Exhibit 10.31
CHANGE OF CONTROL AGREEMENT
AGREEMENT made as of this 1st day of March, 1998, by and between Coyote Sports,
Inc., a Nevada corporation, with its principal offices located at 0000 Xxxxxxxx
Xxxxxx, Xxxxxxx, XX 00000, (hereinafter the "Company"), and Xxxx X. XxXxxxx,
residing at 0000 Xxxxxx Xxxxxxxxx, Xxx Xxxxx, XX 00000 (hereinafter the
"Officer").
1. Definitions. For purposes of this Agreement, the following terms shall
have the meanings set forth below:
(a) For the purposes of this Agreement, a "Change of Control" shall be
deemed to have occurred if (a) any "person" or "group" (within the
meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act
of 1934) other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company, beneficially owns 30%
or more of the Company's voting common stock; or, (b) at any time
during the period of three consecutive years (not including any period
prior to the date hereof), individuals who at the beginning of such
period constitute the Board (and any new director whose election by
the Board or whose nomination for election by the Company's
stockholders were approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority thereof; or (c) the stockholders of the Company approve a
merger or consolidation of the Company with any other corporation,
other than a merger or consolidation in which both (i) a majority of
the directors of the surviving entity were directors of the Company
prior to such consolidation or merger, and (ii) which would result in
the voting securities of the Company outstanding immediately prior
thereto continue to represent (either by remaining outstanding or by
being changed into voting securities of the surviving entity) at least
51% of the combined voting power of the voting securities of the
surviving entity outstanding immediately after such merger or
consolidation; or (d) the stockholders approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets.
(b) "Termination Date" shall mean the date following a Change of Control
when the Officer receives written notice that his employment is
terminated without Cause as defined in the Employment Agreement, or,
if later, such other termination date specified in the written notice.
(c) "Terminate" shall mean not only a complete termination of employment
by the Company or its successor but also a significant negative change
in the terms of
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employment with the Company or its successor, including but not
limited to a requirement to relocate or a significant reduction in
salary and benefits.
(d) "Termination Following a Change of Control" shall mean a termination
without Cause by the Company following or in connection with a change
of control or a termination by the Officer for "Good Reason" of the
Officer's employment with the Company within two years following a
"Change of Control" (as defined below).
(e) For purposes of this Agreement, "Good Reason" shall include, but not
be limited to, any of the following (without the Officer's express
written consent):
i) the assignment to the Officer by the Company of duties
inconsistent with or a substantial alteration in the nature or
status of, the Officer's responsibilities as in effect
immediately prior to a Change of Control;
ii) a reduction by the Company in the Officer's compensation or
benefits as in effect immediately prior to the date of a Change
of Control;
iii) a relocation of the Company's offices beyond 25 miles from the
present location;
iv) any material breach by the Company of any provision of this
Agreement if such material breach has not been cured within
thirty (30) days following written notice of such breach by the
Officer to the Company setting forth with specificity the nature
of the breach; or
v) any failure by the Company to obtain the assumption and
performance of the Employment Agreement and this Agreement by any
successor (by merger, consolidation or otherwise) or assignee of
the Company.
2. Severance Benefits. In the event there is a Termination Following a Change
of Control, the Officer shall be entitled to the following severance
benefits for a period of 24 months after the Termination Date:
(a) Continued base salary in regular biweekly payments, or if so elected
by the Officer, a lump sum payable within 30 days of the Officer's
election.
(b) Bonus payable in such amount as would be payable to the Officer had he
been employed by the Company for the full fiscal year during which the
termination occurred, and the Company had achieved Plan performance
for such fiscal year. Such bonus shall be paid in the same manner as
elected by the Officer in (a) above;
(c) Continued medical, dental, life and disability insurance benefits; and
(d) Continued retirement benefits, including 401(k) plan.
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Such benefits shall be identical to the salary, bonus, insurance and
retirement plan benefits to which the Officer was entitled immediately
prior to the Change of Control. During such 24-month period, the Officer
shall continue to be an employee of the Company for purposes of
participation in the plans which provide the benefits described in
subsections (c) and (d) above but shall have no further responsibilities as
an employee and shall not be required or permitted to continue his former
duties. Subject to Section 3, the Officer shall be free to accept other
employment during such period, and there shall be no offset of any
employment compensation earned by Officer in such other employment during
such period against payments due the Officer hereunder, and there shall be
no offset in any compensation or benefits received from such other
employment against the continued salary and benefits set forth above.
3. Stock Option Vesting. In the event of a Termination Following a Change of
Control, all outstanding stock options held by the Officer which are not
then exercisable, shall become exercisable in their entirety as of the date
immediately preceding the Termination Date.
4. Noncompetition Agreement. Officer acknowledges that the Company has trade
secrets and confidential information, that as Chief Financial Officer he
will have access to all such trade secrets and confidential information and
that in performing duties in an executive position for another company he
might necessarily use and divulge such trade secrets and confidential
information. Therefore, in consideration for the severance benefits set
forth above, the Officer agrees that for a period of 24 months subsequent
to the Termination Date, the Officer will not, directly or indirectly:
(a) Call upon any person or entity which was a customer of the Company
immediately prior to the Termination Date for the purpose of
diverting, taking away the business of, or selling products or
services competitive with significant products or services provided by
the Company;
(b) In any manner, misuse or divulge to any person any list of customers,
confidential information or trade secrets of the Company;
(c) Alone or in any capacity solicit or in any manner attempt to solicit
or induce any person or persons employed by the Company within one
year prior to the Termination Date to leave such employment;
(d) Within the United States of America, either as an employee, employer,
consultant, agent principal, partner, more than 5% stockholder,
corporate officer, director, or in any other individual or
representative capacity, engage or participate in any business that is
in competition in any significant manner with any material business
conducted by the Company on the Termination Date. "Material business
conducted by the Company" shall mean any business segment which
accounts for more than 20% of the Company's consolidated revenues.
The calculation shall be made using the most recent audited financial
statements of the Company.
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5. Termination. This Agreement may be terminated only as follows:
(a) by mutual written agreement of the parties;
(b) upon termination of Officer's employment prior to, and not in
connection with, a Change of Control.
(c) when the Officer attains age 65.
6. Severability. Should a court or other body of competent jurisdiction
determine that any provision of this Agreement is excessive in scope or
otherwise invalid or unenforceable, such provision shall be adjusted rather
than voided, if possible, so that it is enforceable to the maximum extent
possible, and all other provisions of the Agreement shall be deemed valid
and enforceable to the extent possible.
7. Assignment. The parties may assign their economic rights under this
Agreement but shall not assign any personal obligations from this
Agreement.
8. Miscellaneous. This Agreement: (a) contains the entire agreement among the
parties regarding the subject matter hereof and supersedes any prior
agreements on this subject between the parties; (b) may not be amended nor
may any rights hereunder be waived except by an instrument in writing
signed by the party sought to be charged with such amendment or waiver; (c)
shall be construed in accordance with, and governed by, the laws of
Colorado; and (d) shall be binding upon and shall inure to the benefit of
the parties and their respective personal representatives and permitted
assigns, including, without limitation, any successor to the business of
the Company.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year first above written.
THE OFFICER: THE COMPANY:
Coyote Sports, Inc.
/s/ Xxxx X. XxXxxx By: /s/ Xxx Xxxxxx
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Xxxx X. XxXxxx Xxx Xxxxxx, President
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