Exhibit 10.14
EMPLOYMENT AGREEMENT
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THIS AGREEMENT, made and entered into as of this 1st day of January, 1999,
by and between The Kansas City Southern Railway Company, a Missouri corporation
("Railway"), Kansas City Southern Industries, Inc., a Delaware corporation
("KCSI") and Xxxxxx X. Xxxxxx, an individual ("Executive").
WHEREAS, Railway, KCSI and Executive desire for Railway to employ Executive
on the terms and conditions set forth in this Agreement and to provide an
incentive to Executive to remain in the employ of Railway hereafter,
particularly in the event of any change in control (as herein defined) of KCSI,
Railway or Kansas City Southern Lines, Inc., thereby establishing and preserving
continuity of management of Railway.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, it is agreed by and between Railway, KCSI and Executive as
follows:
1. Employment. Railway hereby employs Executive as its Executive Vice
President and Chief Operating Officer to serve at the pleasure of the Board of
Directors of Railway (the "Railway Board") and to have such duties, powers and
responsibilities as may be prescribed or delegated from time to time by the
President or other officer to whom Executive reports, subject to the powers
vested in the Railway Board and in the stockholder of Railway. Executive shall
faithfully perform his duties under this Agreement to the best of his ability
and shall devote substantially all of his working time and efforts to the
business and affairs of Railway and its affiliates.
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2. Compensation.
(a) Base Compensation. Railway shall pay Executive as compensation
for his services hereunder an annual base salary at the rate approved by the
KCSI Compensation Committee on November 17, 1998. Such rate shall not be
increased prior to January 1, 2000 and shall not be reduced except as agreed by
the parties or except as part of a general salary reduction program imposed by
Railway for non-union employees and applicable to all officers of Railway.
(b) Incentive Compensation. For the year 1999, Executive shall not be
entitled to participate in the Railway Incentive Compensation Plan.
3. Benefits. During the period of his employment hereunder, Railway
shall provide Executive with coverage under such benefit plans and programs as
are made generally available to similarly situated employees of Railway,
provided (a) Railway shall have no obligation with respect to any plan or
program if Executive is not eligible for coverage thereunder, and (b) Executive
acknowledges that stock options and other stock and equity participation awards
are granted in the discretion of the Board of Directors of KCSI (the "KCSI
Board") or the Compensation Committee of the KCSI Board and that Executive has
no right to receive stock options or other equity participation awards or any
particular number or level of stock options or other awards. In determining
contributions, coverage and benefits under any disability insurance policy and
under any cash compensation-based plan provided to Executive by Railway, it
shall be assumed that the value of Executive's annual compensation, pursuant to
this Agreement, is 175% of Executive's annual base salary. Executive
acknowledges that all rights and benefits under benefit plans and programs shall
be governed by the official text of each plan or program and not by any summary
or description thereof or any provision of this Agreement (except to the extent
that this Agreement expressly modifies such benefit plans or programs) and that
none of KCSI,
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KCSL nor Railway is under any obligation to continue in effect or to fund any
such plan or program, except as provided in Paragraph 7 hereof.
4. Termination.
(a) Termination by Executive. Executive may terminate this Agreement
and his employment hereunder by at least thirty (30) days advance written notice
to Railway, except that in the event of any material breach of this Agreement by
Railway, Executive may terminate this Agreement and his employment hereunder
immediately upon notice to Railway. If Executive terminates this Agreement and
his employment in accordance with this Paragraph 4(a) within one hundred eighty
(180) days after Executive is required to report to a Railway officer other than
Xxxxxxx X. Xxxxxxx, or within one hundred eighty (180) days after there is any
significant reduction in Executive's responsibilities for Railway, Executive
shall be entitled to the payments and benefits provided in Paragraph 4(d)(ii) as
if terminated by Railway other than for cause.
(b) Death or Disability. This Agreement and Executive's employment
hereunder shall terminate automatically on the death or disability of Executive,
except to the extent employment is continued under Railway's disability plan.
For purposes of this Agreement, Executive shall be deemed to be disabled if he
qualifies for disability benefits under Railway's long-term disability plan.
(c) Termination by Railway For Cause. Railway may terminate this
Agreement and Executive's employment "for cause" immediately upon notice to
Executive. For purposes of this Agreement (except for Paragraph 7), termination
"for cause" shall mean termination based upon any one or more of the following:
(i) Any material breach of this Agreement by Executive;
(ii) Executive's dishonesty involving Railway, KCSI, KCSL or any
subsidiary of Railway, KCSI or KCSL;
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(iii) Gross negligence or willful misconduct in the performance
of Executive's duties as determined in good faith by the Railway Board;
(iv) Willful failure by Executive to follow reasonable
instructions of the President or other officer to whom Executive reports;
(v) Executive's fraud or criminal activity; or
(vi) Embezzlement or misappropriation by Executive.
(d) Termination by Railway Other Than For Cause.
(i) Railway may terminate this Agreement and Executive's
employment other than for cause immediately upon notice to Executive, and in
such event, Railway shall provide severance benefits to Executive in
accordance with Paragraph 4(d)(ii) below.
(ii) Unless the provisions of Paragraph 7 of this Agreement are
applicable, if Executive's employment is terminated under Paragraph 4(d)(i)
or the second sentence of Paragraph 4(a), Railway shall continue, for a
period of one (1) year following such termination, (a) to pay to Executive
as severance pay a monthly amount equal to one-twelfth (1/12th) of the
annual base salary referenced in Paragraph 2(a) above, at the rate in effect
immediately prior to termination, and, (b) to reimburse Executive for the
cost (including state and federal income taxes payable with respect to this
reimbursement) of continuing the health insurance coverage provided pursuant
to this Agreement or obtaining health insurance coverage comparable to the
health insurance provided pursuant to this Agreement, and obtaining coverage
comparable to the life insurance provided pursuant to this Agreement, unless
Executive is provided comparable health or life insurance coverage in
connection with other employment. The foregoing obligations of Railway shall
continue until the end of such one (1) year period notwithstanding the death
or disability of Executive during said period (except, in the event of
death, the obligation to reimburse
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Executive for the cost of life insurance shall not continue). In the year in
which termination of employment occurs, Executive shall be eligible to
receive benefits under the Railway Incentive Compensation Plan and the KCSL
Executive Plan (if such Plans then are in existence and Executive was
entitled to participate immediately prior to termination) in accordance with
the provisions of such plans then applicable, and severance pay received in
such year shall be taken into account for the purpose of determining
benefits, if any, under the Railway Incentive Compensation Plan but not
under the KCSL Executive Plan. After the year in which termination occurs,
Executive shall not be entitled to accrue or receive benefits under the
Railway Incentive Compensation Plan or the KCSL Executive Plan with respect
to the severance pay provided herein, notwithstanding that benefits under
such plan then are still generally available to executive employees of
Railway. After termination of employment, Executive shall not be entitled to
accrue or receive benefits under any other employee benefit plan or program,
except that Executive shall be entitled to participate in the KCSI Profit
Sharing Plan, the KCSI Employee Stock Ownership Plan and the KCSI Section
401(k) Plan (if Railway employees then still participate in such plans) in
the year of termination of employment only if Executive meets all
requirements of such plans for participation in such year.
5. Non-Disclosure. During the term of this Agreement and at all times
after any termination of this Agreement, Executive shall not, either directly or
indirectly, use or disclose any Railway trade secret, except to the extent
necessary for Executive to perform his duties for Railway while an employee. For
purposes of this Agreement, the term "Railway trade secret" shall mean any
information regarding the business or activities of Railway or any subsidiary or
affiliate, including any formula, pattern, compilation, program, device, method,
technique, process, customer list, technical information or other confidential
or proprietary information, that (a) derives
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independent economic value, actual or potential, from not being generally known
to, and not being readily ascertainable by proper means by, other persons who
can obtain economic value from its disclosure or use, and (b) is the subject of
efforts of Railway or its subsidiary or affiliate that are reasonable under the
circumstance to maintain its secrecy. In the event of any breach of this
Paragraph 5 by Executive, Railway shall be entitled to terminate any and all
remaining severance benefits under Paragraph 4(d)(ii) and shall be entitled to
pursue such other legal and equitable remedies as may be available.
6. Duties Upon Termination; Survival.
(a) Duties. Upon termination of this Agreement by Railway or
Executive for any reason, Executive shall immediately return to Railway all
Railway trade secrets which exist in tangible form and shall sign such written
resignations from all positions as an officer, director or member of any
committee or board of Railway and all direct and indirect subsidiaries and
affiliates of Railway as may be requested by Railway and shall sign such other
documents and papers relating to Executive's employment, benefits and benefit
plans as Railway may reasonably request.
(b) Survival. The provisions of Paragraphs 5, 6(a) and 7 of this
Agreement shall survive any termination of this Agreement by Railway or
Executive, and the provisions of Paragraph 4(d)(ii) shall survive any
termination of this Agreement by Railway under Paragraph 4(d)(i).
7. Continuation of Employment Upon Change in Control
(a) Continuation of Employment. Subject to the terms and conditions of
this Paragraph 7, in the event of a Change in Control (as defined in Paragraph
7(d)) at any time during the term of this Agreement, Executive agrees to remain
in the employ of Railway for a period of three years (the "Three-Year Period")
from the date of such Change in Control (the "Control Change Date"). Railway
agrees to continue to employ Executive for the Three-Year
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Period. During the Three-Year Period, (i) the Executive's position (including
offices, titles, reporting requirements and responsibilities), authority and
duties shall be at least commensurate in all material respects with the most
significant of those held, exercised and assigned at any time during the 12
month period immediately before the Control Change Date and (ii) the Executive's
services shall be performed at the location where Executive was employed
immediately before the Control Change Date or at any other location less than 40
miles from such former location. During the Three-Year Period, Railway shall
continue to pay to Executive an annual base salary on the same basis and at the
same intervals as in effect prior to the Control Change Date at a rate not less
than 12 times the highest monthly base salary paid or payable to the Executive
by Railway in respect of the 12-month period immediately before the Control
Change Date.
(b) Benefits. During the Three-Year Period, Executive shall be
entitled to participate, on the basis of his executive position, in each of the
following KCSI, KCSL or Railway plans (together, the "Specified Benefits") in
existence, and in accordance with the terms thereof, at the Control Change Date:
(i) any benefit plan, and trust fund associated therewith,
related to (A) life, health, dental, disability, accidental death and
dismemberment insurance or accrued but unpaid vacation time, (B) profit
sharing, thrift or deferred savings (including deferred compensation, such
as under Sec. 401(k) plans), (C) retirement or pension benefits, (D) ERISA
excess benefits and similar plans and (E) tax favored employee stock
ownership (such as under ESOP, and Employee Stock Purchase programs); and
(ii) any other benefit plans hereafter made generally available
to executives of Executive's level or to the employees of Railway generally.
In addition, Railway and KCSI shall use their best efforts to cause all
outstanding options held by Executive under any stock option plan of KCSI or its
affiliates to become immediately
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exercisable on the Control Change Date and to the extent that such options are
not vested and are subsequently forfeited, the Executive shall receive a lump-
sum cash payment within 5 days after the options are forfeited equal to the
difference between the fair market value of the shares of stock subject to the
non-vested, forfeited options determined as of the date such options are
forfeited and the exercise price for such options. During the Three-Year Period
Executive shall be entitled to participate, on the basis of his executive
position, in any incentive compensation plan of KCSI, KCSL or Railway in
accordance with the terms thereof at the Control Change Date; provided that if
under KCSI, KCSL or Railway programs or Executive's Employment Agreement in
existence immediately prior to the Control Change Date, there are written
limitations on participation for a designated time period in any incentive
compensation plan, such limitations shall continue after the Control Change Date
to the extent so provided for prior to the Control Change Date.
If the amount of contributions or benefits with respect to the Specified
Benefits or any incentive compensation is determined on a discretionary basis
under the terms of the Specified Benefits or any incentive compensation plan
immediately prior to the Control Change Date, the amount of such contributions
or benefits during the Three-Year Period for each of the Specified Benefits
shall not be less than the average annual contributions or benefits for each
Specified Benefit for the three plan years ending prior to the Control Change
Date and, in the case of any incentive compensation plan, the amount of the
incentive compensation during the Three-Year Period shall not be less than 75%
of the maximum that could have been paid to the Executive under the terms of the
incentive compensation plan.
(c) Payment. With respect to any plan or agreement under which
Executive would be entitled at the Control Change Date to receive Specified
Benefits or incentive compensation as a general obligation of Railway which has
not been separately funded
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(including specifically, but not limited to, those referred to under Paragraph
7(b)(i)(d) above), Executive shall receive within five (5) days after such date
full payment in cash (discounted to the then present value on the basis of a
rate of seven percent (7%) per annum) of all amounts to which he is then
entitled thereunder.
(d) Change in Control. Except as provided in the last sentence of this
Paragraph 7(d), for purposes of this Agreement, a "Change in Control" shall be
deemed to have occurred if:
(i) for any reason at any time less than seventy-five percent
(75%) of the members of the KCSI Board shall be individuals who fall into
any of the following categories: (A) individuals who were members of the
KCSI Board on the date of the Agreement; or (B) individuals whose election,
or nomination for election by KCSI's stockholders, was approved by a vote of
at least seventy-five percent (75%) of the members of the KCSI Board then
still in office who were members of the KCSI Board on the date of the
Agreement; or (C) individuals whose election, or nomination for election, by
KCSI's stockholders, was approved by a vote of at least seventy-five percent
(75%) of the members of the KCSI Board then still in office who were elected
in the manner described in (A) or (B) above, or
(ii) any "person" (as such term is used in Sections 13(d) and
14(d)(2) of the Securities Exchange Act of 1934 (the "Exchange Act")) other
than KCSI shall have become after September 18, 1997, according to a public
announcement or filing, the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of KCSL,
Railway or KCSI representing thirty percent (30%) (or, with respect to
Paragraph 7(c) hereof, 40%) or more (calculated in accordance with Rule
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13d-3) of the combined voting power of KCSL's, Railway's or KCSI's then
outstanding voting securities; or
(iii) the stockholders of KCSL, Railway or KCSI shall have
approved a merger, consolidation or dissolution of KCSL, Railway or KCSI or
a sale, lease, exchange or disposition of all or substantially all of
KCSL's, Railway's or KCSI's assets, if persons who were the beneficial
owners of the combined voting power of KCSL's, Railway's or KCSI's voting
securities immediately before any such merger, consolidation, dissolution,
sale, lease, exchange or disposition do not immediately thereafter,
beneficially own, directly or indirectly, in substantially the same
proportions, more than 60% of the combined voting power of any corporation
or other entity resulting from any such transaction.
Notwithstanding the foregoing provisions of this Paragraph 7(d) to the contrary,
the sale of shares of stock of KCSL pursuant to an initial public offering of
shares of stock of KCSL shall not constitute a Change in Control.
(e) Termination After Control Change Date. Notwithstanding any other
provision of this Paragraph 7, at any time after the Control Change Date,
Railway may terminate the employment of Executive (the "Termination"), but
unless such Termination is for Cause as defined in subparagraph (g) or for
disability, within five (5) days of the Termination Railway shall pay to
Executive his full base salary through the Termination, to the extent not
theretofore paid, plus a lump sum amount (the "Special Severance Payment") equal
to the product (discounted to the then present value on the basis of a rate of
seven percent (7%) per annum) of (i) 175% of his annual base salary specified in
Paragraph 7(a) multiplied by (ii) Three; and Specified Benefits (excluding any
incentive compensation) to which Executive was entitled immediately prior to
Termination shall continue until the end of the 3-year period ("Benefits
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Period") beginning on the date of Termination. If any plan pursuant to which
Specified Benefits are provided immediately prior to Termination would not
permit continued participation by Executive after Termination, then Railway
shall pay to Executive within five (5) days after Termination a lump sum payment
equal to the amount of Specified Benefits Executive would have received under
such plan if Executive had been fully vested in the average annual contributions
or benefits in effect for the three plan years ending prior to the Control
Change Date (regardless of any limitations based on the earnings or performance
of KCSI, KCSL or Railway) and a continuing participant in such plan to the end
of the Benefits Period. Following the end of the Benefits Period, Railway shall
continue to provide to the Executive and the Executive's family the following
benefits ("Post-Period Benefits"): (1) prior to the Executive's attainment of
age sixty (60), health, prescription and dental benefits equivalent to those
then applicable to active peer executives of Railway) and their families, as the
same may be modified from time to time, and (2) following the Executive's
attainment of age sixty (60) (and without regard to the Executive's period of
service with Railway) health and prescription benefits equivalent to those then
applicable to retired peer executives of Railway and their families, as the same
may be modified from time to time. The cost to the Executive of such Post-Period
Benefits shall not exceed the cost of such benefits to active or retired (as
applicable) peer executives, as the same may be modified from time to time.
Notwithstanding the preceding two sentences of this Paragraph 7(e), if the
Executive is covered under any health, prescription or dental plan provided by a
subsequent employer, then the corresponding type of plan coverage (i.e., health,
prescription or dental), required to be provided as Post-Period Benefits under
this Paragraph 7(e) shall cease. The Executive's rights under this Paragraph
7(e) shall be in addition to, and not in lieu of, any post-termination
continuation coverage or conversion rights the Executive may have pursuant to
applicable law, including without limitation continuation coverage required by
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Section 4980 of the Code. Nothing in this Paragraph 7(e) shall be deemed to
limit in any manner the reserved right of Railway, in its sole and absolute
discretion, to at any time amend, modify or terminate health, prescription or
dental benefits for active or retired employees generally.
(f) Resignation After Control Change Date. In the event of a Change in
Control as defined in Paragraph 7(d), thereafter, upon good reason (as defined
below), Executive may, at any time during the 3-year period following the Change
in Control, in his sole discretion, on not less than thirty (30) days' written
notice (the "Notice of Resignation") to the Secretary of Railway and effective
at the end of such notice period, resign his employment with Railway (the
"Resignation"). Within five (5) days of such a Resignation, Railway shall pay to
Executive his full base salary through the effective date of such Resignation,
to the extent not theretofore paid, plus a lump sum amount equal to the Special
Severance Payment (computed as provided in the first sentence of Paragraph 7(e),
except that for purposes of such computation all references to "Termination"
shall be deemed to be references to "Resignation"). Upon Resignation of
Executive, Specified Benefits to which Executive was entitled immediately prior
to Resignation shall continue on the same terms and conditions as provided in
Paragraph 7(e) in the case of Termination (including equivalent payments
provided for therein), and Post-Period Benefits shall be provided on the same
terms and conditions as provided in Paragraph 7(e) in the case of Termination.
For purposes of this Agreement, "good reason" means any of the following:
(i) the assignment to the Executive of any duties inconsistent
in any respect with the Executive's position (including offices, titles,
reporting requirements or responsibilities), authority or duties as
contemplated by Section 7(a)(i), or any other action by Railway which
results in a diminution or other material adverse change in such position,
authority or duties;
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(ii) any failure by Railway to comply with any of the provisions
of Paragraph 7;
(iii) Railway's requiring the Executive to be based at any office
or location other than the location described in Section 7(a)(ii);
(iv) any other material adverse change to the terms and
conditions of the Executive's employment; or
(v) any purported termination by Railway of the Executive's
employment other than as expressly permitted by this Agreement (any such
purported termination shall not be effective for any other purpose under
this Agreement).
A passage of time prior to delivery of the Notice of Resignation or a failure by
the Executive to include in the Notice of Resignation any fact or circumstance
which contributes to a showing of Good Reason shall not waive any right of the
Executive under this Agreement or preclude the Executive from asserting such
fact or circumstance in enforcing rights under this Agreement.
(g) Termination for Cause After Control Change Date. Notwithstanding any
other provision of this Paragraph 7, at any time after the Control Change Date,
Executive may be terminated by Railway "for cause." Cause means commission by
the Executive of any felony or willful breach of duty by the Executive in the
course of the Executive's employment; except that Cause shall not mean:
(i) bad judgment or negligence;
(ii) any act or omission believed by the Executive in good faith
to have been in or not opposed to the interest of Railway (without intent of
the Executive to gain, directly or indirectly, a profit to which the
Executive was not legally entitled);
(iii) any act or omission with respect to which a determination
could properly have been made by the Railway Board that the Executive met
the applicable
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standard of conduct for indemnification or reimbursement under Railway's by-
laws, any applicable indemnification agreement, or applicable law, in each
case in effect at the time of such act or omission; or
(iv) any act or omission with respect to which Notice of
Termination of the Executive is given more than 12 months after the earliest
date on which any member of the Railway Board, not a party to the act or
omission, knew or should have known of such act or omission.
Any Termination of the Executive's employment by Railway for Cause shall be
communicated to the Executive by Notice of Termination.
(h) Gross-up for Certain Taxes. If it is determined (by the reasonable
computation of Railway's independent auditors, which determinations shall be
certified to by such auditors and set forth in a written certificate
("Certificate") delivered to the Executive) that any benefit received or deemed
received by the Executive from Railway, KCSL or KCSI pursuant to this Agreement
or otherwise (collectively, the "Payments") is or will become subject to any
excise tax under Section 4999 of the Code or any similar tax payable under any
United States federal, state, local or other law (such excise tax and all such
similar taxes collectively, "Excise Taxes"), then Railway shall, immediately
after such determination, pay the Executive an amount (the "Gross-up Payment")
equal to the product of:
(i) the amount of such Excise Taxes; multiplied by
(ii) the Gross-up Multiple (as defined in Paragraph 7(k)).
The Gross-up Payment is intended to compensate the Executive for
the Excise Taxes and any federal, state, local or other income or excise
taxes or other taxes payable by the Executive with respect to the Gross-up
Payment.
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Railway shall cause the preparation and delivery to the Executive
of a Certificate upon request at any time. Railway shall, in addition to
complying with this Paragraph 7(h), cause all determinations and
certifications under Paragraphs 7(h)-(o) to be made as soon as reasonably
possible and in adequate time to permit the Executive to prepare and file
the Executive's individual tax returns on a timely basis.
(i) Determination by the Executive.
(i) If Railway shall fail (A) to deliver a Certificate to the
Executive or (B) to pay to the Executive the amount of the Gross-up Payment,
if any, within 14 days after receipt from the Executive of a written request
for a Certificate, or if at any time following receipt of a Certificate the
Executive disputes the amount of the Gross-up Payment set forth therein, the
Executive may elect to demand the payment of the amount which the Executive,
in accordance with an opinion of counsel to the Executive ("Executive
Counsel Opinion"), determines to be the Gross-up Payment. Any such demand by
the Executive shall be made by delivery to Railway of a written notice which
specifies the Gross-up Payment determined by the Executive and an Executive
Counsel Opinion regarding such Gross-up Payment (such written notice and
opinion collectively, the "Executive's Determination"). Within 14 days after
delivery of the Executive's Determination to Railway, Railway shall either
(A) pay the Executive the Gross-up Payment set forth in the Executive's
Determination (less the portion of such amount, if any, previously paid to
the Executive by Railway) or (B) deliver to the Executive a Certificate
specifying the Gross-up Payment determined by Railway's independent
auditors, together with an opinion of Railway's counsel ("Railway Counsel
Opinion"), and pay the Executive the Gross-up Payment specified in such
Certificate. If for any
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reason Railway fails to comply with clause (B) of the preceding sentence,
the Gross-up Payment specified in the Executive's Determination shall be
controlling for all purposes.
(ii) If the Executive does not make a request for, and Railway
does not deliver to the Executive, a Certificate, Railway shall, for
purposes of Paragraph 7(j), be deemed to have determined that no Gross-up
Payment is due.
(j) Additional Gross-up Amounts. If, despite the initial conclusion of
Railway and/or the Executive that certain Payments are neither subject to Excise
Taxes nor to be counted in determining whether other Payments are subject to
Excise Taxes (any such item, a "Non-Parachute Item"), it is later determined
(pursuant to subsequently-enacted provisions of the Code, final regulations or
published rulings of the IRS, final IRS determination or judgment of a court of
competent jurisdiction or Railway's independent auditors) that any of the Non-
Parachute Items are subject to Excise Taxes, or are to be counted in determining
whether any Payments are subject to Excise Taxes, with the result that the
amount of Excise Taxes payable by the Executive is greater than the amount
determined by Railway or the Executive pursuant to Paragraph 7(h) or Paragraph
7(i), as applicable, then Railway shall pay the Executive an amount (which shall
also be deemed a Gross-up Payment) equal to the product of:
(i) the sum of (A) such additional Excise Taxes and (B) any
interest, fines, penalties, expenses or other costs incurred by the
Executive as a result of having taken a position in accordance with a
determination made pursuant to Paragraph 7(h); multiplied by
(ii) the Gross-up Multiple.
(k) Gross-up Multiple. The Gross-up Multiple shall equal a fraction, the
numerator of which is one (1.0), and the denominator of which is one (1.0) minus
the sum, expressed as a decimal fraction, of the rates of all federal, state,
local and other income and other
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taxes and any Excise Taxes applicable to the Gross-up Payment; provided that, if
such sum exceeds 0.8, it shall be deemed equal to 0.8 for purposes of this
computation. (If different rates of tax are applicable to various portions of a
Gross-up Payment, the weighted average of such rates shall be used.)
(l) Opinion of Counsel. "Executive Counsel Opinion" means a legal opinion
of nationally recognized executive compensation counsel that there is a
reasonable basis to support a conclusion that the Gross-up Payment determined by
the Executive has been calculated in accord with this Paragraph 7 and applicable
law. "Company Counsel Opinion" means a legal opinion of nationally recognized
executive compensation counsel that (i) there is a reasonable basis to support a
conclusion that the Gross-up Payment set forth in the Certificate of Railway's
independent auditors has been calculated in accord with this Paragraph 7 and
applicable law, and (ii) there is no reasonable basis for the calculation of the
Gross-up Payment determined by the Executive.
(m) Amount Increased or Contested. The Executive shall notify Railway in
writing of any claim by the IRS or other taxing authority that, if successful,
would require the payment by Railway of a Gross-up Payment. Such notice shall
include the nature of such claim and the date on which such claim is due to be
paid. The Executive shall give such notice as soon as practicable, but no later
than 10 business days, after the Executive first obtains actual knowledge of
such claim; provided, however, that any failure to give or delay in giving such
notice shall affect Railway's obligations under this Paragraph 7 only if and to
the extent that such failure results in actual prejudice to Railway. The
Executive shall not pay such claim less than 30 days after the Executive gives
such notice to Railway (or, if sooner, the date on which payment of such claim
is due). If Railway notifies the Executive in writing before the expiration of
such period that it desires to contest such claim, the Executive shall:
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(i) give Railway any information that it reasonably requests
relating to such claim;
(ii) take such action in connection with contesting such claim as
Railway reasonably requests in writing from time to time, including, without
limitation, accepting legal representation with respect to such claim by an
attorney reasonably selected by Railway;
(iii) cooperate with Railway in good faith to contest such claim;
and
(iv) permit Railway to participate in any proceedings relating to
such claim; provided, however, that Railway shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Executive
harmless, on an after-tax basis, for any Excise Tax or income tax, including
related interest and penalties, imposed as a result of such representation
and payment of costs and expenses. Without limiting the foregoing, Railway
shall control all proceedings in connection with such contest and, at its
sole option, may pursue or forego any and all administrative appeals,
proceedings, hearings and conferences with the taxing authority in respect
of such claim and may, at its sole option, either direct the Executive to
pay the tax claimed and xxx for a refund or contest the claim in any
permissible manner. 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 Railway shall
determine; provided, however, that if Railway directs the Executive to pay
such claim and xxx for a refund, Railway shall advance the amount of such
payment to the Executive, on an interest-free basis and shall indemnify the
Executive, on an after-tax basis, for any Excise Tax or income tax,
including related interest or penalties, imposed with respect to such
advance; and further
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provided that any extension of the statute of limitations relating to
payment of taxes for the taxable year of the Executive with respect to which
such contested amount is claimed to be due is limited solely to such
contested amount. The Railway's control of the contest shall be limited to
issues with respect to which a Gross-up Payment would be payable. The
Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the IRS or other taxing authority.
(n) Refunds. If, after the receipt by the Executive of an amount advanced
by Railway pursuant to Paragraph 7(m), the Executive receives any refund with
respect to such claim, the Executive shall (subject to Railway's complying with
the requirements of Paragraph 7(m)) promptly pay Railway the amount of such
refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by the Executive of an amount
advanced by Railway pursuant to Paragraph 7(m), a determination is made that the
Executive shall not be entitled to a full refund with respect to such claim and
Railway does not notify the Executive in writing of its intent to contest such
determination before the expiration of 30 days after such determination, then
the applicable part of such advance shall be forgiven and shall not be required
to be repaid and the amount of such advance shall offset, to the extent thereof,
the amount of Gross-up Payment required to be paid. Any contest of a denial of
refund shall be controlled by Paragraph 7(m).
(o) Expenses. If any dispute should arise under this Agreement after the
Control Change Date involving an effort by Executive to protect, enforce or
secure rights or benefits claimed by Executive hereunder, Railway shall pay
(promptly upon demand by Executive accompanied by reasonable evidence of
incurrence) all reasonable expenses (including attorneys' fees) incurred by
Executive in connection with such dispute, without regard to whether Executive
prevails in such dispute except that Executive shall repay Railway any amounts
so
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received if a court having jurisdiction shall make a final, nonappealable
determination that Executive acted frivolously or in bad faith by such dispute.
To assure Executive that adequate funds will be made available to discharge
Railway's obligations set forth in the preceding sentence, Railway has
established a trust and upon the occurrence of a Change in Control shall
promptly deliver to the trustee of such trust to hold in accordance with the
terms and conditions thereof that sum which the Railway Board shall have
determined is reasonably sufficient for such purpose.
(p) Prevailing Provisions. On and after the Control Change Date, the
provisions of this Paragraph 7 shall control and take precedence over any other
provisions of this Agreement which are in conflict with or address the same or a
similar subject matter as the provisions of this Paragraph 7.
8. Mitigation and Other Employment. After a termination of Executive's
employment pursuant to Paragraph 4(d)(i) or a Change in Control as defined in
Paragraph 7(d), Executive shall not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise,
and except as otherwise specifically provided in Paragraph 4(d)(ii) with respect
to health and life insurance and in Paragraph 7(e) with respect to health,
prescription and dental benefits, no such other employment, if obtained, or
compensation or benefits payable in connection therewith shall reduce any
amounts or benefits to which Executive is entitled hereunder. Such amounts or
benefits payable to Executive under this Agreement shall not be treated as
damages but as severance compensation to which Executive is entitled because
Executive's employment has been terminated.
9. KCSI Not An Obligor. Notwithstanding that KCSI has executed this
Agreement, it shall have no obligation for the payment of salary, benefits, or
other compensation hereunder, and all such obligations shall be the sole
responsibility of Railway.
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10. Notice. Notices and all other communications to either party pursuant
to this Agreement shall be in writing and shall be deemed to have been given
when personally delivered, delivered by facsimile or deposited in the United
States mail by certified or registered mail, postage prepaid, addressed, in the
case of Railway or KCSI, to Railway or KCSI at 000 Xxxx 00xx Xxxxxx, Xxxxxx
Xxxx, Xxxxxxxx 00000, Attention: Secretary, or, in the case of the Executive, to
him at 0000 Xxxx Xxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, or to such other
address as a party shall designate by notice to the other party.
11. Amendment. No provision of this Agreement may be amended, modified,
waived or discharged unless such amendment, waiver, modification or discharge is
agreed to in writing signed by Executive, the President of Railway and the
President of KCSI. No waiver by any party hereto at any time of any breach by
another party hereto of, or compliance with, any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of
similar or dissimilar provisions or conditions at the time or at any prior or
subsequent time.
12. Successors in Interest. The rights and obligations of KCSI and
Railway under this Agreement shall inure to the benefit of and be binding in
each and every respect upon the direct and indirect successors and assigns of
KCSI and Railway, regardless of the manner in which such successors or assigns
shall succeed to the interest of KCSI or Railway hereunder, and this Agreement
shall not be terminated by the voluntary or involuntary dissolution of KCSI or
Railway or by any merger or consolidation or acquisition involving KCSI or
Railway, or upon any transfer of all or substantially all of KCSI's or Railway's
assets, or terminated otherwise than in accordance with its terms. In the event
of any such merger or consolidation or transfer of assets, the provisions of
this Agreement shall be binding upon and shall inure to the benefit of the
surviving corporation or the corporation or other person to which such assets
shall be transferred. Neither this Agreement
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nor any of the payments or benefits hereunder may be pledged, assigned or
transferred by Executive either in whole or in part in any manner, without the
prior written consent of Railway.
13. Severability. The invalidity or unenforceability of any particular
provision of this Agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
14. Controlling Law and Jurisdiction. The validity, interpretation and
performance of this Agreement shall be subject to and construed under the laws
of the State of Missouri, without regard to principles of conflicts of law.
15. Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and terminates and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the terms of Executive's employment or
severance arrangements.
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Agreement as of the 1st day of January, 1999.
THE KANSAS CITY SOUTHERN RAILWAY
COMPANY
By /s/ X.X. Xxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxx, President
KANSAS CITY SOUTHERN INDUSTRIES, INC.
By /s/ Xxxxxx Xxxxxxx
---------------------------------------
Xxxxxx X. Xxxxxxx, President
EXECUTIVE
/s/ Xxxxxx X. Xxxxxx
---------------------------------------
Xxxxxx X. Xxxxxx
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