EXHIBIT 10.45
[BWAY Corporation Letterhead]
August 30, 2001
Xx. Xxxx-Xxxxxx Xxxxx
000 X. Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Re: Change in Control Agreement
Dear Xx. Xxxxx:
The purpose of this letter agreement (the "Agreement") is to set forth the terms
upon which you may be entitled to certain benefits upon a change in control of
Bway Corporation (the "Company")./1/ The Company agrees to provide the following
enhanced benefits to you in exchange for your continued employment with the
Company and Your compliance with all of Your obligations under this Agreement.
Specifically, you ("You" or "Your") and the Company (collectively, the
"Parties") agree:
1. The term of this Agreement shall commence on August 30, 2001 (the
"Effective Date") and end on the earlier of (i) the date Your
employment with the Company terminates, or (ii) the date that is
twenty-four (24) months following a Change in Control.
2. Upon a Change in Control, the Company will accelerate vesting of all
stock options and stock grants held by You as of the Change in Control
so that such options and awards are fully vested and exercisable,
provided that You are employed by the Company at any time during the
thirty (30) day period prior to the date of the Change in Control.
Notwithstanding any terms and provisions of such stock options, You
will have at least ninety (90) days following the Change in Control in
which to exercise vested options.
3. If, within thirty (30) days prior to or twenty-four (24) months
following a Change in Control, You have been continuously employed by
the Company from the date of this Agreement, and (i) You terminate Your
employment for Good Reason, or (ii) the Company or its successor entity
terminates Your employment as Chairman and Chief Executive Officer for
any reason other than For Cause, then, subject to Your compliance with
terms and conditions of this Agreement, including, but not limited to,
Section 5 below, the Company will:
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/1/ Unless otherwise indicated, all capitalized terms used in this Agreement are
defined in the "Definitions" section of Exhibit A. Exhibit A is incorporated by
reference and is included in the definition of "Agreement."
(a) within ninety (90) days following the Separation Date, pay You a
lump sum payment equivalent to the sum of (i) three (3) times Your
annual base salary in effect as of the date of the Change in
Control, and (ii) one (1) times Your target incentive bonus in
effect as of the date of the Change in Control (collectively, the
"Separation Payment");
(b) continue paying for any Executive Perquisites that You are
receiving as of the Separation Date until the later of (i) the
date that is six (6) months from the Separation Date, or (ii) the
end of the calendar year in which the Separation Date occurs;
provided, however, that the Company shall not be obligated to pay
such Executive Perquisites that it has already paid in full for
the applicable time period referenced in preceding sub-clause (i)
or (ii);
(c) reimburse Your COBRA premium under the Company's group health plan
and dental plan (if any) on a monthly basis for the lesser of (i)
the period in which You are eligible to receive such continuation
coverage, or (ii) eighteen (18) months (the "COBRA Period");
(d) procure individual medical and dental insurance policies for You
on substantially similar terms as the coverage provided by the
Company as of the Separation Date under the Company's group health
and dental insurance plan(s) for a period of eighteen (18) months
following the expiration of the COBRA Period;
(e) procure and pay the premiums for individual life insurance
coverage for You on substantially similar terms as the coverage
provided to You by the Company as of the Separation Date under the
Company's group life insurance plan for a period of three (3)
years following the Separation Date;
(f) fully vest You in any retirement benefits to which You may be
entitled pursuant to any nonqualified retirement or nonqualified
deferred compensation plans maintained by the Company in which You
are a participant as of the Separation Date; and
(g) increase, if necessary, the amount of Your "Monthly Retirement
Payment" which You are due under the terms and provisions of
Section 11 of Your Employment Agreement with the Company made as
of January 1, 2000 and as may be amended thereafter (the
"Employment Agreement"), so that the total "Monthly Retirement
Payment" amount to which You are entitled under such terms and
provisions as modified by this Agreement shall be equal to Four
Thousand One Hundred Sixty-Six and 67/100 Dollars ($4,166.67), the
maximum amount possible under such terms and provisions.
The payment and vesting of any benefits set forth in Section 2 and 3 above shall
be subject to the satisfaction of all applicable withholding requirements which
may necessitate a cash payment from You to the Company.
Page 2 of 7 - Letter Agreement
In addition, the payments and benefits set forth in Section 3 above shall be
conditioned upon:
(a) Your execution of a Separation and Release Agreement in a form
acceptable to the Company whereby You release the Company from
any and all liability and claims of any kind; and
(b) Your compliance with the restrictions set forth in Section 5
below.
4. If Your employment terminates and You are entitled to receive the
payments and benefits set forth in Section 3 above, then You shall
receive such payments and benefits in lieu of, not in addition to, any
payments and benefits You may be entitled to receive upon termination
pursuant to Your Employment Agreement, including, but not limited to,
the payments and benefits set forth in Section 4(b) of the Employment
Agreement.
5. If, during the Restricted Period, You, on Your own behalf or on behalf
of any person or entity engaged in the Business, engage in or perform
within the Territory any activities deemed to be in competition with
the Company, either directly or as a consultant (the "Restricted
Activities"), then, upon written notice to You (the "Notice"), (i) this
Agreement shall be rescinded; (ii) You shall, within two (2) days of
receiving the Notice, return to the Company the entire amount of the
Separation Payment You received under Section 3(a) above, (iii) the
exercise, payment, delivery, or sale pursuant to any stock options
and/or stock grants referenced in Section 2 above shall be rescinded
and You shall return to the Company any amounts You received in
connection therewith, (iv) the Company's obligation to continue to
provide to You any payments or benefits under Sections 3(b) through
3(g) above shall cease as of the date You receive the Notice and You
shall forfeit Your right to receive any such payments and/or benefits,
and (v) You shall reimburse the Company for the full cost of any
benefits the Company provided to You under Sections 3(b) through 3(g)
above during the period beginning on the date You commenced the
Restricted Activities and ending on the date the You received the
Notice. Any waiver of the restrictions set forth in this Section 5 will
be in the sole discretion of the Company or the successor entity to the
Company, and must be in writing, signed by the Chairman of the
Compensation Committee of the Company or the successor entity to the
Company.
6. If You have any outstanding obligations to the Company at the time any
payments and/or benefits become payable to You pursuant to this
Agreement, You acknowledge that the Company is authorized to deduct any
amounts owed to the Company from any amounts that would otherwise be
due to You pursuant to this Agreement, to the extent permitted by law.
7. Notwithstanding anything else contained in this Agreement, if the
aggregate of the amounts being paid to You pursuant to this Agreement
and all other amounts paid to You which constitute "parachute payments"
(as defined in Code s. 280G)
Page 3 of 7 - Letter Agreement
(hereinafter collectively referred to as "Parachute Payments") exceed
299% of Your "Base Amount" (as defined in Code s. 280G), the amount of
Your Separation Payment shall be reduced by the minimum amount
necessary to reduce the Parachute Payments to 299% of Your Base Amount.
You agree to provide the Company with all information the Company deems
necessary, appropriate or useful to determine the extent to which
payments described in this Agreement could be subject to an excise tax,
and You agree that the Company may release such information to tax
professionals chosen by the Company to assist in making this
determination.
8. The Board of Directors of the Company or the successor entity to the
Company shall have sole and absolute discretion to interpret this
Agreement with respect to Your benefits (including, without limitation,
by supplying omissions from, correcting deficiencies in, or resolving
inconsistencies or ambiguities in, the language of this Agreement with
respect to benefits under this Agreement), to determine Your right to
benefits hereunder, and to resolve all issues arising under this
Agreement with respect to Your benefits hereunder. To the extent that
You have a claim for benefits under this Agreement, You will be
entitled to assert Your claim, and to appeal from any adverse
determination with respect to Your claim, in accordance with the
procedures set forth in 29 CFR s.2560.503-1 (using in all cases
involving a time limitation the maximum amount of time permissible
under such regulations). In all cases, Your claim should be submitted
and addressed to the Company or the successor entity to the Company,
and Your appeal of any adverse determination with respect to Your claim
should be submitted to the Board of Directors of the Company or the
successor entity to the Company.
9. This Agreement, including Exhibit A which is incorporated by reference,
constitutes the entire agreement between the Parties concerning the
subject matter of this Agreement. This Agreement supersedes any prior
communications, agreements or understandings, whether oral or written,
between the Parties relating to the subject matter of this Agreement,
provided, however, that this Agreement does not supersede or modify
Your Employment Agreement except to the extent expressly provided in
this Agreement, including, but not limited to, as set forth in Section
4 above. Other than terms of this Agreement, no other representation,
promise or agreement has been made with You to cause You to sign this
Agreement.
10. This Agreement shall be assignable to, and shall inure to the benefit
of, the Company's successors and assigns, including, without
limitation, successors through merger, name change, consolidation, or
sale of a majority of the Company's stock or assets, and shall be
binding upon You and Your heirs and assigns. You shall not have the
right to assign Your rights or obligations under this Agreement.
11. You agree that any claim arising out of or relating to this Agreement
shall be (i) brought in the Superior Court of Cook County, Illinois, or
(ii) brought in or
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removed to the United States District Court in the state of Illinois.
You consent to the personal jurisdiction of the courts identified
above. You waive (i) any objection to jurisdiction or venue, or (ii)
any defense claiming lack of jurisdiction or improper venue, in any
action brought in such courts.
12. The laws of the State of Illinois shall govern this Agreement. If
Illinois' conflict of law rules would apply another state's laws, the
Parties agree that Illinois law shall still govern.
If the terms set forth in this Agreement are acceptable, please sign below and
return the signed original to me on or before August 30, 2001.
Sincerely,
/s/ Xxxxxxxxx X. Xxxx
Xxxxxxxxx X. Xxxx
Chairman of Compensation Committee
I acknowledge the validity of this 5 page Agreement, including the attached
Exhibit, and represent that I have the legal capacity to enter into this
Agreement. I have carefully read the Agreement, know and understand the terms
and conditions, including its final and binding effect, and sign it voluntarily.
/s/ Xxxx-Xxxxxx X. Xxxxx 08-28-01
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Signature Date
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EXHIBIT A
Definitions
1. "Business" shall mean the business of manufacturing tinplate and steel
packaging for consumer and industrial goods, including, but not limited
to, aerosol cans, cold rolled and black plate steel pails, tinplate
cans, steel ammunition boxes, and material center services.
2. "Change in Control" shall mean (i) the sale, transfer, or other
disposition of eighty percent (80%) or more of the Company's assets, or
(ii) a sale of fifty percent (50%) or more of the then outstanding
voting stock of the Company in a single transaction or a series of
related transactions.
3. "Code" shall mean the Internal Revenue Code of 1986, as amended.
4. "Company" shall mean Bway Corporation, its parents, subsidiaries,
affiliates and all related companies, as well as their respective
officers, directors, shareholders, employees, agents and any other
representatives, any employee benefits plan of the Company, and any
fiduciary of those plans.
5. "Executive Perquisites" shall mean any Company provided perquisites
provided to You by the Company as set forth in Your Employment
Agreement.
6. "For Cause" shall mean a termination of Your employment by the Company
because of (i) Your material breach of Your Employment Agreement, (ii)
Your conviction by a court of competent jurisdiction of a felony or a
crime involving moral turpitude, (iii) conduct by You which, if known
to the general public, would likely bring the Company or any of its
subsidiaries into substantial public disgrace or disrepute, (iv) Your
substantial and repeated failure to perform duties as reasonably
directed by the Board of Directors, or (v) Your gross negligence or
willful misconduct with respect to the Company or any of its
subsidiaries.
7. "Good Reason" shall exist if (a) the Company or its successor entity,
without Your written consent, terminates Your employment as Chairman
and Chief Executive Officer or requires You to report other than
directly to the Board of Directors, (ii) the Company or its successor
entity commits a material breach of Your Employment Agreement which is
not cured by the Company within thirty (30) days after You deliver
written notice of such breach to the Board of Directors and the General
Counsel, (iii) the shareholders of the Company or its successor entity
remove or fail to elect You as a member of the Board of Directors, or
(iv) the Board of Directors removes or fails to elect You as Chairman
of the Board of Directors.
8. "Restricted Period" shall mean the time period during Your employment
with the Company and for a period of one (1) year after Your employment
with the Company ends.
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9. "Separation Date" shall mean the date on which the Company terminates
Your employment other than For Cause, or the date on which You
terminate Your employment with the Company for Good Reason.
10. "Territory" shall mean North America.
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