EXHIBIT 10.3
CHANGE OF CONTROL AGREEMENT FOR SENIOR MANAGERS
AGREEMENT by and between The Greenbrier Companies, Inc., a Delaware
corporation (the "Company"), and ________________ (the "Executive"), dated as of
the ____ day of ________________, 200___.
The Board of Directors of the Company (the "Board") has determined that it
is in the best interests of the Company and its shareholders to assure that the
Company will have the continued dedication of the Executive, notwithstanding the
possibility or occurrence of a Change of Control (as defined in Section 2) of
the Company. The Board believes it is imperative to diminish the inevitable
distraction of the Executive by virtue of the personal uncertainties and risks
created by a pending or potential Change of Control and to encourage the
Executive's full attention and dedication to the Company currently and in the
event of any pending or potential Change of Control, and to provide the
Executive with compensation and benefits arrangements upon a Change of Control
which ensure that the compensation and benefits expectations of the Executive
will be satisfied and which are competitive with those of other corporations.
Therefore, in order to accomplish these objectives, the Board has caused the
Company to enter into this Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. CERTAIN DEFINITIONS.
(a) The "Effective Date" shall mean the first date during the Change of
Control Period (as defined in Section 1(b)) on which a Change of Control occurs.
Anything in this Agreement to the contrary notwithstanding, if a Change of
Control occurs and if the Executive's employment with the Company is terminated
prior to the date on which the Change of Control occurs, and if it is reasonably
demonstrated by the Executive that such termination of employment (i) was at the
request of a third party who has taken steps reasonably calculated to effect the
Change of Control or (ii) otherwise arose in connection with or anticipation of
the Change of Control, then for all purposes of this Agreement the "Effective
Date" shall mean the date immediately prior to the date of such termination of
employment.
(b) The "Change of Control Period" shall mean the period commencing on the
date hereof and ending on the second anniversary of such date; provided,
however, that commencing on the date one year after the date hereof, and on each
annual anniversary of such date (such date and each annual anniversary thereof
shall be hereinafter referred to as the "Renewal Date"), the Change of Control
Period shall be automatically extended so as to terminate two years from such
Renewal Date, unless at least 60 days prior to the Renewal Date the Company
shall give notice to the Executive that the Change of Control Period shall not
be so extended.
2. CHANGE OF CONTROL.
For the purpose of this Agreement, a "Change of Control": shall mean the
occurrence of any of the following:
(a) The acquisition by any individual, entity or group (within the meaning
of section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) (a "Person") of beneficial ownership (within the
meaning of Rule ▇▇▇ - ▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇) of 50 percent or
more of the stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of the Company (irrespective
of whether at the time stock of any class or classes of the Company shall have
or might have voting power by reason of the happening of any contingency);
provided, however, that for purposes of this subsection (a), the following
acquisitions will not constitute a Change of Control: (i) any acquisition
directly from the Company; (ii) any acquisition by the Company or a subsidiary
of the Company; or (iii) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any corporation
controlled by the Company.
(b) The individuals who, as of the date of this Agreement, are the members
of the Board of Directors of the Company (the "Incumbent Board") cease for any
reason to constitute a majority of the Board, unless the election or
appointment, or nomination for election or appointment, of any new member of the
Board was approved by a vote of a majority of the Incumbent Board of Directors,
then such new member shall be considered as though such individual were a member
of the Incumbent Board.
(c) The consummation of a merger or consolidation involving the Company if
the stockholders owning the capital and profits ("ownership interests") of the
Company immediately before such merger or consolidation do not, as a result of
such merger or consolidation, own, directly or indirectly, more than 50 percent
of the combined voting power or ownership interests of the Company, or the
entity resulting from such merger or consolidation, in substantially the same
proportion as their ownership of the combined voting power or ownership
interests outstanding immediately before such merger or consolidation.
(d) The sale or other disposition of all or substantially all of the
assets of the Company.
(e) The dissolution or the complete or partial liquidation of the Company.
3. TERMINATION OF EMPLOYMENT.
(a) DEATH OR DISABILITY. The Executive's employment shall terminate
automatically upon the Executive's death during the Change of Control Period. If
the Company determines in good faith that the Disability of the Executive has
occurred during the Change of Control Period (pursuant to the definition of
Disability set forth below), it may give to the Executive written notice in
accordance with Section 12(b) of its intention to terminate the Executive's
employment. In such event, the Executive's employment with the Company shall
terminate effective on the 30th day after receipt of such notice by the
Executive (the "Disability Effective Date"), provided that, within the 30 days
after such receipt, the Executive shall not have returned to full-time
performance of the Executive's duties. For purposes of this Agreement,
"Disability" shall mean the absence of the Executive from the Executive's duties
with the Company on a full-time basis for 180 consecutive business days as a
result of incapacity due to mental or physical illness which is determined to be
total and permanent by a physician selected by the Company or its insurers and
acceptable to the Executive or the Executive's legal representative (such
agreement
Change of Control Agreement
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as to acceptability not to be withheld unreasonably).
(b) CAUSE. The Company may terminate the Executive's employment during the
Change of Control Period for Cause. For purposes of this Agreement, "Cause"
shall mean (i) a willful and continued failure to perform substantially the
Executive's duties with the Company, other than such failure (A) resulting from
Executives' Disability or incapacity due to bodily injury or physical or mental
illness; or (B) for which a demand for substantial performance is delivered to
Executive which specifically identifies the manner in which Executive has not
substantially performed Executive's duties and provides a 30-day period during
which time Executive may take corrective actions, which period of time has not
yet expired; or (ii) the conviction of the Executive (including a plea of nolo
contendere) of a felony or gross misdemeanor under federal or state law which is
materially and demonstrably injurious to the Company or which impairs the
Executive's ability to perform substantially the Executive's duties for the
Company.
(c) GOOD REASON; WINDOW PERIOD. The Executive's employment may be
terminated (i) during the Change of Control Period by the Executive for Good
Reason or (ii) during the Window Period by the Executive without any reason. For
purposes of this Agreement, the "Window Period" shall mean the 30 - day period
immediately following the first anniversary of the Effective Date. For purposes
of this Agreement, "Good Reason" shall mean:
(A) A material change in Executive's status, positions, duties
or responsibility as an executive of the Company as in effect immediately
prior to the Effective Date which may reasonably be considered to be an
adverse change, except in connection with the termination of Executive's
employment for Cause or due to Disability or death, or resulting from
Executive's decision for any reason other than for Good Reason;
(B) A reduction by the Company of Executive's base salary
exceeding 5 percent of Executive's prior year's base salary (or an adverse
change in the form or timing of the payment thereof) as in effect
immediately prior to the Effective Date;
(C) A reduction by the Company of Executive's annual bonus
exceeding 20 percent of Executive's prior year's annual bonus (unless such
reduction relates to the amount of annual bonus payable to Executive for
the achievement of specified performance goals, or to the attainment of
profitability levels of the Company or certain of its subsidiaries, and
the non-achievement of such goals and/or the non-attainment of
profitability levels of the Company or certain of its subsidiaries, is the
reason for the reduction in Executive's annual bonus compared to the prior
year's bonus);
(D) the Company's requiring the Executive to be based at any
office more than 35 miles from where Executive's office is located
immediately prior to the Effective Date;
(E) any purported termination by the Company of the
Executive's employment otherwise than as expressly permitted by this
Agreement; or
(F) any failure by the Company to comply with and satisfy
Section
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11(c), provided that such successor has received at least ten days' prior
written notice from the Company or the Executive of the requirements of
Section 11(c).
For purposes of this Section 3(c), any good faith determination of "Good Reason"
made by the Executive shall be conclusive.
(d) NOTICE OF TERMINATION. Any termination by the Company for Cause, or by
the Executive without any reason during the Window Period or for Good Reason,
shall be communicated by Notice of Termination to the other party hereto given
in accordance with Section 12(b). For purposes of this Agreement, a "Notice of
Termination" means a written notice which (i) indicates the specific termination
provision in this Agreement relied upon, (ii) to the extent applicable sets
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of the Executive's employment under the provision so
indicated, and (iii) if the Date of Termination (as defined below) is other than
the date of receipt of such notice, specifies the termination date of such
notice. The failure by the Executive or the Company to set forth in the Notice
of Termination any fact or circumstance which contributes to a showing of Good
Reason or Cause shall not waive any right of the Executive or the Company
hereunder or preclude the Executive or the Company from asserting such fact or
circumstance in enforcing the Executive's or the Company's rights hereunder.
(e) DATE OF TERMINATION. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive during the Window Period or for Good Reason, the date of receipt of
the Notice of Termination or any later date specified therein, as the case may
be, (ii) if the Executive's employment is terminated by the Company other than
for Cause or Disability, the Date of Termination shall be the date on which the
Company notifies the Executive of such termination, and (iii) if the Executive's
employment is terminated by reason of death or Disability, the Date of
Termination shall be the date of death of the Executive or the Disability
Effective Date, as the case may be.
4. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) GOOD REASON OR DURING THE WINDOW PERIOD; OTHER THAN FOR CAUSE, DEATH
OR DISABILITY. If, during the Change of Control Period, the Company shall
terminate the Executive's employment other than for Cause or Disability or the
Executive shall terminate employment either for Good Reason or without any
reason during the Window Period:
(i) The Company shall pay to the Executive in a lump sum in cash
within 30 days after the Date of Termination the aggregate of the
following amounts:
(A) the Executive's Base Salary through the Date of
Termination to the extent not previously paid (the amount shall be
hereinafter referred to as the "Accrued Obligation"); and
(B) the amount equal to _______________________________ the
amount of the sum of (x) the Executive's Base Salary and (y) the Average
Bonus (such amount shall be hereinafter referred to as the "Severance
Amount").
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(ii) "Base Salary" shall mean Executive's current annual base salary
in effect at the time a Change in Control occurs. "Average Bonus" shall
mean the average of the two most recent annual bonuses received by the
Executive prior to the year in which a Change in Control occurs.
(iii) For a period of _______________ years following the Date of
Termination (the "Employee Benefit Continuation Period"), the Company
shall continue to provide all insured and self-insured employee benefits
(including, without limitation, medical, life, dental, vision and
disability plans) to the Executive and/or the Executive's family
reasonably similar to those which would have been provided to them in
accordance with the plans, programs, practices and policies if the
Executive's employment had not been terminated (such continuation of
benefits shall be referred to as "Employee Benefit Continuation"). If the
Executive becomes reemployed with another employer during the Employee
Benefit Continuation Period and is eligible to receive medical or other
employee benefits under another employer provided plan, the Company shall
not be obligated to continue to provide the medical and other employee
benefits described herein, to the extent that reasonably similar medical
or other benefits are available to the Executive pursuant to such
employer-provided plan. For purposes of Executive's rights to continuation
coverage pursuant to COBRA, Executive shall be considered to have remained
employed until, and Executive's COBRA rights shall be triggered by, the
end of the Employee Benefit Continuation Period. "COBRA" refers to the
Consolidated Omnibus Budget Reconciliation Act of 1985.
(iv) All unvested stock options and restricted stock grants held by
Executive shall become fully vested and exercisable as of the Date of
Termination.
(v) To the extent not theretofore paid or provided, the Company
shall timely pay or provide to the Executive and/or the Executive's family
any other amounts or benefits required to be paid or provided or which the
Executive and/or the Executive's family is eligible to receive pursuant to
this Agreement and under any plan, program, policy or practice or contract
or agreement of the Company and its affiliated companies as in effect and
applicable generally to other peer executives of the Company and its
affiliated companies and their families during the 90 - day period
immediately preceding the Effective Date or, if more favorable to the
Executive, as in effect generally thereafter with respect to other peer
executives of the Company and its affiliated companies and their families
(such other amounts and benefits shall be hereinafter referred to as the
"Other Benefits").
(b) DEATH. If the Executive's employment is terminated by reason of the
Executive's death during the Change of Control Period, this Agreement shall
terminate without further obligations to the Executive's legal representatives
under this Agreement, other than for (i) payment of Accrued Obligations (which
shall be paid to the Executive's estate or beneficiary, as applicable, in a lump
sum in cash within 30 days of the Date of Termination); and (ii) the timely
payment or provision of the Employee Benefit Continuation and Other Benefits.
(c) DISABILITY. If the Executive's employment is terminated by reason of
the Executive's Disability during the Change of Control Period, this Agreement
shall terminate
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without further obligations to the Executive, other than for (i) payment of
Accrued Obligations (which shall be paid to the Executive in a lump sum in cash
within 30 days of the Date of Termination); and (ii) the timely payment of
provision of the Employee Benefit Continuation and Other Benefits.
(d) CAUSE; OTHER THAN FOR GOOD REASON. If the Executive's employment shall
be terminated for Cause during the Change of Control Period, this Agreement
shall terminate without further obligations to the Executive other than the
obligation to pay to the Executive Annual Base Salary through the Date of
Termination to the extent previously unpaid. If the Executive terminates
employment during the Change of Control Period, excluding a termination either
for Good Reason or without any reason during the Window Period, this Agreement
shall terminate without further obligations to the Executive, other than for
Accrued Obligations and the timely payment or provision of Other Benefits. In
such case, all Accrued Obligations shall be paid to the Executive in a lump sum
in cash within 30 days of the Date of Termination.
5. NON-COMPETITION AGREEMENT.
The Company's obligations under this Agreement are expressly conditioned upon
and subject to Executive having executed and remaining in compliance with the
terms of a non-competition agreement in favor of the Company and its
subsidiaries in a form acceptable to the Company.
6. NON-EXCLUSIVITY OF RIGHTS.
Except as provided in Sections 4(a)(ii), 4(b) and 4(c), nothing in this
Agreement shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided by the Company
or any of its affiliated companies and for which the Executive may qualify, nor
shall anything herein limit or otherwise affect such rights as the Executive may
have under any contract or agreement with the Company or any of its affiliated
companies. Amounts which are vested benefits or which the Executive is otherwise
entitled to receive under any plan, policy, practice of program of or any
contract or agreement with the Company or any of its affiliated companies at or
subsequent to the Date of Termination shall be payable in accordance with such
plan, policy, practice or program or contract or agreement except as explicitly
modified by this Agreement.
7. FULL SETTLEMENT; RESOLUTION OF DISPUTES.
(a) The Company's obligation to make the payments provided for in this
Agreement and otherwise to perform its obligations hereunder shall not be
affected by any set-off, counterclaim, recoupment, defense or other claim, right
or action which the Company may have against the Executive or others. In no
event shall the Executive be obligated to seek other employment or take any
other action by way of mitigation of the amounts payable to the Executive under
any of the provisions of this Agreement and, except as provided in Section
4(a)(ii), such amounts shall not be reduced whether or not the Executive obtains
other employment. The Company agrees to pay promptly as incurred, to the full
extent permitted by law, all legal fees and expenses which the Executive may
reasonably incur as a result of any contest (regardless of the outcome thereof)
by the Company, the Executive or others of the validity or enforceability of, or
liability under, any provision of this Agreement or any guarantee
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Page 6
of performance thereof (including as a result of any contest by the Executive
about the amount of any payment pursuant to this Agreement), plus in each case
interest on any delayed payment at the applicable Federal rate provided for in
section 7872(f)(2)(A) of the Internal Revenue Code (the "Code").
(b) If there shall be any dispute between the Company and the Executive
(i) in the event of any termination of the Executive's employment by the
Company, whether such termination was for Cause, or (ii) in the event of any
termination of employment by the Executive, whether Good Reason existed, then,
unless and until there is a final, nonappealable judgment by a court of
competent jurisdiction declaring that such termination was for Cause or that the
determination by the Executive of the existence of Good Reason was not made in
good faith, the Company shall pay all amounts, and provide all benefits, to the
Executive and/or the Executive's family or other beneficiaries, as the case may
be, that the Company would be required to pay or provide pursuant to Section
4(a) as though such termination were by the Company without Cause, or by the
Executive with Good Reason; provided, however, that the Company shall not be
required to pay any disputed amount pursuant to this paragraph except upon
receipt of an undertaking by or on behalf of the Executive to repay all such
amounts to which the Executive is ultimately adjudged by such court not to be
entitled.
8. LIMITATION ON PAYMENTS AND BENEFITS.
Notwithstanding anything in this Agreement to the contrary, if any of the
payments or benefits to be made or provided in connection with the Agreement,
together with any other payments or benefits which the Executive has the right
to receive from the Company or any entity which is a member of an "affiliated
group" (as defined in section 1504(a) of the Code without regard to section
1504(b) of the Code) of which the Company is a member constitute an "excess
parachute payment" (as defined in section 280G(b) of the Code), the payments or
benefits to be made or provided in connection with this Agreement will be
reduced to the extent necessary to prevent any portion of such payments or
benefits from becoming nondeductible by the Company pursuant to section 280G of
the Code or subject to the excise tax imposed under section 4999 of the Code.
The determination as to whether any such decrease in the payments or benefits to
be made or provided in connection with this Agreement is necessary must be made
in good faith by a nationally recognized accounting firm (the "Accounting
Firm"), and such determination will be conclusive and binding upon Executive and
the Company. In the event that the Accounting Firm is serving as accountant or
auditor for the individual, entity or group effecting the Change of Control, the
Company shall appoint another nationally recognized accounting firm to make the
determinations required hereunder (which accounting firm shall then be referred
to as the Accounting Firm hereunder). All fees and expenses of the Accounting
Firm shall be borne solely by the Company. In the event that such a reduction is
necessary, Executive will have the right to designate the particular payments or
benefits that are to be reduced or eliminated so that no portion of the payments
or benefits to be made or provided to Executive in connection with the Agreement
will be excess parachute payments subject to the deduction limitations under
section 280G of the Code and the excise tax under section 4999 of the Code.
9. CONFIDENTIAL INFORMATION.
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The Executive shall hold in a fiduciary capacity for the benefit of the Company
all secret or confidential information, knowledge or data relating to the
Company or any of its affiliated companies, and their respective businesses,
which shall have been obtained by the Executive during the Executive's
employment by the Company or any of its affiliated companies and which shall not
be or become public knowledge (other than by acts by the Executive or
representatives of the Executive in violation of this Agreement). After
termination of the Executive's employment with the Company, the Executive shall
not, without the prior written consent of the Company or as may otherwise be
required by law or legal process, communicate or divulge any such information,
knowledge or data to anyone other than the Company and those designated by it.
In no event shall an asserted violation of the provisions of this Section 9
constitute a basis for deferring or withholding any amounts otherwise payable to
the Executive under this Agreement.
10. NONDISPARAGEMENT; COOPERATION.
(a) Executive agrees not to disparage the Company or its officers,
directors, employees, shareholders or agents, in any manner likely to be harmful
to them or their business, business reputations or personal reputations.
Executive shall respond accurately and fully to any question, inquiry or request
for information when required by legal process, notwithstanding the foregoing.
(b) During the Change of Control Period and during the twelve month period
following the Date of Termination, Executive will cooperate with the Company in
responding to the reasonable requests of the Board, the Company's or its General
Counsel, in connection with any and all existing or future litigation,
arbitrations, mediations or investigations brought by or against the Company, or
its affiliates, agents, officers, directors or employees, whether
administrative, civil or criminal in nature, in which the Company reasonably
deems Executive's cooperation necessary or desirable. In such matters, Executive
agrees to provide the Company with reasonable advice, assistance and
information, including offering and explaining evidence, providing sworn
statements, and participating in discovery and trial preparation and testimony.
Executive also agrees to promptly send the Company copies of all correspondence
(for example, but not limited to, subpoenas) received by Executive in connection
with any such legal proceedings, unless Executive is expressly prohibited by law
from so doing. The Company will reimburse Executive for reasonable out-of-pocket
expenses incurred by Executive as a result of Executive's cooperation with the
obligations described in this Section 10(b), within 30 days of the presentation
of appropriate documentation thereof, in accordance with the Company's standard
reimbursement policies and procedures.
11. SUCCESSORS.
(a) This Agreement is personal to the Executive and without the prior
written consent of the Company shall not be assignable by the Executive
otherwise than by will or the laws of descent and distribution. This Agreement
shall inure to the benefit of and be enforceable by the Executive's legal
representatives.
(b) This Agreement shall inure to the benefit of and be binding upon the
Company and its successors and assigns.
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(c) The Company will require any successor (whether direct or indirect, by
purchase, merger, consolidation or otherwise) to all or substantially all of the
business and/or assets of the Company to assume expressly and agree to perform
this Agreement in the same manner and to the same extent that the Company would
be required to perform it if no such succession had taken place. As used in this
Agreement, "Company" shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to
perform this Agreement by operation of law, or otherwise.
12. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the State of Oregon, without reference to principles of conflict of
laws. The captions of this Agreement are not part of the provisions hereof and
shall have no force or effect. This Agreement may not be amended or modified
otherwise than by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in writing and
shall be given by hand delivery to the other party or by registered or certified
mail, return receipt requested, postage prepaid, addressed as follows:
IF TO THE EXECUTIVE:
[insert appropriate address]
IF TO THE COMPANY:
The Greenbrier Companies, Inc.
Attention: Human Resource Manager
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement.
(d) The Company may withhold from any amounts payable under this Agreement
such Federal, state or local taxes as shall be required to be withheld pursuant
to any applicable law or regulation.
(e) The Executive's or the Company's failure to insist upon strict
compliance with any provision hereof or any other provision of this Agreement or
the failure to assert any right the Executive or the Company may have hereunder,
including, without limitation, the right of the Executive to terminate
employment for Good Reason pursuant to Section 3(c)(A) - (E), shall not be
deemed to be a waiver of such provision or right or any other provision or right
of this Agreement.
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(f) The Executive and the Company acknowledge that, except as may
otherwise be provided under any other written agreement between the Executive
and the Company, the employment of the Executive by the Company is "at will"
and, prior to the Effective Date, may be terminated by either the Executive or
the Company at any time. Moreover, if prior to the Effective Date, the
Executive's employment with the Company terminates, then the Executive shall
have no further rights under this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
THE GREENBRIER COMPANIES, INC.
By: __________________________________
Its: ___________________________
EXECUTIVE:
_________________________________
Name
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