payments. The determination of whether the Executive is subject to the
Excise Tax and the amount of the Gross-Up Payment, if any, shall be made by a
"Big Six" accounting firm chosen by the Trustee (as defined in Section 4(c)) and
reasonably agreeable to the Executive, which determination shall be binding upon
the Executive and the Corporation. For purposes of determining the amount of the
Gross-Up Payment, the Executive shall be deemed to pay federal income taxes at
the highest marginal rate of federal income taxation in the calendar year in
which the Gross-Up Payment is to be made and state and local income taxes at the
highest marginal rate of taxation in the calendar year in which the Gross-Up
Payment is to be made in the state or locality of the Executive's residence on
the Executive's Date of Termination. The Gross-Up Payment shall be paid to the
Executive by cashier's check within five (5) business days following the receipt
by the Trustee (as defined in
Section 4(c)) of the Gross-Up Payment determination from the selected "Big Six"
accounting firm.
(c) TRUST(S).
(i) In order to ensure in the event of a Change of Control
that timely payment will be made of certain obligations of the Corporation to
the Executive provided for under this Agreement, the Corporation shall pay into
one or more trust(s) (the "Trust(s)") established between the Corporation and
any financial institution with assets in excess of $100 million selected by the
Corporation prior to the Change of Control, as trustee (the "Trustee"), such
amounts and at such time or times as are required in order to fully pay all
amounts due the Executive pursuant to Section 4 that are payable in cash or by
cashier's check, or as are otherwise required pursuant to the terms of the
Trust(s). Thereafter, all such payments required to be paid hereunder shall be
made out of the Trust(s); provided, however, that the Corporation shall retain
liability for and pay the Executive any amounts or provide for such other
benefits due the Executive under this Agreement for which there are insufficient
funds in the Trust(s), for which no funding of the Trust(s) is required or in
the event that the Trustee fails to make such payment to the Executive within
the time frames set forth in this Agreement. Prior to the Change of Control, and
to the extent necessary because of a change in the Trustee, after the Change of
Control, the Corporation shall provide the Executive with the name and address
of the Trustee.
(ii) For purposes of this Agreement, the term "the
Corporation and/or the Trustee" shall mean the Trustee to the extent the
Corporation has put funds in the Trust(s) and the Corporation to the extent the
Corporation has not funded or fully funded the Trust(s); provided, however, that
in accordance with Subsection (i) above, the Corporation shall retain liability
for and pay the Executive any amounts or provide for such other benefits due the
Executive under this Agreement for which the Trustee fails to make adequate
payment to the Executive within the time frames set forth in this Agreement.
5. OBLIGATIONS OF THE EXECUTIVE.
(a) COVENANT OF CONFIDENTIALITY. All documents, records,
techniques, business secrets and other information of the Corporation, its
subsidiaries and affiliates, which have or will come into the Executive's
possession from time to time during the Executive's affiliation with the
Corporation and/or any of its subsidiaries or affiliates and which the
Corporation treats as confidential and proprietary to the Corporation and/or any
of its subsidiaries or affiliates shall be deemed as such by the Executive and
shall be the sole and exclusive property of the Corporation, its subsidiaries
and affiliates. The Executive agrees that the Executive will keep confidential
and not use or divulge to any other party any of the Corporation's or its
subsidiaries' or affiliates' confidential information and business secrets,
including, but not limited to, such matters as costs, profits, markets, sales,
products, product lines, key personnel, pricing policies, operational methods,
customers, customer requirements, suppliers, plans for future developments, and
other business affairs and methods and other information not readily available
to the public. Additionally, the Executive agrees that upon his termination of
employment, the Executive shall promptly return to the Corporation any and all
confidential and proprietary information of the Corporation and/or its
subsidiaries or affiliates that is in his possession.
(b) If, within the three (3) year period commencing on a Change
of Control of the Corporation, (i) the Corporation or its subsidiaries or
affiliates shall terminate the Executive's employment for any reason other than
for Death, Disability or Cause, or (ii) the Executive shall terminate his
employment with the Corporation or its subsidiaries or affiliates for Good
Reason,
and the Executive shall elect to receive severance pay and benefits in
accordance with Section 4, the Executive shall be subject to the following
additional provisions:
(I) COVENANT AGAINST COMPETITION AND SOLICITATION.
During the Severance Period (without any reduction or modification) or
the one (1) year period following the Executive's Date of Termination,
whichever is shorter, the Executive shall not, without the prior
written consent of the Corporation's Chief Executive Officer, directly
or indirectly engage or become a partner, director, officer, principal,
employee, consultant, investor, creditor or stockholder in any
business, proprietorship, association, firm or corporation not owned or
controlled by the Corporation or its subsidiaries or affiliates which
is engaged or proposes to engage or hereafter engages in a business
competitive directly with the business conducted by the Corporation or
any of its subsidiaries or affiliates immediately prior to the Change
of Control in any geographic area where such business of the
Corporation or its subsidiaries or affiliates is conducted; provided,
however, that the Executive is not prohibited from owning one percent
(1%) or less of the outstanding capital stock of any corporation whose
stock is listed on a national securities exchange.
During the Severance Period (without any reduction or
modification) or the one (1) year period following the Executive's Date
of Termination, whichever is shorter, the Executive shall not, either
on the Executive's own account or for any person, firm or company,
solicit, interfere with or induce, or attempt to induce, any employee
of the Corporation or any of its subsidiaries or affiliates to leave
his employment or to breach his employment agreement, if any.
(II) RELEASE. Upon the Executive's termination of
employment, the Executive and the Corporation shall execute a release
agreement in the form attached as Exhibit A. The only condition to the
Executive's receipt of any payments or benefits pursuant to this
Agreement shall be his tender of such release, executed by him, to the
Corporation, and the Executive's obligations and limitations under such
release as executed by him shall be conditioned upon the execution of
such release by the Corporation and delivery to the Executive within
thirty (30) days of the Executive's tender thereof to the Corporation.
In addition, to the extent applicable, upon the Executive's termination
of employment, the Executive shall execute a resignation letter in the
form attached as Exhibit B.
(III) AMENDMENT. The Covenant Against Competition and
Solicitation and Release may be amended from time to time solely to
comply with any federal, state or local law in order to effectuate
their intent.
(c) SPECIFIC REMEDY. The Executive acknowledges and agrees that
if the Executive commits a material breach of the Covenant of Confidentiality
or, if applicable, the Covenant Against Competition and Solicitation (as
provided in Subsections (a) and (b) above), the Corporation shall have the right
to have the covenant specifically enforced by any court having appropriate
jurisdiction on the grounds that any such breach will cause irreparable injury
to the Corporation, and that money damages will not provide an adequate remedy
to the Corporation. The Executive further acknowledges and agrees that the
Covenant of Confidentiality and, if applicable, the Covenant Against Competition
and Solicitation, contained in this Agreement are fair, do not unreasonably
restrict the Executive's future employment and business opportunities, and are
commensurate with the compensation arrangements set out in this Agreement. In
addition, once the Executive makes an election to receive severance pay and
benefits pursuant to
Section 4 and is subject to Subsection (b) above, the Executive shall have no
right to return any amounts or benefits that are already paid or to refuse to
accept any amounts or benefits that are payable in the future in lieu of his
specific performance of his obligations under Subsection (b) above.
6. NON-EXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent
or limit the Executive's continuing or future participation in any benefit,
bonus, incentive or other plans, programs, policies or practices provided by the
Corporation or any of its subsidiaries or affiliates and for which the Executive
may qualify, nor shall anything herein limit or otherwise affect such rights as
the Executive may have under such plans, programs, policies or practices or
under any stock option or other agreements with the Corporation or any of its
subsidiaries or affiliates, specifically including but not limited to the
Corporation's 1980 and 1995 Stock Incentive Plans, the deferred compensation
agreements, the Corporation's and/or its subsidiaries' or affiliates'
retirement, 401(k) and profit sharing plans, the Corporation's Benefit
Restoration Plan, Savings Restoration Plan, supplemental disability and retiree
life insurance. In the event there are any amounts which represent vested
benefits or which the Executive is otherwise entitled to receive under these or
any other plans, programs, policies or practices, including any plan, program,
policy or practice adopted after the execution of this Agreement, of the
Corporation or any of its subsidiaries or affiliates at or subsequent to the
Executive's Date of Termination, the Corporation shall pay or cause the relevant
plan, program, policy or practice to pay such amounts, to the extent not already
paid, in accordance with the provisions of such plan, program, policy or
practice. The phrase "Termination Date" as used in the Corporation's 1980 and
1995 Stock Incentive Plans shall mean the end of the Severance Period with
respect to Non-Qualified Stock Options granted to the Executive, if any,
pursuant to such plan, and the Executive's Date of Termination with respect to
Incentive Stock Options and Restricted Stock Rights granted to the Executive, if
any, thereunder. The last day of the Severance Period will be considered to be
the Executive's termination date for purposes of the Executive's deferred
compensation agreement(s), if any.
7. FULL SETTLEMENT. Except as specifically provided otherwise in this
Agreement, the Corporation's obligation to make the payments provided for in
this Agreement and otherwise to perform its obligations hereunder shall not be
affected by any circumstances, including, without limitation, any setoff,
counterclaim, recoupment, defense or other right which the Corporation may have
against the Executive or others. The Executive shall not be obligated to seek
other employment by way of mitigation of the amounts payable to the Executive
under any of the provisions of this Agreement nor, except as specifically
provided otherwise in this Agreement, shall the amount of any payment provided
for under this Agreement be reduced by any compensation or benefits earned by
the Executive as the result of employment by another employer after the Date of
Termination, or otherwise. The Corporation agrees to pay all legal fees and
expenses which the Executive may reasonably incur as a result of any contest
(regardless of the outcome thereof) by the Corporation, the Executive or others
of the validity or enforceability of, or liability under any provision of this
Agreement or any guarantee of performance thereof, in each case plus interest,
compounded daily, on the total unpaid amount determined to be payable under this
Agreement, such interest to be calculated on the basis of the greater of (a) two
percent (2%) over the base or prime commercial lending rate announced by the
First National Bank of Boston in effect from time to time during the period of
such nonpayment or (b) eighteen percent (18%), but in no event greater than the
highest interest rate permitted by law for such payments.
8. SUCCESSORS. (a) This Agreement is personal to the Executive
and the Executive does not have the right to assign this Agreement or any
interest herein.
(b) This Agreement shall inure to the benefit of and be binding
upon the Corporation and its successors. The Corporation shall require any
successor to all or substantially all of the business and/or assets of the
Corporation, whether directly or indirectly, by purchase, merger, consolidation,
acquisition of stock, or otherwise, expressly to assume and agree to perform
this Agreement in the same manner and to the same extent as the Corporation
would be required to perform if no such succession had taken place, by a written
agreement in form and substance reasonably satisfactory to the Executive,
delivered to the Executive within five (5) business days after such succession.
As used in this Agreement, "Corporation" shall mean the Corporation as
hereinbefore defined and any successor to its business and/or assets as
aforesaid which assumes and agrees to perform this Agreement by operation of
law, or otherwise.
9. MISCELLANEOUS. (a) This Agreement shall be governed by and construed
in accordance with the laws of the state of Florida, without reference to
principles of conflict of laws. The parties agree to submit to the non-exclusive
jurisdiction of the courts in the state of Florida. The captions of this
Agreement are not part of the provisions hereof and shall have no force or
effect. Except as provided in Section 5(b)(III), 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 to the other party and/or the Trustee, as applicable,
by hand delivery, by overnight express mail or by registered or certified mail,
return receipt requested, postage prepaid, addressed as follows:
IF TO THE EXECUTIVE: at the Executive's last address
appearing in the payroll/personnel records of the Corporation;
IF TO THE CORPORATION:
Ryder System, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: General Counsel
IF TO THE TRUSTEE: at the address provided pursuant to
Section 4(c);
or to such other address as either party or the Trustee 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. The Executive's failure to insist upon strict compliance with
any provision hereof shall not be deemed to be a waiver of such provision or any
other provision thereof.
(d) The Executive understands and acknowledges that the payment
and benefits provided to the Executive pursuant to this Agreement may be
unsecured obligations of the Corporation. The Executive further understands and
acknowledges that the payments and benefits under this Agreement may be
compensation and as such may be included in either the Executive's W-2 earnings
statements or 1099 statements. The Corporation may withhold from any amounts
payable under this Agreement such federal, state or local taxes as shall be
required to be withheld pursuant to any applicable law or regulation, as well as
any other deductions consented to in writing by the Executive.
(e) This Agreement, including its attached Exhibits, contains
the entire understanding of the Corporation and the Executive with respect to
the subject matter hereof. No agreements or representations, oral or written,
express or implied, with respect to the subject matter hereof have been made by
either party which are not set forth expressly in this Agreement and its
attached Exhibits.
(f) The employment of the Executive by the Corporation or its
subsidiaries or affiliates may be terminated by either the Executive or the
Corporation or its subsidiaries or affiliates at any time and for any reason,
with or without cause. Nothing contained in this Agreement shall affect such
rights to terminate; provided, however, that nothing in this Section 9(f) shall
prevent the terms and provisions of this Agreement from being enforced in the
event of a termination described in Section 4(a).
(g) Whenever used in this Agreement, the masculine gender shall
include the feminine or neuter wherever necessary or appropriate and vice versa
and the singular shall include the plural and vice versa.
(h) This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
10. AMENDMENT AND RESTATEMENT. The Corporation and the Executive agree
that this Agreement amends and correctly restates the entire agreement between
the parties as of May 1, 1996; that the provisions of this Agreement supersede
and replace the provisions of the Prior Agreement; and that the terms and
provisions of this Agreement shall be binding on the Corporation and the
Executive in all respects.
IN WITNESS WHEREOF, the Executive has hereunto set his hand and the
Corporation has caused these presents to be executed in its name on its behalf,
and its corporate seal to be hereunto affixed and attested by its assistant
secretary, all as of the day and year first above written.
---------------------------- ----------------------------
Witness Executive
---------------------------- ----------------------------
Witness Social Security Number
ATTEST: RYDER SYSTEM, INC.
(the "Corporation")
____________________________ By:__________________________
Assistant Secretary Executive Vice President
(Seal)
CHANGE OF CONTROL
SEVERANCE AGREEMENT
EXHIBIT A
MUTUAL RELEASE AGREEMENT
FOR AND IN CONSIDERATION OF (A) THE PAYMENT TO (EXECUTIVE'S NAME) OF
THE SEVERANCE BENEFITS PURSUANT TO THE CHANGE OF CONTROL SEVERANCE AGREEMENT
BETWEEN RYDER SYSTEM, INC. ("THE CORPORATION") AND (EXECUTIVE'S NAME) DATED MAY
1, 1996 (THE "CHANGE OF CONTROL SEVERANCE AGREEMENT") AND (B) THE EXECUTION OF
THIS MUTUAL RELEASE AGREEMENT (THE "RELEASE AGREEMENT") BY BOTH THE CORPORATION
AND (EXECUTIVE'S NAME), WITH THE EXECUTION OF THIS RELEASE AGREEMENT BY THE
CORPORATION AND THE DELIVERY THEREOF TO (EXECUTIVE'S NAME) OCCURRING WITHIN
THIRTY (30) DAYS OF (EXECUTIVE'S NAME)'S TENDER OF THIS RELEASE AGREEMENT TO THE
CORPORATION, (EXECUTIVE'S NAME), ON BEHALF OF HIMSELF/HERSELF, HIS/HER HEIRS,
SUCCESSORS AND ASSIGNS (COLLECTIVELY THE "EXECUTIVE"), AND THE CORPORATION, ON
BEHALF OF ITSELF, AND AS AGENT FOR ALL OF ITS SUBSIDIARIES AND AFFILIATES, THEIR
CURRENT AND FORMER AGENTS, EMPLOYEES, OFFICERS, DIRECTORS, SUCCESSORS AND
ASSIGNS (COLLECTIVELY "RYDER"), HEREBY RELEASE AND FOREVER DISCHARGE EACH OTHER
AND RYDER FROM ANY AND ALL CLAIMS, DEMANDS, ACTIONS, AND CAUSES OF ACTION, AND
ALL LIABILITY WHATSOEVER, WHETHER KNOWN OR UNKNOWN, FIXED OR CONTINGENT, WHICH
THEY HAVE OR MAY HAVE AGAINST EACH OTHER AND RYDER AS A RESULT OF THE
EXECUTIVE'S EMPLOYMENT BY AND SUBSEQUENT TERMINATION AS AN EMPLOYEE OF RYDER, UP
TO THE DATE OF THE EXECUTION OF THIS RELEASE AGREEMENT. THIS INCLUDES BUT IS NOT
LIMITED TO CLAIMS AT LAW OR EQUITY OR SOUNDING IN CONTRACT (EXPRESS OR IMPLIED)
OR TORT ARISING UNDER FEDERAL, STATE, OR LOCAL LAWS PROHIBITING AGE, SEX, RACE,
DISABILITY, VETERAN OR ANY OTHER FORMS OF DISCRIMINATION. THIS FURTHER INCLUDES
ANY AND ALL CLAIMS ARISING UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT, THE
AMERICANS WITH DISABILITIES ACT OF 1990, TITLE VII OF THE CIVIL RIGHTS ACT OF
1964, OR THE EMPLOYEE RETIREMENT INCOME SECURITY ACT (ERISA), AS AMENDED, OR
CLAIMS GROWING OUT OF ANY LEGAL RESTRICTIONS ON RYDER'S RIGHT TO TERMINATE ITS
EMPLOYEES.
This Release Agreement does not release Ryder or the Executive from any
of their current, future or ongoing obligations under the Change of Control
Severance Agreement, specifically including but not limited to cash payments and
benefits due the Executive in the case of the Corporation, and the Covenant of
Confidentiality and, to the extent applicable, the Covenant Against Competition
and Solicitation, in the case of the Executive.
The Executive and the Corporation understand and agree that this
Release Agreement and the Change of Control Severance Agreement shall not in any
way be construed as an admission by Ryder or the Executive of any unlawful or
wrongful acts whatsoever against each other or any other person, and both Ryder
and the Executive specifically disclaim any liability to or wrongful acts
against each other or any other person.
The Corporation and the Executive agree that the terms and provisions
of this Release Agreement and the Change of Control Severance Agreement, as well
as any and all incidents leading to or resulting from this Release Agreement and
the Change of Control Severance Agreement, are confidential and may not be
discussed with anyone without the prior written consent of the other party,
except as required by law; provided, however, that the Executive and the
Corporation or its successor agree to immediately give the other party notice of
any request to discuss this Release Agreement or the Change of Control Severance
Agreement and to provide the other party with the opportunity to contest such
request prior to their response.
This Release Agreement shall be governed by and construed in accordance
with the laws of the State of Florida, without reference to principles of
conflict of laws. Except as provided in Section 5(b)(III) of the Change of
Control Severance Agreement, this Release 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.
The invalidity or unenforceability of any provision of this Release
Agreement shall not affect the validity or enforceability of any other provision
of this Release Agreement.
WE CERTIFY THAT WE HAVE FULLY READ, HAVE RECEIVED AN EXPLANATION OF, HAVE
NEGOTIATED AND COMPLETELY UNDERSTAND THE PROVISIONS OF THIS RELEASE AGREEMENT,
THAT WE HAVE HAD ADEQUATE TIME TO REVIEW AND CONSIDER THE PROVISIONS OF THIS
RELEASE AGREEMENT, AND THAT WE ARE SIGNING THIS RELEASE AGREEMENT FREELY AND
VOLUNTARILY, WITHOUT DURESS, COERCION OR UNDUE INFLUENCE. IN ADDITION, THE
EXECUTIVE FURTHER CERTIFIES THAT THE EXECUTIVE HAS BEEN ADVISED BY THE
CORPORATION THAT THE EXECUTIVE SHOULD CONSULT WITH AN ATTORNEY BEFORE SIGNING
THIS RELEASE AGREEMENT.
Dated this______day of _________________, 19__.
---------------------------- ----------------------------
Witness Executive
---------------------------- ----------------------------
Witness Social Security Number
ATTEST: RYDER SYSTEM, INC., on behalf of
itself and as agent for the Corporation
____________________________ By:__________________________
Secretary
(Seal) Its:__________________________
Executive's Date of Termination:_______________________________________
STATE OF _________ )
) ss:
COUNTY OF __________ )
Before me personally appeared __________, to me well known and known to me to be
the person described in and who executed the foregoing instrument, and
acknowledged to and before me that he/she executed said instrument for the
purposes therein expressed.
WITNESS my hand and official seal this______day of ______________, 19__.
-------------------------
Notary Public
My Commission Expires:
________________________ (Seal)
STATE OF __________ )
) ss:
COUNTY OF _________ )
Before me personally appeared _______________ and __________________, to me well
known and known to me to be the ___________________ and _______________________
of Ryder System, Inc. who executed the foregoing instrument, and acknowledged to
and before me that they executed said instrument for the purposes therein
expressed.
WITNESS my hand and official seal this _____ day of ______________, 19__.
-------------------------
Notary Public
My Commission Expires:
_______________________ (Seal)
CHANGE OF CONTROL
SEVERANCE AGREEMENT
EXHIBIT B
RESIGNATION LETTER
TO THE BOARD OF DIRECTORS
OF RYDER SYSTEM, INC.
Gentlemen:
Effective immediately, I hereby resign as an officer and/or director of Ryder
System, Inc. and/or its subsidiaries and affiliates and, to the extent
applicable, from all committees of which I am a member.
Sincerely,
----------------------------
Executive's Name
----------------------------
Date
