1
EXHIBIT 10.33
CHANGE IN CONTROL SEVERANCE AGREEMENT
AGREEMENT made as of December 8, 1995 between XXXXXXX ENTERPRISES,
INC., a Delaware corporation (the "Company"), and XXXXX X. XXXXXXX (the
"Executive").
WHEREAS, the Executive is employed by the Company or by one of its
wholly-owned consolidated subsidiaries;
WHEREAS, the Company recognizes that the Executive's contribution to
the Company's growth and success has been and continues to be substantial;
WHEREAS, the Company wishes to encourage the Executive to remain with
and devote full time and attention to the business affairs of the Company and
wishes to provide income protection to the Executive for a period of time in
the event of a Change in Control;
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein and for other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, the Company and the
Executive hereby agree as follows:
1. Definitions.
(a) "Base Salary" shall mean the Executive's regular
annual rate of base pay as of the date in question.
(b) "Cause" shall mean the Executive's (i) conviction of
a crime involving moral turpitude, (ii) theft or embezzlement of
property from the Company or (iii) willful misconduct or willful
failure substantially to perform the duties of his position, but only
if such has continued after receipt of such notices and cure periods
as are provided for by the Company's disciplinary process as in effect
on the Change in Control Date.
(c) A "Change of Control" shall be deemed to have taken
place if: (i) any person, corporation, or other entity or group,
including any "group" as defined in Section 13(d)(3) Securities
Exchange Act of 1934, other than any employee benefit plan then
maintained by the Company, becomes the beneficial owner of shares of
the Company having 30 percent or more of the total number of votes
that may be cast for the election of Directors of the Company; (ii) as
the result of, or in connection with, any contested election for the
Board of Directors of the Company, or any tender or exchange offer,
merger or other business combination or sale of assets, or any
combination of the foregoing (a "Transaction"), the persons who were
Directors of the Company before the Transaction shall cease to
constitute a majority of the Board of Directors of the Company or any
successor to the Company or its assets, or (iii) at any time a the
Company shall consolidate or merge with any other Person and the
Company shall not be the continuing or surviving corporation, b any
Person shall consolidate or merge with the Company, and the Company
shall be the continuing or surviving corporation and in connection
therewith, all or part of the outstanding Company stock shall be
changed into or exchanged for stock or other securities of any other
Person or cash or any other property, c the Company shall be a party
to a statutory share exchange with any other Person after which the
Company is a subsidiary of any other Person, or d the Company shall
sell or otherwise transfer 50% or more of the assets or earning power
of the Company and its subsidiaries (taken as a whole) to any Person
or Persons.
2
(d) The "Change in Control Date" shall mean the date
immediately prior to the effectiveness of the Change in Control.
(e) The Executive shall have "Good Reason" to terminate
employment if: (i) the Executive is not elected, reelected, or
otherwise continued in the office of the Company or any of its
subsidiaries which he held immediately prior to the Change in Control
Date, or he is removed as a member of the Board of Directors of the
Company or any of its subsidiaries if the Executive was a director
immediately prior to the Change in Control Date; (ii) the Executive's
duties, responsibilities or authority are materially reduced or
diminished from those in effect on the Change in Control Date without
the Executive's consent; (iii) the Executive's compensation or
benefits are reduced; (iv) the Company reduces the potential earnings
of the Executive under any performance- based bonus or incentive plan
of the Company in effect immediately prior to the Change in Control
Date; (v) the Company requires that the Executive's employment be
based at a location other than the location at the Change in Control
Date; (vi) any purchaser, assign, surviving corporation, or successor
of the Company or its business or assets (whether by acquisition,
merger, liquidation, consolidation, reorganization, sale or transfer
of assets or business, or otherwise) fails or refuses to expressly
assume in writing this Agreement and all of the duties and obligations
of the Company hereunder pursuant to Section 14 hereof; or (vii) the
Company breaches any of the provisions of this Agreement.
(f) "Person" shall have the meaning ascribed to such term
in Section 3(a)(9) of the Securities Exchange Act of 1934 and used in
Sections 13(d) and 14(d) thereof, including a "group" as defined in
Section 13(d).
(g) "Target Bonus" shall mean the target bonus (100%
level) established for the Executive for the year in question under
the Company's "Annual Incentive Plan" or "Performance Unit Plan," as
applicable.
(h) "Termination of Employment" shall mean the
termination of the Executive's employment by the Company other than
such a termination in connection with an offer of immediate
reemployment by a successor or assign of the Company or purchaser of
the Company or its assets under terms and conditions which would not
permit the Executive to terminate his employment for Good Reason.
2. Term. The initial term of this Agreement shall be for the
period commencing on the later of December 8, 1995 or the Executive's
employment commencement date with the Company or any of its subsidiaries (the
"Effective Date") and ending on December 7, 1998. The Term shall be
automatically extended by one additional day for each day beyond the Effective
Date of this Agreement that the Executive remains employed by the Company until
such time as the Company elects to cease such extension by giving written
notice of such to the Executive. (In such event, the Agreement shall thus
terminate on the third anniversary of the effective date of such notice).
3. Eligibility for Severance Benefits. The Executive shall be
eligible for the benefits described in Paragraph 4 (the "Severance Benefits")
if, during the Term either:
2
3
(a) there has been a Change in Control and during the two
year period commencing on the Change in Control Date, the Executive
has a Termination of Employment initiated (i) by the Company without
Cause or (ii) by the Executive for Good Reason; or
(b) there has been a Change of Control and during the 31
day period commencing on the first day of the 13th calendar month
following the Change in Control Date (e.g. the period April 1,
1996--May 1, 1996, inclusive, for a Change in Control which is
effective in the month of March, 1995), the Executive has a
Termination of Employment initiated by the Executive without Good
Reason.
4. Severance Benefit. Upon satisfaction of the requirements set
forth in Paragraph 3, and subject to Paragraphs 5 and 9, the Executive shall be
entitled to the following Severance Benefits:
(a) Cash Payment. The Executive shall be entitled to
receive an amount of cash equal to three (3) times the greater of
(i) the sum of the Executive's Base Salary and
Target Bonus, in each case as in effect upon the Termination
of Employment, or,
(ii) the sum of the Executive's Base Salary and
Target Bonus, in each case as in effect on the Change in
Control Date.
The payment shall be made in a single lump sum upon the Executive's Termination
of Employment unless the Executive shall have elected another method on the
signature page hereof.
(b) Long-Term Incentive Award; Equity-Based Compensation.
To the extent not already vested pursuant to the Terms of said plan,
the Executive's interest under the Company's Long-Term Stock Incentive
Plan shall be fully vested. To the extent not already vested pursuant
to the terms of any option plans then in effect, any and all (i)
options, phantom units, and other awards granted to Executive pursuant
to any such plan to purchase Company stock or which is measured by the
current market value of Company stock and (ii) restricted stock of the
Company, owned by the Executive, shall be fully vested.
(c) Continuation of Benefits.
(i) For a period of three (3) years following the
Termination of Employment, the Executive shall be treated as
if he or she had continued to be an employee for all purposes
under the Company's Medical Plan, Executive Medical
Reimbursement Plan and Dental Plan. Following this period, the
Executive shall be entitled to receive continuation coverage
under part 6 of Title I of ERISA ("COBRA Benefits) treating
the end of this period as a termination of the Executive's
employment (other than for gross misconduct).
3
4
(ii) The Company shall maintain in force, at its
own expense, for the remainder of the Executive's life, the
vested life insurance in effect under the Company's Executive
Life Insurance Plan as of the Change in Control Date or as of
the date of Termination of Employment, whichever is greater.
(d) Relocation Benefit. If the Executive's next full-time
employment commences within three (3) years after the Executive's
Termination of Employment with the Company and is based more than 25
miles from Fort Xxxxx, Arkansas, and within the continental United
States, the Company will reimburse the Executive for any reasonable
relocation expenses (in accordance with the Company's general
relocation policy for executives as then in effect, or, at the
Executive's election, as in effect on the Change in Control Date) in
connection with accepting or continuing such employment.
(e) Executive Retirement Plan. For the year of the
Executive's Termination of Employment, the Company will make the
contribution to its Executive Retirement Plan (the "Retirement Plan")
that it would have made if the Executive had not had a Termination of
Employment, but in no event less than the percentage contribution it
made for the Executive in the immediately preceding year (and
increased to take account of the additional year of service), in each
case taking account of the Executive's annualized rate of
"Compensation" (as defined in the Retirement Plan) and the percentage
of such Compensation that the Executive is contributing to the
Retirement Plan, as of the date of Termination of Employment, and the
Company's matching contribution rate for such year (or, if greater,
the preceding year). The portion of the Company's matching
contribution which is based on the preceding year's contribution
percentage shall be paid to the Executive immediately upon his
Termination of Employment and any additional contribution shall be
paid as soon as it is determined.
(f) Disability. For the two year period following the
Executive's Termination of Employment for any reason other than Cause,
the Company shall provide disability insurance benefits coverage to
Executive equivalent to the coverage that the Executive would have had
had he remained employed under the Company's disability insurance plan
applicable to Executive on the date of Termination of Employment, or;
at the Executive's election, the plan applicable to Executive as of
the Change in Control Date. Should Executive become disabled during
such period, Executive shall be entitled to receive such benefits, and
for such duration, as the applicable plan provides.
(g) Plan Amendments. The Company shall adopt such
amendments to its employee benefit plans and insurance policies as are
necessary to effectuate the provisions of this Agreement. If and to
the extent any benefits under this Paragraph 4 are not paid or payable
or otherwise provided to the Executive or his 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.
5. Golden Parachute Gross-Up. If, in the written opinion of a Big
6 accounting firm engaged by either the Company or the Executive for this
purpose (at the Company's expense), or if so alleged by the Internal Revenue
Service, the aggregate of the benefit payments under Paragraph 4 would cause
the payment of one or more of such benefits to constitute an "excess parachute
payment" as defined in Section
4
5
280G(b) of the Internal Revenue Code ("Code"), then the Company will pay to the
Executive an additional amount in cash (the "Gross-Up Payment") equal to the
amount necessary to cause the net amount retained by the Executive, after
deduction of any (I) excise tax on the payments under Xxxxxxxxx 0, (xx)
federal, state or local income tax on the Gross-Up Payment, and (iii) excise
tax on the Gross-Up Payment, to be equal to the aggregate remuneration the
Executive would have received under Section 4, excluding such Gross-Up Payment
(net of all federal, state and local excise and income taxes), as if Sections
280G and 4999 of the Code (and any successor provisions thereto) had not been
enacted into law. The Gross-Up Payment provided for in this Paragraph shall be
made within ten (10) days after the termination of Executive's employment,
provided however that if the amount of the payment cannot be finally determined
at the time, the Company shall pay to Executive an estimate as determined in
good faith by the Company of such payments (together with interest at the rate
provided in section 1274(b)(2)(B) of the Code) as soon as the amount thereof
can be determined but in no event later than the thirtieth (30th) day after the
date of termination. Any dispute concerning the application of this Paragraph
shall be resolved pursuant to Paragraph 8, and if Paragraph 9 applies, any
reference in this Paragraph to Paragraph 4 shall also he deemed to include a
reference to Paragraph 9 as well.
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. Waiver of Other Severance Benefits. The benefits payable
pursuant to this Agreement are in lieu of any other severance benefits which
may otherwise be payable to the Executive upon termination following a Change
in Control, (including, without limitation, any benefits to which Executive
might otherwise have been entitled under the "Agreement Concerning Benefits
Upon Severance" dated as of September 1, 1990 to which Executive and the
Company are parties), except those benefits which are to be made available to
the Executive as required by applicable law.
8. Disputes. Any dispute or controversy arising under, out of, in
connection with or in relation to this Agreement shall, at the election and
upon written demand of either party, be finally determined and settled by
binding arbitration in the city of Fort Xxxxx, Arkansas, using a single
arbitrator, in accordance with the Labor Arbitration rules and procedures of
the American Arbitration Association, and judgment upon the award may be
entered in any court having jurisdiction thereof. The arbitrator shall have the
power to order specific performance, mandamus, or other appropriate legal or
equitable relief to enforce the provisions of this Agreement. The Company shall
pay all costs of the arbitration and all reasonable attorney's and accountant's
fees of the Executive in connection therewith.
9. Additional Payments Due to Dispute. Notwithstanding anything
to the contrary here in, and without limiting the Executive's rights at law or
in equity, if the Company fails or refuses to timely pay to the Executive the
benefits due under Paragraphs 4 and/or 5 hereof, then the benefits under
Paragraph 4(a) shall be increased and the benefits under Paragraphs 4(c), 4(d),
and 4(f) shall each be continued by one additional day for each day of any such
failure or refusal of the Company to pay. In addition, any Gross-Up Payment due
under Paragraph 5 shall be increased to take into account any increased
benefits under this Paragraph.
5
6
10. No Set-Off. There shall be no right of set-off or counterclaim
in respect of any claim, debt, or obligation against any payment to or benefit
for the Executive provided for in this Agreement.
11. 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.
12. Trust. Any payments or installments that may be required to be
made to Executive under this Agreement shall be funded immediately prior to any
Change of Control Date (or, if earlier, within ten (10) days after any
Termination of Employment) by a contribution by the Company of the necessary
amount of cash, as determined by independent actuaries acceptable to both
Executive and the Company, to the irrevocable grantor trust created for such
purpose by the Company, with Chemical Bank as Trustee, dated July 18, 1995, a
copy of which may be obtained from the Company or the Trustee.
13. Letter of Credit for Legal Fees. [n order to ensure the
benefits intended to be provided to the Executive hereunder, immediately prior
to any Change of Control Date the Company shall establish and hereby agrees to
maintain throughout the remaining Term an irrevocable standby Letter of Credit
in favor of the Executive and each other person who is named an Executive under
similar agreements, drawn on a bank selected by the Company (the "Letter of
Credit") which provides. for a credit amount of $250,000 being made available
to the Executive against presentation at any time and from time to time of his
clean sight drafts, accompanied by statements of his counsel for fees and
expenses, in an aggregate amount not to exceed $250,000, unless a larger amount
is authorized by either the Chief Executive Officer, General Counsel, Chief
Financial Officer, or a Senior Vice President of the Company.
14. Successors; Binding Agreement.
(a) This Agreement shall not be terminated by the
voluntary or involuntary dissolution of the Company or by any merger
or consolidation where the Company is not the surviving corporation,
or upon any transfer of all or substantially all of the Company's
assets, or any other Change in Control. The Company shall require any
purchaser, assign, surviving corporation or successor (whether direct
or indirect, by purchase, merger, consolidation, reorganization or
otherwise) to all or substantially all of the business and/or assets
of the Company, by agreement in form and substance satisfactory to the
Executive, expressly to assume and agree to perform this Agreement in
the same manner and to the same extent the Company would be required
to perform if no such succession had taken place. This Agreement shall
be binding upon and inure to the benefit of the Company and any
purchaser, assign, surviving corporation, or successor to the Company,
including without limitation any persons acquiring directly or
indirectly all or substantially all of the business and/or assets of
the Company whether by purchase, merger, consolidation,
reorganization, transfer of all or substantially all of the business
or assets of the Company, or otherwise (and such purchaser, assign,
surviving corporation, or successor shall thereafter be deemed the
"Company" for the purposes of this Agreement), but this Agreement
shall not otherwise be assignable, transferable or delegable by the
Company.
6
7
(b) This Agreement shall inure to the benefit of and be
enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees and/or
legatees.
(c) This Agreement is personal in nature and neither of
the parties hereto shall, without the consent of the other, assign,
transfer or delegate this Agreement or any rights or obligations
hereunder except as expressly provided in this Section 14. Without
limiting the generality of the foregoing, the Executive's right to
receive payments hereunder shall not be assignable, transferable or
delegable, whether by pledge, creation of a security interest or
otherwise, or otherwise subject to anticipation, alienation, sale,
encumbrance, charge, hypothecation, or set-off in respect of any
claim, debt, or obligation, or to execution, attachment, levy or
similar process, or assignment by operation of law, other than by a
transfer by his will or by the laws of descent and distribution. Any
attempt, voluntarily or involuntarily, to effect any action prohibited
by this Paragraph shall be null, void, and of no effect.
15. Notices. Any notice, request, claim, demand, document and
other communication hereunder to any party shall be effective upon receipt (or
refusal of receipt) and shall be in writing and delivered personally or sent by
telex, telecopy, or certified or registered mail, postage prepaid, or other
similar means of communication, as follows:
(a) If to the Company, addressed to its principal
executive offices to the attention of its Secretary;
(b) If to the Executive, to him or her at the address set
forth below under the Executive's signature; or at any such other
address as either party shall have specified by notice in writing to
the other.
16. Amendments; Waivers. This Agreement may not be modified,
amended, or terminated except by an instrument in writing, signed by the
Executive and by a duly authorized representative of the Company. By an
instrument in writing similarly executed, either party may waive compliance by
the other party with any provision of this Agreement that such other party was
or is obligated to comply with or perform; provided, however, that such waiver
shall not operate as a waiver of, or estoppel with respect to, any other or
subsequent failure. No failure to exercise and no delay in exercising any
right, remedy, or power hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any right, remedy, or power hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, or power provided herein or by law or in equity.
17. Entire Agreement. This Agreement sets forth the entire
agreement of the parties hereto in respect of the subject matter contained
herein and supersedes all prior agreements, promises, covenants, arrangements,
communications, representations or warranties, whether oral or written, by any
officer, employee or representative of any party hereto. The parties further
intend that this Agreement shall constitute the complete and exclusive
statement of its terms and that no extrinsic evidence whatsoever may be
introduced in any judicial, administrative, or other legal proceeding involving
this Agreement.
7
8
18. Severability; Enforcement. If any provision of this Agreement,
or the application thereof to any person, place, or circumstance shall be held
by a court of competent jurisdiction to be invalid, unenforceable or void, the
remainder of this Agreement and such provisions as applied to other persons,
places and circumstances shall remain in full force and effect.
19. Indemnification. The Company shall indemnify, defend, and hold
the Executive harmless from and against any liability, damages, costs, or
expenses (including attorney's fees) in connection with any claim, cause of
action, investigation, litigation, or proceeding involving him by reason of his
having been an officer, director, employee, or agent of the Company, unless it
is judicially determined, in a final, nonappealable order, that the Executive
was guilty of gross negligence or willful misconduct. The Company also agrees
to maintain adequate directors and officers liability insurance for the benefit
of Executive for the term of this Agreement and for at least three years
thereafter.
20. 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 he 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.
21. Governing Law. This Agreement shall be interpreted,
administered and enforced in accordance with the law of the State of Arkansas,
except to the extent pre-empted by Federal law.
The parties have duly executed this Agreement as of the date first
written above.
XXXXXXX ENTERPRISES, INC. EXECUTIVE
By:
Xxxx X. Xxxxxxxxxxx Xxxxx X. Xxxxxxx
President and Chief Operating Officer 0000 Xxxxxxxx Xxxx
Xxxxx, XX 00000
By:
Xxxxxx X. Xxxxxxxxxxx
Executive Vice President,
General Counsel and Secretary
0000 Xxxxxx Xxxxxx, Xxxxx 00-X
Xxxx Xxxxx, XX 00000
Attention: Secretary
8
9
Form of Cash Benefit Payment Paragraph 4(a);
-- One lump sum payment
-- Equal monthly installment payments each in the amount of Executive's
monthly Base Salary as of the date of termination of employment.
Xxxxx X. Xxxxxxx
9
