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EXHIBIT 10.38
SECOND AMENDED EXECUTIVE EMPLOYMENT AGREEMENT
This SECOND AMENDED EXECUTIVE EMPLOYMENT AGREEMENT ("Agreement") dated
as of the 16th day of March, 1999, but effective as provided herein, by and
between GREYHOUND LINES, INC. (together with its successors, the "Company"),
XXXXXXX, INC. (together with its successors, the "Parent") and XXXXX X.
XXXXXXXX (the "Executive").
WHEREAS, the Executive has served as the Chief Executive Officer of
the Company since November 15, 1994, and has considerable experience, expertise
and training in management related to the types of services offered by the
Company; and
WHEREAS, the Executive and the Company entered into a First Amended
Executive Employment Agreement (the "Prior Agreement"), effective November 15,
1998; and
WHEREAS, pursuant to the Agreement and Plan of Merger dated as of
October 16, 1998 (the "Merger Agreement") by and among Parent, Xxxxxxx Transit
Acquisition Corp., a wholly-owned subsidiary of Parent, and the Company, as
amended, at the Effective Time of the Merger (the "Effective Time"), as defined
in the Merger Agreement, Xxxxxxx Transit Acquisition Corp. will be merged with
and into the Company, with the Company as the surviving entity (the "Merger");
and
WHEREAS, the Company and Parent desire and intend to continue the
employment of the Executive as Chief Executive Officer of the Company pursuant
to the terms and conditions set forth in this Agreement; and
WHEREAS, in view of the changes in the nature and scope of the duties
and responsibilities of the Executive that will occur as a result of the
Merger, the Company, Parent and the Executive desire to amend and restate
certain of the terms and conditions of the Executive's employment with the
Company as set forth in the Prior Agreement;
WHEREAS, the Company, Parent and the Executive have read and
understood the terms and provisions set forth in this Agreement, and have been
afforded a reasonable opportunity to review this Agreement and have been
advised to do so with their respective legal counsel.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth in this Agreement, the Executive, Parent and the Company agree as
follows:
1. COMPENSATION: During his employment pursuant to this Agreement, the Company
agrees to provide the Executive the following compensation:
a. BASE SALARY: From the Effective Time until changed as provided in this
section, the Company agrees to pay the Executive an annual salary of
$500,000.00 (the "Base Salary"), payable in at least equal monthly installments
in accordance with the Company's ordinary payroll policies and procedures for
executive compensation. The Company and the Executive acknowledge that during
the employment of the Executive pursuant to this Agreement, the Executive's
Base Salary will be subject to an annual review and adjustment by the Board of
Directors of the Company (the
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"Board of Directors") but, in no event, will the Executive's annual Base Salary
be less than the amount set forth in this section.
b. BUSINESS EXPENSES: The Company agrees that the Executive shall be
entitled to reimbursement by the Company for all reasonable expenses (including
first class air travel) that the Executive may incur in the performance of his
duties and obligations under this Agreement, consistent with the Company's
policies for documentation and payment.
c. ANNUAL BONUS: The Company agrees that the Executive shall be entitled to
additional bonus compensation (the "Incentive Compensation") on terms not less
favorable than those applicable to other officers of the Company. The Executive
shall be eligible for annual incentive bonus consideration under the successor
to the Company's 1998 Management Incentive Plan beginning at the Effective Time
and continuing for the duration of this Agreement with an Annual Target Award
of at least 55% of Base Salary and a maximum award of 110% of Base Salary. For
the period beginning on the Effective Time and ending August 31, 1999,
Executive's Incentive Compensation shall be pro-rated to reflect the partial
year. The Company shall honor and pay all Incentive Compensation accruing
and/or payable for the period while the Prior Agreement was in effect.
d. EMPLOYEE BENEFITS: The parties acknowledge and agree that certain
employee benefits will be provided to the Executive incident to his employment
as Chief Executive Officer of the Company. Except as specifically modified by
this section, these employee benefits shall be governed by the applicable
documents, and the Executive shall be entitled to participate in all benefits
provided to officers of the Company on terms not less favorable than to other
officers of the Company. These employee benefits shall continue without
amendment or change, except changes that increase compensation, for a period of
not less than 12 months following the Effective Time. Thereafter, benefits may
be amended, terminated or replaced, provided that the employee benefits
provided to the Executive shall provide, in the aggregate, not less than a
substantially equivalent level of benefits to the Executive. The Company agrees
to the extent not prohibited by law, that it will provide the benefits listed
below and that the following provisions shall apply to any employee benefits
provided by the Company:
(1) 401K PLAN: For purposes of the Greyhound Lines, Inc. and Affiliated
Companies Master Salaried Employees' Cash or Deferred Profit Sharing Plan (the
"401 k Plan"), the Executive's prior service with Buslease, Inc. and any
predecessor of Greyhound Lines, Inc. shall be deemed to be service with the
Company for purposes of determining eligibility and vesting under the 401k
Plan. Subject to the terms of the 401 k Plan, the Company will match fifty
percent (50%) of the first six (6%) of Executive's contributions to such 401 k
Plan. If the Plan is amended with respect to such matching, Executive will
receive matching contributions consistently with that of other participants in
the Plan.
(2) MEDICAL PLAN: For purposes of the Greyhound Lines, Inc. Medical,
Dental and Vision Plan (the "Medical Plan"), the following shall apply:
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(a) The Executive and his dependents, as defined in the Medical Plan
("Dependents"), shall immediately be provided coverage under the Medical Plan
under the option elected by the Executive.
(b) The Medical Plan's provisions limiting coverage of pre-existing
conditions shall not be applied to the Executive or his Dependents.
(c) During the time period in which the Executive and his dependents are
entitled to participate in the Medical Plan, the Company will reimburse the
Executive for one hundred percent (100%) of all medical expenses (both for the
Executive and his dependents) that are not otherwise reimbursable under the
Medical Plan option selected by the Executive; provided, however, that the
total payments made by the Company to or on behalf of any person under this
Subsection shall not exceed the highest "Lifetime Maximum" benefit (per covered
person) available under the Medical Plan on the Effective Date of this
Agreement.
(3) SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN: For purposes of the Greyhound
Lines, Inc. Supplemental Executive Retirement Plan (the "SERP"), all of the
Executive's service with Buslease, Inc. and any predecessor of Greyhound Lines,
Inc. shall be treated for all purposes under the SERP as service with Greyhound
Lines, Inc. (as defined in the SERP), the Executive shall continue to be a
designated person eligible for coverage and benefits under the SERP, and the
Executive shall be entitled to an annual contribution equal to 20% of
Executive's annual Base Salary. At the Effective Time, to the extent not
theretofore in effect, the Company shall establish and fully fund, at the
Company's option, in cash, a letter of credit of Parent, or any combination
thereof, a so-called "rabbi" trust for the benefit of the Executive to secure
the payment of benefits provided to the Executive under this Subsection. Not
less frequently than annually thereafter, the Company shall contribute
sufficient additional assets to such trust to fund any increase in the
liabilities of the SERP attributable to the Executive.
(4) ESTATE, TAX AND FINANCIAL PLANNING: During the term of his employment
with the Company, the Executive shall be entitled to $20,000.00 per year for
reimbursement for estate, tax and financial planning. Such reimbursement
payments shall be paid by the Company within a reasonable time after such
expenses are incurred by the Executive.
(5) AUTOMOBILE ALLOWANCE: During the term of his employment with the
Company, the Executive shall be entitled to a $1,000.00 per month automobile
allowance.
(6) COUNTRY CLUB ALLOWANCE: The Company agrees to pay all initiation fees
and monthly membership dues on behalf of the Executive at a country club
mutually selected by the Executive and the Company.
(7) VACATION: The Company will provide vacation to the Executive on terms
not less favorable than that provided to executive officers of the Company. For
purposes of determining the amount of vacation, Executive's prior service with
Buslease, Inc. and any predecessor of Greyhound Lines, Inc. shall be deemed to
be service with the Company.
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(8) LIFE INSURANCE: At all times during the term of this Agreement,
Executive will receive life insurance coverage as provided by the Company on
terms not less favorable than that provided to other executives of the Company.
In addition to any life insurance provided pursuant to the preceding sentence,
the Executive will be provided with Company-paid life insurance which will
provide death benefits in the event of his death in an amount of at least
$2,000,000.00 payable to the beneficiary or beneficiaries named by the
Executive. The Company shall have the right to purchase insurance to fund its
obligations to the Executive under this section; provided, however, that any
insurance company or companies selected by the Company to fund its obligations
under this Subsection must be the company or companies that underwrite life
insurance benefits covering other officers of the Company.
(9) LONG TERM DISABILITY: The Company will provide Executive long-term
disability coverage and benefits on terms which are not less favorable than
that provided to other executives of the Company but which will provide an
annual disability benefit to the Executive of at least fifty percent (50%) of
his expected annual Base Salary, payable for the year during which Executive
was disabled.
(10) OTHER BENEFITS: For purposes of any and all other benefits provided
by the Company to its Chief Executive Officer, the Executive shall be eligible
for such benefits to the same extent Executive was eligible for such benefits
immediately prior to the Effective Time. Additionally, for purposes of
determining eligibility, funding or vesting with respect to any other benefits,
the Executive's prior service with Buslease, Inc. and any predecessor of
Greyhound Lines, Inc. shall be deemed to be service with the Company.
2. DURATION: The duration of this Agreement shall be defined and determined as
follows:
a. INITIAL TERM: This Agreement shall continue in full force and effect for
three (3) years (the "Initial Term"), commencing on the Effective Time and
expiring on the third anniversary thereof (the "Expiration Date"), unless
terminated prior to the Expiration Date in accordance with Subsection 2(c).
b. RENEWAL: Notwithstanding Subsection 2(a), this Agreement shall
automatically renew for two (2) years (the "Renewal Term") on the Expiration
Date unless either party gives effective written notice to the other party of
the party's intention not to renew this Agreement ("Notice of Non-Renewal"), at
least ninety (90) days prior to the Expiration Date. At the expiration of each
Renewal Term, this Agreement shall automatically renew for another two (2) year
Renewal Term, unless and until either party gives Notice of Non-Renewal. If any
Change of Control (as hereafter defined) occurs on or after the first
anniversary of the Effective Time, this Agreement will be deemed to have
renewed for a two (2) year period, and in such event, the Expiration Date(s)
will occur every two years from the date of such Change of Control.
c. TERMINATION AND NON-RENEWAL: This Agreement may be terminated as follows:
(1) DEATH: This Agreement will terminate in the event of the Executive's
death, provided, however, that the Executive's estate shall be paid (a) the
Base Salary through the date of death and (b) a pro rata portion of the entire
Annual Target Award of Incentive Compensation (based
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upon the Executive's annual Base Salary), payable when the Incentive
Compensation payments are made to other executives of the Company. The pro rata
share will be calculated by the month of the date of death. In addition, the
Executive's designated beneficiaries shall be entitled to receive any life
insurance benefits provided to the Executive in accordance with the applicable
plan documents and/or insurance policies governing such benefits.
(2) DISABILITY: The Company shall be entitled to terminate this Agreement
in the event the Executive becomes "disabled," as that term is defined in the
Greyhound Lines, Inc. Employee Long Term Disability Plan ("the LTD Plan"), and
is unable to perform the essential functions of his position, with reasonable
accommodation, for a period of one hundred eighty (180) consecutive days. The
Executive will be paid his Base Salary through the expiration of such one
hundred eighty day period and a pro rata portion of the entire Annual Target
Award of Incentive Compensation (based upon the Executive's annual Base Salary)
in accordance with the previous Subsection.
(3) GOOD CAUSE:
(a) The Company shall be entitled to terminate this Agreement by
providing the Executive with written notice that the Company is terminating the
Agreement for Good Cause, as defined herein ("Notice of Termination for Good
Cause") at any time during his employment (including any time within ninety
(90) days prior to the Expiration Date or the expiration of any renewal term).
(b) The Company shall be entitled to terminate this Agreement by
communicating Notice of Non-Renewal for Good Cause, as defined herein, at least
ninety (90) days prior to the Expiration Date, or at least ninety (90) days
prior to the expiration of any renewal term.
(c) For purposes of this Agreement, "Good Cause" shall be defined as
follows:
i) Any act or omission constituting fraud under the law of the
State of Texas; or
ii) Conviction of, or a plea of nolo contendere to, a felony; or
iii) Use of illegal drugs; or
iv) Embezzlement of Company property or funds; or
v) The material breach of any provision of this Agreement; or
continued gross neglect of his duties under this Agreement; or
unauthorized competition with the Company during his employment
pursuant to this Agreement; or unauthorized use of Confidential
Information (as defined in Section 9); which, in any event, is
materially detrimental to the Company;
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(d) In the event the Company believes "Good Cause" exists for
terminating this Agreement pursuant to this Subsection, the Company shall be
required to give the Executive written Notice of the acts or omissions
constituting "Good Cause" ("Cause Notice"), and, in regard to Section
2(c)(3)(c)(v), no Notice of Termination or Notice of Non-Renewal for Good Cause
shall be communicated by the Company unless and until the Executive fails to
cure such acts or omissions within thirty (30) days after receipt of the Cause
Notice.
(e) In the event the Company communicates Notice of Termination For
Good Cause or Notice of Non-Renewal for Good Cause pursuant to this section,
the Executive shall have the right to a hearing before the Board of Directors,
on a date determined by the Board of Directors not later than thirty (30) days
after the date such Notice is received, to contest the alleged "Good Cause" for
the Notice of Termination or Notice of Non-Renewal. The Board shall provide the
Executive with written notice of its decision resolving any contest under this
section, and no termination or non-renewal of this Agreement shall be deemed to
be effective until such written notice is received by the Executive. In the
event that the Board of Directors affirms the "Good Cause" for termination or
non-renewal, the Executive shall have the right to the Dispute Resolution
procedures set forth in Section 10.
(4) WITHOUT GOOD CAUSE:
(a) The Company shall be entitled to terminate the Executive's
employment under this Agreement by providing ninety (90) days written notice
(or ninety (90) days pay at the Base Salary Rate then in effect in lieu of
notice) to the Executive that the Company is terminating the Agreement Without
Good Cause, as defined herein ("Notice of Termination Without Good Cause"), at
any time during his employment (including any time within ninety (90) days
prior to the Expiration Date or the expiration of any renewal term); provided,
however, that the Company shall be required to pay Severance Pay in accordance
with the Severance provisions in Section 5.
(b) The Company shall be entitled to terminate the Executive's
employment under this Agreement by providing a written Notice of Non-Renewal
Without Good Cause, as defined herein, at least ninety (90) days prior to the
Expiration Date or at least ninety (90) days prior to the expiration of any
renewal term; provided, however, that the Company shall be required to pay
Severance Pay in accordance with the Severance provisions in Section 5.
(c) Any termination of employment or non-renewal of this Agreement
which is not for "Good Cause," as defined above in Subsection 2(c)(3), or which
does not result from the death or retirement of the Executive, or the
disability of the Executive, shall be deemed to be a termination or nonrenewal
"Without Good Cause." Furthermore, in the event that the Company communicates a
Notice of Termination for Good Cause or a Notice of Non-Renewal for Good Cause,
and either the Board of Directors (under Subsection 2(c)(3)(e)) or an
arbitration or a final, non-appealable judicial proceeding (under Section 10)
determine that no Good Cause exists or existed for the Notice of Termination or
Notice of Non-Renewal that was originally communicated, then such Notice of
Termination or Notice of Non-Renewal shall be deemed to have been communication
of a Notice of Termination Without Good Cause or Notice of Non-Renewal Without
Good Cause, as appropriate for all purposes under this Agreement.
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(5) RESIGNATION: The Executive shall be entitled to terminate his
employment under this Agreement by providing the Company with a written Notice
of Resignation at least ninety (90) days prior to his intended resignation
date, subject to the following provisions:
(a) RESIGNATION FOR GOOD REASON: The Executive shall have the
right to resign for any "Good Reason," as defined herein, and such resignation
shall be deemed to be a termination "Without Good Cause" as defined in
Subsection 2(c)(4) for all purposes under this Agreement, including the "Change
of Control" provisions set forth in Section 4 and the Severance provisions set
forth in Section 5. For purposes of this Section, the term "Good Reason" shall
be defined as:
i) The Company's failure to perform any material provision of
this Agreement; or
ii) Any material changes by the Board of Directors in the
authority, duties, or responsibilities of the Executive under
this Agreement, other than termination for Good Cause,
without the written consent of the Executive; or
iii) The hiring or promotion by the Board of Directors of
another executive employee to a position of equal or greater
responsibility for the management of the Company without the
written consent of the Executive;
iv) Any request by the Board of Directors that the Executive
perform, assist, abet or approve any act which is or could be
construed to be illegal under any federal, state or local
law; or
v) Any requirement by the Board of Directors that the
Executive relocate from Dallas County, Texas, without his
consent; or
vi) In the event the Company fails to maintain adequate
liability insurance coverage or an acceptable letter of
credit to fund any self-insured liabilities, in accordance
with Section 8 of this Agreement, without the written consent
of the Executive.
(b) OPPORTUNITY TO CURE: In the event the Executive believes
"Good Reason" exists for his resignation, he shall be required to give the
Board of Directors written notice of the acts or omissions constituting Good
Reason, and no Notice of Resignation with Good Reason shall be communicated to
the Company unless and until the Company fails to cure such acts or omissions
within thirty (30) days after receipt of the notice described in this sentence.
Any Notice of Resignation with Good Reason shall be deemed to be effective
immediately, and no other notice or opportunity to cure shall be required.
(c) RESIGNATION WITHOUT GOOD REASON: Any resignation by the
Executive for any reason other than "Good Reason," as defined above, shall be
deemed to be a resignation
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"Without Good Reason." In the event of a Resignation Without Good Reason, the
Change of Control provisions in Section 4 (except during the thirteenth month
following the Change of Control as provided in Section 4) and the Severance
provisions in Section 5 shall be inapplicable.
3. RESPONSIBILITIES:
a. The Executive and the Company acknowledge and agree that the Executive
shall be employed as President and Chief Executive Officer of the Company. The
Executive covenants and agrees that he will faithfully devote his best efforts
and such portion of his time, attention and skill to the business of the
Company as is necessary to perform his obligations under this Agreement;
provided, however, that the Executive is permitted, consistent with the
preceding sentence, to remain on the boards of directors of Enginetech, Inc.
and Hastings Entertainment, Inc. (and to receive compensation for such
services) during his employment pursuant to this Agreement. The Executive may
undertake other business responsibilities or obligations during the term of
this Agreement but shall advise, in writing, the Chairman of the Board before
such responsibilities or obligations are undertaken.
b. The Executive and the Company acknowledge and agree that, as President
and Chief Executive Officer of the Company, the Executive shall be responsible
for actively supervising the overall management and development and execution
of the business strategy of the inter-city coach, coach charter, and line haul
and any other related business thereto of Parent and its subsidiaries subject
to and in accordance with the authority and direction of the President and
Chief Executive Officer of Parent. Without limiting the foregoing, Executive
shall be delegated the authority to commit the Company and/or its subsidiaries
to up to $5 million in capital or operating expenses per project or
transaction; provided that such expenditures are included in the Company's
approved annual budgets.
4. CHANGE OF CONTROL: The parties acknowledge that the Executive has agreed to
continue in the position of Chief Executive Officer of the Company and to enter
into this Agreement based upon his confidence in the current shareholder of the
Company, the support of the Board of Directors, and the continued execution of
the current business strategy of the Company. Accordingly, if the Company
should undergo a "Change of Control," as defined in this section, or in the
case of Section 4(d), in all events, the parties agree as follows:
a. VESTING OF STOCK INCENTIVES AND AWARDS: At the Effective Time and in the
event of a Change of Control, as defined in this section, all Stock Incentives
and Awards provided in Section 6 of this Agreement shall immediately become
vested and exercisable, all other equity incentive awards held by the Executive
shall become fully vested and all other stock options held by the Executive
shall become fully exercisable, effective at the Effective Time and on the date
of the Change of Control, as the case may be, or at such other time as is
necessary to permit the Executive to be treated with respect to vesting and
exercisability no less favorably than other shareholders.
b. COMPENSATION: In the event that the employment of the Executive is
terminated:
(1) at any time within twenty four (24) months after the date of a Change
of Control, as defined in this section, by: (i) the Company communicating a
Notice of Termination
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Without Good Cause; (ii) the Company communicating a Notice of Non-Renewal
Without Good Cause, or (iii) the Executive communicating a Notice of
Resignation for Good Reason; or
(2) by the resignation of the Executive, whether with or without Good
Reason, within thirty (30) days of the first Anniversary Date (i.e., one year
from the date) of a Change of Control,
the Company agrees to pay to the Executive a lump sum cash payment equal to
three (3) times the sum of: (x) an amount equal to the Executive's then
current, annualized Base Salary, and (y) the greater of: (a) the applicable
Annual Payout of Incentive Compensation paid for the Plan Year immediately
prior to the termination, or (b) the full, non-pro rata Annual Target Award for
Incentive Compensation based upon Executive's annual Base Salary for the Plan
Year in which the termination occurs, which payment shall be paid within thirty
(30) days after the effective date of termination, non-renewal or resignation.
The Company further agrees to continue benefits to the Executive as provided in
Subsection 5(c) for a period of thirty-six (36) months.
c. DEFINITIONS: For purposes of this Agreement and notwithstanding anything
in this Agreement to the contrary, a "Change of Control" shall be deemed to
exist in the event that any of the following occurs:
(1) Parent ceases to be the beneficial owner, directly or indirectly, of
51% or more of the voting shares of the Company or Parent and its subsidiaries
sell or cause to be sold all or substantially all of the assets of the Company;
or
(2) Any individual, or incorporated or unincorporated entity or group of
the foregoing acting jointly and in concert acquires beneficial ownership,
directly or indirectly, of 30% or more of Parent's voting shares; or
(3) A majority of the individuals who serve as directors of Parent at the
commencement of any 18 month period are replaced other than by replacement
directors who became directors at the initiative of management or pursuant to a
management proxy solicitation.
For the purpose of this Agreement, the acquisition of the Company by Parent is
not a Change of Control.
For purposes of this Subsection, a sale of all or substantially all of the
assets of the Company shall be deemed to occur if any corporation, person or
group acting in concert (a "Person") as described in Section 14(d)(2) of the
Securities Exchange Act of 1934, as amended, acquires (or during the 12-month
period on the date of the most recent acquisition by such Person, has acquired)
gross assets of the Company that have an aggregate fair market value equal to
50% of the fair market value of all of the gross assets of the Company
immediately prior to such acquisition(s).
d. CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY.
(1) Anything in this Agreement to the contrary notwithstanding, but
subject to Section 4(d)(8), in the event that it shall be determined (as
hereafter provided) that any payment
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(other than the Gross-Up payments provided for in this Section 4(d)) or
distribution by Parent, the Company or any of their affiliates to or for the
benefit of the Executive, whether paid or payable or distributed or
distributable pursuant to the terms of this Agreement or otherwise pursuant to
or by reason of any other agreement, policy, plan, program or arrangement,
including without limitation any stock option, performance share, performance
unit, stock appreciation right or similar right, or the lapse or termination of
any restriction on or the vesting or exercisability of any of the foregoing (a
"Payment"), would be subject to the excise tax imposed by Section 4999 of the
Internal Revenue Code of 1986, as amended (the "Code") (or any successor
provision thereto) by reason of being considered "contingent on a change in
ownership or control" of the Company or of Parent, within the meaning of
Section 280G of the Code (or any successor provision thereto) or to any similar
tax imposed by state or local law, or any interest or penalties with respect to
such tax (such tax or taxes, together with any such interest and penalties,
being hereafter collectively referred to as the "Excise Tax"), then the
Executive shall be entitled to receive an additional payment or payments
(collectively, a "Gross-Up Payment"); provided, however, that no Gross-up
Payment shall be made with respect to the Excise Tax, if any, attributable to
(a) any incentive stock option, as defined by Section 422 of the Code ("ISO")
granted prior to the initial execution of the Original Agreement (as such term
is defined in the Prior Agreement), or (b) any stock appreciation or similar
right, whether or not limited, granted in tandem with any ISO described in
clause (a). The Gross-Up Payment shall be in an amount such that, after payment
by the Executive of all taxes (including any interest or penalties imposed with
respect to such taxes), including any Excise Tax imposed upon the Gross-Up
Payment, the Executive retains an amount of the Gross-Up Payment equal to the
Excise Tax imposed upon the Payment.
(2) Subject to the provisions of Section 4(d)(6), all
determinations required to be made under this Section 4(d), including whether
an Excise Tax is payable by the Executive and the amount of such Excise Tax and
whether a Gross-Up Payment is required to be paid by the Company to the
Executive and the amount of such Gross-Up Payment, if any, shall be made by a
nationally recognized accounting firm (the "Accounting Firm") selected by the
Executive in his sole discretion. The Executive shall direct the Accounting
Firm to submit its determination and detailed supporting calculations to both
the Company and the Executive within 30 calendar days after the date of
termination of the Executive's employment, if applicable, and any such other
time or times as may be requested by the Company or the Executive. If the
Accounting Firm determines that any Excise Tax is payable by the Executive, the
Company shall pay the required Gross-Up Payment to the Executive within five
business days after receipt of such determination and calculations with respect
to any Payment to the Executive. If the Accounting Firm determines that no
Excise Tax is payable by the Executive, it shall, at the same time as it makes
such determination, furnish the Company and the Executive an opinion that the
Executive has substantial authority not to report any Excise Tax on his
federal, state or local income or other tax return. As a result of the
uncertainty in the application of Section 4999 of the Code (or any successor
provision thereto) and the possibility of similar uncertainty regarding
applicable state or local tax law at the time of any determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made (an "Underpayment"),
consistent with the calculations required to be made hereunder. In the event
that the Company exhausts or fails to pursue its remedies pursuant to Section
4(d)(6) and the Executive thereafter is required to make a payment of any
Excise Tax, the Executive shall direct the Accounting Firm to determine the
amount of the Underpayment that has occurred and to submit its determination
and detailed supporting calculations
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to both the Company and the Executive as promptly as possible. Any such
Underpayment shall be promptly paid by the Company to, or for the benefit of,
the Executive within five business days after receipt of such determination and
calculations.
(3) The Company and the Executive shall each provide the
Accounting Firm access to and copies of any books, records and documents in the
possession of the Company or the Executive, as the case may be, reasonably
requested by the Accounting Firm, and otherwise cooperate with the Accounting
Firm in connection with the preparation and issuance of the determinations and
calculations contemplated by Section 4(d)(2). Any determination by the
Accounting Firm as to the amount of the Gross-Up Payment shall be binding upon
the Company and the Executive.
(4) The federal, state and local income or other tax returns
filed by the Executive shall be prepared and filed on a consistent basis with
the determination of the Accounting Firm with respect to the Excise Tax payable
by the Executive. The Executive shall make proper payment of the amount of any
Excise Tax, and at the request of the Company, provide to the Company true and
correct copies (with any amendments) of his federal income tax return as filed
with the Internal Revenue Service and corresponding state and local tax
returns, if relevant, as filed with the applicable taxing authority, and such
other documents reasonably requested by the Company, evidencing such payment.
If prior to the filing of the Executive's federal income tax return, or
corresponding state or local tax return, if relevant, the Accounting Firm
determines that the amount of the Gross-Up Payment should be reduced, the
Executive shall within five business days pay to the Company the amount of such
reduction.
(5) The fees and expenses of the Accounting Firm for its services
in connection with the determinations and calculations contemplated by Section
4(d)(2) shall be borne by the Company. If such fees and expenses are initially
paid by the Executive, the Company shall reimburse the Executive the full
amount of such fees and expenses within five business days after receipt from
the Executive of a statement therefor and reasonable evidence of his payment
thereof.
(6) The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service or any other taxing authority that, if
successful, would require the payment by the Company of a Gross-Up Payment.
Such notification shall be given as promptly as practicable but no later than
10 business days after the Executive actually receives notice of such claim and
the Executive shall further apprise the Company of the nature of such claim and
the date on which such claim is requested to be paid (in each case, to the
extent known by the Executive). The Executive shall not pay such claim prior to
the earlier of (a) the expiration of the 30-calendar-day period following the
date on which he gives such notice to the Company and (b) the date that any
payment of amount with respect to such claim is due. If the Company notifies
the Executive in writing prior to the expiration of such period that it desires
to contest such claim, the Executive shall:
(i) provide the Company with any written records or documents in
his possession relating to such claim reasonably requested by the Company;
(ii) take such action in connection with contesting such claim as
the Company shall reasonably request in writing from time to time,
including without limitation accepting
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legal representation with respect to such claim by an attorney competent
in respect of the subject matter and reasonably selected by the Company;
(iii) cooperate with the Company in good faith in order
effectively to contest such claim; and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all costs and
expenses (including interest and penalties) incurred in connection with such
contest and shall indemnify and hold harmless the Executive, on an after-tax
basis, for and against any Excise Tax or income tax, including interest and
penalties with respect thereto, imposed as a result of such representation and
payment of costs and expenses. Without limiting the foregoing provisions of
this Section 4(d)(6), the Company shall control all proceedings taken in
connection with the contest of any claim contemplated by this Section 4(d)(6)
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 (provided, however, that the Executive may participate
therein at his own cost and expense) and may, at its option, either direct the
Executive to pay the tax claimed and xxx for a refund or contest the claim in
any permissible manner, and 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 Company shall
determine; provided, however, that if the Company directs the Executive to pay
the tax claimed and xxx for a refund, the Company shall advance the amount of
such payment to the Executive on an interest-free basis and shall indemnify and
hold the Executive harmless, on an after-tax basis, from any Excise Tax or
income or other tax, including interest or penalties with respect thereto,
imposed with respect to such advance; and provided further, however, that any
extension of the statute of limitations relating to payment of taxes for the
taxable year of the Executive with respect to which the contested amount is
claimed to be due is limited solely to such contested amount. Furthermore, the
Company's control of any such contested claim shall be limited to issues with
respect to which a Gross-Up Payment would be payable hereunder and the
Executive shall be entitled to settle or contest, as the case may be, any other
issue raised by the Internal Revenue Service or any other taxing authority.
(7) If, after the receipt by the Executive of an amount advanced
by the Company pursuant to Section 4(d)(6), the Executive receives any refund
with respect to such claim, the Executive shall (subject to the Company's
complying with the requirements of Section 4(d)(6)) promptly pay to the Company
the amount of such refund (together with any interest paid or credited thereon
after any taxes applicable thereto). If, after the receipt by the Executive of
an amount advanced by the Company pursuant to Section 4(d)(6), a determination
is made that the Executive shall not be entitled to any refund with respect to
such claim and the Company does not notify the Executive in writing of its
intent to contest such denial or refund prior to the expiration of 30 calendar
days after such determination, then such advance shall be forgiven and shall
not be required to be repaid and the amount of any such advance shall offset,
to the extent thereof, the amount of Gross-Up Payment required to be paid by
the Company to the Executive pursuant to this Section 4(d).
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(8) Notwithstanding any provision of this Agreement to the
contrary, if (a) but for this sentence, the Company would be obligated to make
a Gross-Up Payment to the Executive, (b) the aggregate "present value" of the
"parachute payments" to be paid or provided to the Executive under this
Agreement or otherwise does not exceed 1.15 multiplied by three times the
Executive's "base amount," and (c) but for this sentence, the net after-tax
benefit to the Executive of the Gross-Up Payment would not exceed $50,000
(taking into account both income taxes and any Excise Tax), then the payments
and benefits to be paid or provided under this Agreement will be reduced to the
minimum extent necessary (but in no event to less than zero) so that no portion
of any payment or benefit to the Executive, as so reduced, constitutes an
"excess parachute payment." For purposes of this Section 4(d)(8), the terms
"excess parachute payment," "present value," "parachute payment," and "base
amount" will have the meanings assigned to them by Section 280G of the Code.
The determination of whether any reduction in such payments or benefits to be
provided under this Agreement is required pursuant to the preceding sentence
will be made at the expense of the Company, if requested by the Executive or
the Company, by the Accounting Firm. The fact that the Executive's right to
payments or benefits may be reduced by reason of the limitations contained in
this Section 4(d)(8) will not of itself limit or otherwise affect any other
rights of the Executive other than pursuant to this Agreement. In the event
that any payment or benefit intended to be provided under this Agreement or
otherwise is required to be reduced pursuant to this Section 4(d)(8), the
Executive will be entitled to designate the payments and/or benefits to be so
reduced in order to give effect to this Section 4(d)(8). The Company will
provide the Executive with all information reasonably requested by the
Executive to permit the Executive to make such designation. In the event that
the Executive fails to make such designation within 10 business days of the
date of termination of the Executive's employment, the Company may effect such
reduction in any manner it deems appropriate.
5. SEVERANCE: In the event that the Company communicates Notice of Termination
Without Good Cause or Notice of Non-Renewal Without Good Cause, or the
Executive communicates Notice of Resignation for Good Reason, the Company
agrees to pay the Executive the following severance compensation (the
"Severance Pay"):
a. CALCULATION OF SEVERANCE PAY. The Company shall pay the Executive a lump
sum payment equal to three (3) times the sum of: (i) an amount equal to his
then current, annualized Base Salary, and (ii) the greater of: (x) the
applicable Annual Payout of Incentive Compensation paid for the Plan Year
immediately prior to the termination, or (y) the full, non-pro rata Annual
Target Award for Incentive Compensation based upon Executive's annual Base
Salary for the Plan Year in which the termination occurs.
b. TERMS OF PAYMENT: Severance Pay required pursuant to this section shall
be payable in cash in full within thirty (30) days after the Notice of
Termination Without Good Cause, the Notice of Non-Renewal Without Good Cause,
or the Notice of Resignation for Good Reason is communicated.
c. CONTINUATION OF BENEFITS: In the event of a Non-Renewal Without Good
Cause or a Termination Without Good Cause or a Resignation For Good Reason, the
Company agrees to continue any and all Employee Benefits provided in
Subsections 1(d)(2), (4), (5), (6), (7), (8), and (9) received by the Executive
during his employment with the Company, as modified pursuant to
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the terms of Subsection l(d), for twenty-four (24) months after the effective
date of termination, non-renewal or resignation. If the Executive cannot
continue coverage under the Medical Plan, the Company agrees to purchase
medical, dental, and vision insurance for the Executive and his dependents that
is substantially equivalent to the benefits provided to Executive in Subsection
1(d)(2). Additionally, Executive shall be permitted to continue participation
in the benefits provided in Subsection 1(d)(1) to the extent permitted by law
so as not to cause disqualification of the 401 k Plan and 1(d)(3) without
further Company contributions, except earnings on contributions made prior to
termination and except contributions the Company is required to make to ensure
that such benefits are fully funded for service prior to termination.
d. EXCEPTIONS: Severance Pay shall not be payable under this section in any
of the following circumstances:
(1) In the event that this Agreement is terminated as a result of the
death or disability of the Executive, as provided in Subsections 2(c)(1)-(2);
or
(2) In the event that this Agreement is terminated pursuant to a Notice
of Termination For Good Cause or a Notice of Non-Renewal for Good Cause
communicated by the Company, as provided in Subsection 2(c)(3), and such
termination or non-renewal is affirmed by a proceeding under Section 10; or
(3) In the event the provisions of Section 4 are applicable as a result
of a "Change of Control" having occurred, and the payments provided for in
Section 4 are paid by the Company; or
(4) In the event that the Executive communicates Notice of Resignation
Without Good Reason as defined in Subsection 2(c)(5).
e. EXCLUSIVITY: The Company and the Executive acknowledge and agree that the
Severance Payments required under this section are intended to be exclusive and
to supersede any severance pay plans or policies adopted by the Company and
that the Executive shall not be entitled to any additional severance
compensation under any other severance plan or policy adopted by the Company.
f. MITIGATION: The payment of the severance compensation by the Company to
the Executive in accordance with Sections 4 and 5 of this Agreement is hereby
acknowledged by the Company to be reasonable, and the Executive will not be
required to mitigate the amount of any payment provided for in this Agreement
by seeking other employment or otherwise, nor will any profits, income,
earnings or other benefits from any source whatsoever create any mitigation,
offset, reduction or any other obligation on the part of the Executive
hereunder or otherwise.
6. STOCK INCENTIVES AND AWARDS: In addition to the other compensation set forth
in this Agreement, Executive shall be entitled to participate in such stock
options plans, incentives and awards on terms applicable to other officers and
directors of Parent, except that Parent may provide for additional benefits,
incentives, or awards to Executive and except that the following shall apply to
any options granted to Executive after the Effective Time:
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a. DEATH AND DISABILITY. If Executive dies or becomes disabled during the
term of this Agreement, (1) all unvested options as of the date of such death
or disability shall vest immediately; and (2) Executive (or his legal
representative or Estate) may exercise such options in accordance with the
exercise period prescribed in the stock option plan or twelve (12) months from
such death or disability, whichever is longer.
b. RETIREMENT. If Executive retires (as defined in the 401 k plan, except
that, for purposes of this Section, the service requirement will be modified to
be no more than ten (10) years and the age requirement will be no more than age
55), (1) all unvested options as of the date of such retirement shall vest
immediately; and (2) Executive (or his Estate) may exercise such options in
accordance with the exercise period prescribed in the stock incentive and award
plan or thirty-six (36) months, whichever is longer.
Further, notwithstanding anything to the contrary herein, nothing in this
Agreement will affect to the Executive's disadvantage any non-qualified stock
options previously granted to Executive, whether under an Executive Employment
Agreement between Executive and the Company or otherwise.
7. SUCCESSORS AND ASSIGNS: The parties acknowledge and agree that this
Agreement may not be assigned by either party without the written consent of
the other party. In the event of a "Change of Control" as defined in Subsection
4(c), the Company shall be entitled to assign this Agreement to any successor
or assignee; provided, however, that such assignment shall not or be construed
to, in any way whatsoever, release, limit or excuse the Company from the
performance of its obligations and the payment of its liabilities under this
Agreement, regardless of whether such obligations or liabilities accrued or
accrue before, after or as a result of such assignment, and regardless of
whether such obligations or liabilities are or were assumed by any successor or
assignee. In the event of the Executive's death, this Agreement shall be
enforceable by the Executive's estate, executors or legal representatives, but
only to the extent that such persons may collect any compensation (including
stock options) due to the Executive under this Agreement.
8. INDEMNIFICATION: During and after the employment of the Executive pursuant
to this Agreement, the Company shall indemnify the Executive against all
judgments, penalties, fines, assessments, losses, amounts paid in settlement
and reasonable expenses (including, but not limited to, attorneys' fees) for
which the Executive may become liable as a result of his performance of his
duties and responsibilities pursuant to this Agreement and shall advance and
pay any expenses incurred in defending such claims, to the fullest extent
permissible under the laws of the State of Delaware. In addition, the Company
agrees to purchase officer and director liability insurance, with such
reasonable exclusions that are acceptable to the Executive, for any such
judgments, penalties, fines, assessments, losses, amounts paid in settlement
and reasonable expenses (including, but not limited to, attorneys' fees) for
which the Executive may become liable as a result of his performance of his
duties and responsibilities pursuant to this Agreement in an amount not less
than the amount of director and officer liability insurance in effect at the
Effective Time. In the event that the Company elects to self-insure for any
judgments, penalties, fines, assessments, losses, amounts paid in settlement,
and reasonable expenses (including, but not limited to, attorneys' fees), for
which the Executive may become liable as a result of the performance of his
duties as an officer and director of the Company, the Company agrees to
purchase and maintain an adequate, secured letter of credit
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from an institution acceptable to the Executive as security for the Company's
performance under this section and to fully indemnify the Executive for any
such liabilities, as provided herein.
9. NON-COMPETITION AND NON-DISCLOSURE: The Company and the Executive agree as
follows:
a. During the term of this Agreement, the Company agrees that it will
disclose to Executive Confidential Information, as defined in this section, to
the extent necessary for Executive to carry out his obligations to the Company.
During and after his employment by the Company, the Executive agrees that he
shall not directly or indirectly disclose any Confidential Information, as
defined in this section, unless such disclosure is: (i) to an employee or a
member of the Board of Directors of, Parent, the Company or its subsidiaries;
or (ii) to a person to whom disclosure is reasonably necessary or appropriate
in connection with the performance of his duties as an executive of the
Company; or (iii) authorized in writing by the Board of Directors; or (iv)
required by law.
b. In the event that Executive's employment under this Agreement is
terminated for any reason, the Executive agrees that he shall promptly return
all records, files, documents, materials and copies relating to the business of
the Company or its subsidiaries which came into the possession of the Executive
during his employment pursuant to this Agreement; provided, however, that
nothing in this section shall be construed as any limitation on the Executive's
right to retain any documents or other information which was in the possession
of the Executive prior to the Effective Date of the Original Agreement (as such
terms are defined in the Prior Agreement).
c. For purposes of this Agreement, the term "Confidential Information" shall
be defined as any information relating to the business of the Company or its
subsidiaries which is not generally available to the public and which the
Company takes affirmative steps to maintain as confidential. The term shall not
include any information that the Executive was aware of prior to November 15,
1994, information that is a matter of any public record, information contained
in any document filed or submitted to any governmental entity, any information
that is common knowledge in any industry in which the Company does business,
any information that has previously been made available to persons who are not
employees of the Company or any information that is known to the Company's
competitors.
d. In the event that the Executive's employment with the Company is
terminated as a result of either: (i) Notice of Termination for Good Cause or
Notice of Non-Renewal for Good Cause, as defined in Subsection 2(c)(3); or (ii)
the resignation of the Executive "Without Good Reason," as defined by
Subsection 2(c)(5), the Executive covenants and agrees not to compete with the
Company for twelve (12) calendar months subsequent to such termination or
resignation from employment, in the business of providing inter-city transport
of passengers or cargo by automobile or motorbus in any city in which the
Company engaged in such business during the twelve (12) calendar months prior
to such termination or resignation. This provision shall not apply in the event
that the employment of the Executive is terminated for any reason other than
"Good Cause" or a "Resignation Without Good Reason."
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e. Unless the Board of Directors provides prior written approval, for one
(1) year following the termination of the Executive's employment, the Executive
shall not, directly or indirectly:
(1) solicit, entice, persuade or induce any employee of the Company, or
its subsidiaries, to terminate his/her employment with the Company, or its
subsidiaries, or to become employed by any Person other than the Company, or
its subsidiaries; or
(2) approach any such employee for any of the foregoing purposes; or
(3) authorize or assist in the taking of such actions by any third party.
10. DISPUTE RESOLUTION: The Company and the Executive agree as follows:
a. Any claim or controversy arising out of or relating to this Agreement, or
any breach of this Agreement, shall be submitted to non-binding arbitration in
the city of Dallas, Texas in accordance with procedures or rules established by
the American Arbitration Association. The Executive and the Company agree that
either party must request such non-binding arbitration of any claim or
controversy on or before the earlier of: (i) the fifteenth (15th) business day
after the termination or non-renewal of this Agreement becomes effective; or
(ii) the sixtieth (60th) business day after the date the claim or controversy
first arises, by giving written notice of the party's request for non-binding
arbitration ("Arbitration Notice"). If both parties fail to give such
Arbitration Notice, either party may proceed to seek judicial relief in a court
of competent jurisdiction located in Dallas County, Texas.
b. In the event that any dispute arising under this Agreement concerns the
amount of any payment required to be made under any provision of this
Agreement, either party agrees to pay the undisputed portion of the payment to
the other party and deposit the disputed portion of the payment in an interest
bearing account with a financial institution acceptable to the other party
within five (5) days after either party effectively communicates its
Arbitration Notice or files an original petition or complaint in a court of
competent jurisdiction.
c. At the election of both the Executive and the Company, all claims or
controversies subject to arbitration under this Agreement may be submitted to
final and binding arbitration in accordance with the applicable Rules of the
American Arbitration Association.
d. In any dispute arising under the terms of this Agreement, without regard
to whether such dispute proceeds to arbitration or litigation, the Company will
reimburse the Executive for reasonable and necessary attorney's fees up to a
maximum amount of Forty Thousand Dollars ($40,000.00), unless a court of
competent jurisdiction (or the Arbitrator, if the parties so elect according to
Subsection 10(c)), finds that the Executive's position in such proceeding was
frivolous.
11. RULES OF CONSTRUCTION: The following provisions shall govern the
interpretation and enforcement of this Agreement:
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a. SEVERABILITY: The parties acknowledge and agree that each provision of
this Agreement shall be enforceable independently of every other provision.
Furthermore, the parties acknowledge and agree that, in the event any provision
of this Agreement is determined to be unenforceable for any reason, the
remaining covenants and/or provisions will remain effective, binding and
enforceable.
b. WAIVER. The parties acknowledge and agree that the failure of either to
enforce any provision of this Agreement shall not constitute a waiver of that
particular provision, or of any other provisions, of this Agreement.
c. CHOICE OF LAW: The parties acknowledge and agree that except as
specifically provided otherwise in this Agreement, the law of Texas will govern
the validity, interpretation and effect of this Agreement and any other dispute
relating to, or arising out of, the employment relationship between the Company
and the Executive.
d. MODIFICATION: The parties acknowledge and agree that, except as expressly
provided herein, this Agreement constitutes the complete and entire agreement
between the parties; that the parties have executed this Agreement based upon
the express terms and provisions set forth herein; that the parties have not
relied on any representations, oral or written, which are not set forth in this
Agreement; that no previous agreement, either oral or written, shall have any
effect on the terms or provisions of this Agreement; and that all previous
agreements, either oral or written, are expressly superseded and revoked by
this Agreement. In addition, the parties acknowledge and agree that the
provisions of this Agreement may not be modified by any subsequent agreement
unless the modifying agreement (i) is in writing (ii) contains an express
provision referencing this Agreement (iii) is signed by the Executive and (iv)
is approved by the Board of Directors and by Parent.
e. EXECUTION: The parties agree that this Agreement may be executed in
multiple counterparts, each of which shall be deemed an original for all
purposes.
f. HEADINGS: The parties agree that the subject headings set forth at the
beginning of each section in this Agreement are provided for ease of reference
only, and shall not be utilized for any purpose in connection with the
construction, interpretation or enforcement of this Agreement.
12. LEGAL CONSULTATION: The parties acknowledge and agree that all parties have
been accorded a reasonable opportunity to review this Agreement with legal
counsel prior to executing the agreement.
13. NOTICES: The parties acknowledge and agree that any and all Notices
required to be delivered under the terms of this Agreement shall be forwarded
by personal delivery or certified U.S. mail. Either party may change their
respective address for the purpose of receiving notices only by providing
written notification via certified mail, five (5) days in advance of such
change.
Notices shall be deemed to be communicated and effective on the day of receipt.
Such Notices shall be addressed to each party as follows:
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Xxxxx X. Xxxxxxxx Greyhound Lines Inc. Xxxxxxx, Inc.
0000 Xxxxxxxx Xxxxx 00000 Xxxxx Xxxxxx Parkway 0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000 Xxxxxx, Xxxxx 00000 Burlington, Ontario
Attn: General Counsel Canada L7R 3Y8
Attn: General Counsel
With a copy to: With a copy to: With a copy to:
Xxxxxx X. Xxxxxxx, Esq. Chairman of the Board of Directors President and Chief
0000 Xxxx Xxxxxx, Xxxxx 0000 Board of Directors Executive Officer
Xxxxxx, Xxxxx 00000 Greyhound Lines Inc. Xxxxxxx, Inc.
00000 Xxxxx Xxxxxx Xxxxxxx 0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000 Burlington, Ontario
Xxxxxx, Xxxxx 00000 Xxxxxx X0X 0X0
Attn: General Counsel
14. EFFECTIVENESS; PRIOR AGREEMENT: This Agreement will become effective upon
and the Prior Agreement will terminate immediately prior to, the Effective
Time. Notwithstanding any other provision of this Agreement, if the Merger
Agreement is terminated prior to the Effective Time, this Agreement will have
no further force or effect, and the Prior Agreement will remain in full force
and effect as though this Agreement had not been entered into.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
and year first above written, but effective as provided in Section 14.
XXXXX X. XXXXXXXX
-------------------------------------
GREYHOUND LINES, INC.
By:
----------------------------------
Title:
-------------------------------
XXXXXXX, INC.
By:
----------------------------------
Title:
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