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EXHIBIT 10.35
CHANGE-IN-CONTROL AGREEMENT
4 June 1997
Dear :
The Santa Xxxx Operation, Inc., a California corporation (the "Company"),
considers it essential to the best interests of its shareholders to take
reasonable steps to retain key management personnel. Further, the Board of
Directors of the Company, through its Compensation Committee (the "Committee")
recognizes that the uncertainty and questions which might arise among management
in the context of a change in control of the Company could result in the
distraction or departure of management personnel to the detriment of the Company
and its shareholders.
The Committee has determined, therefore, that appropriate steps should be taken
to reinforce and encourage the continued attention and dedication of members of
the management of the Company and its subsidiaries to their assigned duties
without distraction in the face of potentially disturbing circumstances arising
from any possible change in control of the Company.
In order to induce you to remain in the employ of the Company, the Company has
determined to enter into this letter agreement (this "Agreement") which
addresses the terms and conditions of your employment in the event of a change
in control of the Company.
Term of Employment Under this Agreement. The term of your employment under this
Agreement shall commence on the Change in Control Date and shall continue until
the six month anniversary of the Change in Control Date (the "Term").
Termination Payments and Other Benefits.
If, during the term of this Agreement, the Involuntary Termination of your
employment, as defined in item (g) of the definitions, occurs in connection with
a change in control, you shall be entitled to receive a termination payment from
the Company (the "Termination Payment"). The Termination Payment shall be made
in a lump sum not more than five days following the date of the Termination. The
amount of the Termination Payment shall be equal to the product of six times
your Total Monthly Compensation including targeted bonuses at 100% attainment.
You shall also receive the full base salary for the month in which the
Involuntary Termination occurs.
In the event of your Involuntary Termination during the Term, you and your
eligible dependents shall continue to be eligible to participate during the
Benefit Continuation Period (as hereinafter defined) in medical, dental, health,
life, long-term disability and other fringe benefit plans and arrangements
applicable to you immediately prior to your Involuntary Termination on the same
terms and conditions in effect for you and your dependents immediately prior to
such Involuntary Termination. For purposes of the previous sentence, "Benefit
Continuation Period" means the period beginning on the Date of Termination and
ending on the earlier to occur (i) the six month anniversary of the Date of
Termination and (ii) the date that you and your dependents are eligible and
elect coverage under the plans of a subsequent employer which provide
substantially equivalent or greater benefits to you and your dependents. To the
extent that such benefits or service credit for benefits are not payable or
provided under such plans or programs the Company itself shall pay or provide
payment of such benefits or service credit for benefits. For the purposes of
this section, vacation, sick leave, stock option or stock purchase plans or
agreements shall not be considered "employee benefit plans or programs." Also,
for purposes of this section, coverage under the disability plans, life
insurance or other death benefit plans provided to you by a new employer shall
not be deemed to be "substantially equivalent" to the corresponding coverage
provided under this section unless the dollar amount thereof is substantially
the same or greater. In addition, if you have been utilizing the services of a
tax preparer and/or advisor (e.g. Coopers & Xxxxxxx) at the expense of the
Company, you shall be entitled to receive such services at Company's expense
with respect to the tax year in which your employment terminates and the next
subsequent tax year.
Your right to the Termination Payment shall be conditioned upon your execution
of a release in favor of the Company in substantially the form of the release
required for the receipt of severance payments under the Severance Plan (as in
effect on the date of this Agreement) which is not revoked by you within the
revocation period specified therein.
You shall not be required to mitigate the amount of any payment provided for in
this Agreement by seeking other employment or otherwise, nor shall the amount of
any payment or benefit provided for in this Agreement be reduced by any
compensation earned by you as the result of employment by another employer or by
pension benefits paid by
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the Company or another employer after the Date of Termination or otherwise
except as specifically provided in clause (ii) of the last sentence of the
Benefit Payment provision set forth in section 2(b) above.
Stock Options
All stock options granted to you shall vest and become fully exercisable in the
event of your Termination on or following the Change in Control Date so long as
you remain an employee on the Change in Control Date.
Confidential Information
You agree not to disclose, either while in the Company's employ or at any time
thereafter, to any person not employed by the Company and not engaged to render
services to the Company any confidential information obtained while in the
employ of the Company (including, without limitation, any of the Company's
inventions, processes, methods of distribution, customer or trade secrets). This
section shall not preclude you from the use or disclosure of information known
generally to the public or of information not considered confidential by the
Company or from making disclosures required by law or court order.
You agree that upon leaving the Company's employ, you will not remove from the
Company's possession, without the prior written consent of an officer authorized
to act in the matter by the Board of Directors, any business plans, financial
information, product pricing information, or other documents which are of a
confidential nature (including, without limitation, its methods of
distribution).
You agree to continue to abide by the terms and conditions of the Proprietary
Information Agreement signed upon the commencement of your employment with
Company.
Limitation on Payments
In the event that the Termination Payment together with all other payments and
the value of any benefit received or to be received by you in connection with
the Termination or otherwise (i) constitutes a "parachute payment" within the
meaning of Section 280G (b) (2) of the Internal Revenue Code of 1986, as amended
("Code") and (ii) such Termination Payment, together with all other payments or
benefits which constitute "parachute payments" within the meaning of Section
280G (b) (2) would result in all or a portion of such termination payment being
subject to excise tax under Section 4999 of the Code, then you Termination
Payment shall be either: the amount determined under sections 2 and 3; or such
lesser amount which would result in no portion of the severance pay being
subject to excise tax under Section 4999 of the Code whichever of the foregoing
amounts, taking into account the applicable Federal, State and local income
taxes and the excise tax imposed by Section 4999, results in your receipt, on an
after-tax basis, of the greatest amount of Termination Pay under sections 2 and
3, notwithstanding that all of some portion of the Termination Payment may be
taxable under Section 4999 of the Code.
For purposes of applying the applicable limitation of section 5(a), the
following provisions shall be in effect.
The parachute payment attributable to the accelerated vesting of your options
under Section 3.2 of this Agreement shall be calculated in accordance with the
valuation methodology established under Internal Revenue Code Section 280G and
the applicable Treasury Regulations thereunder (including Q&A 24 of Section
1.280G-1 of the proposed Treasury Regulations) and shall include an appropriate
dollar amount (utilizing the 1% per month formula set forth in such Q&A 24) to
reflect the lapse of your obligation to remain in the Company's employ as a
condition to the vesting of one or more of the accelerated option installments.
In no event, however, shall such option parachute payment exceed the spread (the
excess of the fair market value of the accelerated option shares over the option
exercise price payable for those shares) existing at the time of acceleration.
Should it become necessary to reduce part of your termination benefits under
this Agreement so as not to exceed the applicable section 5(a) limitation, then
such reduction shall be effected, solely to the extent necessary to avoid an
excess payment under section 56(a), by an appropriate reduction in the dollar
amount of the Termination Payment otherwise due to you under section 2.
Assumption by Successor. The Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company expressly to assume
and to agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession had taken
place; provided, however, that no such assumption shall relieve the Company of
its obligations hereunder. As used in this Agreement, the "company" shall mean
the Company as hereinbefore defined any successor to its business and/or assets
as aforesaid which assumes and agrees to perform this Agreement by operation of
law or otherwise.
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Enforceability; Beneficiaries. This Agreement shall be binding upon and inure to
the benefit of you and your heirs and the Company and any organization which
succeeds to substantially all of the business or assets of the Company, whether
by means of merger, consolidation, acquisition of all or substantially all of
the assets of the Company or otherwise, including, without limitation, as a
result of a Change in Control or by operation of law. This Agreement shall inure
to the benefit of and be enforceable by your personal or legal representatives,
executors, administrators, successors, and heirs. If you should die while any
amount would still be payable to you hereunder if you had continued to live, all
such amounts, unless otherwise provided herein, shall be paid in accordance with
the terms of this Agreement to your designee or estate.
No Contract of Employment. Your employment is at will. Nothing in this Agreement
shall be construed as giving you any right to be retained in the employ of the
Company or shall affect the terms and conditions of your employment with the
Company prior to the commencement of the term hereof.
Withholding. Amounts paid to you hereunder shall be subject to all applicable
federal, state and local withholding taxes.
Notices. Any purported termination of your employment by the Company or by you
shall be communicated by written Notice of Termination to the other party
hereto. For purposes of this Agreement, a "Notice of Termination" shall mean a
notice which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail the facts and circumstances
claimed to provide a basis for termination of your employment under the
provisions so indicated.
All notices, requests, and other communications contemplated by this Agreement
shall be in writing and shall be sufficiently given if mailed in the continental
United States by registered or certified mail, return receipt requested, or
personally delivered to the party entitled thereto at the address stated below
(or to such changed address as the addressee may have given by a similar
notice):
To the Company:
Attention: Chief Executive Officer
000 Xxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Any notice delivered in person shall be deemed to have been received on the date
of delivery. Any notices delivered by mail shall be deemed to have been received
on the date of acknowledgment of its receipt.
No Setoff. There shall be no right of setoff or counterclaim, with respect to
any claim, debt, or obligation, against payments to you under this Agreement.
Death or Incompetence. In the event of your death or a judicial determination of
your incompetence, references in this Agreement to you shall, where appropriate,
be deemed to refer to your beneficiary or beneficiaries or, if none, to your
legal representative. The term "beneficiary," as used in this Agreement, shall
mean a beneficiary or beneficiaries designated to receive any amount hereunder
or, if no beneficiary has been so designated, the legal representative of your
estate.
No Assignment. No right, benefit or interest hereunder shall be subject to
anticipation, alienation, sale, assignment, encumbrance, charge, pledge,
hypothecation, execution, forfeiture, attachment, levy, or similar process or
assignment by operation of law by you. Any attempt, voluntary or involuntary, to
effect any action specified in the preceding sentence shall, to the full extent
permitted by law, be null, void, and of no effect.
Company's Successors. This Agreement shall be binding upon and inure to the
benefit of the Company and any successor of the Company (including, without
limitation, any corporation or other entity which directly or indirectly
acquires all or substantially all of the assets or shares of the Company,
whether by merger, consolidation, sale, or otherwise) but shall not otherwise be
assignable by the Company. The Company shall require that any such successor
expressly assume and agree to perform this Agreement in the same manner and to
the same extent that the Company would be required to perform this Agreement if
no succession had taken place.
Waivers and Amendments. No provision of the Agreement shall be amended or waived
unless such amendment or waiver is authorized by the Board of Directors or any
authorized committee of the Board of Directors and is agreed to in writing and
signed by you and by an officer of the Company. No waiver by either party hereto
of any breach by the other party hereto of any condition or provision of this
Agreement to be performed by such other party shall be deemed a waiver of a
similar or dissimilar provision or condition at the same or at any prior or
subsequent time. The waiver by one party of the performance of any covenant,
condition or promise in this Agreement shall not invalidate
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this Agreement, nor shall it be considered a waiver by such party of any other
covenant, condition or promise hereunder. A waiver by either party or both
parties of the time for performing any acts shall not constitute a waiver of the
time for performing any other act of any identical act required to be performed
by any party.
Arbitration. In the event that any dispute arises hereunder, such dispute shall,
at the election and upon written demand of either party, be finally determined
by arbitration in the City of San Xxxx in accordance with the rules and
procedures of the American Arbitration Association, and judgment upon the award
may be entered in any court having jurisdiction thereof.
Choice of Law. The validity, interpretation, construction, performance, and
enforcement of this Agreement shall be governed by the internal laws of the
State of California, without regard to the principles of conflict of laws
thereof.
Headings. The titles of sections in the Agreement are intended solely for
convenience, and no provision of this Agreement is to be construed by reference
to the title of any section.
Severability. In the event that any provision or portion of this Agreement is
determined by arbitration or by a court of competent jurisdiction to be invalid
or unenforceable for any reason, the remaining provisions and portions of this
Agreement shall be unaffected thereby and shall remain in full force and effect
to the fullest extent permitted by law.
Specific Performance. The Company and you recognize that each party will have no
adequate remedy at law for breach by the other of any of the agreements
contained herein and, in the event of any such breach, the Company and you
hereby agree and consent that the other shall be entitled to a decree of
specific performance, mandamus, or other appropriate remedy to enforce
performance of such agreements.
Presumption. The Company shall make a payment described in this Agreement upon
receiving written notice from you describing such payment, referring to the
provision of this Agreement under which such payment is claimed and certifying
that all conditions for such payment, as set forth in this Agreement, have been
satisfied. The information so furnished to the Company by you shall be presumed
to be correct, subject to rebuttal by the Company.
Entire Agreement. This Agreement sets forth the entire agreement of the parties
hereto in respect of the subject matter contained herein and during the term of
this Agreement supersedes the provisions of all prior agreements, promises,
covenants, arrangements, communications, representations or warranties, whether
oral or written, by any officer, employee or representative of any party hereto
with respect to the subject matter contained herein.
Definitions.
"Cause" shall mean a termination of your employment during the term which is a
result of (i) your felony conviction, (ii) your willful disclosure of material
trade secrets or other material confidential information related to the business
of the Company and its subsidiaries or (iii) your willful and continued failure
substantially to perform your duties with the Company (other than any such
failure resulting from your incapacity due to physical or mental illness or any
such actual or anticipated failure resulting from a resignation by you for Good
Reason) after a written demand for performance is delivered to you by the
Company, which demand specifically identifies the manner in which the Company
believes that you have not substantially performed your duties, and which
performance is not substantially corrected by you within 10 days of receipt of
such demand. For purposes of the previous sentence, no act or failure to act on
your part shall be deemed "willful" unless done, or omitted to be done, by you
not in good faith and without reasonable belief that your action or omission was
in the best interest of the Company.
"Change in Control" shall mean change of control as defined in the 1994
Incentive Stock Option Plan; i.e. (i) when any "person," as such term is used in
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(other than the Company, a Subsidiary or a Company employee benefit plan,
including any trustee of such plan acting as trustee) is or becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act), directly
or indirectly, of securities of the Company representing more than twenty-five
percent (25%) of the combined voting power of the Company's then outstanding
securities entitled to vote generally in the election of directors; or (ii) a
merger or consolidation of the Company with any other corporation, other than a
merger or consolidation which would result in the voting securities of the
Company outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least seventy-five percent (75%) of the total voting power
represented by the voting securities of the Company or such surviving entity
outstanding immediately after such merger or consolidation, or the stockholders
of the Company approve an agreement for the sale or disposition by the Company
of all or substantially all the Company's assets; or (iii) a change in the
composition of the board of Directors of the Company occurring within a two-year
period, as a result of which fewer than a majority of the directors are
Incumbent Directors. "Incumbent Directors shall mean directors who either (A)
are directors of the Company as of the date hereof, or (B) are elected, or
nominated for election, to the Board of Directors of the Company with the
affirmative votes of a least a majority of the Incumbent Directors at the time
of such election or nomination (but shall not include an individual whose
election or nomination is in connection with an actual or threatened proxy
contest relating to the election of directors to the Company).
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"Change in Control Date" shall mean the earliest of (i) the date on which the
Change in Control occurs, (ii) the date on which the Company executes an
agreement, the consummation of which would result in the occurrence of a Change
in Control, and (iii) the date the Board approves a transaction or series of
transactions, the consummation of which would result in a Change in Control. If
the Change in Control Date occurs as a result of an agreement described in
clause (ii) of the previous sentence or as a result of the approval of the board
described in clause (iii) of the previous sentence and the Change in Control to
which such agreement or approval relates (the "Contemplated Change in Control")
subsequently does not occur, then the term shall expire on the sixtieth day (the
"Reset Date") following the date the Board certifies by resolution duly adopted
by a majority of the Directors then in office that the Contemplated Change in
Control is not reasonably likely to occur; provided, however, that this sentence
shall not apply if (A) an Involuntary Termination of your employment with the
Company has occurred on and after the Change in Control Date and on or prior to
the Reset Date of (B) the Contemplated Change in Control subsequently occurs
within three months of the Reset Date. Following the Reset Date, the provisions
of this Agreement shall remain in effect and a new Term shall commence upon the
occurrence of a subsequent Change in Control Date. Notwithstanding the first
sentence of this section, if your employment with the Company terminates prior
to the Change in Control Date and it is reasonably demonstrated that your
termination of employment (i) was at the request of the third party who has
taken steps reasonably calculated to effect the Change in Control or (ii)
otherwise arose in connection with or in anticipation of the Change in Control,
then Change in Control Date shall remain the date immediately prior to the date
of your termination of employment.
"Code" means the Internal Revenue Code of 1986, as it may be amended.
"Company" means the Company, all Subsidiaries and any corporation owning not
less than 50 percent of the total combined voting power of all classes of
outstanding shares of the Company.
"Good Reason" shall mean a resignation of your employment during the term as a
result of any of the following:
A reduction by the Company in your annual base salary as in effect immediately
prior to the Change in Control Date or as the same may be increased from time to
time thereafter; a failure by the Company to increase your salary at a rate
commensurate with that of other key executives of the Company; or a reduction in
your target annual bonus (expressed as a percentage of base salary) below the
target in effect for you on the Change in Control Date;
The relocation of the office of the Company where you are employed immediately
prior to the Change in Control Date (the "Location") to a location which, in
your good faith assessment, would cause a hardship in commuting from your
principal residence.
The failure by the Company to continue in effect any compensation plan in which
you participated prior to the Change in Control Date or made available to you
after the Change in Control Date, unless an equitable arrangement has been made
with respect to such plan in connection with the Change in Control, or the
failure by the Company to continue your participation therein on at least as
favorable a basis, both in terms of the amount of benefits provided and the
level of your participation relative to other participants, as existed on the
Change in Control Date:
The failure by the Company to continue to provide you with benefits at least as
favorable in the aggregate to those enjoyed by you under the Company's pension,
savings, life insurance, health, disability, and fringe benefit plans and
programs (including, without limitation, programs, if any, relating to use of a
car, secretary, office space, telephones, expense reimbursement) in which you
were participating immediately prior to the change in Control Date; or the
failure by the company to provide you with the number of paid vacation days to
which you are entitled on the basis of years of service with the Company in
accordance with the Company's normal vacation policy in effect immediately prior
to the Change in Control;
Any termination of your employment which is not effected pursuant to the terms
of this Agreement; or
A material breach by the company of the provisions of this Agreement; provided,
however, that an event described above in clause (ii), (iv), (v) or (vii) shall
not constitute Good Reason unless it is communicated by you to the Company in
writing and is not corrected by the Company in a manner which is reasonably
satisfactory to you (including full retroactive correction with respect to any
monetary matter) within 10 days of the Company's receipt of such written notice
from you.
"Involuntary Termination" shall mean (i) the termination of your employment by
the Company and/or its subsidiaries during the Term other than for Cause or
Disability or (ii) your resignation of employment with the Company and its
subsidiaries during the Term for Good Reason.
"Subsidiary" means any corporation, if the Company and/or one or more other
Subsidiaries own not less than 50 percent of the total combined voting power of
all classes of outstanding stock of such corporation. A corporation
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that attains the status of a Subsidiary on a date after the execution of this
Agreement shall be considered a Subsidiary commencing as of such date.
"Total Monthly Compensation" means the sum of your monthly salary plus targeted
bonus at the rate in effect immediately prior to the Termination, but in no
event less than your monthly salary at the rate in effect on the date of this
Agreement.
This letter sets forth our agreement on the subject matter hereof.
Please sign and return this Agreement to Xxxxx Sabbath in the Legal Department.
Sincerely,
The Santa Xxxx Operation, Inc.
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Xxxx Xxxxx
Agreed:
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