EXHIBIT 10.1
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement ("Agreement") is entered into on
January 30, 2001 by and between Xxxx XxXxxxxx, an individual (the "Executive"),
and MagneTek, Inc., a Delaware corporation (the "Company").
RECITALS
WHEREAS, the Board of Directors of the Company (the "Board") recognizes
that the possibility of a Change of Control (as hereinafter defined) exists and
that the threat or the occurrence of a Change of Control can result in
significant distractions of its key management personnel because of the
uncertainties inherent in such a situation;
WHEREAS, the Board has determined that it is essential and in the best
interest of the Company and its stockholders to retain the services of the
Executive in the event of a threat or occurrence of a Change of Control and to
ensure the Executive's continued dedication and efforts in such event without
undue concern for personal financial and employment security; and
WHEREAS, in order to induce the Executive to remain in the employ of
the Company, particularly in the event of a threat or the occurrence of a Change
of Control, the Company desires to enter into this Agreement with the Executive
to provide the Executive with certain benefits in the event his or her
employment is terminated as a result of, or in connection with, a Change of
Control.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants set forth
herein, and for other good and valuable consideration, receipt of which is
hereby acknowledged, the parties do hereby agree as follows:
1. TERM OF AGREEMENT. This Agreement shall commence as of the date
hereof and shall continue in effect until December 31, 2002; PROVIDED, HOWEVER,
that on December 31, 2002 and on each anniversary thereof, the term of this
Agreement shall automatically be extended for one year unless either the Company
or the Executive shall have given written notice to the other prior thereto that
the term of this Agreement shall not be so extended; PROVIDED, FURTHER, HOWEVER,
that notwithstanding any such notice by the Company or the Executive not to
extend, the term of this Agreement shall not expire prior to the second
anniversary of a Change of Control Date. The benefits payable pursuant to
Section 2 hereof shall be due in all events if a Change of Control occurs during
the term of this Agreement, and a Change of Control will be deemed to have
occurred during the term hereof if an agreement for a transaction resulting in a
Change of Control is entered into during the term hereof, notwithstanding that
the Change of Control Date occurs after the expiration of the term of this
Agreement.
2. BENEFITS UPON CHANGE OF CONTROL.
(a) EVENTS GIVING RISE TO BENEFITS. The Company agrees to pay
or cause to be paid to the Executive the benefits specified in this Section 2 if
(i) there is a Change of Control, and (ii) within the Change of Control Period,
(a) the Company or the Successor terminates the employment of the Executive for
any reason other than Cause, death or Disability or (b) the Executive
voluntarily terminates employment for Good Reason.
(b) BENEFITS UPON TERMINATION OF EMPLOYMENT. If the Executive
is entitled to benefits pursuant to this Section 2, the Company agrees to pay or
provide to the Executive as severance payment, the following:
(i) A single lump sum payment, payable in cash within
five days of the Termination Date (or if later, the Change of
Control Date), equal to the sum of:
(A) the accrued portion of any of the
Executive's unpaid base salary and vacation through
the Termination Date and any unpaid portion of the
Executive's bonus for the prior fiscal year; plus
(B) a portion of the Executive's bonus for
the fiscal year in progress, prorated based upon the
number of days elapsed since the commencement of the
fiscal year and calculated assuming that 100% of the
target under the bonus plan is achieved; plus
(C) an amount equal to the Executive's Base
Compensation times the Compensation Multiplier.
(ii) Continuation, on the same basis as if the
Executive continued to be employed by the Company, of Benefits
for the Benefit Period commencing on the Termination Date. The
Company's obligation hereunder with respect to the foregoing
Benefits shall be limited to the extent that the Executive
obtains any such benefits pursuant to a subsequent employer's
benefit plans, in which case the Company may reduce the
coverage of any Benefits it is required to provide the
Executive hereunder as long as the aggregate coverages and
benefits of the combined benefit plans is no less favorable to
the Executive than the Benefits required to be provided
hereunder.
(iii) Outplacement services to be provided by an
outplacement organization of national repute, which shall
include the provision of office space and equipment (including
telephone and personal computer) but in no event shall the
Company be required to provide such services for a value
exceeding 17% of the Executive's Base Compensation.
(iv) Accelerated vesting of all outstanding stock
options and of all previously granted restricted stock awards.
3. DEFINITIONS. When used in this Agreement, the following terms have
the meanings set forth below:
"BASE COMPENSATION" means the sum of (i) the Executive's
annual salary in effect on the earlier of the Change of Control Date and the
Termination Date and (ii) 100% of the target under the bonus plan for the fiscal
year during which the Change of Control Date occurs.
"BENEFITS" means benefits that would be available under any
health and welfare plan of the Company on the Termination Date.
"BENEFIT PERIOD" means 12 months.
"CAUSE" means: (A) conviction of a felony or misdemeanor
involving moral turpitude, or (B) willful gross neglect or willful gross
misconduct in carrying out the Executive's duties, resulting in material
economic harm to the Company or any Successor.
"CHANGE OF CONTROL" means (i) any event described in Section
11.2 of the 1999 Stock Incentive Plan of the Company or any event so defined in
any stock incentive or similar plan adopted by the Company in the future unless,
in either case, such event occurs in connection with a Distress Sale and (ii)
any event which results in the Board ceasing to have at least a majority of its
members be "continuing directors." For this purpose, a "continuing director"
means a director of the Company who held such position on June 1, 2000 or who
thereafter was appointed or nominated to the Board by a majority of continuing
directors.
"CHANGE OF CONTROL DATE" means the date on which a Change of
Control is consummated.
"CHANGE OF CONTROL PERIOD" means the period commencing on the
earlier of (i) 180 days prior to the Change of Control Date and (ii) the
announcement of a transaction expected to result in a Change of Control, and
ending on the second anniversary of the Change of Control Date.
"CODE" means the Internal Revenue Code of 1986, as amended.
References herein to a specific section of the Code shall be deemed to include
comparable or analogous provisions of state, local and foreign law.
"COMPENSATION MULTIPLIER" means 1.0.
"DISABILITY" means the inability of the Executive due to
illness (mental or physical), accident, or otherwise, to perform his or her
duties for any period of 180 consecutive days, as determined by a qualified
physician.
"DISTRESS SALE" means a Change of Control occurring within 18
months of any of the following: (i) the Company's independent public accountants
shall have made a "going concern" qualification in their audit report (other
than by reason of extraordinary occurrences, such as material litigation, not
attributable to poor management practices); (ii) the Company shall lack
sufficient capital for its operations by reason of termination of its existing
credit lines or the Company's inability to secure credit facilities upon
acceptable terms; or (iii) the Company shall have voluntarily sought relief
under, consented to or acquiesced in the benefit of application to it of the
Bankruptcy Code of the United States of America or any other liquidation,
conservatorship, bankruptcy, moratorium, rearrangement, receivership,
insolvency, reorganization, suspension of payments or similar laws, or shall
have been the subject of proceedings under such laws (unless the applicable
involuntary petition is dismissed within 60 days after its filing).
"GOOD REASON" means (A) without the Executive's prior written
consent, assignment to the Executive of duties materially inconsistent in any
respect with his or her position immediately prior to the Change of Control Date
or any other action by a Successor that results in a material diminution in the
Executive's position, authority, duties, responsibilities, annual base salary or
target bonus when compared with the same immediately prior to the Change of
Control Date; or (B) assignment of the Executive, without his or her prior
written
consent, to a place of business that is not within the metropolitan area of the
Executive's current place of business.
"STAY AND PAY AGREEMENT" means a "stay and pay" or retention
agreement entered into in contemplation of a sale by the Company of a division
or business unit.
"SUCCESSOR" means any acquiror of all or substantially all of
the stock, assets or business of the Company.
"TERMINATION DATE" means the last day of the Executive's
employment.
4. ELIGIBILITY; EFFECT ON OTHER AGREEMENTS AND PLANS.
(a) In the event the Executive is also a party to a Stay and
Pay Agreement or severance agreement and becomes entitled to any payment
thereunder, this Agreement shall be null and void and the Executive shall not be
entitled to any payment or benefit hereunder. Nothing in this Agreement shall
prevent or limit the Executive's continuing or future participation in any
benefit, bonus, incentive or other plan or program provided by the Company and
for which the Executive may qualify, nor shall anything herein limit or reduce
such rights as the Executive may have under any other agreements with the
Company. Amounts that are vested benefits or that the Executive is otherwise
entitled to receive under any plan or program of the Company shall be payable in
accordance with such plan or program, except as explicitly modified by this
Agreement.
(b) PLAN AMENDMENTS. The Company shall adopt such amendments
to its employee benefit plans and insurance policies, including, without
limitation, the Plans, as are necessary to effectuate the provisions of this
Agreement. If and to the extent any benefits under Section 2 are not paid or
payable or otherwise provided to the Executive or his or her dependents or
beneficiaries under any such plan or policy (whether due to the terms of the
plan or policy, the termination thereof, applicable law, or otherwise), then the
Company itself shall pay or provide for such benefits (including any gross-up
needed to account for the less favorable tax treatment if the payments are made
from the Company and not from the Plans or other employee benefit plans).
5. GOLDEN PARACHUTE TAX.
(a) If the Value (as hereinafter defined) attributable to the
payments and benefits provided in Section 2 above, without regard to this
Section 5 ("Agreement Payments"), in combination with the Value attributable to
other payments or benefits in the nature of compensation to or for the benefit
of Executive (including but not limited to the value attributable to accelerated
vesting of options and, collectively with Agreement Payments, "Payments") would,
but for this Section 5, constitute an "excess parachute payment" under Code
Section 280G, then Agreement Payments will be made to the Executive under
Section 2 hereof only to the extent provided in this Section 5. If (i) the
excess of the Value of all Payments over the sum of all taxes (including but not
limited to income and excise taxes under Code Section 4999) that would be
payable by the Executive with respect to such Payments, is equal to or greater
than 110% of (ii) the excess of the greatest Value of all such Payments that
could be paid to or for the benefit of the Executive and not result in an
"excess parachute payment" (the "Cap"), over the amount of taxes that would be
payable by Executive thereon, then the full amount of Agreement Payments shall
be paid to the Executive. Otherwise, Agreement Payments
shall be made only to the extent that such payments cause the Value of all
Payments to equal the Cap.
(b) For purposes of this Section 5, the Company and the
Executive hereby irrevocably appoint the persons who constituted the
Compensation Committee of the Board immediately prior to the Change of Control,
or a three person panel named by a majority of them, as arbitrators (the
"Arbitrators") to make all determinations required under this Section 5,
including but not limited to the Value of all Payments (and the components
thereof) and the amount and nature of any reduction of Agreement Payments
required by this Section 5. For purposes of this Section 5, "Value" shall mean
value as determined by the Arbitrators applying the valuation procedures and
methodologies established pursuant to Code Section 280G, including any
non-binding interpretive guidance as the Arbitrators determine appropriate. The
determinations of the Arbitrators shall be final and binding on both the Company
and Executive, and their successors, assignees, heirs and beneficiaries, for
purposes of determining the amount payable under Section 2. All fees and
expenses of the Arbitrators (including attorneys' and accountants' fees) shall
be borne by the Company. The arbitrators will be compensated, to the extent they
are not then members of the Board's Compensation Committee, at the rates at
which they would have been compensated for their work as Committee members in
effect immediately prior to the Change of Control Date.
6. EMPLOYMENT AT-WILL. Notwithstanding anything to the contrary
contained herein, the Executive's employment with the Company is not for any
specified term and may be terminated by the Executive or by the Company at any
time, for any reason, with or without cause, without liability except with
respect to the payments provided hereunder or as required by law or any other
contract or employee benefit plan.
7. GENERAL.
(a) ENTIRE AGREEMENT. This document constitutes the final,
complete, and exclusive embodiment of the entire agreement and understanding
between the parties related to the subject matter hereof and supersedes and
preempts any prior or contemporaneous understandings, agreements, or
representations by or between the parties, written or oral.
(b) SUCCESSORS AND ASSIGNS. This Agreement is intended to bind
and inure to the benefit of and be enforceable by the Executive and the Company,
and their respective successors and assigns, except that the Executive may not
assign any of his or her duties hereunder and he or she may not assign any of
his or her rights hereunder without the prior written consent of the Company.
(c) AMENDMENTS. No amendments or other modifications to this
Agreement may be made except by a writing signed by both parties. No amendment
or waiver of this Agreement requires the consent of any individual, partnership,
corporation or other entity not a party to this Agreement. Nothing in this
Agreement, express or implied, is intended to confer upon any third person any
rights or remedies under or by reason of this Agreement.
(d) NO AMOUNTS DUE. The Executive acknowledges that no
payments or benefits whatsoever shall become due hereunder in the absence of a
Change of Control.
(e) NO MITIGATION OBLIGATION. The parties hereto expressly
agree that the payment of the benefits by the Company to the Executive in
accordance with the terms of this
Agreement will be liquidated damages, and that the Executive shall not be
required to mitigate the amount of any payment provided for in this Agreement by
seeking other employment or otherwise, nor shall any profits, income, earnings
or other benefits from any source whatsoever create any mitigation, offset,
reduction or any other obligation on the part of the Executive hereunder or
otherwise except as expressly provided in Sections 2(b)(ii) and 4(a).
(f) CHANGES TO BENEFITS. In the event that, within 90 days of
the execution of this Agreement, the Company enters into an agreement for a
Change of Control in connection with a merger to be accounted for as a "pooling
of interests," the Board will be entitled to modify or reduce the payments or
benefits due hereunder, or to abrogate this Agreement entirely, if and to the
extent that Ernst & Young opines to the Board such measures are necessary in
order to ensure that the proposed merger will be accounted for as a "pooling of
interests." The Board will have no such authority after such 90-day period and,
in the event such merger does not eventuate or is ultimately not accounted for
as a "pooling of interests," this Agreement, with or without any action by the
Board or the Executive, shall be automatically reinstated.
(g) CHOICE OF LAW. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the laws of
the State of Tennessee without giving effect to principles of conflicts of law.
(h) ERISA. This Agreement is pursuant to the Company's
severance plan for Executives (the "Plan") which is unfunded and maintained by
the Company primarily for the purpose of providing deferred compensation for a
select group of management or highly compensated employees. The Plan constitutes
an employee welfare benefit plan ("Welfare Plan") within the meaning of Section
3(1) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"). Any payments pursuant to this Agreement which could cause the Plan
not to constitute a Welfare Plan shall be deemed instead to be made pursuant to
a separate "employee pension benefit plan" within the meaning of Section 3(2) of
ERISA as to which the applicable portions of the document constituting the Plan
shall be deemed to be incorporated by reference. None of the benefits hereunder
may be assigned in any way.
(i) REPRESENTATION. The Executive acknowledges that Xxxxxx,
Xxxx & Xxxxxxxx LLP has not represented the Executive in connection with this
Agreement and that she has had the opportunity to consult with counsel before
executing this Agreement.
(j) MUTUAL NON-DISPARAGEMENT. The Company and subsidiaries
agree, and the Company shall use its best efforts to cause its respective
executive officers and directors to agree, that they will not make or publish
any statement critical of the Executive, or in any way adversely affecting or
otherwise maligning the Executive's reputation. The Executive agrees that he or
she will not make or publish any statement critical of the Company, its
affiliates and their respective executive officers and directors, or in any way
adversely affecting or otherwise maligning the business or reputation of the
Company, its affiliates and subsidiaries and their respective officers,
directors and employees.
8. ARBITRATION.
(a) Except as provided in Section 5 hereof, any disputes or
claims arising out of or concerning the Executive's employment or termination by
the Company, whether arising under theories of liability or damages based upon
contract, tort or statute, will be determined exclusively by arbitration before
a single arbitrator in accordance with the employment
arbitration rules of the American Arbitration Association, except as modified by
this Agreement. The arbitrator's decision will be final and binding on both
parties. Judgment upon the award rendered by the arbitrator may be entered in
any court of competent jurisdiction. In recognition of the fact that resolution
of any disputes or claims in the courts is rarely timely or cost effective for
either party, the Company and the Executive enter this mutual agreement to
arbitrate in order to gain the benefits of a speedy, impartial and
cost-effective dispute resolution procedure. The parties further intend that the
arbitration hereunder be conducted in as confidential a manner as is practicable
under the circumstances, and intend for the award to be confidential unless that
confidentiality would frustrate the purpose of the arbitration or render the
remedy awarded ineffective.
(b) Any arbitration will be held in Los Angeles, California.
The arbitrator must be an attorney with substantial experience in employment
matters, selected by the parties alternately striking names from a list of five
such persons provided by the American Arbitration Association (AAA) office
located nearest to the place of employment, following a request by the party
seeking arbitration for a list of five such attorneys with substantial
professional experience in employment matters. If either party fails to strike
names from the list, the arbitrator will be selected from the list by the other
party.
(c) Each party will have the right to take the deposition of
one individual and any expert witness designated by the other party. Each party
will also have the right to propound requests for production of documents to any
party and the right to subpoena documents and witnesses for the arbitration.
Additional discovery may be made only where the arbitrator selected so orders
upon a showing of substantial need. The arbitrator will have the authority to
entertain a motion to dismiss and/or a motion for summary judgment by any party
and will apply the standards governing such motions under the Federal Rules of
Civil Procedure.
(d) The Company and the Executive agree that they will
attempt, and they intend that they and the arbitrator should use their best
efforts in that attempt, to conclude the arbitration proceeding and have a final
decision from the arbitrator within 120 days from the date of selection of the
arbitrator; PROVIDED, HOWEVER, that the arbitrator will be entitled to extend
such 120-day period for one additional 120-day period. The arbitrator will
deliver a written award with respect to the dispute to each of the parties, who
must promptly act in accordance therewith.
(e) The Company will pay any and all reasonable fees and
expenses incurred by the Executive in seeking to obtain or enforce any rights or
benefits provided by this Agreement, including all reasonable attorneys' and
experts' fees and expenses, accountants' fees and expenses, and court costs (if
any) that may be incurred by the Executive in pursuing a claim for payment of
compensation or benefits or other right or entitlement under this Agreement,
PROVIDED that the Executive is successful as to material issues, resulting in an
award of at least $50,000. In addition, the Company will pay without regard to
the results of the arbitration all costs and fees not normally associated with a
civil proceeding, such as any fees charged by the arbitrator or any room rental
charges.
(f) In a contractual claim under this Agreement, the
arbitrator must act in accordance with the terms and provisions of this
Agreement and applicable legal principles and will have no authority to add,
delete or modify any term or provision of this Agreement. In addition, the
arbitrator will have no authority to award punitive damages under any
circumstances unless repudiating the arbitrator's authority to do so would cause
this arbitration clause to be ruled ineffective under applicable law.
IN WITNESS WHEREOF, the parties have executed this Agreement effective
as of the date it is last executed below by either party.
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XXXX XXXXXXXX
MAGNETEK, INC.
By:
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Name:
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Title:
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