Exhibit 10.3
EXECUTIVE AGREEMENT
-------------------
Agreement between Primex Technologies, Inc., a Virginia corporation
("Primex"), and [Name] (the "Executive"), dated as of February 29, 2000.
Primex and the Executive agree as follows:
1. Definitions
As used in this Agreement:
(a) "Cause" means the willful and continued failure of the Executive
to substantially perform his duties; the willful engaging by the Executive in
gross misconduct significantly and demonstrably financially injurious to Primex;
or willful misconduct by the Executive during his employment which is a felony
or fraud. No act or failure to act on the part of the Executive will be
considered "willful" unless done or omitted not in good faith and without
reasonable belief that the action or omission was in the interests of Primex or
not opposed to the interests of Primex and unless the act or failure to act has
not been cured by the Executive within a reasonable time after written notice to
the Executive specifying the nature of such violations.
Notwithstanding the foregoing, the Executive shall not be deemed
to have been terminated for Cause without (i) reasonable notice to the Executive
setting forth the reasons for Primex's intention to terminate for Cause, (ii) an
opportunity for the Executive, together with his counsel, to be heard before the
Board of Directors of Primex and (iii) delivery to the Executive of a notice of
Termination from the Board of Directors of Primex finding that, in the good
faith opinion of 75% of the entire membership of such Board, the Executive was
guilty of conduct described above and specifying the particulars thereof in
detail.
(b) "Change in Control" means:
(i) Primex ceases to be owned by at least 300 shareholders of
record after December 31, 1996, or ceases, by action of Primex's Board of
Directors, to be either listed on a national securities exchange or authorized
for quotation on The Nasdaq Stock Market;
(ii) a person, partnership, joint venture, corporation or other
entity, or two or more of any of the foregoing acting as a "person" within the
meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended
(the "Act"), other than Primex, a majority-owned subsidiary of Primex, or an
employee benefit plan (or related trust)
2
of Primex, or such subsidiary, become(s) the "beneficial owner" (as defined in
Rule 13(d)(3) under the Act) of 15% or more of the then outstanding voting stock
of Primex;
(iii) during any period of two consecutive years after 1996,
individuals who at the beginning of such period constitute Primex's Board of
Directors (together with any new Director whose election by Primex's Board of
Directors or whose nomination for election by Primex's shareholders, was
approved by a vote of at least two-thirds of the Directors then still in office
who either were Directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the Directors then in office;
(iv) all or substantially all of the business or assets of
Primex is disposed of pursuant to a merger, consolidation or other transaction,
whether or not Primex is the surviving corporation, (unless in either case the
shareholders of Primex immediately prior to such merger, consolidation,
combination or other transaction beneficially own, directly or indirectly, more
than 50% of the aggregate voting stock or other ownership interests of (x) the
entity or entities, if any, that succeed to the business of Primex or (y) the
combined company);
(v) Primex's Board of Directors determines that a tender offer
for Primex's shares indicates a serious intention by the offeror to acquire
control of Primex; or
(vi) shareholder approval of a liquidation or dissolution of
Primex.
(c) "Disability" means that the Executive has suffered an incapacity
due to physical or mental illness which meets the criteria for disability
established at the time under Primex's short-term disability plan.
(d) "Executive Severance" means:
(i) twelve months of the Executive's then current monthly
salary (without taking into account any reductions which may have occurred at or
after the date of a Change in Control); plus
(ii) an amount equal to the greater of (a) the Executive's
average annual award actually paid under Primex's short-term annual incentive
compensation plans or programs ("ICP") for the three years (or for such fewer
years as the ICP may have been in effect) immediately preceding the date of
Termination or (b) the Executive's then current ICP Target Incentive.
(iii) The Executive will not be entitled to receive any other
severance otherwise payable to the Executive under any other severance plan of
Primex.
(iv) If on the Termination date the Executive is eligible and
is receiving payments under any then existing Primex disability plan, then the
Executive agrees that all such payments may, and will be, suspended and offset
for 12 months following the
3
Termination date. If after such period the Executive remains eligible to receive
disability payments, then such payments shall resume in the amounts and in
accordance with the provisions of the applicable Primex disability plan.
(e) "Potential Change in Control" means:
(i) Primex has entered into an agreement the consummation
of which would result in a Change in Control;
(ii) any person (including Primex ) publicly announces an
intention to take or to consider taking actions which if consummated would
constitute a Change in Control;
(iii) Primex learns that any person (other than Primex, a
majority-owned subsidiary of Primex, or an employee benefit plan (or related
trust) of Primex, or such subsidiary,) has become the beneficial owner directly
or indirectly of securities of Primex representing 9.5% or more of the combined
voting power of Primex's then outstanding securities ordinarily entitled to vote
in elections of directors; or
(iv) the Board of Directors of Primex adopts a resolution to
the effect that, for purposes of this Agreement, a Potential Change in Control
of Primex has occurred.
(f) "Termination" means:
(i) The Executive is discharged by Primex other than for
Cause;
(ii) The Executive terminates his or her employment in the
event that:
(1) Primex requires the Executive to relocate the
Executive's then office to a location that is more than 25 miles further from
his then principal residence than the distance from such residence to his prior
office, except that prior to a Change in Control, a requirement to relocate the
Executive's office to Primex's corporate headquarters is not a basis for
Termination;
(2) Primex reduces the Executive's base salary or fails
to increase the Executive's base salary on a basis consistent (as to frequency
and amount) with Primex's exempt salary system as then in effect or, in the
event of a Change in Control, as in effect immediately prior to the Change in
Control;
(3) Primex fails to continue the Executive's
participation in its benefit plans (including incentive compensation and stock
based incentives) on substantially the same basis, both in terms of the amount
of the benefits provided (other than due to Primex's or a relevant operation's
financial or stock price performance provided such performance is a relevant
criterion under such plan) and the level of the Executive's
4
participation relative to other participants as exists on the date hereof;
provided that, with respect to annual and long term incentive compensation
plans, the basis with which the amount of benefits and level of participation of
the Executive shall be compared shall be the average benefit awarded to the
Executive under the relevant plan during the three years (or such fewer years as
such plans may have been in effect) immediately preceding the date of
Termination;
(4) The Executive suffers a Disability which prevents the
Executive from performing the Executive's duties with Primex for a period of at
least 180 consecutive days;
(5) Following a Change in Control, Primex fails to
substantially maintain its benefit plans as in effect at the time of the Change
in Control, unless reasonably equivalent arrangements (embodied in an on-going
substitute or alternative plan) have been made with respect to such plans; or
(6) The Executive's duties, position or reporting
responsibilities are diminished.
2. Previous Change in Control Agreement. This Agreement supersedes
and replaces the Executive Agreement dated as of November 2, 1999 between Primex
and the Executive.
3. Term/Executive's Duties
(a) This Agreement expires at the close of business on December 31,
2002, unless prior to that date there is a Change in Control, in which case this
Agreement will expire on the later of the close of business on December 31, 2002
or three years following the date of a Change in Control; provided that the
expiration of this Agreement will not affect any of the Executive's rights
resulting from a Termination prior to such expiration. In the event of the
Executive's death while employed by Primex, this Agreement shall terminate and
be of no further force or effect on the date of his or her death; provided that
the Executive's death will not affect any of the Executive's rights resulting
from a Termination prior to death.
(b) During the period of the Executive's employment by Primex, the
Executive shall devote his or her full time best efforts during normal business
hours to Primex's business and affairs, except during reasonable vacation
periods and periods of illness or incapacity. Nothing in this Agreement will
preclude the Executive from devoting reasonable periods required for service as
a director or a member of any organization involving no conflict of interest
with Primex's interest, provided that no additional position as director or
member shall be accepted by the Executive during the period of his employment
with Primex without its prior consent.
(c) The Executive agrees that in the event of any Potential Change in
Control of Primex occurring after the date hereof, the Executive will remain in
the employ of Primex until the earlier of (i) the end of the six-month period
following the occurrence of
5
such Potential Change in Control and (ii) a Change in Control, during which time
the Executive will have an office, title, duties and responsibilities
substantially consistent with those applicable immediately prior to the
Potential Change in Control.
4. Executive Severance Payment
(a) In the event of a Termination occurring before the expiration of
this Agreement, Primex will pay the Executive a lump sum in an amount equal to
the Executive Severance. The payment will be made within 10 days of the
effective date of the Termination.
(b) In the event of a Termination after a Change in Control has
occurred, in addition to the Executive Severance paid under Paragraph 4(a)
above, Primex will pay a Change in Control severance premium to the Executive in
an amount equal to two times the Executive Severance. The Change in Control
severance premium, if it becomes due, will be made immediately (or in any event
as soon as administratively practicable) following the effective date of the
Termination.
(c) The Executive will not be required to mitigate the amount of any
payment provided for in paragraph 4(a) or 4(b) by seeking other employment or
otherwise, nor shall any compensation received by the Executive from a third
party reduce such payment. Except as may otherwise be expressly provided
herein, nothing in this Agreement will be deemed to reduce or limit the rights
which the Executive may have under any employee benefit plan, policy or
arrangement of Primex.
5. Other Benefits and Payments
(a) (1) If the Executive becomes entitled to payment under Paragraph
4(a), then the Executive shall be entitled to receive a lump sum payment from
Primex at the same time as the payment under Paragraph 4(a) is made equal to the
amount contributed or credited by Primex to the Executive's accounts in all
defined contribution plans of Primex (whether or not "qualified" plans) during
the 12 months preceding the Executive's Termination provided that in the event
there are fewer than 12 months in such period the payment required shall be
increased proportionately to make it equivalent to a 12 month period. The
"amount contributed or credited by Primex" as defined in this Paragraph 5 shall
not include any employee contributions, employer matching contributions,
dividends or investment gains or losses credited to the Executive's accounts,
but only the Primex contributions made or, in the case of supplementary plans,
credited, to the accounts. Such payment shall be in lieu of any such
contributions or credits by Primex to its defined contribution plans with
respect to the period after the Executive's Termination. If Primex is required
by law to contribute to such plans with respect to the period after the
Executive's Termination, any such contribution shall reduce the payout otherwise
due Executive under this Paragraph 5(a)(1). In the event the Executive receives
a payment under Paragraph 4(b), the amount required to be paid under the
preceding sentences of this Paragraph 5(a)(1) shall be tripled. Notwithstanding
the foregoing, in the event at the date of Termination the Executive is more
than 69 years old (or more than 68 years old in the case the Executive
6
receives a payment under Paragraph 4(b)) the lump sum payment required to be
made under this Paragraph 5(a)(1) shall be reduced such that if it were
expressed as equal monthly payments made over a 12-month period (a 24-month
period in the case of the Executive receiving a payment under Paragraph 4(b))
and paid in monthly installments on the first of every month following
Termination no such monthly payments would be received by the Executive beyond
his or her seventieth birthday.
(2) If the Executive becomes entitled to payment under Paragraph
4(a), for the 12 months from the date of the Termination the Executive will
continue to enjoy coverage under all Primex medical, dental, and life insurance
plans to the extent the Executive was enjoying such coverage immediately prior
to the Termination. The Executive shall accrue no vacation during the 12 months
following the date of Termination but shall be entitled to payment for accrued
and unused vacation for the then current year. If the Executive receives the
Executive Severance (including the amount referred to in Paragraph 1(d)(ii)),
the Executive shall not be entitled to an ICP award for the calendar year of
Termination if Termination occurs during the first calendar quarter. Even if
the Executive receives the Executive Severance (including the amount referred to
in Paragraph 1(d)(ii)), if Termination occurs during or after the second
calendar quarter, the Executive shall also be entitled to a prorated ICP award
for the calendar year of Termination which shall be determined by multiplying
his or her then current ICP Target Incentive by a fraction the numerator of
which is the number of weeks in the calendar year prior to the Termination and
the denominator of which is 52. The Executive shall accrue no ICP award during
the 12 months following the date of Termination.
(b) If the Executive receives payment under Paragraph 4(b), the
insurance coverage provided for in Paragraph 5(a) (2) will be for an additional
24-month period.
(c) Notwithstanding the foregoing Paragraphs 5(a)(2), and (b), no such
insurance coverage will be afforded by this Agreement with respect to any period
after the Executive's seventieth birthday.
(d) In the event of a Termination, the Executive will be entitled at
Primex's expense to outplacement counseling and associated services in
accordance with Primex's customary practice at the time (or, if a Change in
Control shall have occurred, in accordance with such practice immediately prior
thereto) with respect to its senior executives who have been terminated other
than for Cause. It is understood that the counseling and services contemplated
by this Paragraph 5(d) are intended to facilitate the obtaining by the Executive
of other employment following a Termination, and payments or benefits by Primex
in lieu thereof will not be available to the Executive.
(e) If the Executive (i) has an accrued vested benefit under Olin's
qualified pension plan as of the date of the Change in Control and (ii) at age
55, would not qualify for subsidized early retirement from Xxxx under the
---
provisions of Olin's pension plans, then, the Executive shall receive a lump sum
payment from Primex immediately upon the Change in Control to make up for the
lost subsidy calculated as follows:
7
First, by calculating the annual benefit which would otherwise be
-----
payable to the Executive at age 65 under all Xxxx pension plans assuming the
Executive had terminated his or her employment with Primex on the date of the
Change in Control, second, by multiplying such annual benefit by the percentage
------
then applicable in the calculation of benefits paid to employees retiring from
active service with Xxxx at age 55 under the early retirement provisions of the
Xxxx Employees Pension Plan (72% at the date hereof), third, by determining the
------
lump sum actuarial value (as of the date of Change in Control) of annual
payments beginning at age 55 as calculated in the second step and fourth, by
------ ------
deducting from such lump sum actuarial value the lump sum actuarial value (as of
the date of Change in Control) of the Executive's accrued annual benefits under
all Xxxx pension plans. Lump sum actuarial value shall be determined in
accordance with Olin's actuarial assumptions for its nonqualified defined
benefit plans.
Any payments made pursuant to this section 5 (e) which are subject to tax will
be increased (grossed up) so that the Executive will have received a net payment
equal to that which he would have received if the payment was not subject to
tax.
6. Participation in Change in Control/Section 4999 of Internal
Revenue Code
(a) In the event that the Executive participates or agrees to
participate by loan or equity investment (other than through ownership of less
than 1% of publicly traded securities of another company) in a transaction
("acquisition") which would result in an event described in paragraph 1(b)(i) or
(ii), the Executive must promptly disclose such participation or agreement to
Primex. If the Executive so participates or agrees to participate, no payments
due under this Agreement or by virtue of any Change in Control provisions
contained in any compensation or benefit plan of Primex will be paid to the
Executive until the acquiring group in which the Executive participates or
agrees to participate has completed the acquisition. In the event the Executive
so participates or agrees to participate and fails to disclose his or her
participation or agreement, the Executive will not be entitled to any payments
under this Agreement or by virtue of Change in Control provisions in any Primex
compensation or benefit plan, notwithstanding any of the terms hereof or
thereof.
(b) Any payments made pursuant to this Agreement or by virtue of
Change in Control provisions in any Primex compensation or benefit plan which
are subject to tax under Section 4999 of the Internal Revenue Code or a
successor provision ("4999") will be increased so that after paying the tax
imposed by 4999 and the income and employment tax on the amount of the increase
provided by this paragraph (b), the Executive will have received a net payment
equal to that which he or she would have received if 4999 did not apply. All
determinations required to be made under this Paragraph 6(b), including whether
and when the net gross-up payment is required and the amount of such net gross-
up payment including any determination of the parachute payments under Section
280G(b)(2) of the Internal Revenue Code, and the assumptions to be utilized in
arriving at such determinations shall be made by Primex's independent auditors
(the "Accounting Firm") which shall provide detailed supporting calculations
both to Primex and the Executive within 15 business days of the receipt of
notice from the Executive that there has been a payment contingent on a Change
in Control that would trigger the excise tax imposed by Sections
8
280G and 4999 of the Internal Revenue Code, or such earlier time as is requested
by Primex. All fees and expenses of the Accounting Firm shall be borne solely by
Primex. Any net gross-up payment shall be paid by Primex to the Executive as
soon as practicable following receipt of the Accounting Firm's determination.
Any determination by the Accounting Firm shall be binding upon Primex and the
Executive. As a result of uncertainty in the application of Section 4999 of the
Internal Revenue Code at the time of the initial determination by the Accounting
Firm hereunder, it is possible that the net gross-up payment made will have been
in an amount less than Primex should have paid pursuant to this Paragraph 6(b)
(the "Underpayment"). In the event that the Executive thereafter is required to
make a payment of any excise tax under Section 280G of the Internal Revenue
Code, the Accounting Firm shall determine the amount of the underpayment and any
such underpayment shall be promptly paid by Primex to or for the benefit of the
Executive.
7. Successors; Binding Agreement
(a) Primex 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 Primex, by agreement, in form and substance satisfactory
to the Executive, expressly to assume and agree to perform this Agreement in the
same manner and to the same extent that Primex would be required to perform if
no such succession had taken place. Failure of Primex to obtain such assumption
and agreement prior to the effectiveness of any such succession will be a breach
of this Agreement and entitle the Executive to compensation from Primex in the
same amount and on the same terms as the Executive would be entitled to
hereunder had a Termination occurred on the succession date. As used in this
Agreement, "Primex" means Primex as defined in the preamble to this Agreement
and any successor to its business or assets which executes and delivers the
agreement provided for in this Paragraph 7 or which otherwise becomes bound by
all the terms and provisions of this Agreement by operation of law or otherwise.
(b) This Agreement shall be enforceable by the Executive's personal or
legal representatives, executors, administrators, successors, heirs,
distributees, devisees and legatees.
8. Notices. For the purpose of this Agreement, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed as follows:
If to the Executive: Name
Xxxxxx Xxxxxxx
Xxxxxxxx/Xxxxxxxxx Xx.
Xxxx, Xxxxx Zip Code
9
If to the Company: Primex Technologies, Inc.
00000 Xxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Secretary
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
9. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Florida without reference to choice of law principles thereunder.
10. Miscellaneous. No provisions of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is agreed to
in writing signed by the Executive and Primex. No waiver by either party hereto
at any time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior or subsequent time. No agreements or representations,
oral or otherwise, express or implied, with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same Agreement.
12. Withholding of Taxes. Primex may withhold from any benefits payable
under this Agreement all federal, state, city or other taxes as shall be
required pursuant to any law or governmental regulation or ruling.
13. Non-assignability. This Agreement is personal in nature and
neither of the parties hereto shall, without the consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder, except as
provided in paragraph 7 above. Without limiting the foregoing, the Executive's
right to receive payments hereunder shall not be assignable or transferable,
whether by pledge, creation of a security interest or otherwise, other than a
transfer by his will or by the laws of descent or distribution, and, in the
event of any attempted assignment or transfer by the Executive contrary to this
Paragraph, Primex shall have no liability to pay any amount so attempted to be
assigned or transferred.
14. No Employment Right. This Agreement shall not be deemed to confer on
the Executive a right to continued employment with Primex.
15. Disputes/Arbitration.
(a) Any dispute or controversy arising under or in connection with
this Agreement shall be settled exclusively by binding arbitration at Primex's
corporate headquarters in accordance with the rules of the American Arbitration
Association then in
10
effect. Judgment may be entered on the arbitrator's award in any court having
jurisdiction; provided, however, that the Executive shall be entitled to seek
specific performance of the Executive's right to be paid during the pendency of
any dispute or controversy arising under or in connection with this Agreement.
(b) Primex shall pay all reasonable legal fees and expenses, as they
become due, which the Executive may incur to enforce this Agreement through
arbitration or otherwise unless the arbitration determines that the Executive
had no reasonable basis for his claim. Should Primex dispute the entitlement of
the Executive to such fees and expenses, the burden of proof shall be on Primex
to establish that the Executive had no reasonable basis for his claim.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered as of the day and year first above set forth.
PRIMEX TECHNOLOGIES, INC.
By: ____________________________
Xxxxx X. Xxxxxxx
Title: Chairman and CEO
_________________________
Executive
