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EXHIBIT 10.21
CHANGE OF CONTROL EMPLOYMENT AGREEMENT
DATED AS OF AUGUST 16, 1999 ENTERED INTO BETWEEN
XXXXXX INC. AND XXXX XXXXXXXXXX
CHANGE OF CONTROL EMPLOYMENT AGREEMENT
THIS AGREEMENT, made as of the 16th day of August, 1999, by Xxxxxx Inc., a
Delaware corporation (the "Company"), and Xxxx Xxxxxxxxxx ("Executive").
R E C I T A L S
The Executive is an officer of the Company and is employed by Xxxxxx Wire &
Cable Company ("BWC"), a wholly-owned subsidiary of the Company, in a key
executive capacity. The Executive's services are valuable to the Company. The
Executive possesses intimate knowledge of the business and affairs of the
Company and has acquired certain confidential information with respect to the
Company.
The Company desires to insure that it will continue to have the benefit of the
Executive's services and to protect its confidential information and goodwill.
The Company recognizes that circumstances may arise in which a change in control
of the Company occurs, through acquisition or otherwise, causing uncertainty
about the Executive's future employment with the Company without regard to the
Executive's competence or past contributions. Such uncertainty may result in the
loss of valuable services of the Executive to the detriment of the Company and
its stockholders.
The Company and the Executive desire that any proposal for a change in control
or acquisition of the Company will be considered by the Executive objectively
and with reference only to the best interests of the Company and its
stockholders. The Executive will be in a better position to consider the
Company's best interests if the Executive is afforded reasonable security, as
provided in this Agreement, against altered conditions of employment which could
result from any such change in control or acquisition.
NOW, the Company and the Executive (collectively the "Parties" or individually a
"Party"), agree as follows:
1. CERTAIN DEFINITIONS.
1.1 ACT. The term "Act" means the Securities Exchange Act of
1934, as amended.
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1.2 AFFILIATE AND ASSOCIATE. The terms "Affiliate" and
"Associate" shall have the meanings given them in Rule 12b-2 of the General
Rules and Regulations of the Act.
1.3 BENEFICIAL OWNER. A Person shall be deemed to be the
"Beneficial Owner" of any securities:
(i) that such Person or any other Person's Affiliates or
Associates has the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding, or upon the exercise of conversion rights,
exchange rights, rights, warrants or options, or otherwise; provided, however,
that a Person shall not be deemed the Beneficial Owner of, or to beneficially
own,
(A) securities tendered pursuant to a tender or
exchange offer made by or on behalf of such Person or any of such Person's
Affiliates or Associates until such tendered securities are accepted for
purchase, or
(B) securities issuable upon exercise of Rights
issued pursuant to the terms of the Rights Agreement between the Company and
First Chicago Trust Company of New York (the "Rights Agreement"), dated at July
6, 1995, as amended from time to time (or any successor to such Rights
Agreement), at any time before the issuance of such securities;
(ii) that such Person or any of such Person's Affiliates
or Associates, directly or indirectly, has the right to vote or dispose of or
has "beneficial ownership" of (as determined pursuant to Rule 13d-3 of the
General Rules and Regulations under the Act), including pursuant to any
agreement, arrangement or understanding; provided, however, that a Person shall
not be deemed the Beneficial Owner of, or to beneficially own, any security
under this subparagraph (ii) as a result of an agreement, arrangement or
understanding to vote such security if the agreement, arrangement or
understanding:
(A) arises solely from a revocable proxy or consent
given to such Person in response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules and regulations under
the Act and
(B) is not also then reportable on a Schedule 13D
under the Act (or any comparable or successor report); or
(iii) that are beneficially owned, directly or indirectly,
by any other Person with which such Person or any of such Person's Affiliates or
Associates has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting (except pursuant to a revocable proxy as described in
Subsection 1.3 (ii) above) or disposing of any voting securities of the Company;
provided, however, that nothing in this paragraph (iii) shall cause a Person
engaged in the business as an underwriter of securities to be deemed the
"Beneficial Owner" of, or to "beneficially own," any securities acquired through
such Person's
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participation in good faith in a firm commitment underwriting until the
expiration of forty days (40) after the date of such acquisition.
1.4 CAUSE. "Cause" for termination by the Company of the
Executive's employment with the Company, BWC or any of their Affiliates after a
Change of Control of the Company shall, for purposes of this Agreement, be
limited to:
(i) the engaging by the Executive in intentional conduct
taken in bad faith which has caused demonstrable and serious financial injury to
the Company, as evidenced by a determination in a binding and final judgment,
order or decree of a court or administrative agency of competent jurisdiction,
in effect after exhaustion or lapse of all rights of appeal, in an action, suit
or proceeding, whether civil, criminal, administrative or investigative;
(ii) conviction of a felony (as evidenced by a binding
and final judgment, order or decree of a court of competent jurisdiction, in
effect after exhaustion of all rights of appeal) which substantially impairs the
Executive's ability to perform his duties or responsibilities; and
(iii) continuing willful and unreasonable refusal by the
Executive to perform the Executive's duties or responsibilities (unless
significantly changed without the Executive's consent).
1.5 CHANGE IN CONTROL OF THE COMPANY. A "Change in Control of
the Company" shall be deemed to have occurred if:
(i) any Person (other than any employee benefit plan of
the Company or any subsidiary of the Company, any entity holding securities of
the Company for or pursuant to the terms of any such plan or any trustee,
administrator or fiduciary of such a plan) is or becomes the Beneficial Owner of
securities of the Company representing at least 30% of the combined voting power
of the Company's then outstanding securities (other than acquisitions directly
from the Company);
(ii) a Section 11(a)(ii) Event shall have occurred under
the Rights Agreement (or a similar event shall have occurred under any successor
to such Rights Agreement) at any time any Rights are issued and outstanding
thereunder;
(iii) one-third or more of the members of the Board are
not Continuing Directors; or
(iv) there shall be consummated any merger of the Company
in which the Company is not the continuing or surviving corporation or pursuant
to which shares of the Company's Common Stock would be converted into cash,
securities or other property, other than a merger of the Company in which the
holders of the Company's Common Stock immediately prior to the merger have the
same proportionate ownership of common stock of the surviving corporation
immediately after the merger.
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1.6 CODE. The term "Code" means the Internal Revenue Code of
1986, as amended.
1.7 CONTINUING DIRECTOR. The term "Continuing Director" means
(i) any member of the Board of Directors of the Company (the "Board") who was a
member of such Board on August 15, 1996, (ii) any successor of a Continuing
Director who is recommended to succeed a Continuing Director by a majority of
the Continuing Directors then on the Board, and (iii) any appointee who is
recommended by a majority of the Continuing Directors then on the Board.
1.8 COVERED TERMINATION. The term "Covered Termination" means
any termination of the Executive's employment where the Termination Date is any
date prior to the end of the Employment Period.
1.9 EMPLOYMENT PERIOD. The term "Employment Period" means a
period beginning on the date of a Change in Control of the Company (as defined
in Section 1.5 above), and ending at 11:59 p.m. St. Louis Time on the earlier of
the third anniversary of such date or the Executive's Normal Retirement Date.
1.10 GOOD REASON. The Executive shall have a "Good Reason" for
termination of employment after a Change in Control of the Company in the event
of:
(i) any breach of this Agreement by the Company,
including specifically any breach by the Company of its agreements contained in
Sections 4 (Duties), 5 (Compensation) or 6 (Annual Compensation Adjustments)
hereof;
(ii) the removal of the Executive from, or any failure to
reelect or reappoint the Executive to, any of the positions held with the
Company, BWC or any of their affiliates on the date of the Change in Control of
the Company or any other positions with the Company, BWC or any of their
affiliates, to which the Executive shall thereafter be elected, appointed or
assigned, except when such removal or failure to reelect or reappoint relates to
the termination by the Company of the Executive's employment for Cause or by
reason of disability pursuant to Section 12;
(iii) a good faith determination by the Executive that
there has been a significant adverse change, without the Executive's written
consent, in the Executive's working conditions or status with the Company, BWC
or any of their affiliates from such working conditions or status in effect
immediately prior to the Change in Control of the Company, including but not
limited to;
(A) a significant change in the nature or scope of
the Executive's authority, powers, functions, duties or responsibilities, or
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(B) a significant reduction in the level of support
services, staff, secretarial and other assistance, office space and
accoutrements; or
(iv) failure by the Company to obtain the Agreement
referred to in Section 17.1 (Successors) below; or
(v) any voluntary termination of employment by the
Executive where the Notice of Termination is delivered within 30 days of the
first anniversary of the Effective Date (Window Period).
1.11 NORMAL RETIREMENT DATE. The term "Normal Retirement Date"
means the date Executive attains the age of 70.
1.12 PERSON. The term "Person" shall mean any individual,
firm, partnership, corporation or other entity, including any successor (by
merger or otherwise) of such entity, or a group of any of the foregoing acting
in concert.
1.13 TERMINATION DATE. For purposes of this Agreement, except
as otherwise provided in Section 10.2 (Death) and Section 17.1 (Successors), the
term "Termination Date" means:
(i) if the Executive's employment is terminated by the
Executive's death, the date of death;
(ii) if the Executive's employment is terminated by
reason of voluntary early retirement, as agreed in writing by the Company and
the Executive, the date of such early retirement which is set forth in such
written agreement;
(iii) if the Executive's employment is terminated for
purposes of this Agreement by reason of disability pursuant to Section 12, the
earlier of thirty days after the Notice of Termination is given or one day prior
to the end of the Employment Period;
(iv) if the Executive's employment is terminated by the
Executive voluntarily (other than for Good Reason), the date the Notice of
Termination is given; and
(v) if the Executive's employment is terminated by the
Company (whether or not for Cause), or by the Executive for Good Reason, the
earlier of thirty days after the Notice of Termination is given or one day prior
to the end of the Employment Period. Notwithstanding the foregoing;
(A) If termination is for Cause pursuant to Section
1.4(iii) of this Agreement and if the Executive has cured the conduct
constituting such Cause as described by the Company in its Notice of Termination
within such thirty day or shorter period, then the Executive's employment under
this Agreement shall continue as if the Company had not delivered its Notice of
Termination.
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(B) If the Company shall give a Notice of
Termination for Cause or by reason of disability and the Executive in good faith
notifies the Company that a dispute exists concerning the termination within the
applicable period following receipt of notice, then the Executive may elect to
continue his employment (or, if the Executive ceased performing his duties under
this Agreement at the request of the Company at the time of delivery of Notice
of Termination, resume and continue employment) during such dispute and the
Termination Date shall be determined under this paragraph. If the Executive so
elects and it is thereafter determined that Cause or disability (as the case may
be ) did exist, the Termination Date shall be the earliest of (1) the date on
which the dispute is finally determined, either (x) by mutual written agreement
of the parties or (y) in accordance with Section 22 (Governing Law; Resolution
of Disputes), (2) the date of the Executive's death, or (3) one day prior to the
end of the Employment Period. If the Executive so elects and it is subsequently
determined that Cause or disability (as the case may be ) did not exist, then
the employment of the Executive under this Agreement shall continue after such
determination as if the Company had not delivered its Notice of Termination and
there shall be no Termination Date arising out of such Notice. In either case,
this Agreement continues, until the Termination Date, if any, as if the Company
had not delivered the Notice of Termination except that, if it is finally
determined that the Company properly terminated the Executive for the reason
asserted in the Notice of Termination, the Executive shall in no case be
entitled to a Termination Payment (as defined below) arising out of events
occurring after the Company delivered its Notice of Termination.
(C) If the Executive shall in good faith give a
Notice of Termination for Good Reason and the Company notifies the Executive
that a dispute exists concerning the termination within the applicable period
following receipt of notice, then the Executive may elect to continue his
employment during such dispute and the Termination Date shall be determined
under this paragraph. If the Executive so elects and it is subsequently
determined that Good Reason did exist, the Termination Date shall be the
earliest of (1) the date on which the dispute is finally determined, either (x)
by mutual written agreement of the parties or (y) in accordance with Section 22
(Governing Law; Resolution of Disputes), (2) the date of the Executive's death
or (3) one day prior to the end of the Employment Period. If the Executive so
elects and it is subsequently determined that Good Reason did not exist, then
the employment of the Executive under this Agreement shall continue after such
determination as if the Executive had not delivered the Notice of Termination
asserting Good Reason and there shall be no Termination Date arising out of such
Notice. In either case, this Agreement continues, until the Termination Date, if
any, as if the Company had not delivered the Notice of Termination except that,
if it is finally determined that Good Reason did exist, the Executive shall in
no case be denied the benefits described in Sections 8 and 9 (including a
Termination Payment) based on events occurring after the Executive delivered his
Notice of Termination.
(D) If an opinion is required to be delivered
pursuant to Section 9.2(ii) hereof and such opinion shall not have been
delivered, the Termination Date shall be the earlier of the date on which such
opinion is delivered or one day prior to the end of the Employment Period.
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(E) Except as provided in Paragraphs (B) and (C)
above, if the party receiving the Notice of Termination notifies the other Party
that a dispute exists concerning the termination within the appropriate period
following receipt of notice and it is finally determined that the reason
asserted in such Notice of Termination did not exist, then (1) if such Notice
was delivered by the Executive, the Executive will be deemed to have voluntarily
terminated his employment and the Termination Date shall be the earlier of the
date thirty days after the Notice of Termination is given or one day prior to
the end of the Employment Period and (2) if delivered by the Company, the
Company will be deemed to have terminated the Executive other than by reason of
death, disability or Cause.
2. TERMINATION PRIOR TO CHANGE IN CONTROL. The Company and the
Executive shall each retain the right to terminate the employment of the
Executive at any time prior to a Change in Control of the Company. If the
Executive's employment is terminated prior to a Change in Control of the
Company, this Agreement shall be terminated and all rights and obligations of
the parties under it shall cease.
3. EMPLOYMENT PERIOD. If a Change in Control of the Company occurs when
the Executive is employed by BWC, BWC will continue subsequently to employ the
Executive during the Employment Period, and the Executive will remain in the
employ of BWC, in accordance with and subject to the provisions of this
Agreement.
4. DUTIES. During the Employment Period, the Executive shall, in the
same capacities and positions held by the Executive at the time of the Change in
Control of the Company or in such other capacities and positions as may be
agreed to by the Company and the Executive in writing, devote the Executive's
best efforts and all of the Executive's business time, attention and skill to
the business and affairs of the Company, as such business and affairs now exist
and as they may subsequently be conducted. The services that are to be performed
by the Executive under this Agreement are to be rendered in the same
metropolitan area in which the Executive was employed at the time of such Change
in Control of the Company, or in such other place or places as shall be agreed
upon in writing by the Executive and the Company from time to time. Without the
Executive's consent, the Executive shall not be required to be absent from such
metropolitan area more than 45 days in any fiscal year of the Company.
5. COMPENSATION. During the Employment Period, the Executive shall be
compensated as follows:
5.1 The Executive shall receive, at reasonable intervals (but
not less often than monthly) and in accordance with such standard policies as
may be in effect immediately prior to the Change in Control of the Company, an
annual base salary in cash equivalent of not less than the Executive's annual
base salary as in effect immediately prior to the Change in Control of the
Company (which base salary shall, unless otherwise agreed in writing by the
Executive, include the current receipt by the Executive of any amounts that,
prior to the Change in Control of the Company, the Executive had elected to
defer, whether such compensation is deferred under Section 401(k) of the Code or
otherwise), subject to adjustment as provided below.
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5.2 The Executive shall receive fringe benefits at least equal
in value to those provided for the Executive immediately prior to the Change in
Control of the Company, and shall be reimbursed, at such intervals and in
accordance with such standard policies as may be in effect immediately prior to
the Change in Control of the Company, for any monies advanced in connection with
the Executive's employment for reasonable and necessary expenses incurred by the
Executive on behalf of the Company, BWC or their affiliates, including travel
expenses.
5.3 The Executive shall be included, to the extent eligible
thereunder (which eligibility shall not be conditioned on the Executive's salary
grade or on any other requirement that excludes persons of comparable status to
the Executive unless such exclusion was in effect for such plan or an equivalent
plan immediately prior to the Change in Control of the Company), in any plan
providing benefits for the Company's salaried employees in general of the
Company, BWC or their Affiliates, including but not limited to the Management
Incentive Plan, the Long-Term Incentive Plan, group life insurance,
hospitalization, medical, dental, savings, profit sharing and stock bonus plans.
However, in no event shall the aggregate level of benefits under such plans in
which the Executive is included be less than the aggregate level of benefits
under plans of the Company, BWC or their Affiliates of the type referred to in
this Section 5.3 in which the Executive was participating immediately prior to
the Change in Control of the Company.
5.4 The Executive shall annually be entitled to not less than
the amount of paid vacation and not fewer than the number of paid holidays to
which the Executive was entitled annually immediately prior to the Change in
Control of the Company or such greater amount of paid vacation and number of
paid holidays as may be made available annually to other executives of the
Company, BWC or their Affiliates of comparable status and position to the
Executive.
5.5 The Executive shall be included in all plans providing
additional benefits to executives of the Company, BWC or their Affiliates of
comparable status and position to the Executive, including deferred
compensation, split-dollar life insurance, supplemental retirement, stock
option, stock appreciation, stock bonus and similar or comparable plans.
However, in no event shall the aggregate level of benefits under such plans be
less than the aggregate level of benefits under plans of the Company, BWC or
their Affiliates of the type referred to in this Section 5.5 in which the
Executive was participating immediately prior to the Change in Control of the
Company. Moreover, the obligation of the Company, BWC or their Affiliates to
include the Executive in bonus or incentive compensation plans shall be
determined by Subsection 5.6.
5.6 To assure that the Executive will have an opportunity to
earn incentive compensation after a Change in Control of the Company, the
Executive shall be included in a bonus plan of the Company, BWC or their
Affiliates that shall satisfy the standards described below (such plan, the
"Bonus Plan"). Bonuses under the Bonus Plan shall be payable with respect to
achieving such financial or other goals reasonably related to the business of
the Company as the Company shall establish (the "Goals"), all of which Goals
shall be attainable, prior to the end of the Employment Period, with
approximately the same degree of probability as the goals under the bonus plan
of the Company, BWC or their Affiliates as in effect immediately
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prior to the Change in Control of the Company (the "Company Bonus Plan") and in
view of the Company's existing and projected financial and business
circumstances applicable at the time. The amount of the bonus (the "Bonus
Amount") that the Executive will be eligible to earn under the Bonus Plan shall
be no less than the amount of the Executive's maximum award provided in such
Company Bonus Plan (such bonus amount is referred to as the "Targeted Bonus").
If the Goals are not achieved such that the entire Targeted Bonus is not
payable, the Bonus Plan shall provide for a payment of a Bonus Amount equal to a
portion of the Targeted Bonus reasonably related to that portion of the Goals
that were achieved. Payment of the Bonus Amount shall not be affected by any
circumstance occurring subsequent to the end of the Employment Period, including
termination of the Executive's employment.
6. ANNUAL COMPENSATION ADJUSTMENTS. During the Employment Period, the
Board of Directors of the Company (or an appropriate committee or officer
thereof) will consider and review, at least annually, the contributions of the
Executive to the Company, BWC or their Affiliates and in accordance with the
practice of the Company, BWC or their Affiliates prior to the Change in Control
of the Company, due consideration shall be given to the upward adjustment of the
Executive's base compensation rate, at least annually, (i) commensurate with
increases generally given to other executives of the Company, BWC or their
Affiliates of comparable status and position to the Executive, and (ii) as the
scope of the operations of the Company, BWC or their Affiliates or the
Executive's duties expand.
7. TERMINATION FOR CAUSE OR WITHOUT GOOD REASON. If there is a Covered
Termination for Cause or if the Executive voluntarily terminates his employment
other than for Good Reason (any such terminations to be subject to the
procedures set forth in Section 13), then the Executive shall be entitled to
receive only Accrued Benefits pursuant to Section 9.1.
8. TERMINATION GIVING RISE TO A TERMINATION PAYMENT.
8.1 If there is a Covered Termination by the Executive for Good
Reason, or by the Company other than by reason of (i) death, (ii) disability
pursuant to Section 12, or (iii) Cause (any such terminations to be subject to
the procedures set forth in Section 13), then the Executive shall be entitled to
receive, and the Company shall promptly pay, Accrued Benefits pursuant to
Section 9.1 and, in lieu of further base salary for periods following the
Termination Date, as liquidated damages and additional severance pay the
Termination Payment pursuant to Section 9.2.
8.2 If there is Covered Termination and the Executive is entitled to
Accrued Benefits and the Termination Payment, then the Executive shall be
entitled to the following additional benefits:
(i) The Executive shall receive, at the expense of the Company,
outplacement services, on an individualized basis at a level of service
commensurate with the Executive's status with the Company, BWC or their
Affiliates immediately prior to the Change in Control of the Company (or, if
higher, immediately prior to the termination of the Executive's
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employment), provided by a nationally recognized executive placement firm
selected by the Company.
(ii) For two years after the date of Termination, the Executive
shall continue to be covered, at the expense of the Company, by the same or
equivalent life insurance, hospitalization, medical and dental coverage as was
required under this Agreement with respect to the Executive immediately prior to
the date the Notice of Termination is given.
9. PAYMENTS UPON TERMINATION.
9.1 ACCRUED BENEFITS. The Executive's "Accrued Benefits" shall
include the following amounts, payable as described in this Agreement:
(i) all base salary for the time period ending with the
Termination Date;
(ii) reimbursement for any monies advanced in connection with
the Executive's employment for reasonable and necessary expenses incurred by the
Executive on behalf of the Company, BWC or their Affiliates for the time period
ending with the Termination Date;
(iii) any other cash earned through the Termination Date and
deferred at the election of the Executive or pursuant to any deferred
compensation plan then in effect;
(iv) a lump sum payment of the bonus or incentive compensation
otherwise payable to the Executive with respect to the year in which termination
occurs under all bonus or incentive compensation plans in which the Executive is
a participant; and
(v) all other payments and benefits to which the Executive (or
in the event of the Executive's death, the Executive's surviving spouse or other
beneficiary) may be entitled as compensatory fringe benefits or under the terms
of any benefit plan of the Company, BWC or their Affiliates, and severance
payments under the Company's severance policies and practices as in effect
immediately prior to the Change in Control of the Company. Payment of Accrued
Benefits shall be made promptly in accordance with the Company's prevailing
practice with respect to Subsections (i) and (ii) or, with respect to
Subsections (iii), (iv) and (v), pursuant to the terms of the benefit plan or
practice establishing such benefits.
9.2 TERMINATION PAYMENT.
(i) Subject to the limits set forth in Subsection 9.2(ii), the
Termination Payment shall be an amount equal to (A) the Executive's annual base
salary, as in effect immediately prior to the Change in Control of the Company,
as adjusted upward, from time to time, pursuant to Section 6, plus (B) the
amount of the highest annual bonus award (determined on an annualized basis for
any bonus award paid for a period of less than one year) paid to the Executive
with respect to the two complete fiscal years preceding the Termination Date
(the
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aggregate amount set forth in (A) and (B) hereof shall be referred to as "Annual
Cash Compensation"), times (C) a factor of 2. The Termination Payment shall be
paid to the Executive in cash equivalent ten business days after the Termination
Date. Such lump sum payment shall not be reduced by any present value or similar
factor, and the Executive shall not be required to mitigate the amount of the
Termination Payment by securing other employment or otherwise, nor will such
Termination Payment be reduced by reason of the Executive's securing other
employment or for any other reason. The Termination Payment shall be in addition
to any other severance payments to which the Executive is entitled under the
Company's severance policies and practices as in effect immediately prior to the
Change in Control of the Company.
(ii) Notwithstanding any contrary provision, if any portion of
the Termination Payment would constitute an "excess parachute payment," then the
Termination Payment shall be reduced such that the value of the Termination
Payment the Executive will receive shall be One Dollar ($1) less than the
maximum amount which the Executive may receive without becoming subject to the
tax imposed by Section 4999 of the Code (or any successor provision) or which
the Company may pay without loss of deduction under Section 280G(a) of the Code
(or any successor provision). The terms "excess parachute payment" and
"parachute payments" shall have the meanings assigned to them in Section 280G of
the Code (or any successor provision), and such "parachute payments" shall be
valued as provided therein. Present value for purposes of this Agreement shall
be calculated in accordance with Section 1274(b)(2) of the Code (or any
successor provision). If the provisions of Sections 280G and 4999 of the Code
(or any successor provisions) are repealed without succession, then this Section
9.2(ii) shall be of no further force or effect.
(iii) (A) If, notwithstanding the provisions of Subsection (ii)
of this Section 9.2, but subject to paragraph (B)below, it is ultimately
determined by a court or pursuant to a final determination by the Internal
Revenue Service that any portion of Total Payments (as defined below) is subject
to the tax (the "Excise Tax") imposed by Section 4999 of the Code (or any
successor provision), the Company shall pay to the Executive an additional
amount (the "Gross-Up Payment") such that the net amount retained by the
Executive after deduction of any Excise Tax and any interest charges or
penalties in respect of the imposition of such Excise Tax (but not any federal,
state or local income tax) on the Total Payments, and any federal, state and
local income tax and Excise Tax upon the payment provided for by this Subsection
(iii), shall be equal to the Total Payments. As used in this Section 9.2(iii),
the term Total Payments" means the Termination Payment and any other payment
payable to the Executive under this Agreement or under any other agreement or
plan of the Company or any affiliate of the Company. For purposes of determining
the amount of the Gross-Up Payment, the Executive shall be deemed to pay federal
income taxes at the highest marginal rate of federal income taxation in the
calendar year in which the Gross-Up Payment is to be made and state and local
income taxes at the highest marginal rates of taxation in the state and locality
of the Executive's domicile for income tax purposes on the date the Gross-Up
Payment is made, net of the maximum reduction in federal income taxes which
could be obtained from reduction of such state and local taxes.
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(B) If legislation is enacted that would require
the Company's stockholders to approve this Agreement, prior to a Change in
Control of the Company, due solely to the provision contained in paragraph (A)
of this Subsection 9.2(iii), then;
(1) from and after such time as stockholder approval
would be required, until stockholder approval is obtained as required by such
legislation, paragraph (A) shall be of no force and effect;
(2) the Company and the Executive shall use their best
efforts to consider and agree in writing upon an amendment to this Subsection
9.2(iii) such that, as amended, this Subsection would provide the Executive with
the benefits intended to be afforded to the Executive by paragraph (A) without
requiring stockholder approval; and
(3) at the reasonable request of the Executive, the
Company shall seek stockholder approval of this Agreement at the next annual
meeting of stockholders of the Company.
10. DEATH.
10.1 Except as provided in Section 10.2, in the event of a
Covered Termination due to the Executive's death, the Executive's estate, heirs
and beneficiaries shall receive all the Executive's Accrued Benefits through the
Termination Date.
10.2 In the event the Executive dies after a Notice of
Termination is given (i) by the Company or (ii) by the Executive for Good
Reason, the Executive's estate, heirs and beneficiaries shall be entitled to the
benefits described in Section 10.1 hereof and, subject to the provisions of this
Agreement, to such Termination Payment as the Executive would have been entitled
to had the Executive lived. For purposes of this Subsection 10.2, the
Termination Date shall be the earlier of thirty days following the giving of the
Notice of Termination, subject to extension pursuant to Section 1.14, or one day
prior to the end of the Employment Period.
11. RETIREMENT. If, during the Employment Period, the Executive and the
Company shall execute an agreement providing for the early retirement of the
Executive from the Company, or the Executive shall otherwise give notice that he
is voluntarily choosing to retire early from the Company, the Executive shall
receive Accrued Benefits through the Termination Date. However, if the
Executive's employment is terminated by the Executive for Good Reason or by the
Company other than by reason of death, disability or Cause and the Executive
also, in connection with such termination, elects voluntary early retirement,
the Executive shall also be entitled to receive a Termination Payment pursuant
to Section 8.1 hereof.
12. TERMINATION FOR DISABILITY. If, during the Employment Period, as a
result of the Executive's disability due to physical or mental illness or injury
(regardless of whether such illness or injury is job-related), the Executive
shall have been absent from the Executive's duties under this Agreement on a
full-time basis for a period of six consecutive months and, within thirty days
after the Company notifies the Executive in writing that it intends to terminate
the
13
Executive's employment (which notice shall not constitute the Notice of
Termination contemplated below), the Executive shall not have returned to the
performance of the Executive's duties under this Agreement on a full-time basis,
the Company may terminate the Executive's employment for purposes of this
Agreement pursuant to a Notice of Termination given in accordance with Section
13. If the Executive's employment is terminated on account of the Executive's
disability in accordance with this Section, the Executive shall receive Accrued
Benefits in accordance with Section 9.1 hereof and shall remain eligible for all
benefits provided by any long term disability programs of the Company, BWC or
its Affiliates in effect at the time of such termination.
13. TERMINATION NOTICE AND PROCEDURE. Any Covered Termination by the
Company or the Executive shall be communicated by written Notice of Termination
to the Executive, if such Notice is given by the Company, and to the Company, if
such Notice is given by the Executive, all in accordance with the following
procedures and those set forth in Section 23:
13.1 If such termination is for disability, Cause or Good Reason,
the Notice of Termination shall indicate in reasonable detail the facts and
circumstances alleged to provide a basis for such termination.
13.2 Any Notice of Termination by the Company shall have been
approved, prior to the giving thereof to the Executive, by a resolution duly
adopted by a majority of the directors of the Company (or any successor
corporation) then in office.
13.3 If the Notice is given by the Executive for Good Reason, the
Executive may cease performing his duties under this Agreement on or after the
date fifteen days after the delivery of Notice of Termination and shall in any
event cease employment on the Termination Date. If the Notice is given by the
Company, then the Executive may cease performing his duties under this Agreement
on the date of receipt of the Notice of Termination, subject to the Executive's
rights under this Agreement.
13.4 The Executive shall have thirty days, or such longer period as
the Company may determine to be appropriate, to cure any conduct or act, if
curable, alleged to provide grounds for termination of the Executive's
employment for Cause under this Agreement pursuant to Subsection 1.4(iii).
13.5 The recipient of any Notice of Termination shall personally
deliver or mail in accordance with Section 23 written notice of any dispute
relating to such Notice of Termination to the party giving such Notice within
fifteen days after receipt thereof. However, if the Executive's conduct or act
alleged to provide grounds for termination by the Company for Cause is curable,
then such period shall be thirty days. After the expiration of such period, the
contents of the Notice of Termination shall become final and not subject to
dispute.
14. FURTHER OBLIGATIONS OF THE EXECUTIVE. The Executive agrees that, in
the event of any Covered Termination where the Executive is entitled to and
receives Accrued
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Benefits and the Termination Payment, the Executive shall not, for a period of
one year after the Termination Date, without the prior written approval of the
Company's Board of Directors, participate in the management of, be employed by
or own any business enterprise at a location within the United States that
engages in substantial competition with the Company or its subsidiaries, where
such enterprise's revenues from any competitive activities amount to 40% or more
of such enterprise's net revenues and sales for its most recently completed
fiscal year. However, nothing in this Section 14 shall prohibit the Executive
from owning stock or other securities of a competitor amounting to less than
five percent of the outstanding capital stock of such competitor. The Executive
also shall perform his obligations under the "Secrecy Agreement" and the
"Invention Assignment and Confidentiality Agreement" entered into by the Company
and the Executive.
15. EXPENSES AND INTEREST. If, after a Change in Control of the
Company, (i) a dispute arises with respect to the enforcement of the Executive's
rights under this Agreement or (ii) any legal or arbitration proceeding shall be
brought to enforce or interpret any provision contained in this Agreement or to
recover damages for breach, in either case so long as the Executive is not
acting in bad faith, the Executive shall recover from the Company any reasonable
attorneys' fees and necessary costs and disbursements incurred as a result of
such dispute, legal or arbitration proceeding ("Expenses"), and prejudgment
interest on any money judgment or arbitration award obtained by the Executive
calculated at the rate of interest announced by Xxxxxxx'x Bank, St. Louis,
Missouri from time to time as its prime or base lending rate from the date that
payments to him should have been made under this Agreement. Within ten days
after the Executive's written request, the Company shall pay to the Executive,
or such other person or entity as the Executive may designate in writing to the
Company, the Executive's reasonable Expenses in advance of the final disposition
or conclusion of any such dispute, legal or arbitration proceeding.
16. PAYMENT OBLIGATIONS ABSOLUTE. The Company's obligation during and
after the Employment Period to pay the Executive the amounts and to make the
benefit and other arrangements provided in this Agreement shall be absolute and
unconditional and shall not be affected by any circumstances, including, without
limitation, any setoff, counterclaim, recoupment, defense or other right which
the Company may have against him or anyone else. Except as provided in Section
15 of this Agreement, all amounts payable by the Company hereunder shall be paid
without notice or demand. Each payment made under this Agreement by the Company
shall be final, and the Company will not seek to recover any part of such
payment from the Executive, or from whoever may be entitled to such payment, for
any reason.
17. SUCCESSORS.
17.1 If the Company sells, assigns or transfers all or
substantially all of its business and assets to any Person or if the Company
merges into or consolidates or otherwise combines (where the Company does not
survive such combination) with any Person (any such event, a "Sale of
Business"), then the Company shall assign all of its right, title and interest
in this Agreement as of the date of such event to such Person, and the Company
shall cause such Person, by written agreement in form and substance reasonably
satisfactory to the Executive, to expressly assume and agree to perform from and
after the date of such assignment all of the
15
terms, conditions and provisions imposed by this Agreement upon the Company.
Failure of the Company to obtain such agreement prior to the effective date of
such Sale of Business shall be a breach of this Agreement constituting "Good
Reason" for termination hereunder, except that for purposes of implementing the
foregoing the date upon which such Sale of Business becomes effective shall be
deemed the Termination Date. In case of such assignment by the Company and of
assumption and agreement by such Person, as used in this Agreement, "Company"
shall subsequently mean such Person which executes and delivers the agreement
provided for in this Section 17 or that otherwise becomes bound by all the terms
and provisions of this Agreement by operation of law, and this Agreement shall
inure to the benefit of, and be enforceable by, such Person. The Executive
shall, in his discretion, be entitled to proceed against any of such Persons,
any Person which theretofore was such a successor to the Company and the Company
(as so defined) in any action to enforce any rights of the Executive under this
Agreement. Except as provided in this Subsection, this Agreement shall not be
assignable by the Company. This Agreement shall not be terminated by the
voluntary or involuntary dissolution of the Company.
17.2 This Agreement and all rights of the Executive shall inure to
the benefit of and be enforceable by the Executive's personal or legal
representatives, executors, administrators, heirs and beneficiaries. All amounts
payable to the Executive under Sections 7, 8, 9, 10, 11, 12 and 15 if the
Executive had lived shall be paid, in the event of the Executive's death, to the
Executive's estate, heirs and representatives. However, the foregoing shall not
be construed to modify any terms of any benefit plan of the Company, as such
terms are in effect on the date of the Change in Control of the Company, that
expressly govern benefits under such plan in the event of the Executive's death.
18. SEVERABILITY. The provisions of this Agreement shall be regarded as
divisible, and if any provision or any part is declared invalid or unenforceable
by a court of competent jurisdiction, the validity and enforceability of the
remainder of such provisions or parts and the applicability thereof shall not be
so affected.
19. AMENDMENT. This Agreement may not be amended or modified at any
time except by written instrument executed by the Company and the Executive.
20. WITHHOLDING. The Company shall be entitled to withhold from amounts
to be paid to the Executive under this Agreement any federal, state or local
withholding or other taxes or charges which it is from time to time required to
withhold. However, the amount so withheld shall not exceed the minimum amount
required to be withheld by law. The Company shall be entitled to rely on an
opinion of nationally recognized tax counsel if any question as to the amount or
requirement of any such withholding shall arise.
21. CERTAIN RULES OF CONSTRUCTION. No Party shall be considered as
being responsible for the drafting of this Agreement for the purpose of applying
any rule construing ambiguities against the drafter or otherwise. No draft of
this Agreement shall be taken into account in construing this Agreement. Any
provision of this Agreement which requires an agreement in writing shall be
deemed to require that the writing in question be signed by the Executive and an
authorized representative of the Company.
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22. GOVERNING LAW; RESOLUTION OF DISPUTES. This Agreement and the
rights and obligations under it shall be governed by and construed in accordance
with the laws of the State of Delaware. Any dispute arising out of this
Agreement shall, at the Executive's election, be determined by arbitration under
the rules of the American Arbitration Association then in effect (in which case
both parties shall be bound by the arbitration award) or by litigation. Whether
the dispute is to be settled by arbitration or litigation, the venue for the
arbitration or litigation shall be St. Louis, Missouri or, at the Executive's
election, if the Executive is no longer residing or working in the St. Louis,
Missouri metropolitan area, in the judicial district encompassing the city in
which the Executive resides. However, if the Executive is not then residing in
the United States, the election of the Executive with respect to such venue
shall be either St. Louis, Missouri or in the judicial district encompassing
that city of the United States among the thirty cities having the largest
population (as determined by the most recent United States Census data available
at the Termination Date) that is closest to the Executive's residence. The
Parties consent to personal jurisdiction in each trial court in the selected
venue having subject matter jurisdiction regardless of their residence or situs,
and each party irrevocably consents to service of process in the manner provided
in Section 23.
23. NOTICE. Notices given pursuant to this Agreement shall be in
writing and, except as otherwise provided by Section 13.4, shall be deemed given
when actually received by the Executive or actually received by the Company's
Secretary or any officer of the Company other than the Executive. If mailed,
such notices shall be mailed by United States registered or certified mail,
return receipt requested, addressee only, postage prepaid, if to the Company, to
Xxxxxx Inc., Attention: Secretary (or President, if the Executive is then
Secretary), 0000 Xxxxxxx Xxxx., Xxxxx 000, Xx. Xxxxx, Xxxxxxxx 00000, or if to
the Executive, at the address set forth below the Executive's signature to this
Agreement, or to such other address as the Party to be notified shall have given
to the other Party in writing.
24. NO WAIVER. No waiver by either Party at any time of any breach by
the other Party of, or compliance with, any condition or provision of this
Agreement to be performed by the other Party shall be deemed a waiver of similar
or dissimilar provisions or conditions at the same time or any prior or
subsequent time.
17
25. HEADINGS. The headings are for reference only and shall not affect
the meaning or interpretation of any provision of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
day and year first written above.
XXXXXX INC.
BY: /s/
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Attest: /s/
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EXECUTIVE
/s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
