1
Exhibit (c)(3)
CHANGE IN CONTROL AGREEMENT
This agreement made this 9th day of June, 1997, by and between THE NEW YORK,
SUSQUEHANNA AND WESTERN RAILWAY CORPORATION, a New Jersey corporation, with its
principal office and place of business at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Employer") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, an individual,
residing at ▇.▇.#▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter called
"Employee").
W I T N E S S E T H :
WHEREAS, Employee has been employed by Employer as an at-will employee
for several years, with Employee currently serving as Vice
President-Administration; and
WHEREAS, if Employer (or its parent, affiliate or subsidiary
corporations, which together with Employer are hereafter jointly and severally
referred to as "Employer" for purposes of this Agreement) receives any proposal
from a third party concerning a possible business combination with, or
acquisition of the equity securities of a substantial portion of the assets of
Employer, the Board of Directors of Employer believes it is imperative that
Employer and its Board of Directors be able to rely upon the Employee to
continue in his position, and that they be able to receive and rely upon his
advice, if they request it, as to the best interests of Employer and its
shareholders, without concern that Employee might be distracted by the personal
risks and uncertainties created by such a proposal; and
WHEREAS, the terms and provisions of this Agreement were duly approved
by action of Employer's Board of Directors' Executive Committee at a meeting
held on the 7th day of June, 1997.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
set forth hereafter, and other good and valuable consideration, the parties
hereto, intending to be legally bound, agree as follows:
1
2
FIRST: CHANGE IN CONTROL PROTECTION:
A) In the event that Employee's position with Employer, its
successors or assigns is terminated as a result of a Change In Control of
Employer (a "Termination"), then the following shall apply:
1. Employer shall, notwithstanding such
Termination, continue to compensate Employee
on a monthly basis at the rate in effect at
the date of such Change In Control, and
continue such other benefits as Employee may
be entitled to at the date of such Change In
Control, until the earlier of (i) Employee
obtaining employment, and (ii) a date one
year after the date of such Change In
Control.
2. In the event, after such Termination, that
Employee obtains employment within one year
after the date of such Change In Control at
a rate lower than, or providing fewer
benefits than Employee is entitled to under
subparagraph 1 above, then Employer shall
pay to Employee on a monthly basis the
shortfall of such compensation, and provide
such additional benefits, until the earlier
of (i) such shortfall in compensation and/or
benefits being eliminated, and (ii) one year
after the date of such Change In Control.
For the purpose of this subparagraph A), a material change in
the nature of Employee's duties or a reduction in salary or benefits shall
constitute a Termination of his position.
B) As used herein, "Change In Control" means
(i) any such change required to be reported to
the Securities and Exchange Commission under
Item 1 in a Current Report on Form 8-K (or a
successor provision thereof); provided,
however, that no Change In Control shall be
deemed to have occurred which involves the
acquisition, holding, voting or disposing of
less than 40% of Employer's outstanding
voting securities,
(ii) the sale of all or a substantial portion of
the productive assets of Employer, or
(iii) a merger, inclusion, business combination or
other transaction of like nature.
For purposes of this Paragraph, "Employer" shall include both
jointly and severally, Delaware Otsego Corporation and The New York, Susquehanna
and Western Railway Corporation.
2
3
C) Nothing contained in this Agreement shall preclude Employer
from granting or Employee from receiving benefits under or participating in any
bonus, incentive, profit sharing, stock option, stock purchase, retirement,
pension, insurance or similar benefit plan of Employer now or hereinafter in
effect for its management personnel.
D) This Agreement shall not affect any rights of Employee or
Employer or constitute or imply a contract of employment except to the extent
specifically set forth herein.
E) Notwithstanding any other provisions of this Agreement,
Employer may terminate this Agreement at any time for Cause by written notice.
For purposes of this Agreement, "Cause" shall include any one or more of the
following:
1. Willful and continued failure by Employee to
perform his duties for Employer after at
least one warning in writing from Employer's
Board of Directors identifying specifically
any such failure.
2. Commission by Employee of a felony or a
crime involving moral turpitude.
3. Any gross negligence or willful misconduct
in the performance of Employee's duties that
results in detriment to Employer.
Upon any such termination, Employee shall not be entitled to
any further compensation hereunder.
SECOND: NOTICE: Any notice required or given under this Agreement shall
be sufficient if in writing and sent by registered or certified mail to his
residence in the case of Employee or to Attention: Secretary, Delaware Otsego
Corporation in the case of Employer, at the addresses hereinabove set forth, or
to such other addresses as may be designated subsequently by the parties hereto.
Any such notice shall be deemed given when so addressed and mailed.
THIRD: WAIVER OF BREACH: A waiver by Employer or Employee of a breach
of any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by the other party.
FOURTH: ENTIRE AGREEMENT: This Agreement contains the entire
understanding and agreement between the parties regarding its subject matter and
cannot be amended, modified or supplemented in any respect, except by an
agreement in writing signed by the party against whom enforcement of any
amendment, modification or supplement is sought. No oral or unsigned written
statement or any past or future practice or course of dealing shall have any
binding legal effect between Employer and Employee.
3
4
FIFTH: SUCCESSORS AND ASSIGNS: This Agreement shall inure to the
benefit of and be binding upon Employer and its successors and assigns
including, without limitation, any corporation or other entity which may acquire
all or substantially all of the capital stock, assets and/or business of
Employer or with or into which Employer may be consolidated or merged, and
Employee, his heirs, executors, administrators and legal representatives.
SIXTH: GOVERNING LAW: This Agreement shall be governed by the laws of
the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day first hereinabove written.
THE NEW YORK, SUSQUEHANNA AND
WESTERN RAILWAY CORPORATION
By: s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Title: President
----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
4
5
CHANGE IN CONTROL AGREEMENT
This agreement made this 9th day of June, 1997, by and between THE NEW YORK,
SUSQUEHANNA AND WESTERN RAILWAY CORPORATION, a New Jersey corporation, with its
principal office and place of business at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Employer") and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, an
individual, residing at ___________________________________________ (hereinafter
called "Employee").
W I T N E S S E T H :
WHEREAS, Employee has been employed by Employer as an at-will employee
for several years, with Employee currently serving as
_____________________________; and
WHEREAS, if Employer (or its parent, affiliate or subsidiary
corporations, which together with Employer are hereafter jointly and severally
referred to as "Employer" for purposes of this Agreement) receives any proposal
from a third party concerning a possible business combination with, or
acquisition of the equity securities of a substantial portion of the assets of
Employer, the Board of Directors of Employer believes it is imperative that
Employer and its Board of Directors be able to rely upon the Employee to
continue in his position, and that they be able to receive and rely upon his
advice, if they request it, as to the best interests of Employer and its
shareholders, without concern that Employee might be distracted by the personal
risks and uncertainties created by such a proposal; and
WHEREAS, the terms and provisions of this Agreement were duly approved
by action of Employer's Board of Directors' Executive Committee at a meeting
held on the 7th day of June, 1997.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
set forth hereafter, and other good and valuable consideration, the parties
hereto, intending to be legally bound, agree as follows:
5
6
FIRST: CHANGE IN CONTROL PROTECTION:
A) In the event that Employee's position with Employer, its
successors or assigns is terminated as a result of a Change In Control of
Employer (a "Termination"), then the following shall apply:
1. Employer shall, notwithstanding such
Termination, continue to compensate Employee
on a monthly basis at the rate in effect at
the date of such Change In Control, and
continue such other benefits as Employee may
be entitled to at the date of such Change In
Control, until the earlier of (i) Employee
obtaining employment, and (ii) a date two
years after the date of such Change In
Control.
2. In the event, after such Termination, that
Employee obtains employment within two years
after the date of such Change In Control at
a rate lower than, or providing fewer
benefits than Employee is entitled to under
subparagraph 1 above, then Employer shall
pay to Employee on a monthly basis the
shortfall of such compensation, and provide
such additional benefits, until the earlier
of (i) such shortfall in compensation and/or
benefits being eliminated, and (ii) two
years after the date of such Change In
Control.
For the purpose of this subparagraph A), a material change in
the nature of Employee's duties or a reduction in salary or benefits shall
constitute a Termination of his position.
B) As used herein, "Change In Control" means
(i) any such change required to be reported to
the Securities and Exchange Commission under
Item 1 in a Current Report on Form 8-K (or a
successor provision thereof); provided,
however, that no Change In Control shall be
deemed to have occurred which involves the
acquisition, holding, voting or disposing of
less than 40% of Employer's outstanding
voting securities,
(ii) the sale of all or a substantial portion of
the productive assets of Employer, or
(iii) a merger, inclusion, business combination or
other transaction of like nature.
For purposes of this Paragraph, "Employer" shall include both
jointly and severally, Delaware Otsego Corporation and The New York, Susquehanna
and Western Railway Corporation.
6
7
C) Nothing contained in this Agreement shall preclude Employer
from granting or Employee from receiving benefits under or participating in any
bonus, incentive, profit sharing, stock option, stock purchase, retirement,
pension, insurance or similar benefit plan of Employer now or hereinafter in
effect for its management personnel.
D) This Agreement shall not affect any rights of Employee or
Employer or constitute or imply a contract of employment except to the extent
specifically set forth herein.
E) Notwithstanding any other provisions of this Agreement,
Employer may terminate this Agreement at any time for Cause by written notice.
For purposes of this Agreement, "Cause" shall include any one or more of the
following:
1. Willful and continued failure by Employee to
perform his duties for Employer after at
least one warning in writing from Employer's
Board of Directors identifying specifically
any such failure.
2. Commission by Employee of a felony or a
crime involving moral turpitude.
3. Any gross negligence or willful misconduct
in the performance of Employee's duties that
results in detriment to Employer.
Upon any such termination, Employee shall not be entitled to
any further compensation hereunder.
SECOND: NOTICE: Any notice required or given under this Agreement shall
be sufficient if in writing and sent by registered or certified mail to his
residence in the case of Employee or to Attention: Secretary, Delaware Otsego
Corporation in the case of Employer, at the addresses hereinabove set forth, or
to such other addresses as may be designated subsequently by the parties hereto.
Any such notice shall be deemed given when so addressed and mailed.
THIRD: WAIVER OF BREACH: A waiver by Employer or Employee of a breach
of any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by the other party.
FOURTH: ENTIRE AGREEMENT: This Agreement contains the entire
understanding and agreement between the parties regarding its subject matter and
cannot be amended, modified or supplemented in any respect, except by an
agreement in writing signed by the party against whom enforcement of any
amendment, modification or supplement is sought. No oral or unsigned written
statement or any past or future practice or course of dealing shall have any
binding legal effect between Employer and Employee.
7
8
FIFTH: SUCCESSORS AND ASSIGNS: This Agreement shall inure to the
benefit of and be binding upon Employer and its successors and assigns
including, without limitation, any corporation or other entity which may acquire
all or substantially all of the capital stock, assets and/or business of
Employer or with or into which Employer may be consolidated or merged, and
Employee, his heirs, executors, administrators and legal representatives.
SIXTH: GOVERNING LAW: This Agreement shall be governed by the laws of
the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day first hereinabove written.
THE NEW YORK, SUSQUEHANNA AND
WESTERN RAILWAY CORPORATION
By: s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Title: President
----------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
8
9
CHANGE IN CONTROL AGREEMENT
This agreement made this 9th day of June, 1997, by and between THE NEW YORK,
SUSQUEHANNA AND WESTERN RAILWAY CORPORATION, a New Jersey corporation, with its
principal office and place of business at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Employer") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual,
residing at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called
"Employee").
W I T N E S S E T H :
WHEREAS, Employee has been employed by Employer as an at-will employee
for several years, with Employee currently serving as Vice President; and
WHEREAS, if Employer (or its parent, affiliate or subsidiary
corporations, which together with Employer are hereafter jointly and severally
referred to as "Employer" for purposes of this Agreement) receives any proposal
from a third party concerning a possible business combination with, or
acquisition of the equity securities of a substantial portion of the assets of
Employer, the Board of Directors of Employer believes it is imperative that
Employer and its Board of Directors be able to rely upon the Employee to
continue in his position, and that they be able to receive and rely upon his
advice, if they request it, as to the best interests of Employer and its
shareholders, without concern that Employee might be distracted by the personal
risks and uncertainties created by such a proposal; and
WHEREAS, the terms and provisions of this Agreement were duly approved
by action of Employer's Board of Directors' Executive Committee at a meeting
held on the 7th day of June, 1997.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
set forth hereafter, and other good and valuable consideration, the parties
hereto, intending to be legally bound, agree as follows:
13
10
FIRST: CHANGE IN CONTROL PROTECTION:
A) In the event that Employee's position with Employer, its
successors or assigns is terminated as a result of a Change In Control of
Employer (a "Termination"), then the following shall apply:
1. Employer shall, notwithstanding such
Termination, continue to compensate Employee
on a monthly basis at the rate in effect at
the date of such Change In Control, and
continue such other benefits as Employee may
be entitled to at the date of such Change In
Control, until the earlier of (i) Employee
obtaining employment, and (ii) a date two
years after the date of such Change In
Control.
2. In the event, after such Termination, that
Employee obtains employment within two years
after the date of such Change In Control at
a rate lower than, or providing fewer
benefits than Employee is entitled to under
subparagraph 1 above, then Employer shall
pay to Employee on a monthly basis the
shortfall of such compensation, and provide
such additional benefits, until the earlier
of (i) such shortfall in compensation and/or
benefits being eliminated, and (ii) two
years after the date of such Change In
Control.
For the purpose of this subparagraph A), a material change in
the nature of Employee's duties or a reduction in salary or benefits shall
constitute a Termination of his position.
B) As used herein, "Change In Control" means
(i) any such change required to be reported to the
Securities and Exchange Commission under Item 1 in
a Current Report on Form 8-K (or a successor
provision thereof); provided, however, that no Change
In Control shall be deemed to have occurred which
involves the acquisition, holding, voting or disposing
of less than 40% of Employer's outstanding voting
securities,
(ii) the sale of all or a substantial portion of the
productive assets of Employer, or
(iii) a merger, inclusion, business combination or other
transaction of like nature.
For purposes of this Paragraph, "Employer" shall include both
jointly and severally, Delaware Otsego Corporation and The New York, Susquehanna
and Western Railway Corporation.
14
11
C) Nothing contained in this Agreement shall preclude Employer
from granting or Employee from receiving benefits under or participating in any
bonus, incentive, profit sharing, stock option, stock purchase, retirement,
pension, insurance or similar benefit plan of Employer now or hereinafter in
effect for its management personnel.
D) This Agreement shall not affect any rights of Employee or
Employer or constitute or imply a contract of employment except to the extent
specifically set forth herein.
E) Notwithstanding any other provisions of this Agreement,
Employer may terminate this Agreement at any time for Cause by written notice.
For purposes of this Agreement, "Cause" shall include any one or more of the
following:
1. Willful and continued failure by Employee to
perform his duties for Employer after at
least one warning in writing from Employer's
Board of Directors identifying specifically
any such failure.
2. Commission by Employee of a felony or a
crime involving moral turpitude.
3. Any gross negligence or willful misconduct
in the performance of Employee's duties that
results in detriment to Employer.
Upon any such termination, Employee shall not be entitled to
any further compensation hereunder.
SECOND: NOTICE: Any notice required or given under this Agreement shall
be sufficient if in writing and sent by registered or certified mail to his
residence in the case of Employee or to Attention: Secretary, Delaware Otsego
Corporation in the case of Employer, at the addresses hereinabove set forth, or
to such other addresses as may be designated subsequently by the parties hereto.
Any such notice shall be deemed given when so addressed and mailed.
THIRD: WAIVER OF BREACH: A waiver by Employer or Employee of a breach
of any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by the other party.
FOURTH: ENTIRE AGREEMENT: This Agreement contains the entire
understanding and agreement between the parties regarding its subject matter and
cannot be amended, modified or supplemented in any respect, except by an
agreement in writing signed by the party against whom enforcement of any
amendment, modification or supplement is sought. No oral or unsigned written
statement or any past or future practice or course of dealing shall have any
binding legal effect between Employer and Employee.
15
12
FIFTH: SUCCESSORS AND ASSIGNS: This Agreement shall inure to the
benefit of and be binding upon Employer and its successors and assigns
including, without limitation, any corporation or other entity which may acquire
all or substantially all of the capital stock, assets and/or business of
Employer or with or into which Employer may be consolidated or merged, and
Employee, his heirs, executors, administrators and legal representatives.
SIXTH: GOVERNING LAW: This Agreement shall be governed by the laws of
the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day first hereinabove written.
THE NEW YORK, SUSQUEHANNA AND
WESTERN RAILWAY CORPORATION
By: s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Title: President
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
16
13
CHANGE IN CONTROL AGREEMENT
This agreement made this 9th day of June, 1997, by and between THE NEW YORK,
SUSQUEHANNA AND WESTERN RAILWAY CORPORATION, a New Jersey corporation, with its
principal office and place of business at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Employer") and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, an individual,
residing at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter called
"Employee").
W I T N E S S E T H :
WHEREAS, Employee has been employed by Employer as an at-will employee
for several years, with Employee currently serving as Vice
President-Engineering; and
WHEREAS, if Employer (or its parent, affiliate or subsidiary
corporations, which together with Employer are hereafter jointly and severally
referred to as "Employer" for purposes of this Agreement) receives any proposal
from a third party concerning a possible business combination with, or
acquisition of the equity securities of a substantial portion of the assets of
Employer, the Board of Directors of Employer believes it is imperative that
Employer and its Board of Directors be able to rely upon the Employee to
continue in his position, and that they be able to receive and rely upon his
advice, if they request it, as to the best interests of Employer and its
shareholders, without concern that Employee might be distracted by the personal
risks and uncertainties created by such a proposal; and
WHEREAS, the terms and provisions of this Agreement were duly approved
by action of Employer's Board of Directors' Executive Committee at a meeting
held on the 7th day of June, 1997.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
set forth hereafter, and other good and valuable consideration, the parties
hereto, intending to be legally bound, agree as follows:
9
14
FIRST: CHANGE IN CONTROL PROTECTION:
A) In the event that Employee's position with Employer, its
successors or assigns is terminated as a result of a Change In Control of
Employer (a "Termination"), then the following shall apply:
1. Employer shall, notwithstanding such
Termination, continue to compensate Employee
on a monthly basis at the rate in effect at
the date of such Change In Control, and
continue such other benefits as Employee may
be entitled to at the date of such Change In
Control, until the earlier of (i) Employee
obtaining employment, and (ii) a date two
years after the date of such Change In
Control.
2. In the event, after such Termination, that
Employee obtains employment within two years
after the date of such Change In Control at
a rate lower than, or providing fewer
benefits than Employee is entitled to under
subparagraph 1 above, then Employer shall
pay to Employee on a monthly basis the
shortfall of such compensation, and provide
such additional benefits, until the earlier
of (i) such shortfall in compensation and/or
benefits being eliminated, and (ii) two
years after the date of such Change In
Control.
For the purpose of this subparagraph A), a material change in
the nature of Employee's duties or a reduction in salary or benefits shall
constitute a Termination of his position.
B) As used herein, "Change In Control" means
(i) any such change required to be reported to the
Securities and Exchange Commission under Item 1 in
a Current Report on Form 8-K (or a successor
provision thereof); provided, however, that no Change
In Control shall be deemed to have occurred which
involves the acquisition, holding, voting or disposing
of less than 40% of Employer's outstanding voting
securities,
(ii) the sale of all or a substantial portion of the
productive assets of Employer, or
(iii) a merger, inclusion, business combination or other
transaction of like nature.
For purposes of this Paragraph, "Employer" shall include both
jointly and severally, Delaware Otsego Corporation and The New York, Susquehanna
and Western Railway Corporation.
10
15
C) Nothing contained in this Agreement shall preclude Employer
from granting or Employee from receiving benefits under or participating in any
bonus, incentive, profit sharing, stock option, stock purchase, retirement,
pension, insurance or similar benefit plan of Employer now or hereinafter in
effect for its management personnel.
D) This Agreement shall not affect any rights of Employee or
Employer or constitute or imply a contract of employment except to the extent
specifically set forth herein.
E) Notwithstanding any other provisions of this Agreement,
Employer may terminate this Agreement at any time for Cause by written notice.
For purposes of this Agreement, "Cause" shall include any one or more of the
following:
1. Willful and continued failure by Employee to
perform his duties for Employer after at
least one warning in writing from Employer's
Board of Directors identifying specifically
any such failure.
2. Commission by Employee of a felony or a
crime involving moral turpitude.
3. Any gross negligence or willful misconduct
in the performance of Employee's duties that
results in detriment to Employer.
Upon any such termination, Employee shall not be entitled to
any further compensation hereunder.
SECOND: NOTICE: Any notice required or given under this Agreement shall
be sufficient if in writing and sent by registered or certified mail to his
residence in the case of Employee or to Attention: Secretary, Delaware Otsego
Corporation in the case of Employer, at the addresses hereinabove set forth, or
to such other addresses as may be designated subsequently by the parties hereto.
Any such notice shall be deemed given when so addressed and mailed.
THIRD: WAIVER OF BREACH: A waiver by Employer or Employee of a breach
of any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by the other party.
FOURTH: ENTIRE AGREEMENT: This Agreement contains the entire
understanding and agreement between the parties regarding its subject matter and
cannot be amended, modified or supplemented in any respect, except by an
agreement in writing signed by the party against whom enforcement of any
amendment, modification or supplement is sought. No oral or unsigned written
statement or any past or future practice or course of dealing shall have any
binding legal effect between Employer and Employee.
11
16
FIFTH: SUCCESSORS AND ASSIGNS: This Agreement shall inure to the
benefit of and be binding upon Employer and its successors and assigns
including, without limitation, any corporation or other entity which may acquire
all or substantially all of the capital stock, assets and/or business of
Employer or with or into which Employer may be consolidated or merged, and
Employee, his heirs, executors, administrators and legal representatives.
SIXTH: GOVERNING LAW: This Agreement shall be governed by the laws of
the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day first hereinabove written.
THE NEW YORK, SUSQUEHANNA AND
WESTERN RAILWAY CORPORATION
By: s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Title: President
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
12
17
CHANGE IN CONTROL AGREEMENT
This agreement made this 9th day of June, 1997, by and between THE NEW YORK,
SUSQUEHANNA AND WESTERN RAILWAY CORPORATION, a New Jersey corporation, with its
principal office and place of business at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Employer") and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, an individual,
residing at ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter called
"Employee").
W I T N E S S E T H :
WHEREAS, Employee has been employed by Employer as an at-will employee
for several years, with Employee currently serving as Vice President &
Treasurer; and
WHEREAS, if Employer (or its parent, affiliate or subsidiary
corporations, which together with Employer are hereafter jointly and severally
referred to as "Employer" for purposes of this Agreement) receives any proposal
from a third party concerning a possible business combination with, or
acquisition of the equity securities of a substantial portion of the assets of
Employer, the Board of Directors of Employer believes it is imperative that
Employer and its Board of Directors be able to rely upon the Employee to
continue in his position, and that they be able to receive and rely upon his
advice, if they request it, as to the best interests of Employer and its
shareholders, without concern that Employee might be distracted by the personal
risks and uncertainties created by such a proposal; and
WHEREAS, the terms and provisions of this Agreement were duly approved
by action of Employer's Board of Directors' Executive Committee at a meeting
held on the 7th day of June, 1997.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
set forth hereafter, and other good and valuable consideration, the parties
hereto, intending to be legally bound, agree as follows:
17
18
FIRST: CHANGE IN CONTROL PROTECTION:
A) In the event that Employee's position with Employer, its
successors or assigns is terminated as a result of a Change In Control of
Employer (a "Termination"), then the following shall apply:
1. Employer shall, notwithstanding such
Termination, continue to compensate Employee
on a monthly basis at the rate in effect at
the date of such Change In Control, and
continue such other benefits as Employee may
be entitled to at the date of such Change In
Control, until the earlier of (i) Employee
obtaining employment, and (ii) a date one
year after the date of such Change In
Control.
2. In the event, after such Termination, that
Employee obtains employment within one year
after the date of such Change In Control at
a rate lower than, or providing fewer
benefits than Employee is entitled to under
subparagraph 1 above, then Employer shall
pay to Employee on a monthly basis the
shortfall of such compensation, and provide
such additional benefits, until the earlier
of (i) such shortfall in compensation and/or
benefits being eliminated, and (ii) one year
after the date of such Change In Control.
For the purpose of this subparagraph A), a material change in
the nature of Employee's duties or a reduction in salary or benefits shall
constitute a Termination of his position.
B) As used herein, "Change In Control" means
(i) any such change required to be reported to the
Securities and Exchange Commission under Item 1 in
a Current Report on Form 8-K (or a successor
provision thereof); provided, however, that no Change
In Control shall be deemed to have occurred which
involves the acquisition, holding, voting or disposing
of less than 40% of Employer's outstanding voting
securities,
(ii) the sale of all or a substantial portion of the
productive assets of Employer, or
(iii) a merger, inclusion, business combination or other
transaction of like nature.
For purposes of this Paragraph, "Employer" shall include both
jointly and severally, Delaware Otsego Corporation and The New York, Susquehanna
and Western Railway Corporation.
18
19
C) Nothing contained in this Agreement shall preclude Employer
from granting or Employee from receiving benefits under or participating in any
bonus, incentive, profit sharing, stock option, stock purchase, retirement,
pension, insurance or similar benefit plan of Employer now or hereinafter in
effect for its management personnel.
D) This Agreement shall not affect any rights of Employee or
Employer or constitute or imply a contract of employment except to the extent
specifically set forth herein.
E) Notwithstanding any other provisions of this Agreement,
Employer may terminate this Agreement at any time for Cause by written notice.
For purposes of this Agreement, "Cause" shall include any one or more of the
following:
1. Willful and continued failure by Employee to
perform his duties for Employer after at
least one warning in writing from Employer's
Board of Directors identifying specifically
any such failure.
2. Commission by Employee of a felony or a
crime involving moral turpitude.
3. Any gross negligence or willful misconduct
in the performance of Employee's duties that
results in detriment to Employer.
Upon any such termination, Employee shall not be entitled to
any further compensation hereunder.
SECOND: NOTICE: Any notice required or given under this Agreement shall
be sufficient if in writing and sent by registered or certified mail to his
residence in the case of Employee or to Attention: Secretary, Delaware Otsego
Corporation in the case of Employer, at the addresses hereinabove set forth, or
to such other addresses as may be designated subsequently by the parties hereto.
Any such notice shall be deemed given when so addressed and mailed.
THIRD: WAIVER OF BREACH: A waiver by Employer or Employee of a breach
of any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by the other party.
FOURTH: ENTIRE AGREEMENT: This Agreement contains the entire
understanding and agreement between the parties regarding its subject matter and
cannot be amended, modified or supplemented in any respect, except by an
agreement in writing signed by the party against whom enforcement of any
amendment, modification or supplement is sought. No oral or unsigned written
statement or any past or future practice or course of dealing shall have any
binding legal effect between Employer and Employee.
19
20
FIFTH: SUCCESSORS AND ASSIGNS: This Agreement shall inure to the
benefit of and be binding upon Employer and its successors and assigns
including, without limitation, any corporation or other entity which may acquire
all or substantially all of the capital stock, assets and/or business of
Employer or with or into which Employer may be consolidated or merged, and
Employee, his heirs, executors, administrators and legal representatives.
SIXTH: GOVERNING LAW: This Agreement shall be governed by the laws of
the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day first hereinabove written.
THE NEW YORK, SUSQUEHANNA AND
WESTERN RAILWAY CORPORATION
By: s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Title: President
------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
------------------------------
20
21
CHANGE IN CONTROL AGREEMENT
This agreement made this 9th day of June, 1997, by and between THE NEW YORK,
SUSQUEHANNA AND WESTERN RAILWAY CORPORATION, a New Jersey corporation, with its
principal office and place of business at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Employer") and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, an
individual, residing at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (hereinafter
called "Employee").
W I T N E S S E T H :
WHEREAS, Employee has been employed by Employer as an at-will employee
for several years, with Employee currently serving as Vice President-Operations;
and
WHEREAS, if Employer (or its parent, affiliate or subsidiary
corporations, which together with Employer are hereafter jointly and severally
referred to as "Employer" for purposes of this Agreement) receives any proposal
from a third party concerning a possible business combination with, or
acquisition of the equity securities of a substantial portion of the assets of
Employer, the Board of Directors of Employer believes it is imperative that
Employer and its Board of Directors be able to rely upon the Employee to
continue in his position, and that they be able to receive and rely upon his
advice, if they request it, as to the best interests of Employer and its
shareholders, without concern that Employee might be distracted by the personal
risks and uncertainties created by such a proposal; and
WHEREAS, the terms and provisions of this Agreement were duly approved
by action of Employer's Board of Directors' Executive Committee at a meeting
held on the 7th day of June, 1997.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
set forth hereafter, and other good and valuable consideration, the parties
hereto, intending to be legally bound, agree as follows:
21
22
FIRST: CHANGE IN CONTROL PROTECTION:
A) In the event that Employee's position with Employer, its
successors or assigns is terminated as a result of a Change In Control of
Employer (a "Termination"), then the following shall apply:
1. Employer shall, notwithstanding such
Termination, continue to compensate Employee
on a monthly basis at the rate in effect at
the date of such Change In Control, and
continue such other benefits as Employee may
be entitled to at the date of such Change In
Control, until the earlier of (i) Employee
obtaining employment, and (ii) a date two
years after the date of such Change In
Control.
2. In the event, after such Termination, that
Employee obtains employment within two years
after the date of such Change In Control at
a rate lower than, or providing fewer
benefits than Employee is entitled to under
subparagraph 1 above, then Employer shall
pay to Employee on a monthly basis the
shortfall of such compensation, and provide
such additional benefits, until the earlier
of (i) such shortfall in compensation and/or
benefits being eliminated, and (ii) two
years after the date of such Change In
Control.
For the purpose of this subparagraph A), a material change in
the nature of Employee's duties or a reduction in salary or benefits shall
constitute a Termination of his position.
B) As used herein, "Change In Control" means
(i) any such change required to be reported to the
Securities and Exchange Commission under Item 1 in
a Current Report on Form 8-K (or a successor
provision thereof); provided, however, that no Change
In Control shall be deemed to have occurred which
involves the acquisition, holding, voting or disposing
of less than 40% of Employer's outstanding voting
securities,
(ii) the sale of all or a substantial portion of the
productive assets of Employer, or
(iii) a merger, inclusion, business combination or other
transaction of like nature.
For purposes of this Paragraph, "Employer" shall include both
jointly and severally, Delaware Otsego Corporation and The New York, Susquehanna
and Western Railway Corporation.
22
23
C) Nothing contained in this Agreement shall preclude Employer
from granting or Employee from receiving benefits under or participating in any
bonus, incentive, profit sharing, stock option, stock purchase, retirement,
pension, insurance or similar benefit plan of Employer now or hereinafter in
effect for its management personnel.
D) This Agreement shall not affect any rights of Employee or
Employer or constitute or imply a contract of employment except to the extent
specifically set forth herein.
E) Notwithstanding any other provisions of this Agreement,
Employer may terminate this Agreement at any time for Cause by written notice.
For purposes of this Agreement, "Cause" shall include any one or more of the
following:
1. Willful and continued failure by Employee to
perform his duties for Employer after at
least one warning in writing from Employer's
Board of Directors identifying specifically
any such failure.
2. Commission by Employee of a felony or a
crime involving moral turpitude.
3. Any gross negligence or willful misconduct
in the performance of Employee's duties that
results in detriment to Employer.
Upon any such termination, Employee shall not be entitled to
any further compensation hereunder.
SECOND: NOTICE: Any notice required or given under this Agreement shall
be sufficient if in writing and sent by registered or certified mail to his
residence in the case of Employee or to Attention: Secretary, Delaware Otsego
Corporation in the case of Employer, at the addresses hereinabove set forth, or
to such other addresses as may be designated subsequently by the parties hereto.
Any such notice shall be deemed given when so addressed and mailed.
THIRD: WAIVER OF BREACH: A waiver by Employer or Employee of a breach
of any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by the other party.
FOURTH: ENTIRE AGREEMENT: This Agreement contains the entire
understanding and agreement between the parties regarding its subject matter and
cannot be amended, modified or supplemented in any respect, except by an
agreement in writing signed by the party against whom enforcement of any
amendment, modification or supplement is sought. No oral or unsigned written
statement or any past or future practice or course of dealing shall have any
binding legal effect between Employer and Employee.
23
24
FIFTH: SUCCESSORS AND ASSIGNS: This Agreement shall inure to the
benefit of and be binding upon Employer and its successors and assigns
including, without limitation, any corporation or other entity which may acquire
all or substantially all of the capital stock, assets and/or business of
Employer or with or into which Employer may be consolidated or merged, and
Employee, his heirs, executors, administrators and legal representatives.
SIXTH: GOVERNING LAW: This Agreement shall be governed by the laws of
the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day first hereinabove written.
THE NEW YORK, SUSQUEHANNA AND
WESTERN RAILWAY CORPORATION
By: s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Title: President
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------
24
25
CHANGE IN CONTROL AGREEMENT
This agreement made this 9th day of June, 1997, by and between THE NEW YORK,
SUSQUEHANNA AND WESTERN RAILWAY CORPORATION, a New Jersey corporation, with its
principal office and place of business at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇ (hereinafter called "Employer") and ▇▇▇▇▇ ▇▇▇▇, an individual,
residing at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter called
"Employee").
W I T N E S S E T H :
WHEREAS, Employee has been employed by Employer as an at-will employee
for several years, with Employee currently serving as Vice President-Mechanical;
and
WHEREAS, if Employer (or its parent, affiliate or subsidiary
corporations, which together with Employer are hereafter jointly and severally
referred to as "Employer" for purposes of this Agreement) receives any proposal
from a third party concerning a possible business combination with, or
acquisition of the equity securities of a substantial portion of the assets of
Employer, the Board of Directors of Employer believes it is imperative that
Employer and its Board of Directors be able to rely upon the Employee to
continue in his position, and that they be able to receive and rely upon his
advice, if they request it, as to the best interests of Employer and its
shareholders, without concern that Employee might be distracted by the personal
risks and uncertainties created by such a proposal; and
WHEREAS, the terms and provisions of this Agreement were duly approved
by action of Employer's Board of Directors' Executive Committee at a meeting
held on the 7th day of June, 1997.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
set forth hereafter, and other good and valuable consideration, the parties
hereto, intending to be legally bound, agree as follows:
25
26
FIRST: CHANGE IN CONTROL PROTECTION:
A) In the event that Employee's position with Employer, its
successors or assigns is terminated as a result of a Change In Control of
Employer (a "Termination"), then the following shall apply:
1. Employer shall, notwithstanding such
Termination, continue to compensate Employee
on a monthly basis at the rate in effect at
the date of such Change In Control, and
continue such other benefits as Employee may
be entitled to at the date of such Change In
Control, until the earlier of (i) Employee
obtaining employment, and (ii) a date two
years after the date of such Change In
Control.
2. In the event, after such Termination, that
Employee obtains employment within two years
after the date of such Change In Control at
a rate lower than, or providing fewer
benefits than Employee is entitled to under
subparagraph 1 above, then Employer shall
pay to Employee on a monthly basis the
shortfall of such compensation, and provide
such additional benefits, until the earlier
of (i) such shortfall in compensation and/or
benefits being eliminated, and (ii) two
years after the date of such Change In
Control.
For the purpose of this subparagraph A), a material change in
the nature of Employee's duties or a reduction in salary or benefits shall
constitute a Termination of his position.
B) As used herein, "Change In Control" means
(i) any such change required to be reported to the
Securities and Exchange Commission under Item 1 in
a Current Report on Form 8-K (or a successor
provision thereof); provided, however, that no Change
In Control shall be deemed to have occurred which
involves the acquisition, holding, voting or disposing
of less than 40% of Employer's outstanding voting
securities,
(ii) the sale of all or a substantial portion of the
productive assets of Employer, or
(iii) a merger, inclusion, business combination or other
transaction of like nature.
For purposes of this Paragraph, "Employer" shall include both
jointly and severally, Delaware Otsego Corporation and The New York, Susquehanna
and Western Railway Corporation.
26
27
C) Nothing contained in this Agreement shall preclude Employer
from granting or Employee from receiving benefits under or participating in any
bonus, incentive, profit sharing, stock option, stock purchase, retirement,
pension, insurance or similar benefit plan of Employer now or hereinafter in
effect for its management personnel.
D) This Agreement shall not affect any rights of Employee or
Employer or constitute or imply a contract of employment except to the extent
specifically set forth herein.
E) Notwithstanding any other provisions of this Agreement,
Employer may terminate this Agreement at any time for Cause by written notice.
For purposes of this Agreement, "Cause" shall include any one or more of the
following:
1. Willful and continued failure by Employee to
perform his duties for Employer after at
least one warning in writing from Employer's
Board of Directors identifying specifically
any such failure.
2. Commission by Employee of a felony or a
crime involving moral turpitude.
3. Any gross negligence or willful misconduct
in the performance of Employee's duties that
results in detriment to Employer.
Upon any such termination, Employee shall not be entitled to
any further compensation hereunder.
SECOND: NOTICE: Any notice required or given under this Agreement shall
be sufficient if in writing and sent by registered or certified mail to his
residence in the case of Employee or to Attention: Secretary, Delaware Otsego
Corporation in the case of Employer, at the addresses hereinabove set forth, or
to such other addresses as may be designated subsequently by the parties hereto.
Any such notice shall be deemed given when so addressed and mailed.
THIRD: WAIVER OF BREACH: A waiver by Employer or Employee of a breach
of any provision of this Agreement by the other party shall not operate or be
construed as a waiver of any subsequent breach by the other party.
FOURTH: ENTIRE AGREEMENT: This Agreement contains the entire
understanding and agreement between the parties regarding its subject matter and
cannot be amended, modified or supplemented in any respect, except by an
agreement in writing signed by the party against whom enforcement of any
amendment, modification or supplement is sought. No oral or unsigned written
statement or any past or future practice or course of dealing shall have any
binding legal effect between Employer and Employee.
27
28
FIFTH: SUCCESSORS AND ASSIGNS: This Agreement shall inure to the
benefit of and be binding upon Employer and its successors and assigns
including, without limitation, any corporation or other entity which may acquire
all or substantially all of the capital stock, assets and/or business of
Employer or with or into which Employer may be consolidated or merged, and
Employee, his heirs, executors, administrators and legal representatives.
SIXTH: GOVERNING LAW: This Agreement shall be governed by the laws of
the State of New York.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day first hereinabove written.
THE NEW YORK, SUSQUEHANNA AND
WESTERN RAILWAY CORPORATION
By: s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Title: President
------------------------------
▇▇▇▇▇ ▇▇▇▇
s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------
28