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Exhibit 10.23
CHANGE OF CONTROL AGREEMENT
THIS AGREEMENT between Cyrk, Inc., a Delaware Corporation (hereinafter referred
to as the "Company"), and Xxxxx X. Xxxxxxxx ( hereinafter referred to as the
"EXECUTIVE"), dated as of this 2nd day of November 1997.
WHEREAS, Executive is a key executive of the Company and an integral part of its
management;
WHEREAS, the Company recognizes that the possibility that a change of control of
the Company may result in the departure or distraction of management to the
detriment of the Company and its shareholders;
WHEREAS, the Company wishes to assure Executive of fair severance should his
employment terminate in specified circumstances following a Change of Control of
the Company and to assure Executive of certain other benefits upon a Change of
Control.
NOW THEREFORE, in consideration of Executive's continued employment with the
Company or a Subsidiary and other good and valuable consideration, the parties
agree as follows:
1. BENEFITS UPON SEVERANCE FOLLOWING CHANGE OF CONTROL.
1.1. BASIC BENEFITS. Executive shall be entitled to the following
benefits upon a Qualified Termination:
(a) Within thirty (30) days following the Qualified Termination,
the Company shall pay the following to Executive in a lump
sum:
(i) an amount equal to three (3) times Executive's Base
Salary for one (1) year at the rate in effect
immediately prior to the Qualified Termination or at
the rate in effect immediately prior to the Change of
Control, whichever is higher, plus the accrued and
unpaid portion of Executive's Base Salary, if any,
through the date of the Qualified Termination:
(ii) an amount equal to three (3) times the bonus earned by
Executive under the Company's 1998 Bonus Plan (or a
successor plan) for the completed fiscal year
immediately preceding the Change of Control or
immediately preceding the Qualified Termination,
whichever is higher; and
(iii) an amount equal to three (3) times the amount
contributed by the Company (not including salary
reduction contributions elected by the Executive) to
Executive's account in the Company's combined 401(k)
compensation deferral plan and profit sharing plan for
the completed fiscal year immediately preceding the
Qualified Termination.
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(b) Until the second anniversary of the Qualified Termination, the
Company shall maintain in full force and effect for the
continued benefit of Executive and his family all life,
medical dental, vision and disability insurance plans and
programs in which Executive was entitled to participate
immediately prior to the Change of Control, provided that if
Executive's continued participation is not possible under the
terms of such plans and programs, the Company shall instead
arrange to provide Executive with substantially similar
benefits upon comparable terms. Notwithstanding the foregoing,
the Company's obligations hereunder to the Executive with
respect to life, medical, or disability coverage or benefits
shall be deemed satisfied to the extent (but only to the
extent) of any such coverage or benefits provided to Executive
by another employer.
1.2. OPTIONS AND OTHER STOCK AWARDS. In the event of a Qualified
Termination or termination of Executive's employment due to death or
Disability, all options and stock appreciation rights granted under
the Company's 1993 Omnibus Stock Plan (as amended) and held by
Executive on the date of the termination shall, notwithstanding any
provision of that Plan to the contrary, be exercisable and shall
remain exercisable until the earlier of (i) the fifth anniversary of
such termination, or (ii) the latest date on which such option or
right could have been exercised.
1.3 COORDINATION WITH PARACHUTE TAX RULES. Payments under Sections 1.1
and 1.2 shall be made without regard to whether the deductibility of
such payments (or any other payments to or for the benefit of
Executive) would be limited or precluded by Internal Revenue Code
Section 280G and without regard to whether such payments (or any
other payments) would subject Executive to the federal excise tax
levied on certain "excess parachute payments" under Internal Revenue
Code Section 4999; PROVIDED, that if the total of all payments to or
for the benefit of Executive, after reduction for all federal taxes
(including the tax described in Internal Revenue Code Section 4999,
if applicable) with respect to such payments ("Executive's total
after-tax payments"), would be increased by the limitation or
elimination of any payments under Sections 1.1 and 1.2, amounts
payable under Section 1.1 and 1.2 shall be reduced to the extent,
and only to the extent necessary to maximize Executive's total
after-tax payments. The determination as to whether and to what
extent payments under Sections 1.1 and 1.2 are required to be
reduced in accordance with the preceding sentence shall be made at
the Company's expense by Coopers & Xxxxxxx LLP, or by such other
certified public accounting firm, law firm, or benefits consulting
firm as the Incentive Compensation Committee of the Company's Board
of Directors may designate prior to a Change of Control. In the
event of any underpayment or overpayment under Sections 1.1 and 1.2
as determined by PricewaterhouseCoopers LLP (or such other firm as
may have been designated in accordance with the preceding sentence),
the amount of such underpayment or overpayment shall forthwith be
paid to Executive or refunded to the Company, as the case may be,
with interest at the applicable Federal rate provided for in Section
7872 (f) (2) of the Internal Revenue Code.
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2. NONCOMPETITION.
2.1 Upon a Change of Control, any agreement by Executive not to engage
in competition with the Company subsequent to the termination of his
employment, whether contained in an employment contract or other
agreement, shall no longer be effective.
2.2 NO DUTY TO MITIGATE DAMAGES. Executive's benefits under this
Agreement shall be considered severance pay in consideration of his
past service and his continued service from the date of this
Agreement, and his entitlement thereto shall neither be governed by
any duty to mitigate his damages by seeking further employment nor
offset by any compensation that he may receive from future
employment, except as provided in Section 1.1 (b).
2.3 OTHER AGREEMENTS. If for any reason Executive receives severance
payments (other than under the Agreement) from the Company or its
subsidiaries upon the termination of his employment with the
Company, the amount of such payments shall be deducted from the
amount paid under this Agreement. The purpose of this provision is
solely to avert a duplication of benefits; neither this provision
not the provisions of any other agreement shall be interpreted to
reduce the amount payable to Executive below the greater of the
amount that would otherwise have been payable under this Agreement
or under other agreements.
2.4 WITHHOLDING. All payments required to be made by the Company
hereunder to Executive shall be subject to the withholding of such
amounts, if any, relating to tax and other payroll deductions as the
Company may reasonable determine it must withhold pursuant to any
applicable law or regulation.
3. ARBITRATION. Any controversy or claim arising out of or relating to this
Agreement, or the breach thereof, shall be settled exclusively by
arbitration, in accordance with the Commercial Arbitration Rules of the
American Arbitration Association then in effect, and judgment upon the
award rendered by the arbitrator(s) may be entered in any court having
jurisdiction thereof.
4. LEGAL FEES AND EXPENSES. The Company shall pay all legal fees and expenses,
including but not limited to counsel fees, stenographer fees, printing
costs, etc. reasonably incurred by Executive in contesting or disputing
that the termination of his employment during a Standstill Period is for
Cause or other than good reason (as defined in EXHIBIT A) or in obtaining
any right or benefit to which Executive is entitled under this Agreement.
Any amount payable under this Agreement that is not paid when due shall
accrue interest at the prime rate as from time to time in effect at the
Company's agent bank until paid in full.
5. NOTICE OF TERMINATION. During a Standstill Period, Executive's employment
may be terminated by the Company (or a Subsidiary) only upon thirty (30)
days' written notice to Executive.
6. NOTICES. All notices shall be in writing and shall be deemed given five (5)
days after mailing in the continental United States by registered or
certified mail, or upon personal receipt after
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delivery, telex, telecopy, or telegram, to the party entitled thereto at
the address stated below or to such changed address as the addressee may
have given by a similar notice:
TO THE COMPANY: Cyrk, Inc.
0 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: President
WITH A COPY TO: Xxxxxxxx X. Xxxxxxxx, Esq.
TO EXECUTIVE:
7. TERMINATION OF EMPLOYMENT OUTSIDE OF STANDSTILL PERIOD. This Agreement
shall be automatically terminated and shall have no effect upon the
termination of Executive's employment for any reason, whether voluntary or
involuntary, at any time other than during a Standstill Period.
8. GENERAL PROVISIONS.
8.1 BINDING AGREEMENT. This Agreement shall be binding upon and inure to
the benefit of the parties and be enforceable by Executive's
personal or legal representatives or successors if Executive dies
while any amounts would still be payable to him hereunder, benefits
would still be provided to his family hereunder or rights would
still be exercisable by him hereunder as if he had continued to
live. Such amounts shall be paid to Executive's estate, such
benefits shall be provided to Executive's family and such rights
shall remain exercisable by Executive's estate in accordance with
the terms of this Agreement. This Agreement shall not otherwise be
assignable by Executive.
8.2 SUCCESSORS. This Agreement shall inure to and be binding upon the
Company's successors. The Company shall require any successor to all
or substantially all of the business and/or assets of the Company by
sale, merger (where the Company is not the surviving corporation),
consolidation, lease or otherwise, by agreement in form and
substance satisfactory to Executive, to assume this Agreement
expressly. This Agreement shall not otherwise be assignable by the
Company.
8.3 AMENDMENT OR MODIFICATION; WAIVER. This Agreement may not be amended
unless agreed to in writing by Executive and the Company. No waiver
by either party of any breach of this Agreement shall be deemed a
waiver of a subsequent breach.
8.4 SEVERABILITY. In the event that any provision of this Agreement
shall be determined to be invalid or unenforceable, such provision
shall be enforceable in any jurisdiction in which valid and
enforceable and in any event the remaining provisions shall remain
in full force and effect to the fullest extent permitted by law.
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8.5 CONTINUED EMPLOYMENT. This Agreement shall not give Executive any
right of continued employment or any right to compensation or
benefits from the Company or any Subsidiary, except for the rights
specifically stated herein including those to certain severance and
other benefits in the event of a Qualified Termination, and shall
not limit the Company's (or a Subsidiary's) right to change the
terms of or to terminate Executive's employment, with or without
Cause, at any time other than during a Standstill Period.
8.6 GOVERNING LAW. The validity, interpretation, performance, and
enforcement of this Agreement shall be governed by the laws of the
Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
Cyrk, Inc. Executive
By its Authorized Representative
By: ______________________________ ____________________________
Xxxxxxx X. Xxxxx Xxxxx X. Xxxxxxxx
President & Chief Operating Officer Executive Vice President
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EXHIBIT A
DEFINITIONS
The following terms as used in this Agreement have the following meanings:
(a) "BASE SALARY" means Executive's annual base salary, exclusive of any bonus
or other benefits he may receive.
(b) "CAUSE" means conviction of a felony or gross neglect of duties. For
purposes of this Agreement, Executive shall not be deemed to have been
terminated for Cause until the later to occur of:
(i) the 30th day after notice of termination is effective as provided in
Section 6 of the Change of Control Agreement, or
(ii) the delivery to Executive of a resolution duly adopted by the
affirmative vote of not less than a majority of the Company's
directors at a meeting called and held for that purpose (after
reasonable notice to Executive), and at which Executive together
with his counsel was given an opportunity to be heard, finding that
Executive was guilty of conduct described in the definition of
"Cause" above, and specifying the particulars thereof in detail;
(iii) PROVIDED, HOWEVER, that the Company may suspend Executive and
withhold payment of his Base Salary from the date -------- -------
that notice of termination is given until the earliest to occur of
(a) termination of Executive for Cause effected in accordance with
the foregoing procedures (in which case Executive shall not be
entitled to his Base Salary for such period), or (b) a determination
by a majority of the Company's directors that Executive was not
guilty of the conduct described in the definition of "Cause" above
(in which case Executive shall be reinstated and paid any of his
previously unpaid Base Salary for such period), or (c) the 90th day
after notice of termination is given (in which case Executive shall
be reinstated and paid any of his previously unpaid Base Salary for
such period).
(c) "CHANGE OF CONTROL" has the meaning set forth in EXHIBIT B.
(d) "COMPANY" means Cyrk, Inc. or any successor.
(e) "DISABILITY" has the meaning given it in the primary long-term disability
plan of the Company in which Executive participates. Executive's employment
shall be deemed terminated for Disability when Executive is entitled to
receive long-term disability compensation pursuant to such long-term
disability compensation pursuant to such long-term disability plan. If the
Company does not maintain such a plan, Executive shall be deemed terminated
for Disability if the Company terminates his employment due to illness,
injury, accident, or condition of either a physical or psychological nature
as a result of which Executive is unable to perform substantially the
duties and responsibilities of his position for 180 days during a period of
365 consecutive calendar days.
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(f) "QUALIFIED TERMINATION" means the termination of Executive's employment
during a Standstill Period (i) by the Company other than for Cause or
Disability, or (ii) by Executive for good reason. For purposes of this
definition, termination for "good reason" means the voluntary termination
by Executive of his employment within 120 days after the occurrence without
Executive's express written consent of any of the following events,
provided that Executive gives notice to the Company at least thirty (30)
days in advance requesting that the situation be remedied, and situation
remains unremedied upon expiration of such thirty (30) day period:
(i) assignment to Executive of any duties inconsistent with his
positions, duties, responsibilities, reporting requirements, or
status with the Company (or a Subsidiary) immediately prior to the
Change of Control; a substantive diminution in Executive's title(s)
or office(s) as in effect immediately prior to the Change of
Control; or any removal of Executive from or any failure to reelect
him to such positions, except in connection with the termination of
Executive's employment for Cause or Disability or termination by
Executive other than for good reason; or
(ii) reduction in Executive's rate of Base Salary for any fiscal year to
less than 100 percent (100%) of the rate of Base Salary paid to him
in the completed fiscal year immediately preceding the Change of
Control, or reduction in Executive's total cash compensation
opportunities, including salary and incentives, for any fiscal year
to less than 100 percent (100%) of the total cash compensation
opportunities made available to him in the completed fiscal year
immediately preceding the Change of Control (for this purpose, such
opportunities shall be deemed reduced if the objective standards by
which Executive's incentive compensation is measured become
materially more stringent or if the amount of such compensation is
materially reduced on a discretionary basis from the amount that
would be payable solely by reference to the objective standards); or
(iii) failure of the Company (or a Subsidiary) to continue in effect any
retirement, life insurance, medical insurance, or disability plan in
which Executive was participating immediately prior to the Change of
Control unless the Company (or a Subsidiary) provides Executive with
a plan or plans that provide substantially similar benefits, or the
taking of any action by the Company (or a Subsidiary) that would
adversely affect Executive's benefits under any of such plans or
deprive Executive of any material fringe benefit enjoyed by
Executive immediately prior to the Change of Control; or
(iv) any purported termination of Executive's employment by the Company
(or a Subsidiary) for Cause during a Standstill Period which is not
effected in compliance with paragraph (b) of this EXHIBIT A.
(g) "STANDSTILL PERIOD" is the period commencing on the date of a Change of
Control and continuing until the close of business on the last business day
of the 24th complete calendar month following such Change of Control.
(h) "SUBSIDIARY" means any corporation in which the Company owns, directly or
indirectly, 50 percent (50%) or more of the total combined voting power of
all classes of stock.
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EXHIBIT B
DEFINITION OF CHANGE OF CONTROL
1. "CHANGE OF CONTROL" means the occurrence of any one of the following
events:
(a) any Person becomes the owner of 20% or more of the Company's Common
Stock, and thereafter individuals who were not directors of the
Company prior to the date such Person became a 20% owner are elected
as directors pursuant to an arrangement or understanding with, or
upon the request of or nomination by, such Person and constitute at
least one-quarter (1/4) of the Company's Board of Directors; or
(b) the Company executes an agreement that contemplates that: (i) after
the effective date provided for in such agreement, all or
substantially all of the business and/or assets of the Company will
be owned, leased or otherwise controlled by another person, and (ii)
individuals who are directors of the Company when such agreement is
executed will not constitute a majority of the board of directors of
the survivor or successor entity immediately after the effective
date provided for in such agreement (PROVIDED, HOWEVER, that, for
purposes of this paragraph (b), if such agreement requires as a
condition precedent approval by the Company's shareholders of the
agreement or transaction, a Change of Control shall be deemed to
have occurred on the date of execution of such agreement); or
(c) individuals who, as of the date of this Agreement, constitute the
Board of Directors of the Company (the "INCUMBENT BOARD") cease for
any reason to constitute a least a majority of such Board; PROVIDED,
HOWEVER, that any individual becoming a director after the date of
this Agreement whose election, or nomination for election by the
Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall
be considered as though such individual were a member of the
Incumbent Board, but excluding for this purpose any such individual
whose initial assumption of office occurs as a result of either an
actual or threatened election contest (as such terms are used in
Rule 14 of Regulation 14A promulgated under the Exchange Act) or
other actual or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board.
2. In addition, for purposes of this EXHIBIT B the following terms have the
meaning set forth below:
(a) "COMMON STOCK" means the then outstanding Common Stock of the
Company plus, for purposes of determining the stock ownership of any
person, the number of unissued shares of Common Stock which such
Person has the right to acquire (whether such right is exercisable
of conversion rights, exchange rights, warrants or options or
otherwise). Notwithstanding the foregoing, the term Common Stock
shall not include shares of preferred stock or convertible debt or
options or warrants to acquire shares of Common Stock (including any
shares of Common Stock issued or issuable upon the conversion or
exercise thereof) to the extent that the Board of Directors of the
Company shall expressly so determine in any future transaction or
transactions.
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A Person shall be deemed to be the "owner" of any Common Stock:
(i) of which such Person would be the "beneficial owner," as such
term is defined in Rule 13d-3 promulgated by the Securities
and Exchange Commission (the "COMMISSION") under the Exchange
Act, as in effect on March 1, 1989; or
(ii) or which such Person would be the "beneficial owner" for
purposes of Section 16 of the Exchange Act and the rules of
the Commission promulgated thereunder, as in effect on March
1, 1989; or
(iii) which such Person or any of its affiliates or associates (as
such terms are defined in Rule 12b-2 promulgated by the
Commission under the Exchange Act, as in effect on March 1,
1989) has the right to acquire (whether such right is
exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement, or understanding or
upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise.
(b) "PERSON" shall have the meaning used in Section 13 (d) of the
Exchange Act, as in effect on March 1, 1989, except that "Person"
shall not include (i) the Executive, and Executive Related Party, or
any group of which the Executive of Executive Related Party is a
member, or (ii) the Company or a wholly owned subsidiary of the
Company or an employee benefit plan (or related trust) of the
Company or of a wholly owned subsidiary.
(c) An "EXECUTIVE RELATED PARTY" shall mean any affiliate or associate
of the Executive other than the Company or a Subsidiary of the
Company. The terms "affiliate" and "associate" shall have the
meanings ascribed thereto in Rule 12b-2 under the Exchange Act (the
term "registrant" in the definition of "associate" meaning, in this
case, the Company).
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