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EXHIBIT 10(d)
CHANGE OF CONTROL AGREEMENT
This is an agreement (the "Agreement") between Xxxxx Equity, Inc. (the
"Company"), a Florida corporation with its principal place of business at 0000
Xxxxxxx Xxxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, and Xxxxx X. Xxxxxx of 0000
Xxxxxxxxx Xxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 (the "Executive"), effective
as of May 20, 1999, (the "Effective Date").
The Company wishes to ensure the continued dedication of management to
Company duties in the event of an actual or threatened change of control of the
Company. The Executive has an important position in the management of the
Company and wishes to continue in that position or such other position as may
be assigned by the Company. The parties therefore agree as follows:
1. If the Executive's employment with the Company terminates other
than by death or disability within 24 months following a "Change of Control"
(as defined in Exhibit A), the Executive may become entitled to benefits as
described below.
2. The Agreement will terminate immediately, and the Company will have
no further obligation to the Executive under the Agreement, if: (i) the Company
terminates the Executive's employment for Cause, (ii) the Executive voluntarily
terminates his employment without Good Reason, (iii) the Executive's employment
terminates as a result of his death or Disability, or (iv) the Executive's
employment terminates at any time other than during the 24 months following a
Change of Control.
"Cause" means only (i) fraud, embezzlement or other material
dishonesty by the Executive with respect to the Company, or (ii) the
Executive's conviction of, or plea of nolo contendere to, a felony or other
crime involving moral turpitude. The Company may treat a termination of the
Executive's employment as termination for Cause only after (A) giving the
Executive written notice of the intention to terminate for Cause and of his
right to a hearing and (B) conducting a hearing at least 10 days after such
notice at which the Executive may be represented by counsel.
Termination by the Executive for "Good Reason" means termination
within 60 days following (i) a diminution in, or assignment of duties
inconsistent with, the Executive's position (including status, offices, titles
and reporting requirements), authority, duties or responsibilities in effect
immediately before the Change of Control, excluding an isolated, insubstantial
and inadvertent action not taken in bad faith and which is remedied by the
Company promptly after receipt of written notice of the matter by the
Executive, (ii) a failure to pay the Executive an annual base salary at least
equal to the annual base salary in effect immediately before the Change of
Control, (iii) a failure to pay the Executive annual bonuses at least equal to
the average of the annual bonuses paid to him with respect to the three full
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years (or for such fewer number of years for which the Executive has been
eligible for the bonuses from the Company) preceding the Change of Control,
except to the extent that such failure results from a general reduction in
bonus payments that is consistent with the Company's then current bonus policy
applicable to its senior executives, (iv) exclusion of the Executive from stock
option programs or other incentive compensation programs in which other Company
executives holding materially equivalent positions are permitted to
participate, (v) exclusion of the Executive from life, health or accident
insurance plans or other material welfare benefit plans in which other senior
executives of the Company are permitted to participate, (vi) failure to provide
the Executive with an office and secretarial support materially equivalent to
that provided immediately prior to the Change of Control, (vii) relocation of
the Executive's principal place of work without his consent to a location more
than 75 miles from its location immediately prior to the Change of Control, or
(viii) failure by the Company to comply with the provisions of Section 8 of
this Agreement.
"Disability" means eligibility by the Executive for benefits under the
Company's long term disability insurance arrangement.
3. If, within 24 months following a Change of Control, the Company
terminates the Executive's employment without Cause or the Executive terminates
his employment for Good Reason, the Company will provide benefits as follows:
(a) Within 30 days following the termination of employment, the
Company will pay to the Executive a lump-sum cash amount equal to 300% of the
sum of (i) the Executive's annual base salary in effect at the time of the
termination of employment (or if the Executive's annual base salary has been
reduced within 61 days prior to the termination, the base salary in effect
immediately prior to the reduction), plus (ii) the average of the annual
bonuses earned by the Executive with respect to the three full years (or such
fewer number of years for which the Executive has been eligible for the bonuses
from the Company) preceding the termination of employment, or if the Executive
has been eligible for less than a full year, an amount equal to 50% of his base
salary in effect at the time of termination.
(b) The Company will continue for a period of 36 months following the
date of termination to provide the Executive with any medical, dental,
disability and life insurance and automobile allowance benefits in effect at
the time of his termination (or, if his level of benefits has been reduced
within 61 days of the termination, his level of benefits in effect prior to the
reduction). If the Executive so elects, the Company will instead pay to the
Executive, within 30 days of termination, a lump sum cash payment equal to the
greater of the Company's cost of such benefits or the Executive's individual
replacement cost for such benefits.
(c) The Executive will become fully vested in his benefits under the
Company's Supplemental Executive Retirement Plan (the "SERP"), and his benefits
under the SERP will commence immediately and without reduction either for early
commencement or for failure to complete any otherwise-applicable service
requirement.
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(d) Any restricted stock held by the Executive under the Company's
stock compensation plans or arrangements will become fully vested.
4. In the event of a Change of Control, regardless of whether or not
the Executive remains in the employ of the Company, any options to purchase
Company stock held by the Executive under the Company's stock compensation
plans and arrangements will become immediately exercisable notwithstanding any
contrary provisions in the documents otherwise governing the options and remain
exercisable for the period of time during which such options would otherwise
have been exercisable had the Executive remained in the employ of the Company.
5. In the event that it is determined that any payment or benefit
provided by the Company to or for the benefit of the 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 the 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 the 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 the Company's
independent auditors unless the Executive has reasonable objections to the use
of that firm, in which case the determinations will be made by a comparable
firm chosen by the 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 the Executive except as the
determinations are established in resolution (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 the 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 the 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 resolution of the
controversy whether any advances must be returned by the Executive to the
Company. The Company will bear all expenses of the controversy and will gross
the Executive up for any additional taxes that may be imposed upon the
Executive as a result of its payment of such expenses.
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6. All payments made by the Company under this Agreement will be
reduced by any tax or other amounts required to be withheld by the Company under
applicable law.
7. The Company will indemnify the Executive for all costs and expenses
(including fees and expenses of counsel) incurred by the Executive in connection
with an action to enforce his rights under this Agreement (including any action
to enforce this right of indemnity) in which action the Executive prevails.
8. Except as provided in this Section 8, neither the Company nor the
Executive may make any assignment of this Agreement or any interest herein, by
operation of law or otherwise, without the prior written consent of the other.
The Company must require that any entity with which it merges or consolidates or
to which it agrees to transfer a substantial portion of its assets expressly
assume the obligations of the Company under this Agreement and that any
successor or successors of such an entity, whether by merger, consolidation or
transfer of assets, also expressly assume such obligations.
9. The Executive may have other rights and obligations under other
agreements, insurance policies and plans and employee benefit and welfare plans
of the Company, including, without limitation, the SERP. However, severance
benefits payable under this Agreement are not intended to duplicate severance
benefits under any employment agreement between the Executive and the Company.
Therefore, to the extent severance benefits are payable under this Agreement,
they will offset severance benefits otherwise payable under any such employment
agreement.
10. This Agreement may be amended or modified only by a written
instrument signed by the Executive and by an expressly authorized representative
of the Company.
11. This is a Florida contract and is to be construed and enforced
under and be governed in all respects by the laws of the State of Florida.
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IN WITNESS WHEREOF, this Agreement has been executed as a sealed
instrument by the Company, by its duly authorized representative, and by the
Executive, as of the date first above written.
XXXXX EQUITY, INC.
/s/ Xxxxx X. Xxxxxx By: /s/ W. Xxxxxxxx Xxxxxxx
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Xxxxx X. Xxxxxx Vice President
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EXHIBIT A
"Change of Control" means the occurrence of any of the following events:
(1) any Person becomes the owner, directly or indirectly, of
more than 25% of the Company's Common Stock; or
(2) individuals who, on the Effective Date constitute the
Board of Directors of the Company (the "Continuing Directors") cease
for any reason to constitute at least 75% of such Board (a "Board
Change"); provided, however, that an individual becoming a director
after the Effective Date whose election or nomination for election by
the Company's shareholders, was approved by a vote of at least 75% of
the Continuing Directors will be treated for this purpose as a
Continuing Director, but excluding from treatment as a Continuing
Director any such individual whose initial assumption of office occurs
as a result of (i) either an actual or threatened election contest (as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under
the Securities and Exchange Act of 1934 (the "Exchange Act")) or other
actual or threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board or (ii) any acquisition,
merger, reorganization or consolidation or other transaction to which
the Company is a party and which contemplates a Board Change; or
(3) there is executed an agreement of acquisition, merger,
reorganization, consolidation or other transaction which contemplates
either (i) that all or substantially all of the business and/or assets
of the Company will be owned or controlled by a Person or Persons other
than the Persons owning or controlling such business and assets on the
Effective Date or (ii) that a Board Change will occur, provided,
however, that if such agreement requires, as a condition precedent,
approval by the Company's shareholders, a Change of Control will not be
deemed to have occurred until such approval has been obtained.
For purposes of this definition the following terms have the meanings set forth
below:
"Common Stock" means the then outstanding Common Stock of the Company
plus, for purposes of determining the stock ownership of any Person, the number
of unissued shares of Common Stock that such Person has the right to acquire
(whether such right is exercisable immediately or only after the passage of
time) upon the exercise of conversion rights, exchange rights, warrants or
options or otherwise; provided, however, that the term Common Stock will not
include shares of preferred stock or convertible debt or options or warrants to
acquire shares of
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Common Stock (including any shares of Common Stock issued or issuable upon the
conversion or exercise thereof) to the extent that the Board of Directors of the
Company expressly so determines in any future transaction.
A Person will be deemed to be the "owner" of any Common Stock of which
the Person would be the "beneficial owner," as such term is defined in Rule
13d-3 promulgated by the Securities and Exchange Commission under the Exchange
Act.
"Person" will have the meaning used in Section 13(d) of the Exchange
Act, except that "Person" will not include (i) the Executive, an Executive
Related Party, or any group of which the Executive or an Executive Related Party
is a member, (ii) the Company or a wholly owned subsidiary of the Company or
(iii) an employee benefit plan (or related trust) of the Company or of a wholly
owned subsidiary.
An "Executive Related Party" will mean any affiliate or associate of
the Executive other than the Company or a subsidiary of the Company. The terms
"affiliate" and "associate" will have the meanings ascribed in Rule 12b-2 under
the Exchange Act. The term "registrant" in the definition of "associate" means,
in this case, the Company.
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