CHANGE IN CONTROL AGREEMENT
Exhibit 10(nn)
This Change in Control Agreement (this “Agreement”) between Xxxxx X. Xxxx (the “Employee”)
and X. Xxxxxxxx, Inc., a Delaware corporation (the “Corporation”), is effective as of May 19, 2008
(“Effective Date”).
WHEREAS, the Employee currently is employed by the Corporation; and
WHEREAS, in order to induce the Employee to remain in the employ of the Corporation, the
Corporation desires to provide the Employee with certain severance benefits in the event his
employment with the Corporation terminates in connection with a Change in Control under the
circumstances described herein;
NOW, THEREFORE, in consideration of the mutual promises and agreements hereinafter set forth,
the Corporation and the Employee agree as follows:
Section 1. Definitions
When used in this Agreement, the following terms will have the meanings given to them in this
section unless another meaning is expressly provided elsewhere in this Agreement. When applying
these definitions, the form of any term or word will include any of its other forms.
1.1 “Affiliate” shall mean any entity with whom the Corporation would be considered a single
employer under Sections 414(b) and 414(c) of the Code.
1.2 “Board” shall mean the Corporation’s Board of Directors.
1.3 “Cause” shall mean:
(a) Any act of fraud, embezzlement, misappropriation or conversion by the Employee of
the assets or business opportunities of the Corporation and its Affiliates;
(b) The Employee’s conviction of (or plea of guilty to) a felony or a misdemeanor that
originally was charged as a felony but was reduced to a misdemeanor as part of a plea
bargain;
(c) Intentional and repeated material violations by the Employee of the written
policies or procedures of the Corporation or, to the extent applicable to the Employee, any
of its Affiliates or intentional and material breach of any contract with or violation of
any legal obligation owed to the Corporation or any of its Affiliates provided that a breach
or violation shall be considered intentional and material only if the Employee fails to cure
to the best of the Employee’s ability such breach within thirty (30) days after delivery to
the Employee of a notice from the Board specifying such breach; or
(d) The Employee’s willful engagement in gross misconduct or intentional
misrepresentation that is materially and demonstrably injurious to the Corporation or any
of its Affiliates, provided that such breach is not cured within thirty (30) days after
delivery to the Employee of a notice from the Board requesting cure.
For purposes of this definition, no act or failure to act, on the Employee’s part shall be
deemed “willful” unless done, or omitted to be done, by the Employee not in good faith and
without reasonable belief that the Employee’s act or failure to act, was in the best
interest of the Corporation or any Affiliate. In the event of a dispute concerning the
application of the definition of Cause, no claim by the Corporation or any Affiliate that
Cause exists shall be given effect unless the Corporation establishes by clear and
convincing evidence that Cause exists.
1.4 “Change in Control” shall mean the occurrence of any of the following:
(a) The acquisition by any person (as defined under Section 409A of the Code), or more
than one person acting as a group (as defined under Section 409A of the Code), of stock of
the Corporation that, together with the stock of the Corporation held by such person or
group, constitutes more than fifty percent (50%) of the total fair market value or total
voting power of the stock of the Corporation;
(b) The acquisition by any person, or more than one person acting as a group, within
any twelve (12) month period of stock of the Corporation possessing thirty percent (30%) or
more of the total voting power of the stock of the Corporation;
(c) A majority of the members of the Board is replaced during any twelve (12) month
period by directors whose appointment or election is not endorsed by a majority of the
members of the Board prior to the date of the appointment or election; or
(d) The acquisition by any person, or more than one person acting as a group, within
any twelve (12) month period, of assets from the Corporation that have a total gross fair
market value equal to or more than forty percent (40%) of the total gross fair market value
of all of the assets of the Corporation immediately prior to such acquisition or
acquisitions.
This definition of Change in Control shall be interpreted in a manner that is consistent
with the definition of “change in control event” under Section 409A of the Code and the
Treasury Regulations promulgated thereunder.
Notwithstanding the foregoing, a “Change in Control” shall be deemed to have not occurred
if there is consummated any transaction or series of integrated transactions immediately
following which the record holders of the common stock of the Corporation immediately prior
to such transaction or series of transactions continue to have substantially the same
proportionate ownership in an entity which owns all or substantially all of the assets of
the Corporation immediately following such transaction or series of transactions.
Further, notwithstanding the foregoing, any event or transaction which would otherwise
constitute a Change in Control (a “Transaction”) shall not constitute a Change in Control
2
for purposes of this Agreement if, in connection with the Transaction, the Employee
participates as an equity investor in the acquiring entity or any of its affiliates (the
“Acquiror”). For purposes of the preceding sentence, the Employee shall not be deemed to
have participated as an equity investor in the Acquiror by virtue of (i) obtaining
beneficial ownership of any equity interest in the Acquiror as a result of the grant to the
Employee of an incentive compensation award under one or more incentive plans of the
Acquiror (including, but not limited to, the conversion in connection with the Transaction
of incentive compensation awards of the Corporation into incentive compensation awards of
the Acquiror), on terms and conditions substantially equivalent to those applicable to
other Employees of the Corporation and its Affiliates immediately prior to the Transaction,
after taking into account normal differences attributable to job responsibilities, title
and similar matters, (ii) obtaining beneficial ownership of any equity interest in the
Acquiror on terms and conditions substantially equivalent to those obtained in the
Transaction by all other stockholders of the Corporation, or (iii) passive ownership of
less than three percent (3%) of the stock of the Acquiror.
1.5 “Change in Control Protection Period” shall mean the period beginning on the date of a Change
in Control and ending on the first anniversary thereof, even if such period extends beyond the
Expiration Date (as defined in Section 2).
1.6 “Code” shall mean the Internal Revenue Code of 1986, as amended.
1.7 “Good Reason” shall mean the occurrence of any of the following without the Employee’s express
prior written consent: (a) a material diminution in the Employee’s base compensation; (b) a
material diminution in the Employee’s authority, duties, or responsibilities; (c) a material
diminution in the authority, duties, or responsibilities of the supervisor to whom the Employee is
required to report; (d) a material diminution in the budget over which the Employee retains
authority; (e) a material change in the geographic location at which the Employee must perform
services for the Corporation and its Affiliates; or (f) any other action or inaction that
constitutes a material breach of the terms of this Agreement.
1.8 “Notice of Termination” shall mean a written notice that describes in reasonable detail the
facts and circumstances claimed to provide a basis for Termination.
1.9 “Termination” shall mean a “separation from service” with the Corporation and its Affiliates
within the meaning of Treasury Regulation §1.409A-l(h).
Section 2. Term of Agreement
Subject to Sections 5.2 and 6.2, the term of this Agreement shall commence on the
Effective Date and end on April 1, 2011 (the “Expiration Date”).
Section 3. Effect of Termination
3.1 Termination for Any Reason Prior to a Change in Control or After Expiration of a Change in
Control Protection Period. The Employee’s employment may be Terminated by the
3
Corporation or by the Employee, in each case by delivering a Notice of Termination, for any reason
prior to a Change in Control or following the expiration of the Change in Control Protection
Period, and the Employee will not be entitled to any payments or benefits under this Agreement.
3.2 Termination During a Change in Control Protection Period.
(a) Termination Without Cause or for Good Reason. The Employee will be entitled to
receive the payments and benefits described in Section 4.1 if, during the Change in
Control Protection Period:
(i) The Corporation Terminates the Employee without Cause by delivering to the Employee
a Notice of Termination; or
(ii) The Employee Terminates for Good Reason by delivering to the Corporation a Notice
of Termination for Good Reason; provided that such Notice of Termination is delivered within
ninety (90) days of the initial existence of the condition constituting Good Reason and the
Corporation does not remedy the condition constituting Good Reason within thirty (30) days
of the date of such Notice of Termination. If the Employee fails to provide such written
notice to the Corporation within the period described above, then the Employee will be
deemed to have consented to such condition and the Corporation shall have no obligation to
pay the compensation and benefits described in Section 4.1 with respect to such condition.
(b) Termination for Any Other Reason. If, during a Change in Control Protection Period, the
Employee Terminates for any reason other than as described in Section 3.2(a), including for
Cause or due to the Employee’s death or disability (within the meaning of Section 409 A of
the Code), the Employee will not be entitled to any payments or benefits under this
Agreement.
Section 4. Change in Control Severance Payments
4.1 Calculation of Severance Payments. Subject to the terms of this Agreement, if the Employee is
Terminated or Terminates under Section 3.2(a), the Employee shall be entitled to the following:
(a) Continued payment of the Employee’s compensation and provision of benefits through the
date of Termination. Any accrued, but unpaid amounts or benefits shall be paid within thirty
(30) days following the Employee’s date of Termination or, if earlier, the date specified in
the applicable plan, program or arrangement;
(b) An amount equal to any accrued, but unused vacation days, as determined under the
Corporation’s personnel policy, which amount shall be paid within thirty (30) days following
the Employee’s date of Termination;
(c) A lump sum cash payment within thirty (30) days following the Employee’s date
4
of Termination equal to the sum of: 150 percent (150%) of the Employee’s base salary for the
calendar year immediately preceding the year in which the date of Termination occurs; plus
(ii) 100 percent 100% of the Employee’s annual target bonus for the fiscal year in which
Termination occurs;
(d) For 18 months after the Employee’s date of Termination, the Corporation will maintain in
full force and effect, for the Employee’s continued benefit (and that of all family members
and other dependents who were enrolled in the programs on the Employee’s date of
Termination) all life, medical and dental insurance programs in which the Employee (and
members of the Employee’s family or other dependents) were participating or by which such
individuals were covered immediately before the Employee’s date of Termination. If the terms
of any of such programs do not allow the continued participation described in the preceding
sentence, the Corporation will (i) provide benefits that are substantially similar
(including eligibility conditions, conditions on benefits, the value of benefits and the
scope of coverage) to those provided by the life, medical and dental insurance programs in
which the Employee, members of the Employee’s family and dependents were participating
immediately before the Employee’s date of Termination and (ii) ensure that any eligibility
or other conditions on benefits under these programs, including deductibles and co-payments,
will be administered by applying the Employee’s experience under any predecessor program in
which the Employee (and members of the Employee’s family and dependents) were participating
before Termination. With respect to this Section 4.1(d), any benefits or payments relating
to medical and dental insurance that are provided after completion of the applicable
continuation period permitted under the Consolidated Omnibus Budget Reconciliation Act of
1986, as amended, and any benefits or payments relating to life insurance shall be subject
to the following: (A) the amount of expenses eligible for reimbursement or the benefits or
payments provided during any taxable year of the Employee may not affect the expenses
eligible for reimbursement or the benefits or payments to be provided to the Employee in any
other taxable year; (B) reimbursement of any eligible expense must be made on or before the
last day of the Employee’s taxable year following the taxable year in which the expense was
incurred; and (C) the right to reimbursement or to such benefits or payments is not subject
to liquidation or exchange for another benefit; and
(e) Any other change in control benefits to which the Employee is entitled under any other
plan, program or agreement with the Corporation or any Affiliate. Such benefits shall be
provided in accordance with the terms and conditions of the applicable plan, program or
agreement.
4.2 Section 280G Cutback. Notwithstanding any other provisions of this Agreement to the contrary,
in the event that any payment, benefit or right paid or distributed, or treated as paid or
distributed, to or for the benefit of the Employee in connection with a Change in Control or the
Employee’s Termination (whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Corporation, any person whose actions result in a Change in
Control or any person affiliated with the Corporation or such person) (each such payment, benefit
and right, including any payment under Section 4.1, being hereinafter referred to as a “Payment”
5
and, collectively, “Payments”) is subject to the excise tax imposed by Section 4999 of the Code
(the “Excise Tax”), then the Corporation shall reduce the payments and benefits due under this
Agreement so that the Employee’s total Payments will be $1.00 less than the amount that would
trigger the Excise Tax. If the reduction under this Section 4.2 applies, payments that are not
subject to Section 409A of the Code shall be reduced first. The value of all payments, benefits
and rights due under this Agreement will be established by the Corporation’s independent auditors
applying principles, assumptions and procedures consistent with Section 280G of the Code.
4.3 Conditions Affecting Payments.
(a) Except as expressly provided in this Agreement, the Employee’s right to receive the
payments and benefits described in this Agreement will not decrease the amount of, or
otherwise adversely affect, any other benefits payable to the Employee under any plan,
agreement or arrangement between the Employee and the Corporation or any Affiliate.
(b) The Employee is not required to mitigate the amount of any payment or benefit described
in this Agreement by seeking other employment or otherwise, nor will the amount of any
payment or benefit provided for in this Agreement be reduced by any compensation that the
Employee earns in any capacity after Termination or by reason of the Employee’s receipt of
or right to receive any retirement or other benefits on or after Termination.
(c) The amount of any payment made under this Agreement will be reduced by amounts the
Corporation or any Affiliate is required to withhold with respect to any income, wage or
employment taxes imposed on the payment.
(d) Notwithstanding anything in this Agreement to the contrary, if the Employee is a
“specified employee” (within the meaning of Treasury Regulation §1.409A-l(i) and as
determined under the Corporation’s policy for determining specified employees) on the date
of Termination and any payment pursuant to Section 4.1(b) or 4.1(c) is subject to Section
409A of the Code, then such payment shall not be paid to the Employee until the first day of
the seventh month following the Employee’s date of Termination or, if earlier, the date of
the Employee’s death.
Section 5. Employee’s Obligations
5.1 Confidential Information. The Corporation’s and its Affiliates’ (the “Companies”) methods,
plans for doing business, processes, pricing, compounds, customers and supplies are vital to the
Companies and, to the extent not made public by the Companies, constitute confidential information
subject to the Companies’ proprietary rights therein. The Employee covenants and agrees that
during the term of this Agreement and at all times thereafter, the Employee will not, directly or
indirectly, make known, divulge, furnish, make available or use, otherwise than in the regular
course of the Employee’s employment with the Companies, any invention, product, process, apparatus
or design of the Corporation or any Affiliate, or any knowledge or information in respect thereof
(including, but not limited to, business methods and
6
techniques), or any other confidential or so-called “insider” information of the Corporation or any
Affiliate. This covenant shall apply without regard to the time or circumstances of any Termination
of the Employee’s employment.
5.2 Effect of Breach of Obligations. If the Employee breaches any obligation described in this
Agreement and such breach occurs before a Change in Control or before the Employee has Terminated,
this Agreement will terminate as of the date of the breach, even if the fact of the breach becomes
apparent at a later date.
Section 6. Amendment and Termination
6.1 Amendment. This Agreement may be amended at any time by written agreement between the Employee
and the Corporation.
6.2 Termination. Except as provided in Section 5.2, this Agreement will terminate prior to the
Expiration Date upon the earliest of the following to occur:
(a) The Employee Terminates pursuant to Sections 3.1 or 3.2(b);
(b) The Corporation and the Employee mutually agree, in writing, to terminate this
Agreement, whether or not it is replaced with a similar agreement; or
(c) All payments and benefits due under this Agreement have been fully paid and provided.
Section 7.
Equitable Relief; Dispute Resolution
7.1 Uniqueness of Obligations. The Employee’s obligations described in this Agreement are of a
special and unique character which gives them a peculiar value to the Companies and the Companies
cannot be reasonably or adequately compensated in damages in an action at law if the Employee
breaches those obligations. The Employee therefore expressly agrees that, in addition to any other
rights or remedies that the Corporation or any of its Affiliates may have, the Companies will be
entitled to injunctive and other equitable relief in the form of preliminary and permanent
injunctions without bond or other security if the Employee actually breaches (or threatens to
breach) any obligation under this Agreement.
7.2 Arbitration. Any (a) disagreement concerning the calculation of any payment due under this
Agreement, (b) breach of any term of this Agreement, or (c) other dispute or controversy arising
out of or relating to this Agreement, including the basis on which the Employee is Terminated, will
be resolved by arbitration in accordance with the rules of the American Arbitration Association.
The award of the arbitrator will be final, conclusive and nonappealable and judgment upon the award
rendered by the arbitrator may be entered in any court having competent jurisdiction. The
arbitrator must be an arbitrator qualified to serve in accordance with the rules of the American
Arbitration Association and one who is approved by the Corporation and the Employee. If the
Employee and the Corporation fail to agree on an arbitrator, each must designate a person qualified
to serve as an arbitrator in accordance with the rules of the American Arbitration Association and
these persons will select the arbitrator from among those persons
7
qualified to serve in accordance with the rules of the American Arbitration Association. Any
arbitration relating to this Agreement will be held in Akron, Ohio.
Section 8. Miscellaneous
8.1 Nonassignment. The right of the Employee or any other person to receive any payment or benefit
under this Agreement may not be assigned, transferred, pledged or encumbered except by will or by
applicable laws of descent and distribution. Any attempt to assign, transfer, pledge or encumber
any payment or benefit that is or may be receivable under this Agreement will be null and void and
of no legal effect.
8.2 Successors to the Employee. Subject to Section 6.2, this Agreement inures to the benefit of and
may be enforced by the Employee’s personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees.
8.3 Notices. All notices and other communications provided for in this Agreement must be in writing
and will be deemed to have been given when deposited with a reputable delivery service or in United
States registered mail, return receipt requested, postage prepaid. For purposes of this Agreement:
(a) All notices must be directed to the addresses shown on the last page of this Agreement.
(b) Notices and other communications to the Corporation will not be deemed to have been
given unless they are directed to the attention of the Corporation’s Director of Human
Resources and copies are sent to the Corporation’s Secretary.
(c) Neither party will be required to use any address other than that shown on the last page
of this Agreement unless notified of a change in the other party’s address. Any change in
either party’s address must be given in writing to the other party and will be effective
only upon receipt.
8.5 Complete Agreement. No agreements or representations, oral or otherwise, express or implied,
with respect to the subject matter of this Agreement have been made by either party that are not
set forth expressly in this Agreement.
8.6 Applicable Law. The validity, interpretation, construction and performance of this Agreement
will be governed by the laws (but not the law of conflicts of laws) of the State of Ohio.
8.7 Validity. The invalidity or unenforceability of any provisions of this Agreement will not
affect the validity or enforceability of any other provisions of this Agreement, which will remain
in full force and effect.
8.8 Counterparts. This Agreement may be executed in several counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the same instrument.
8
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date
and year first above written.
| X. XXXXXXXX, INC. |
||||
| By: | Xxxxxx X. Xxxxx | |||
| Title: CEO | ||||
| Address: 0000 Xxxx Xxxxxx Xxxxxx Xxxxx, Xxxx 00000 |
||||
| Xxxxx X. Xxxx |
||||
| /s/ Xxxxx X. Xxxx | ||||
Address: 000 Xxxxxxxxx Xxxxx Xxxxx Xxxxx, XX 00000 |
||||
9
