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Form 8-K CANADIAN PACIFIC RAILWAY For: Jan 18

January 23, 2017 5:29 PM EST

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of The Securities Exchange Act of 1934

January 18, 2017

Date of Report (Date of earliest event reported)

 

 

Canadian Pacific Railway Limited

(Exact name of registrant as specified in its charter)

 

 

 

Canada   001-01342   98-0355078

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

7550 Ogden Dale Road S.E., Calgary, Alberta,

Canada, T2C 4X9

(Address of principal executive offices) (Zip Code)

Registrant’s telephone number, including area code (403) 319-7000

Not Applicable

(Former name or former address, if changed since last report.)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 


ITEM 1.02 Termination of a Material Definitive Agreement.

On January 18, 2017, in connection with E. Hunter Harrison’s resignation from all positions held by him at Canadian Pacific Railway Limited (the “Company”), as discussed further below, the Company announced that, pursuant to a Separation Agreement, dated January 18, 2017, between Mr. Harrison and the Company (the “Separation Agreement”), the material terms of which are described in Item 5.02 below, the Post-Retirement Consulting Agreement, dated July 25, 2016, between the Company and Mr. Harrison (the “Consulting Agreement”) will be terminated effective January 31, 2017. As a result of this termination, Mr. Harrison will not be providing any consulting or other services to the Company following his resignation. A copy of the Consulting Agreement was filed as Exhibit 10.1 to the Company’s Form 8-K filed on July 26, 2016.

 

ITEM 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

On January 18, 2017, the Company announced the resignation of E. Hunter Harrison from all positions held by him at the Company, including as the Company’s Chief Executive Officer and a member of the Board of Directors of the Company, effective January 31, 2017 (the “Resignation Date”). Mr. Harrison’s decision to resign was not as a result of any disagreement with the Company. In connection with Mr. Harrison’s resignation, the Company entered into the Separation Agreement with Mr. Harrison. Under the terms of the Separation Agreement, the Company has agreed to a limited waiver of Mr. Harrison’s non-competition obligations, which would allow him to work for another Class 1 railroad, other than Canadian National Railway Company, BNSF Railway Co. or Union Pacific Railroad. The Company has also agreed to a limited waiver of Mr. Harrison’s non-solicitation obligations, provided that Mr. Harrison cannot solicit or hire the Company’s employees above the level of manager, other than the Company’s Chief of Staff as of the Resignation Date. Mr. Harrison’s modified non-competition and non-solicitation obligations have a 36- month term beginning on the Resignation Date. Mr. Harrison will remain bound by the confidentiality restrictions in his existing employment agreement and agreed to certain standstill obligations with respect to the Company for a term of 36 months from the Resignation Date.

On or prior to the first regular payroll date following the Resignation Date, the Company has agreed to pay Mr. Harrison a lump sum amount equal to accrued rights and will pay his cash bonus with respect to fiscal 2016 on the date active named executive officers of the Company are paid their bonus for fiscal 2016 in an amount based purely on corporate results with no negative discretion. Pursuant to the terms of the Separation Agreement, Mr. Harrison is not eligible for any bonus for the 2017 calendar year.

Mr. Harrison has agreed pursuant to the Separation Agreement to forfeit all (i) pension and post-retirement benefits, other than under the registered pension plan(s), if any, (ii) health benefits, including retiree medical benefits and Medicare supplement policy for Mr. Harrison or his spouse, except his medical benefits under the Company’s health plans will terminate on February 28, 2017 and he will retain his COBRA rights, and (iii) other benefits and perquisites other than Mr. Harrison’s current tax equalization benefits under his employment agreement. Mr. Harrison has also agreed to surrender for cancellation his vested performance share units (“PSUs”) granted on January 31, 2014 in exchange for a cash payment of US$4,806,470 on or prior to the first regular payroll date of the Company following the Resignation Date. He has also agreed to surrender for cancellation all of the his remaining PSUs and vested and unvested options and deferred share units (“DSUs”), other than the specified number of the 650,000 vested options (the “Retained Options”) granted to the Mr. Harrison on June 26, 2012, with an exercise price of C$73.39. The specified number of options will be the number of options obtained by subtracting US$55,000,000 from the value, based on the closing price of the Company’s common stock

 

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on the New York Stock Exchange (“NYSE”) on January 30, 2017, of all options and DSUs that are vested or would vest prior to the Resignation Date (the “Remaining Amount”), and dividing the Remaining Amount by the difference between the closing price of the Company’s common stock on the NYSE on January 30, 2017 and the exercise price of the options, with currency conversion as appropriate in accordance with the Company’s practice. Pursuant to the Separation Agreement, Mr. Harrison and the Company have agreed that, notwithstanding the fact that the Retained Options are not exercisable until June 26, 2017, Mr. Harrison is permitted to exercise the Retained Options on the Resignation Date or thereafter and Mr. Harrison will elect a “cashless” exercise of the Retained Options on the Resignation Date (or as soon thereafter as legally permitted). The total value of benefits and awards forfeited by Mr. Harrison is approximately C$118 million (approximately USD$88,465,000), with the value of the equity awards surrendered calculated based on their in-the-money value relative to the trading price of the Company’s shares on January 18, 2017.

Mr. Harrison has agreed to sell all of the shares of the Company he owns, directly or indirectly, by no later than May 31, 2017. He will resign from all positions held by him with the Company and its subsidiaries, including as a director of the Company, effective as of the Resignation Date and will execute and deliver a full and final release in favor of the Company.

The foregoing description of the Separation Agreement is qualified in its entirety by reference to the Separation Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.

As previously disclosed, the Board of the Directors of the Company reached an agreement on July 23, 2016 with Keith Creel, currently the Company’s President and Chief Operating Officer, for Mr. Creel to become President and Chief Executive Officer of the Company effective July 1, 2017 (or such earlier date on which the parties agree that Mr. Creel will begin his duties as CEO because of the earlier-than anticipated departure of Mr. Harrison), subject to Mr. Creel’s remaining an employee in good standing through such date. As a result of Mr. Harrison’s resignation, on January 18, 2017, the Company announced the appointment of Keith Creel as President and Chief Executive Officer of the Company, effective January 31, 2017.

A copy of the press release announcing the resignation of Mr. Harrison and the appointment of Mr. Creel as President and CEO is attached as Exhibit 99.1 to this Current Report on Form 8-K.

 

ITEM 9.01 Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit No.

  

Exhibit Description

Exhibit 10.1    Separation Agreement, dated January 18, 2017, between Canadian Pacific Railway Limited and E. Hunter Harrison
Exhibit 99.1    Press Release, dated January 18, 2017, announcing the resignation of E. Hunter Harrison as Chief Executive Officer and the appointment of Keith Creel as Chief Executive Officer

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Dated: January 23, 2017

 

CANADIAN PACIFIC RAILWAY LIMITED
By:   /s/ Jeffrey J. Ellis
  Name: Jeffrey J. Ellis
  Title: Chief Legal Officer and Corporate Secretary

 

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EXHIBIT INDEX

 

Exhibit No.

  

Exhibit Description

Exhibit 10.1    Separation Agreement, dated January 18, 2017, between Canadian Pacific Railway Limited and E. Hunter Harrison
Exhibit 99.1    Press Release, dated January 18, 2017, announcing the resignation of E. Hunter Harrison as Chief Executive Officer and the appointment of Keith Creel as Chief Executive Officer

 

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Exhibit 10.1

THIS SEPARATION AGREEMENT is made as of January 18, 2017 (the “Agreement”)

BETWEEN:

CANADIAN PACIFIC RAILWAY LIMITED (the “Company”)

- and -

E. HUNTER HARRISON (the “Executive”)

RECITALS:

 

A. The Company and the Executive are party to an employment agreement dated June 28, 2012, as amended on May 5, 2014 (the “Employment Agreement”).

 

B. The Company and the Executive contemplated that the Executive would retire on June 30, 2017. The Company and the Executive entered into a consulting agreement on July 25, 2016 (the “Consulting Agreement”) pursuant to which the Executive has agreed to provide consulting services to the Company following his retirement.

 

C. The Executive approached the Company’s board of directors (the “Board”) to see if modifications could be made to his Employment Agreement that would allow him to pursue other opportunities, which would include opportunities involving certain other Class 1 Railroads. In order to pursue such opportunities, the Executive wishes to be released from certain non-competition and non-solicitation restrictions contained in his Employment Agreement.

 

D. The Board established a special committee of independent directors (the “Special Committee”) to conduct discussions on behalf of the Company with the Executive relating to the Executive’s separation from the Company.

 

E. Upon the recommendation of the Special Committee, the Board has determined that it is in the best interests of the Company to provide a limited waiver of the non-competition and non-solicitation covenants in the Employment Agreement to enable the Executive to pursue other opportunities, which include opportunities involving certain other Class 1 Railroads, in exchange for the forfeiture by the Executive of certain benefits and equity awards and his agreement to certain other terms and conditions.

NOW, THEREFORE in consideration of the foregoing and the promises and covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are acknowledged and intending to be legally bound by this Agreement the undersigned agree as follows:

 

1. Definitions. Capitalized terms used and not defined in this Agreement shall have the meanings ascribed to such terms in the Employment Agreement.

 

2. Termination. The Executive’s employment with the Company is terminated effective January 31, 2017 (the “Resignation Date”).

 

3. Limited Waiver of Non-Competition and Non-Solicitation. Section 7 of the Employment Agreement is replaced in its entirety by the following:


Non-Solicitation of Employees/Covenants Against Competition

(a) The Executive acknowledges that by reason of his employment the services he renders to the Company are of a special or unusual character with a unique value to the Company, the loss of which the Company believes cannot adequately be compensated by damages in an action at law. In view of the Confidential Information known or to be obtained by, or disclosed to the Executive, as set forth above, and as a material inducement to the Company to enter into this Agreement, the Executive covenants and agrees during his employment with the Company and during the Covenant Period (as defined below), the Executive will not, except as otherwise authorized by this Agreement, directly or indirectly, own, manage, engage in, operate, control, work for, consult with, render services for, maintain any interest in (proprietary, financial or otherwise) or participate in the ownership, management, operation or control of, whether in corporate proprietorship or partnership form or otherwise, any of CN, BNSF Railway Co. or Union Pacific Railroad, provided, however, that the restrictions contained in this Agreement shall not restrict the acquisition by the Executive, directly or indirectly, of less than 2% of the outstanding capital stock of any of CN, BNSF Railway Co. or Union Pacific Railroad.

As used herein, the “Covenant Period” shall mean the period of the Executive’s employment with the Company and thirty six (36) months following the termination of the Executive’s employment, regardless of the reason for termination.

(b) The Executive further covenants and agrees that during the Covenant Period, the Executive shall not, directly or indirectly cause, solicit, induce or encourage any employee of the Company at the level of Manager or above to leave such employment or hire, employ or otherwise engage any such individual, other than the Company’s current Chief of Staff. For purposes of this Section 7(b), general newspaper and other media advertisements shall not be considered solicitation of Company employees, but hiring such persons so solicited shall not be permitted in violation of the prior sentence.

 

4. Unpaid Salary, Bonus, Accrued Vacation and Expenses. On or prior to the first regular payroll date of the Company following the Resignation Date, the Company shall pay the Executive a lump sum amount equal to (i) any accrued but unpaid base salary, (ii) any unpaid or unreimbursed business expenses, (iii) any accrued but unused vacation, and (iv) any other amounts owing, but still unpaid, to the Executive up to the Resignation Date. The Company shall pay the Executive his cash bonus with respect to 2016 on the date active named executive officers of the Company are paid their bonus for 2016 in an amount based purely on corporate results with no negative discretion. The Executive shall not be eligible for any bonus for the 2017 calendar year.

 

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5. Surrender of Equity Awards and Forfeiture of Benefits. A complete list of all equity awards granted to the Executive by the Company and outstanding as of the Resignation Date is set forth on Schedule A. In consideration of the limited waivers set out in Section 3 of this Agreement, the Executive agrees to (i) forfeit all pension and post-retirement benefits, other than under the registered pension plan(s), if any, (ii) forfeit all health benefits, including retiree medical benefits and Medicare supplement policy for the Executive or his spouse, provided that the Executive’s medical benefits under the Company’s health plans will terminate on February 28, 2017, other than COBRA rights (which the Company represents and warrants the Executive and his dependents shall have available) and (iii) forfeit all other benefits and perquisites the Executive is entitled to receive from the Company of any kind or nature whatsoever other than tax equalization entitlements as provided in the Employment Agreement. The Executive agrees to surrender for cancellation his vested PSUs granted on January 31, 2014 in exchange for a cash payment of US$4,806,470 on or prior to the first regular payroll date of the Company following the Resignation Date. The Executive also agrees to surrender for cancellation all of the Executive’s remaining PSUs and vested and unvested options and DSUs as set out on Schedule A, other than the Specified Number (as defined below) of the 650,000 vested options (the “Retained Options”) granted to the Executive pursuant to the standalone option agreement dated June 26, 2012, as amended on May 5, 2014 (the “Option Agreement”). The “Specified Number” shall be the number of options obtained by subtracting US$55,000,000 from the value, based on the closing price of the Company’s common stock on the New York Stock Exchange (“NYSE”) on January 30, 2017, of all options and DSUs that are vested or would vest prior to the Resignation Date (the “Remaining Amount”), and dividing the Remaining Amount by the difference between the closing price of the Company’s common stock on the NYSE on January 30, 2017 and the exercise price of the options, with currency conversion as appropriate in accordance with Company practice.

 

6. Cashless Exercise of Retained Options. The Executive and the Company agree that, notwithstanding the fact that the Executive’s Retained Options are not exercisable until June 26, 2017, the Board hereby permits the Executive to exercise the Retained Options on the Resignation Date or thereafter and the Executive will elect a “cashless” exercise of the Retained Options on the Resignation Date (or as soon thereafter as legally permitted) in accordance with Section 4.3 of the Option Agreement.

 

7. Sale of Company Shares. The Executive agrees to sell all of the shares of the Company owned, directly or indirectly, by the Executive by no later than May 31, 2017.

 

8. Indemnification and Insurance. All rights of indemnification and director and officer liability insurance coverage in respect of the Executive under the Employment Agreement or otherwise shall remain in full force and effect.

 

9. Confidentiality and Return of Confidential Information. The Executive agrees that he will continue to be bound by the confidentiality obligations contained in Section 5 of the Employment Agreement following the Resignation Date. The Executive agrees to promptly deliver to the Company all documents, media and other items in his possession containing Confidential Information, including all complete or partial copies, recording, abstracts, notes or reproductions of any kind made from or about such documents, media, items or information contained therein in accordance with Section 6 of the Employment Agreement. The Executive may retain his address book and cell phone number.

 

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10. Standstill. The Executive agrees that for a period of thirty six (36) months following the Resignation Date, he shall not, directly or indirectly, or jointly or in concert with any person, (i) purchase, offer or agree to purchase any securities, direct or indirect rights or options to acquire securities or, except in the ordinary course, assets of the Company; (ii) enter into, offer or agree to enter into or engage in any discussions or negotiations with respect to any acquisition or other business combination transaction relating to the Company, or any acquisition transaction relating to all or, except in the ordinary course, part of the Company’s assets, or propose any of the foregoing; (iii) solicit proxies from the Company’s shareholders or otherwise attempt to influence the conduct of the Company’s shareholders or the voting of any of the Company’s voting securities; (iv) form, join or in any way participate in any group acting jointly or in concert with respect to the foregoing; (v) seek any modification to or waiver of the foregoing, other than on a confidential basis that will not require the Company to make a public announcement; (vi) seek, propose or otherwise act alone or in concert with others, to influence or control the management, board of directors or policies of the Company; (vii) make any public announcement, or take any action which could require the Company to make any public announcement, with respect to any of the foregoing; (viii) advise, assist or encourage, act as a financing source for or otherwise invest in any other person in connection with any of the foregoing activities; or (ix) disclose any intention, plan or arrangement, or take any action inconsistent with the foregoing.

 

11. Resignation and Release. In accordance with Section 9 of the Employment Agreement, the Executive agrees to resign from all positions held by him with the Company and its subsidiaries effective as of the Resignation Date and agrees to execute and deliver a full and final release of the Company in the form annexed hereto as Schedule B.

 

12. Termination of Consulting Agreement. The Company and the Executive acknowledge that the condition precedent to the Consulting Agreement taking effect will not be met as a result of the Executive’s resignation prior to June 30, 2017. Accordingly, the Company and the Executive agree that the Consulting Agreement is terminated and cancelled without any notice or compensation in lieu of notice effective as of the Resignation Date, including cancelation of any restrictive covenants therein.

 

13. Deemed Breach by Executive.

The Executive agrees that he will be deemed to be in breach of the non-competition, non-solicitation, standstill and confidentiality obligations set out in Sections 5 through 7 of the Employment Agreement, as amended by Section 3 of this Agreement, as well as Sections 9 and 10 of this Agreement, as applicable (the “Obligations”), if (i) he subsequently becomes engaged as an employee, director, consultant, investor or otherwise in any entity (the “Subsequent Employer”) and (ii) the Subsequent Employer takes any action while the Executive is so engaged where (A) the Executive could reasonably be expected to have had the ability to control the decision or, unless the Executive opposes the decision, substantially influences the decision to take any such action, (B) the taking of such action by the Subsequent Employer would constitute a breach of any of the Obligations if the actions were taken directly by the Executive, (C) other than with respect to hiring personnel, the action is not one taken in the ordinary course consistent with the past practice of the Subsequent Employer’s business and (D) the action does not involve the exercise by the Subsequent Employer of an existing contractual right as of the date the Executive becomes engaged with the Subsequent Employer, provided that a breach shall be deemed to occur only if the Company gives written notice to the Executive of the breach and the breach is not cured within 10 business days of receipt of such notice. If the Executive breaches or is deemed to be in breach of any of the provisions listed in this Section 13, the limited waiver of the Executive’s non-competition and non-solicitation obligations set out in Section 7 of the Employment Agreement, as amended by Section 3 of this Agreement, shall be revoked, and the Company shall be entitled to injunctive relief and/or damages from the Executive personally in accordance with Section 15 of this Agreement, including a requirement that the Executive resign from or cease to be engaged with the Subsequent Employer. Notwithstanding the foregoing, if the Executive’s Subsequent Employer enters into an agreement directly with the Company and agrees to comparable Obligations, the Executive shall not automatically be deemed to be in breach of the Obligations by virtue of any actions taken by the Subsequent Employer, although the Executive will remain liable for any actions that he takes personally.

 

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14. Governing Law and Submission to Jurisdiction. This Agreement is a contract made under and shall be governed by and construed in accordance with the laws of the Province of Alberta and the laws of Canada applicable therein. Each of the Company and the Executive (i) attorns to the exclusive jurisdiction of the courts of the Province of Alberta over any action or proceeding arising out of or relating to this Agreement, (ii) waives any objection that it might otherwise be entitled to assert to the jurisdiction of such courts and (iii) agrees not to assert that such courts are not a convenient forum for the determination of any such action or proceeding.

 

15. Injunctive Relief. In addition to any remedies that may be available at law or in equity as a result of a breach of this Agreement, in the event of a breach, deemed breach, or threatened breach by the Executive of any of the Obligations, the Company shall have the right to seek monetary damages and equitable relief, including, without limitation, specific performance by means of an injunction against the Executive to prevent or restrain any such breach.

 

16. Survival. The provisions of Sections 5 through 7, 9 and 12 through 19 of the Employment Agreement, as amended by this Agreement, shall survive the Resignation Date and shall continue in full force and effect in accordance with their terms.

 

17. Enurement. This Agreement shall enure to the benefit of and shall be binding upon the parties hereto and their respective heirs, attorneys, guardians, estate trustees, executors, trustees, successors (including any successor by reason of amalgamation of any party) and permitted assigns.

 

18. Entire Agreement. This Agreement together with the sections of the Employment Agreement that survive the Resignation Date set forth the entire agreement between the Executive and the Company regarding the subject matter hereof and the Executive is not relying upon any representations or promises that are not expressly included in this Agreement or the sections of the Employment Agreement that survive the Resignation Date.

 

19. Amendments and Waivers. No amendments to this Agreement shall be valid or binding unless in writing and duly executed by both parties. No waiver of any breach of any term or provision of this Agreement shall be binding unless made in writing and signed by the party purporting to give the same and, unless otherwise provided in the written waiver, shall be limited to the specific breach waived.

 

20. Severability. If any provision of this Agreement or its application in a circumstance is restricted, prohibited or unenforceable, the provision shall be ineffective only to the extent of the restriction, prohibition or unenforceability without invalidating the remaining provisions of this Agreement and without affecting its application to other circumstances.

 

21. Counterparts. This Agreement may be executed in counterparts and delivered by means of facsimile or portable document format (PDF), each of which when so executed and delivered shall be an original, but all such counterparts together shall constitute one and the same instrument.

[Signature page follows.]

 

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IN WITNESS WHEREOF the parties have executed this Agreement as of the date first written above.

 

CANADIAN PACIFIC RAILWAY LIMITED
By:  

/s/ Andrew F. Reardon

  Name: Andrew F. Reardon
  Title:   Chairman of the Board
 

/s/ E. Hunter Harrison

E. Hunter Harrison

 

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SCHEDULE A

(See attached.)

 

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Hunter Harrison

 

              Cdn         Price on Jan .16,2017       $ 194.65      
              USD             $ 148.48       Vesting Schedule
     # of
Units
     Grant
Price
                   Outstanding      Total
Realized
Equity Value
(USD)
      

Grant Date

                       Vested      Unvested          

Options

                       

Initial Grant

                       

June 26, 2012

     650,000       $ 73.39            Cdn       $ 59,114,250       $ —         $ 59,114,250       100% vested June ’16, available June 2017

LTIP Grants

                       

Jan. 31, 2014

     103,280       $ 168.84            Cdn       $ 1,499,432       $ 499,811       $ 1,999,243       50% 2016, 25% 2017, 25% 2018

Jan. 23, 2015

     84,593       $ 175.92            USD       $ —         $ —         $ —         25% 2016, 25% 2017, 25% 2018, 25% 2019

Jan. 22, 2016

     129,620       $ 116.80            USD       $ 1,026,590       $ 3,079,771       $ 4,106,362       25% 2017, 25% 2018, 25% 2019, 25% 2020
              

 

 

    

 

 

    

 

 

    

Total LTIP Options:

               $ 61,640,272       $ 3,579,582       $ 65,219,854      
            Perf.                                          

PSUs (LTIP Grant)

          Factor                                          

Jan. 31, 2014

     27,348         118%         198.59         Cdn       $ 4,806,470          $ 4,806,470       Payable March 2017, performance warranting

Jan. 23, 2015

     22,459         130%            USD       $ —         $ 4,335,126       $ 4,335,126       Payable March 2018, performance warranting
              

 

 

    

 

 

    

 

 

    

Total:

               $ 4,806,470       $ 4,335,126       $ 9,141,596      

DSUs

                       

Initial Grant

                       

June 26, 2012

     25,877               USD       $ 3,842,217       $ —         $ 3,842,217       100% vested June 2016; Payable 1 year post retirement

Bonus DSUs

                       

1-Feb-13

     13,482                $ 2,001,830          $ 2,001,830      

Feb-14

     29,019               USD       $ 4,308,673          $ 4,308,673       Payable 1 year post retirement
              

 

 

    

 

 

    

 

 

    

Total value in US funds:

  

           76,599,462         7,914,708         84,514,169      

exchange rate CDN$ = USD

  

   $ 0.75                     

 

Pension Liability as at December 31, 2016 ($1.5M)

     20,375,000       Bonus Payment at 100% for both components    $ 3,300,000   

Pension Liability as at December 31, 2016 ($2.0M)

     27,150,000       Bonus Payment at 150% for both components    $ 4,950,000   

Current Expense on CP’s Books for outstanding unvested options:

      Company performance indicates 170% but Management recommending   

2014 – CEO Grant:

     275,705         

2015 – CEO Grant:

     492,449       Forfeited 2017 Grant with target value of $6,600,000   

2016 – CEO Grant:

     1,047,674         
  

 

 

       

Total:

     1,815,828         

 

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SCHEDULE B

FORM OF FULL AND FINAL RELEASE

I, E. HUNTER HARRISON, in exchange for the limited waiver by Canadian Pacific Railway Limited of certain restrictive covenants contained in my employment agreement referred to in the attached separation agreement (the “Separation Agreement”) dated January 18, 2017 (and subject to the terms thereof) and such other good and valuable consideration, the sufficiency of which is hereby expressly acknowledged, do hereby remise, release and forever discharge CANADIAN PACIFIC RAILWAY LIMITED and all of its affiliated and related entities and their predecessors and successors (the “Companies”) and, in such capacities, their respective officers, directors, shareholders, employees and agents (hereinafter with the Companies, collectively referred to as the “Releasees”) of and from all actions, causes of action, debts, demands, torts, dues, bonds, accounts, covenants, contracts and claims whatsoever which I ever had, now have or which I can, shall or may hereafter have for or by reason of any cause, matter or thing whatsoever, including without limiting the generality of the foregoing any actions, causes of action, suits, debts, demands, torts or claims relating to my employment or the termination of my employment with any of the Releasees, except any actions, causes of action, debts, demands, torts, dues, bonds, accounts, covenants, contracts and claims relating to the specific terms of the Separation Agreement. I also agree not to make any claim or take any proceedings in respect of the claims released against any person, corporation or other entity who or which might claim contribution or indemnity from any of the Releasees.

Except as provided for in, or under, the Separation Agreement, I hereby specifically covenant, represent and warrant to the Releasees that I have no further claim against any of the Releasees for or arising out of my employment or cessation of employment which specifically includes any claims for salary, wages, notice of termination, reinstatement, pay instead of notice, severance pay, bonus, incentive compensation, variable compensation, stock, stock options, restricted share units, warrants, equity, interest and/or vacation pay, overtime, overtime pay, benefits, pension, perquisites or claims under contract (including without limitation my employment agreement), the common law, Company policy, employment standards legislation (including without limitation the Employment Standards Code (Alberta) and the Canada Labour Code), human rights legislation (including without limitation the Alberta Human Rights Act, the Canadian Human Rights Act and the Employment Equity Act), occupational health and safety legislation (including without limitation the Occupational Health and Safety Act (Alberta), the Occupational Health and Safety Code (Alberta), and the Workers Compensation Act (Alberta)) or similar legislation. I also acknowledge that the monies paid to me include any severance pay and notice pay to which I am entitled under any employment standards legislation (including without limitation the Employment Standards Code (Alberta) and the Canada Labour Code). In the event that I should hereafter make any claim or demand or commence or threaten to commence any action, claim or proceeding against any of the Releasees for or by reason of any cause, matter or thing related to my employment or the cessation thereof, this document may be raised as a complete bar to any such claim, demand or action.

I have read the above Full and Final Release and have obtained independent legal advice and I understand that it contains a full and final release of all claims that I have or may have against the Releasees and that there is no admission of liability on the part of any of the Releasees and that any such liability is denied.

All of the foregoing shall enure to the benefit of the Releasees, their successors and assigns, and be binding upon me and my respective heirs, executors, administrators, successors and assigns.

 

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IN WITNESS WHEREOF I have duly executed this Full and Final Release this 31st day of January, 2017.

 

SIGNED, SEALED AND DELIVERED    )   
in the presence of    )   
   )   
   )   
     

 

   )    E. HUNTER HARRISON

 

   )   

Witness

   )   

 

10

Exhibit 99.1

 

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Release:                Immediate                 January 18, 2017

Keith Creel to become CEO of Canadian Pacific; E. Hunter Harrison to retire

Calgary, AB – Calgary, AB – Canadian Pacific Railway Limited (TSX: CP) (NYSE: CP) announced today that Keith Creel will become President and Chief Executive Officer of the company effective January 31, 2017 following E. Hunter Harrison’s decision to retire from CP. Mr. Harrison will take vacation leave effective immediately until January 31, 2017, and Mr. Creel will assume the CEO’s responsibilities during this period.

“Hunter has made enormous contributions to CP, and we are forever grateful for his years of service,” said Andrew F. Reardon, Chairman of the Board. “We have a tremendous CEO-in-waiting in Keith Creel. Keith and his team are ready to formally take the reins.”

“Leaving CP is bittersweet,” said Mr. Harrison. “I have had a wonderful experience and depart with many friends and with full confidence in Keith’s ability to build on the great success we have enjoyed.”

Mr. Harrison had approached the Board to discuss his retirement from CP and potential related modifications to his employment arrangements that would allow him to pursue opportunities involving other Class 1 Railroads. A special committee of the Board oversaw discussions with Mr. Harrison. Following negotiations, receipt of independent legal advice, and careful deliberation, the special committee recommended to the Board that CP enter into a separation agreement with Mr. Harrison.

Under the terms of the separation agreement, CP has agreed to a limited waiver of Mr. Harrison’s non-competition obligations. In consideration of the waiver Mr. Harrison has agreed to terminate all roles he has with CP and forfeit substantially all benefits and perquisites he is entitled to receive from CP going forward, including his pension. In addition, Mr. Harrison has agreed to surrender for cancellation all of his vested and unvested equity awards, except for a portion of his vested options he was granted upon arrival at CP in June 2012. The total value of benefits and awards forfeited by Mr. Harrison is approximately C$118 million, with the value of the equity awards surrendered calculated based on their in-the-money value relative to the current trading price of CP’s shares.

The previously-agreed consulting agreement between CP and Mr. Harrison will not take effect and Mr. Harrison will not be providing any consulting or other services to CP following his retirement. CP has also reinforced Mr. Harrison’s non-solicitation obligations with respect to senior CP employees. Mr. Harrison has agreed to sell all of his CP shares by May 31, 2017. CP will have no role in Mr. Harrison’s future endeavours.


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About Canadian Pacific

Canadian Pacific (TSX: CP)(NYSE: CP) is a transcontinental railway in Canada and the United States with direct links to eight major ports, including Vancouver and Montreal, providing North American customers a competitive rail service with access to key markets in every corner of the globe. CP is growing with its customers, offering a suite of freight transportation services, logistics solutions and supply chain expertise. Visit cpr.ca to see the rail advantages of CP.

Contacts:

Media

Martin Cej

403-512-5730

[email protected]

Investment Community

Maeghan Albiston

403-319-3591

[email protected]

 

 

 

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