Exhibit 10.1
CHANGE-IN-CONTROL AGREEMENT
AGREEMENT, made and entered into as of the first day of May 1, 2004 (the
"Effective Date"), by and between SL Industries, Inc., a New Jersey corporation
(the "Company"), and Xxxxx X. Xxxxxx (the "Employee").
WHEREAS, the Employee is the Chief Operating Officer of the Company; and
WHEREAS, the Company desires to provide certain protection to the Employee
in the event of a change-in-control of the Company, in order to induce the
Employee to remain in the employ of the Company notwithstanding any risks and
uncertainties created by a potential change-in- control;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and for other good and valuable consideration, the receipt of
which is mutually acknowledged, the Company and the Employee agree as follows:
1. EFFECTIVENESS; TERM
This Agreement shall become effective as of the date hereof and shall
terminate on the seventh anniversary of the date hereof, or on such other date
as the parties hereto mutually agree in writing.
2. TERMINATION OF EMPLOYMENT FOLLOWING A CHANGE-IN-CONTROL
(a) If the Employee's employment is terminated by the Company or
its successor without Cause (as hereinafter defined), or the Employee terminates
his employment with the Company or its successor for Good Reason (as hereinafter
defined), and either termination occurs within one year following a
Change-in-Control (as hereinafter defined), or within one year following
execution by the Company of a definitive agreement contemplating a
Change-in-Control that occurs, whichever is later (the date of such termination
hereinafter the "Termination Date"), the Employee shall be entitled to receive a
Change-in-Control Payment (as hereinafter defined) with respect to such
termination.
(b) Notwithstanding the foregoing, the Employee shall not be
entitled to receive the Change-in-Control Payment if any of the Circumstances of
Ineligibility (as hereinafter defined) apply to the Employee.
(c) "Change-in-Control Payment" means the product of two times the
Employee's annual base salary in effect as of the Termination Date. In the case
of a termination of employment for Good Reason based on a reduction of the
Employee's annual base salary, the annual base salary shall be calculated as the
Employee's annual base salary in effect immediately prior to such reduction.
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(d) "Change-in-Control" means that any of the following has
occurred:
(i) the stockholders of the Company approve (aa) the sale
of the Company; (bb) the sale of all or substantially
all of the assets of the Company; or (cc) a
consolidation or merger of the Company with another
corporation, the consummation of which would result
in the stockholders of the Company immediately before
the occurrence of the consolidation or merger owning,
in the aggregate, fifty percent (50%) or less of the
Voting Stock of the surviving entity; and such
transaction occurs;
(ii) any person or other entity, including any person as
defined in Section 13(d)(3) of the Securities
Exchange Act of 1934 as amended (the "Exchange Act"),
becomes the beneficial owner, as defined in Rule
13d-3 under the Exchange Act, directly or indirectly,
of at least thirty percent (30%) or more of the total
combined voting power of all classes of capital stock
of the Company entitled to vote for the election of
directors of the Company (the "Voting Stock"); or
(iii) a change in the Company's Board of Directors occurs
with the result that the members of such Board on the
Effective Date (the "Incumbent Directors") no longer
constitute a majority of such Board, provided that
any person becoming a director (other than a director
whose initial assumption of office is in connection
with an actual or threatened election contest or the
settlement thereof, including but not limited to a
consent solicitation relating to the election of
directors of the Company) whose election or
nomination for election was supported by two-thirds
(2/3) of the then Incumbent Directors shall be
considered an Incumbent Director for purposes hereof.
(e) "Cause" means, and shall be subject to the procedures set
forth herein:
(i) conviction of the Employee for (x) any crime
constituting a felony in the jurisdiction in which
committed, (y) any crime involving moral turpitude
(whether or not a felony) or (z) any criminal act
against the Company or any affiliate of the Company
involving dishonesty whether or not a felony;
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(ii) substance abuse (including drunkenness) by the
Employee which is repeated after written notice from
the Company to the Employee identifying such abuse;
(iii) the failure or the refusal of the Employee to follow
lawful and proper directives of the Board of
Directors or Chief Executive Officer of the Company
which is not corrected within thirty (30) days after
written notice from such Board or Chief Executive
Officer to the Employee identifying such failure or
refusal; or
(iv) willful malfeasance or gross misconduct by the
Employee which may discredit or damage the Company or
any affiliate of the Company.
(f) "Good Reason" means the occurrence of any of the following
without the prior written consent of the Employee:
(i) removal from the most senior position held by the
Employee with respect to the Company on the 181st day
prior to the Change-in-Control or any more senior
position that the Employee subsequently achieves (the
"Measuring Position");
(ii) the assignment of duties or responsibilities
materially inconsistent with those customarily
associated with the Measuring Position, or any other
action by the Company or a successor that results in
a material diminution of the Employee's position,
authority, duties or responsibilities compared to the
Measuring Position, other than an isolated action
that is not taken in bad faith and is remedied by the
Company or a successor promptly after receipt of
written notice thereof from the Employee;
(iii) a reduction in the Employee's annual base salary, any
portion of the Employee's target bonus, or any other
material benefit provided to the Employee by the
Company at the time of the Change-in-Control; or
(iv) the involuntary relocation of the Employee's
principal place of employment to a location more than
thirty (30) miles from the Employee's principal place
of employment immediately prior to the
Change-in-Control, except for required travel on the
Company's business to an extent substantially
consistent with the Employee's business travel
obligations as of such date.
(g) "Circumstances of Ineligibility" means any one or more of the
following circumstances:
(i) if the Employee's employment with the Company or its
successor is terminated due to death or disability
(defined as the inability or incapacity of the
Employee, due to any medically determined physical or
mental impairment, to perform the Employee's duties
and responsibilities for the Company for a total of
one hundred eighty (180) days);
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(ii) if the Employee elects to voluntarily terminate the
Employee's employment, including a termination due to
retirement, with the Company or its successor, unless
such termination by the Employee is for Good Reason;
or
(iii) if the Employee's employment with the Company or a
successor is terminated for Cause at any time
preceding or following a Change-in-Control.
3. TIME OF PAYMENT OF CHANGE-IN-CONTROL PAYMENT
(a) Any Change-in-Control Payment to which the Employee is
entitled under Section 2 above shall be paid to the Employee in cash (subject to
appropriate withholding) in a lump sum. Such payment shall be made no later than
the effective date of the release of claims executed by the Employee pursuant to
Section 6(c) below, or the thirtieth (30th) day after the Termination Date,
whichever date is later.
(b) Notwithstanding the foregoing, in the event that the payment
of a Change-in-Control Payment would cause the Company to violate the terms of
one or more financial covenants set forth in any credit agreement then in effect
between the Company and its lenders of funded debt, such payment shall be
deferred until the earliest practicable date without causing such violation.
(c) The Employee shall be paid interest, compounded daily, at the
prime lending rate as announced from time to time by PNC Bank or its successor
on all or any part of the Change-in-Control Payment that is not paid when due.
4. CONTINUATION OF WELFARE BENEFITS
Notwithstanding anything contained herein to the contrary, if the
Employee is entitled to receive the Change-in-Control Payment, the Company or
its successor shall continue to pay premiums on behalf of the Employee, as if
the Employee were still an employee of the Company, in the medical, dental,
hospitalization and life insurance programs and/or arrangements of the Company
or any of its subsidiaries in which the Employee was participating on the
Termination Date on the same terms and conditions as other employees under such
plans, programs and/or arrangements until the earlier of (i) the end of the
twenty-four (24) month period following the Termination Date or (ii) the date,
or dates, the Employee is entitled to receive substantially equivalent coverage
and benefits under the plans, programs and/or arrangements of a subsequent
employer (such coverage and benefits to be determined on a coverage-by-coverage
or benefit-by-benefit basis). The Employee shall be eligible to continue his
benefits through COBRA at his own expense, to the extent provided by law.
5. NON-COMPETE AND NON-SOLICITATION
(a) In consideration of the Company entering into this Agreement
and providing the compensation and benefits to be provided by the Company to the
Employee, the Employee agrees that the Employee will not, from the Effective
Date until one (1) year after the Termination Date, engage in any Competitive
Activity. For purposes of this Agreement, the term "Competitive Activity" shall
mean (i) serving as a director of any Competitor (as
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hereinafter defined); (ii) directly or indirectly through one or more
intermediaries, either (x) controlling any Competitor or (y) owning any equity
or debt interests in any Competitor (other than equity or debt instruments that
are public traded and, at the time of any acquisition, when combined with other
holdings, do not exceed five percent (5%) of the particular class of interests
outstanding) (it being understood that, if interests in any Competitor are owned
by an investment vehicle or other entity in which the Employee owns an equity
interest, a portion of the interests in such Competitor owned by such entity
shall be attributed to the Employee, such portion determined by applying the
percentage of the equity interest in such entity); (iii) employment by
(including serving as an officer or partner of), providing consulting services
to (including, without limitation, as an independent contractor), or managing or
operating the business or affairs of, or being a lender to, any Competitor; or
(iv) participating in the ownership, management, operation or control of any
Competitor. For purposes of this Agreement, the term "Competitor" shall mean any
person (other than the Company or any majority-owned subsidiary of the Company)
that engages in any business (as determined at the time of termination of
employment) in the United States in competition with the Company. For purposes
of this Agreement, the term business shall include any activity engaged in by
any subsidiary or division of the Company.
(b) The Employee agrees that, if the Employee receives a
Change-in-Control Payment as set forth in Section 2 above, the Employee shall
not directly or indirectly through another entity (i) induce or attempt to
induce any employee of the Company or of any affiliate of the Company to leave
the employ of the Company or such affiliate, or in any way interfere with the
relationship between the Company and such affiliate and any employee thereof, or
(ii) induce or attempt to induce any customer, supplier, licensee, licensor,
franchisee or other business relation of the Company (or any affiliate of the
Company) to cease doing business with the Company (or any affiliate of the
Company), or in any way interfere with the relationship between such customer,
supplier, licensee or business relation of the Company (or any affiliate of the
Company). For purposes of this Agreement, a customer, supplier, licensee,
licensor, franchisee or business relation means any person or entity which at
the time of determination is, or has been within one (1) year prior to such
time, a customer, supplier, licensee, licensor, franchisee or other business
relation of the Company (or any affiliate of the Company).
(c) In the event of a Change-in-Control Payment, the Company may
value the non-competition and non-solicitation covenants and allocate the
Payment accordingly.
(d) The Employee agrees that any violation of this Agreement will
cause immediate and irreparable harm to the Company, the amount of which will be
impossible to estimate or determine. The Employee further agrees that the
Company shall have the right to equitable relief by injunction or otherwise
(without the necessity of posting bond or other security) and the Employee
hereby knowingly waives the claim or defense that the Company has an adequate
remedy at law. The rights and remedies of the Company under this Agreement are
cumulative and are in addition to all other rights and remedies the Company may
have under any local, state or federal law, rule or regulation or otherwise. It
shall not be a defense to the Company's enforcement of this Agreement that the
Company did breach or may have breached this Agreement or any other agreement
with the Employee, any such defense to the Company's enforcement of this
Agreement being hereby waived.
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6. MISCELLANEOUS
(a) NO EMPLOYMENT AGREEMENT. This Agreement does not constitute a
contract of employment or impose on the Company any obligation to retain the
Employee as an employee.
(b) DEDUCTIONS AND WITHHOLDING. The Employee agrees that the
Company shall withhold from any and all compensation required to be paid to the
Employee pursuant to this Agreement all federal, state, local and/or other taxes
which the Company determines are required to be withheld in accordance with
applicable statutes and regulations from time to time in effect.
(c) WAIVER AND RELEASE. The Employee acknowledges that (i) this
Agreement provides benefits greater than the benefits that the Employee would
otherwise be entitled to receive under any employment or severance agreement,
plan, program or arrangement of the Company or between the Company and the
Employee, and (ii) the Company has no obligation to enter into this Agreement.
In consideration of the Company assuming these additional obligations and
entering into this Agreement, the Employee agrees to execute a release of all
claims related to the Employee's employment or termination thereof prior to
payment of the Change-in-Control Payment. Such release will become effective on
the eighth day after it has been executed by the Employee, unless it has been
revoked beforehand.
(d) ARBITRATION. Except for enforcement of the Employee's
covenants under Section 5, any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration
conducted in New Jersey under the Commercial Arbitration Rules then prevailing
of the American Arbitration Association and such submission shall request the
American Arbitration Association to: (i) appoint an arbitrator experienced and
knowledgeable concerning the matter then in dispute; (ii) require the testimony
to be transcribed; (iii) require the award to be accompanied by findings of fact
and a statement of reasons for the decision; and (iv) request the matter to be
handled by and in accordance with the expedited procedures provided for in the
Commercial Arbitration Rules. The determination of the arbitrators, which shall
be based upon a de novo interpretation of this Agreement, shall be final and
binding and judgment may be entered on the arbitrators' award in any court
having jurisdiction. All costs of the American Arbitration Association and the
arbitrator shall be borne by the Company, unless the position advanced by the
Employee is determined by the arbitrator to be frivolous in nature.
(e) LEGAL FEES. Except for legal fees the Employee incurs in
defending Company's enforcement of the Employee's covenants under Section 5, the
Company or its successor shall pay to the Employee all reasonable legal fees and
expenses incurred by the Employee in disputing in good faith any issues
hereunder relating to the termination of the Employee's employment, or in
seeking in good faith to obtain or enforce any benefit or right provided by this
Agreement. Such payments shall be made within thirty (30) days after delivery of
the Employee's written request for payment accompanied with such evidence of
fees and expenses incurred as the Company reasonably may require.
(f) NO DUTY TO MITIGATE/SET-OFF. The Company agrees that in order
for the Employee to receive payments or benefits under this Agreement, the
Employee shall not be required to seek other employment. Further, the amount of
any such payment or benefit shall not
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be reduced by any compensation earned by the Employee or any benefit provided to
the Employee as the result of employment by another employer or otherwise,
except as provided in Section 4 or 6(g) hereof. The Company's obligations to
make any payment or provide any benefit under this Agreement shall not be
affected by any circumstances, including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which the Company or a
successor may have against the Employee.
(g) OFFSET. The Change-in-Control Payment shall be reduced by any
severance cash payment made by the Company or any subsidiary of the Company to
the Employee pursuant to (i) any severance plan, program, policy or arrangement
of the Company or any subsidiary of the Company, (ii) any employment or
consulting agreement between the Company or any subsidiary of the Company and
the Employee, and (iii) any federal, state or local statute, rule, regulation or
ordinance.
(h) ENTIRE AGREEMENT. This Agreement embodies the entire agreement
of the parties with respect to any payment and benefit which may become due or
owing to the Employee in the event of a termination in connection with a
Change-in-Control and supersedes any other prior oral or written agreements
between the Employee and the Company with respect thereto, including the
provision captioned "CHANGE IN CONTROL" in the letter agreement dated December
16, 1999, between the Employee and the Company and the Change-in-Control
Agreement between the parties dated May 1, 2001. To the extent that any payment
or benefit conferred upon the Employee herein are invalidated or rendered
unenforceable by a court of competent jurisdiction, the payment or benefit
provided in such other agreements shall remain in full force and effect.
(i) OTHER AGREEMENTS. Except as provided in paragraph (h) above,
nothing in this Agreement shall affect or modify (i) any obligations the
Employee has under any agreement with the Company with respect to confidential
information, assignment of inventions and discoveries, non-solicitation of
employees and/or customers, non-competition, or otherwise or (ii) any payments
or benefits the Employee may be entitled to receive under any agreement with
respect to severance payments, the acceleration of options or other Stock
Awards, or otherwise, and all such agreements shall remain in full force and
effect.
(j) AMENDMENTS. No party may amend, modify or terminate this
Agreement without the express written consent of the other party.
(k) BINDING AGREEMENT. This Agreement shall be binding upon the
Company and its successors and assigns and shall inure to the benefit of and be
enforceable by the Employee's personal or legal representatives, executors,
administrators, heirs, distributees, devises and legatees and the Company's
successors and assigns.
(l) LEGAL ADVICE. THE EMPLOYEE ACKNOWLEDGES THAT (i) HE HAS BEEN
STRONGLY ENCOURAGED BY THE COMPANY TO REVIEW THIS AGREEMENT WITH HIS PERSONAL
ATTORNEY AND HAS EITHER DONE SO OR HAS KNOWINGLY AND VOLUNTARILY WAIVED HIS
RIGHT TO DO SO AND (ii) HE UNDERSTANDS ALL OF THE TERMS AND CONDITIONS OF THIS
AGREEMENT AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
(m) GOVERNING LAW; VENUE AND JURISDICTION. This Agreement shall be
governed and construed in accordance with the laws of the State of New Jersey
without reference
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to conflict of laws principles. The Employee does hereby irrevocably consent
that any legal action or proceeding arising out of or in any manner relating to
this Agreement, or any other document delivered in connection herewith, shall be
brought exclusively in any state court or in any federal court in New Jersey.
The Employee further irrevocably consents to the service of any complaint,
summons, notice or other process relating to any such action or proceeding by
delivery thereof to the Employee by hand or by any other manner provided for
below. The Employee hereby expressly and irrevocably waives any claim or defense
in any such action or proceeding based on any alleged lack of personal
jurisdiction, improper venue or forum non conveniens or any similar basis.
(n) NOTICES. All notices required or permitted by this Agreement
shall be in writing and shall be given by personal delivery or sent by
registered or certified mail, postage prepaid, return receipt requested, or by
reputable overnight courier, prepaid, receipt acknowledged, to the following
addresses:
If to the Company:
SL Industries, Inc.
000 Xxxxxxxxxx Xxxx, X-000
Xx. Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx
President
If to the Employee:
Xxxxx X. Xxxxxx
00 Xxxx Xxxx Xxxx
Xxxxxxxxx, XX 00000
(o) COUNTERPARTS. This Agreement may be executed and delivered in
separate counterparts, each of which when so executed and delivered shall be
deemed an original and all of which taken together shall constitute one and the
same agreement. Delivery of an executed counterpart of the signature page to
this Agreement by facsimile transmission shall be effective as manual delivery
of an executed counterpart. Any party so delivering this Agreement by facsimile
transmission shall promptly manually deliver an executed counterpart, provided
that any failure to do so shall not affect the validity of the counterpart
delivered by facsimile transmission.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
SL INDUSTRIES, INC.
--------------------------------------
By: Xxxx Xxxxxx
President
--------------------------------------
XXXXX X. XXXXXX
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