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EXHIBIT 10.28: Amended and Restated Change of Control Agreement with Xxxxxxx
Watchmaker
REEBOK INTERNATIONAL LTD.
Amended and Restated Change of Control Agreement
AGREEMENT, made the 29th day of May, 1997, by and between Xxxxxxx X.
Watchmaker ("Executive") and Reebok International Ltd. (the "Company"), and
amended and restated as of this 15th day of February 2000.
WITNESSETH
WHEREAS, the Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and its shareholders
for the Company to agree to provide benefits under circumstances described below
to Executive; and
WHEREAS, the Board recognizes that the possibility of a change of
control of the Company, followed by a termination of the Executive's employment
or a reduction in his responsibility or compensation, is unsettling to the
Executive and wishes to make arrangements at this time to help assure his
continuing dedication to his duties to the Company and its shareholders,
notwithstanding any attempts by outside parties to gain control of the Company;
and
WHEREAS, the Board believes it important, should the Company receive
proposals from outside parties, to enable the Executive, without being
distracted by the uncertainties of his own employment situation, to perform his
regular duties,
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto agree as follows:
1. In the event that any individual, corporation, partnership, company, or other
entity (a "Person"), which term shall include a "group" (within the meaning of
section 13(d) of the Securities Exchange Act of 1934 (the "Act")), begins a
tender or exchange offer, circulates a proxy to the Company's shareholders, or
takes other steps to effect a "Change of Control" (as defined in paragraph 3
below), Executive agrees that he will not voluntarily leave the employ of the
Company and will render the services contemplated in the recitals to this
Agreement until such Person has terminated the efforts to effect a Change of
Control or until a Change of Control has occurred.
2. If, within 24 months following a Change of Control, Executive's employment
with the Company terminates other than as a result of the death, total
disability or retirement of the Executive at or after his normal retirement
date, (i) by the Company other than for "Cause" (as
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defined in paragraph 4 below), or (ii) by Executive for "Good Reason" (as
defined in paragraph 4 below), then:
a. The Company will pay to Executive within 30 days of such
termination of employment a lump-sum cash payment equal to
300% of the aggregate of (i) his then-current annual base
salary (or, if his base salary has been reduced at any time
after the Change of Control, his base salary in effect prior
to the reduction), (ii) his target bonus for the then-current
year or, if higher, his bonus for the most recent calendar
year ended before the Change of Control, (iii) the amount of
his then-current annual automobile allowance and (iv) the
annual cost of life insurance then furnished to him by the
Company.
b. All of Executive's outstanding stock options, restricted
shares and other similar incentive interests and rights will
become immediately and fully vested and exercisable.
c. Executive will be treated for purposes of the Company's
Supplemental Executive Retirement Plan (the "SERP") as having
three additional Years of Continuous Service. The Company
will, within 30 days of his termination, pay to him, in a
single lump-sum cash payment, the present value of his benefit
under the SERP. Present value will be determined by applying
the "applicable mortality table" and "applicable interest
rate" then in effect for purposes of section 417(e)(3)(A) of
the Internal Revenue Code or any successor provision.
d. The Company will pay to Executive, in a single lump-sum cash
payment, an amount equal to the difference, if any, between
(i) the total distribution that he receives following his
termination under the Company's Profit-Sharing and Retirement
Plan and its Excess Benefits Plan and (ii) the total
distribution that he would have received under such plans had
he accumulated three additional Years of Service for Vesting
prior to termination. The payment will be made at the same
time that he receives his distribution from those plans.
e. Executive, together with his dependents, will continue
following such termination of employment to participate fully,
with no contribution to the cost required of him or them, in
all accident and health plans maintained or sponsored by the
Company immediately prior to the Change of Control, or receive
substantially the equivalent coverage (or the full value
thereof in cash) from the Company, until the third anniversary
of such termination.
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f. The Company will promptly reimburse Executive for any and all
legal fees and expenses incurred by him as a result of such
termination of employment, including without limitation all
fees and expenses incurred in connection with efforts to
enforce the provisions of this Agreement (provided such
efforts result in Executive's recovery of any sum from the
Company, whether through court award or settlement).
3. A Change of Control will occur for purposes of this Agreement if (i) any
Person who does not currently own directly or indirectly 10% or more of the
combined voting power of the Company's outstanding securities becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Act) of securities of the
Company representing more than 30% (or, if higher, the aggregate percentage of
the combined voting power of the Company's then-outstanding securities held by
or for the benefit of Xxxx Xxxxxxx and his family) of the combined voting power
of the company's then-outstanding securities, (ii) there is a change of control
of the Company of a kind which would be required to be reported under Item 6(e)
of Schedule 14A of Regulation 14A promulgated under the Act (or a similar item
in a similar schedule or form), whether or not the Company is then subject to
such reporting requirement, (iii) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy contest, as a
consequence of which members of the Board in office immediately prior to such
transaction or event constitute less than a majority of the Board thereafter,
(iv) individuals who, at the date hereof, constitute the Board (the "Continuing
Directors") cease for any reason to constitute a majority thereof, provided,
however, that any director who is not in office at the date hereof but whose
election by the Board or whose nomination for election by the Company's
shareholders was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the date hereof or whose election
or nomination for election was previously so approved shall be deemed to be a
Continuing Director for purposes of this Agreement, or (v) Xxxx Xxxxxxx ceases
for any reason to be Chief Executive Officer of the Company.
Notwithstanding the foregoing provisions of this paragraph 3, a "Change
of Control" will not be deemed to have occurred solely because of (i) the
acquisition of securities of the Company (or any reporting requirement under the
Act relating thereto) by an employment benefit plan maintained by the Company
for its employees or (ii) the occurrence of a leveraged buy-out or
recapitalization of the Company in which Executive participates as an equity
investor.
4. a. "Cause" means only: conviction of the Executive for a felony
or a crime involving moral turpitude.
b. "Good Reason" means any one or more of the following:
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(i) Failure by the Company to maintain Executive in the positions,
with the titles, that he held immediately prior to the Change
of Control or downgrading of his responsibilities or
authority. If, following the Change of Control, the Company is
part of a controlled group of entities, Executive's
responsibilities and authority will be deemed for this purpose
to have been reduced unless he is given and retains the same
responsibilities and authority with the entity that controls
the group as he held with the Company immediately prior to the
Change of Control.
(ii) Reduction of Executive's base salary or failure in any year to
pay to him a bonus at least equal to his target bonus for the
year in which the Change of Control occurs.
(iii) Material reduction in the health, disability or life insurance
benefits that the Company was providing Executive immediately
prior to the Change of Control.
(iv) Failure by the Company to provide Executive with the
opportunity to participate in any executive compensation or
benefit plan or program that is then generally available to
other senior executives of the Company.
(v) Relocation of Executive's principal place of business more
than 30 miles from the its location immediately prior to the
Change of Control.
5. In the event that it is determined that any payment or benefit provided by
the Company to or for the benefit of Executive, either under this Agreement or
otherwise, will be subject to the excise tax imposed by section 4999 of the
Internal Revenue Code or any successor provision ("section 4999"), the Company
will, prior to the date on which any amount of the excise tax must be paid or
withheld, make an additional lump-sum payment (the "gross-up payment") to
Executive. The gross-up payment will be sufficient, after giving effect to all
federal, state and other taxes and charges (including interest and penalties, if
any) with respect to the gross-up payment, to make Executive whole for all taxes
(including withholding taxes) and any associated interest and penalties, imposed
under or as a result of section 4999.
Determinations under this Section 5 will be made by Ernst & Young
unless Executive has reasonable objections to the use of that firm, in which
case the determinations will be made by a comparable firm chosen by Executive
after consultation with the Company (the firm making the determinations to be
referred to as the "Firm"). The determinations of the Firm will be binding upon
the Company and Executive except as the determinations are established in
resolution
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(including by settlement) of a controversy with the Internal Revenue Service to
have been incorrect. All fees and expenses of the Firm will be paid by the
Company.
If the Internal Revenue Service asserts a claim that, if successful,
would require the Company to make a gross-up payment or an additional gross-up
payment, the Company and Executive will cooperate fully in resolving the
controversy with the Internal Revenue Service. The Company will make or advance
such gross-up payments as are necessary to prevent Executive from having to bear
the cost of payments made to the Internal Revenue Service in the course of, or
as a result of, the controversy. The Firm will determine the amount of such
gross-up payments or advances and will determine after final resolution of the
controversy whether any advances must be returned by Executive to the Company.
The Company will bear all expenses of the controversy and will gross Executive
up for any additional taxes that may be imposed upon Executive as a result of
its payment of such expenses.
6. If the Company is at any time before or after a Change of Control merged or
consolidated into or with any other corporation or other entity (whether or not
the Company is the surviving entity), or if substantially all of the assets
thereof are transferred to another corporation or other entity, the provisions
of this Agreement will be binding upon and inure to the benefit of the
corporation or other entity resulting from such merger or consolidation or the
acquirer of such assets, and this paragraph 6 will apply in the event of any
subsequent merger or consolidation or transfer of assets.
In the event of any merger, consolidation, or sale of assets described
above, nothing contained in this Agreement will detract from or otherwise limit
Executive's right to participate or privilege of participation in any stock
option or purchase plan or any bonus, profit sharing, pension, group insurance,
hospitalization, or other incentive or benefit plan or arrangement which may be
or become applicable to executives of the corporation resulting from such merger
or consolidation or the corporation acquiring such assets of the Company.
In the event of any merger, consolidation or sale of assets described
above, references to the Company in this Agreement shall unless the context
suggests otherwise be deemed to include the entity resulting from such merger or
consolidation or the acquirer of such assets of the Company.
7. All payments required to be made by the Company hereunder to Executive or his
dependents, beneficiaries, or estate will be subject to the withholding of such
amounts relating to tax and/or other payroll deductions as may be required by
law.
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8. There shall be no requirement on the part of the Executive to seek other
employment or otherwise mitigate damages in order to be entitled to the full
amount of any payments and benefits to which Executive is entitled under this
Agreement, and the amount of such payments and benefits shall not be reduced by
any compensation or benefits received by Executive from other employment.
9. Nothing contained in this Agreement shall be construed as a contract of
employment between the Company and the Executive, or as a right of the Executive
to continue in the employ of the Company, or as a limitation of the right of the
Company to discharge the Executive with or without Cause; the Executive may,
subject to the terms and conditions of this Agreement, have the right to receive
upon termination of his employment the payments and benefits provided in this
Agreement and shall not be deemed to have waived any rights he may have either
at law or in equity in respect of such discharge.
10. No amendment, change, or modification of this Agreement may be made except
in writing, signed by both parties.
Payments made by the Company pursuant to this Agreement shall be in
lieu of payments and other benefits, if any, to which Executive may be entitled
under any other severance agreement or severance plan of the Company.
The provisions of this Agreement shall be binding upon and shall inure
to the benefit of Executive, his executors, administrators, legal
representatives and assigns, and the Company and its successors.
The validity, interpretation, and effect of this Agreement shall be
governed by the laws of The Commonwealth of Massachusetts.
The Company shall have no right of set-off or counterclaims, in respect
of any claim, debt, or obligation, against any payments to Executive, his
dependents, beneficiaries or estate provided for in this Agreement.
The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
No right or interest to or in any payments or benefits hereunder shall
be assignable by the Executive; provided, however, that this provision shall not
preclude him from designating one or more beneficiaries to receive any amount
that may be payable after his death and shall not preclude
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the legal representative of his estate from assigning any right hereunder to the
person or persons entitled thereto under his will or, in the case of intestacy,
to the person or persons entitled thereto under the laws of intestacy applicable
to his estate. The term "beneficiaries" as used in this Agreement shall mean a
beneficiary or beneficiaries so designated to receive any such amount, or if no
beneficiary has been so designated, the legal representative of the Executive's
estate.
No right, benefit, or interest hereunder, shall be subject to
anticipation, alienation, sale, assignment, encumbrance, charge, pledge,
hypothecation, or set-off in respect of any claim, debt, or obligation, or to
execution, attachment, levy, or similar process, or assignment by operation of
law. Any attempt, voluntary or involuntary, to effect any action specified in
the immediately preceding sentence shall, to the full extent permitted by law,
be null, void, and of no effect.
IN WITNESS WHEREOF, Reebok International Ltd. and Executive have each
caused this Agreement to be duly executed and delivered as of the date set forth
above.
REEBOK INTERNATIONAL LTD.
By: /s/ Xxxx Xxxxxxx
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Agreed:
/s/ Xxx Watchmaker
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