Exhibit 10.16
APW LTD.
CHANGE IN CONTROL AGREEMENT
FOR
XXXXXXX X. XXXXXXXX
This Agreement is made as of November 1, 2000 (the "Effective Date"),
between APW Ltd., a Bermuda corporation (the "Company"), and Xxxxxxx X. Xxxxxxxx
(the "Executive").
WHEREAS, the Executive is a valued employee of the Company; and
WHEREAS, the Company desires to enter into this Change in Control
Agreement with the Executive to provide the Executive with contractual
assurances to induce the Executive to remain as an employee of the Company
notwithstanding the possibility, threat or occurrence of a Change in Control (as
defined below) of APW Ltd.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, the Executive and the Company agree as follows:
1. Employment and Duties. The Company hereby employs Executive as
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Senior Vice President, with all powers and authority as are customary to this
position, and Executive hereby accepts employment with the Company in accordance
with the terms and conditions set forth herein. Executive shall have such
executive responsibilities as is customary with this position and as the
Company's Board of Directors or the President (as the case may be) shall from
time to time assign to him. Executive agrees to devote his full time (excluding
annual vacation time), skill, knowledge, and attention to the business of the
Company and the performance of his duties under this Agreement.
2. Termination, Bonus, and Severance Pay.
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a. As used in this Agreement, a Change in Control means:
(i) a sale of over 50% of the stock of APW Ltd. measured in
terms of voting power, other than in a public offering; or
(ii) the sale by APW Ltd. of over 50% of its business or assets
in one or more transactions over a consecutive 12-month period; or
(iii) a merger or consolidation of APW Ltd. with or into any
other corporation or corporations such that the shareholders of APW
Ltd. prior to the merger or consolidation do not own at least 50% of
the surviving entity measured in terms of voting power; or
(iv) the acquisition by any means of more than 25% of the
voting power or common stock of APW Ltd. by any person or group of
persons (with group defined by the definitions under Section
13(d)(3) of the Securities Exchange Act of 1934, as amended); or
(v) the election of directors constituting a majority of
APW Ltd.'s board of directors pursuant to a proxy solicitation not
recommended by APW Ltd.'s board of directors.
b. As used in this Agreement, a Triggering Event means:
(i) (a) reducing the base salary paid to the Executive or
(b) a material reduction in Executive's bonus opportunity or (c)
reducing the total aggregate value of the fringe benefits received
by the Executive from the levels received by the Executive at the
time of a Change in Control or during the 180 day period
immediately preceding the Change in Control; or
(ii) a material change in the Executive's position or duties
or the Executive's reporting responsibilities from the levels
existing at the time of a Change in Control or during the 180 day
period immediately preceding the Change in Control; or
(iii) a change in the location or headquarters where the
Executive is normally expected to provide services to a location
of 40 or more miles from the previous location existing at the
time of the Change in Control or during the 180 day period
immediately preceding the Change in Control.
c. If the Company terminates Executive's employment within the
period beginning six months prior to a Change in Control and ending 36
months following a Change in Control or Executive voluntarily terminates
his services following a Triggering Event that occurs within 36 months
following the date of a Change in Control, the Company shall pay to the
Executive a lump sum equal to two and one-half times the sum of (a) the
highest per annum base rate of salary in effect with respect to the
Executive during the one-year period immediately prior to the termination
of employment plus (b) the highest annual bonus or incentive compensation
earned by the Executive under any cash bonus or incentive compensation plan
of the Company during the three complete fiscal years of the Company
immediately preceding the termination of employment. Such lump sum shall be
paid by the Company to the Executive within twenty days after the
Executive's termination of employment. In addition, the Company, at the
Company's cost, shall continue to provide Executive with the welfare
benefits and other perquisites Executive was receiving at the time of the
Change in Control for a period of two and one-half years following
Executive's termination of employment or such earlier date as Executive
becomes employed by another
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employer and becomes eligible for welfare benefits. For purposes hereof,
perquisites will include the Executive's right to lease a car or a car
allowance, as the case may be.
d. Notwithstanding any provision herein, no amounts will be due
under this Agreement in the event the Executive's employment is terminated
by the Company for cause. The term "for cause" shall mean solely the
following events:
(i) Executive has been convicted of a felony which has
adversely affected the Company's reputation;
(ii) Executive has materially misappropriated Company funds,
property or opportunities; or
(iii) Executive has materially breached any of the provisions of
this Agreement after having been provided by written notice a
reasonable opportunity (not less than 15 business days) to cure such
breach.
3. Certain Additional Payments by the Company.
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a. In the event it shall be determined that the severance benefits
payable to Executive under this Agreement or any other payments or benefits
received or to be received by the Executive (whether payable pursuant to
the terms of this Agreement, any other plan, agreement or arrangement) (the
"Payments") would be subject to the excise tax imposed by Section 4999 of
the Internal Revenue Code of 1986, as amended (the "Code") or any interest
or penalties are incurred by the Executive with respect to such excise tax
(such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the "Excise Tax"), then the
Executive shall be entitled to receive an additional payment (a "Gross-Up
Payment"). The Gross-Up Payment shall be in an amount such that after
payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any
income taxes (and any interest and penalties imposed with respect thereto)
and excise tax imposed on the Gross-Up Payment, the Executive retains an
amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.
b. Subject to the provisions of paragraph c. of this Section 3, all
determinations required to be made under this Section 3, including whether
and when a Gross-Up Payment is required and the amount of such Gross-Up
Payment and the assumptions to be utilized in arriving at such
determination, shall be made by a certified public accounting firm
designated by the Executive (the "Accounting Firm"), which shall provide
detailed supporting calculations both to the Company and the Executive
within twenty business days of the receipt of notice from the Executive
that there has been a Payment, or such earlier time as is requested by the
Company. All fees and expenses of the Accounting Firm shall be borne solely
by the Company. Any Gross-Up Payment, as determined pursuant to this
Xxxxxxx 0,
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xxxxx xx paid by the Company to the Executive within five days of the
receipt of the Accounting Firm's determination. Any determination by
the Accounting Firm shall be binding upon the Company and the
Executive. As a result of the uncertainty in the application of Section
4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which
will not have been made by the Company should have been made
("Underpayment"), consistent with the calculations required to be made
hereunder. In the event that the Company exhausts its remedies pursuant
to paragraph c. of this Section 3 and the Executive thereafter is
required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment that has occurred and any such
Underpayment shall be promptly paid by the Company to or for the
benefit of Executive.
c. The Executive shall notify the Company in writing of any
claim by the Internal Revenue Service that, if successful, would
require the payment by the Company of the Gross-Up Payment. Such
notification shall be given as soon as practicable but no later than
ten business days after the Executive is informed in writing of such
claim and shall describe the nature of such claim and the date on which
such claim is requested to be paid. The Executive shall not pay such
claim prior to the expiration of the thirty-day period following the
date on which he gives such notice to the Company (or such shorter
period ending on the date that any payment of taxes with respect to
such claim is due). If the Company notifies the Executive in writing
prior to the expiration of such period that it desires to contest such
claim, the Executive shall:
(i) give the Company any information reasonably
requested by the Company relating to such claim,
(ii) take such action in connection with contesting such
claim as the Company shall reasonably request in writing from
time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by the Company.
(iii) cooperate with the Company in good faith in order
effectively to contest such claim, and
(iv) permit the Company to participate in any proceedings
relating to such claim;
provided, however, that the Company shall bear and pay directly all
costs and expenses (including additional interest and penalties)
incurred in connection with such contest and shall indemnify and hold
the Executive harmless, on an after-tax basis, for any Excise Tax or
income tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of costs and
expenses. Without limitation on the foregoing provisions of this
paragraph c. of Section 3, the Company shall control all proceedings
taken
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in connection with such contest and, at its sole option, may pursue or
forego any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may,
at its sole option, either direct the Executive to pay the tax claimed
and xxx for a refund or contest the claim in any permissible manner,
and the Executive agrees to prosecute such contest to a determination
before any administrative tribunal, in a court of initial jurisdiction
and in one or more appellate courts, as the Company shall determine;
provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount
of such payment to the Executive, on an interest-free basis and shall
indemnify and hold the Executive harmless, on an after-tax basis, from
any Excise Tax or income tax (including interest or penalties with
respect thereto) imposed with respect to such advance or with respect
to any imputed income with respect to such advance; and provided,
further, that any extension of the statute of limitations relating to
payment of taxes for the taxable year of the Executive with respect to
which such contested amount is claimed to be due is limited solely to
such contested amount. Furthermore, the Company's control of the
contest shall be limited to issues with respect to which a Gross-Up
Payment would be payable hereunder and the Executive shall be entitled
to settle or contest, as the case may be, any other issue raised by the
Internal Revenue Service or any other taxing authority.
d. If, after the receipt by the Executive of an amount
advanced by the Company pursuant to paragraph c. of this Section 3, the
Executive becomes entitled to receive any refund with respect to such
claim, the Executive shall (subject to the Company's complying with the
requirements of paragraph c. of this Section 3) promptly pay to the
Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If after the receipt
by the Executive of an amount advanced by the Company pursuant to
paragraph c. of this Section 3, a determination is made that the
Executive shall not be entitled to any refund with respect to such
claim and the Company does not notify the Executive in writing of its
intent to contest such denial of refund prior to the expiration of
thirty days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such
advance shall offset, to the extent thereof, the amount of Gross-Up
Payment required to be paid.
4. Confidential Information. As a supplement to any other
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confidentiality provisions applicable to the Executive, Executive acknowledges
that all Confidential Information is and shall continue to be the exclusive
proprietary property of the Company, whether or not disclosed to or entrusted to
the custody of Executive. Executive will not, either during the term hereof or
at any time thereafter, disclose any Confidential Information, in whole or in
part, to any person or entity other than to employees or affiliates of the
Company, for any reason or purpose, unless the Company gives its prior written
consent to such disclosure. Executive also will not, either during the term
hereof or at any time thereafter, use in any manner any Confidential Information
for his own purposes or for the benefit of any person or entity except the
Company and its affiliates whether such use consists of duplication, removal,
oral communication, disclosure, transfer or other unauthorized use thereof,
unless the Company gives its prior written consent to such use. As used herein,
the term
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"Confidential Information" refers to all information and materials not in the
public domain belonging to, used by or in the business of the Company (the
"Business") relating to its business strategies, products, pricing, customers,
technology, programs, costs, employee compensation, marketing plans,
developmental plans, computer programs, computer systems, inventions,
developments, formulae, processes, designs, drawings, trade secrets of every
kind and character and competitive information. "Confidential Information" also
includes confidential information belonging to other companies and disclosed to
the Executive by the Company.
5. Non-competition and Inventions.
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a. During the period of employment of Executive and for a period of
one year after Executive's termination of employment for any reason,
Executive shall not directly or indirectly as a principal, agent,
owner, employee, consultant, advisor, trustee, beneficiary,
distributor, partner, co-venturer, officer, director, stockholder or in
any other capacity, nor will any entity owned by Executive:
(i) divert or attempt to divert any business from the
Company or engage in any act likely to cause any customer or
supplier of the Company to discontinue or curtail its business with
the Company or to do business with another entity, firm, business,
activity or enterprise directly or indirectly competitive with the
Company; or
(ii) contact, sell or solicit to sell or attempt to contact,
sell or solicit to sell products competitive to those sold by the
Company to any customer of the Company with which Executive had
contact while performing services for the Company; or
(iii) solicit or attempt to solicit any employee of the
Company for employment or retention.
Notwithstanding the provisions above, Executive may acquire
securities of any entity the securities of which are publicly traded,
provided that the value of the securities of such entity held directly
or indirectly by Executive immediately following such acquisition is
less than 5% of the total value of the then outstanding class or type
of securities acquired.
b. Executive acknowledges and agrees that the restrictions set
forth in this section 5 are founded on valuable consideration and are
reasonable in duration and geographic area in view of the circumstances
under which this Agreement is executed and that such restrictions are
necessary to protect the legitimate interests of the Company. If, in
any judicial proceeding, a court shall refuse to enforce any separate
covenant set forth herein, then such unenforceable covenant shall be
deemed eliminated from this section 4 for the purpose of that
proceeding to the extent necessary to permit the remaining separate
covenants to be enforced.
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c. The Executive hereby sells, transfers and assigns to the
Company the entire right, title and interest of the Executive in and to
all inventions, ideas, disclosures and improvements, whether patented
or unpatented, and copyrightable materials, made or conceived by the
Executive, solely or jointly, or in whole or in part, during the period
Executive is bound by this Agreement which (i) relate to methods,
apparatus, designs, products, processes or devices sold, leased, used
or under construction or development by the Company or any subsidiary
or (ii) otherwise relate to or pertain to the business, functions or
operations of the Company or any subsidiary, or (iii) arise (wholly or
partly) from the efforts of the Executive during the Term hereof in
connection with his performance of his duties hereunder. The Executive
shall communicate promptly and disclose to the Company, in such form as
the Company requests, all information, details and data pertaining to
the aforementioned inventions, ideas, disclosures and improvements;
and, whether during the term hereof or thereafter, the Executive shall
execute and deliver to the Company such formal transfers and
assignments and such other papers and documents as may be required of
the Executive to permit the Company to file and prosecute the patent
applications and, as to copyrightable material, to obtain copyright
thereon. This provision does not relate to any invention for which (i)
no equipment, supplies, facilities or trade secret information of the
Company was used and which was developed entirely on the Executive's
own time and which does not relate (A) directly to the business of the
Company, or (B) to the Company's actual or demonstrably anticipated
research or development; or (ii) does not result in any work performed
by the Executive for the Company.
d. The provisions in this paragraph are a supplement to any
other confidentiality and non-compete provisions applicable to the
Executive in any other agreements.
6. Miscellaneous.
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a. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of Wisconsin, without
reference to principles of conflict of laws. The captions of this
Agreement are not part of the provisions hereof and shall have no force
or effect. This Agreement may not be amended or modified otherwise than
by a written agreement executed by the parties hereto or their
respective successors and legal representatives.
b. All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return receipt requested, postage
prepaid, addressed as follows:
If to the Executive, to his address appearing on the records of the
Company.
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If to the Company: APW Ltd.
N22 X00000 Xxxxxxxxx Xxxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Attention: President
With a copy to: Xxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx III, Esq.
or to such other address as either party shall have furnished to the
other in writing in accordance herewith. Notice and communications
shall be effective when actually received by the addressee.
c. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any
other provision of this Agreement.
d. The Company may withhold from any amounts payable under
this Agreement such federal, state, local or foreign taxes as shall be
required to be withheld pursuant to any applicable law or regulation.
e. The Executive's or the Company's failure to insist upon
strict compliance with any provisions hereof or any other provision of
this Agreement or the failure to assert any right the Executive or the
Company may have hereunder, including, without limitation, the right of
the Executive to terminate employment for cause pursuant to this
Agreement, shall not be deemed to be a waiver of such provision or
right or any other provision or right of this Agreement.
f. The Executive and the Company acknowledge that, except as
may otherwise be provided herein or under any other written agreement
between the Executive and the Company, the employment of the Executive
by the Company is "at will" and the Executive's employment may be
terminated by the Company at any time.
g. The Company agrees that if it breaches any payment
obligation hereunder, the Company will pay all reasonable attorney fees
and costs incurred by Executive in enforcing Executive's rights
hereunder.
h. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
i. If the Company sells, leases, exchanges or otherwise
disposes of, in a single transaction or series of related transactions,
all or substantially all of its property and assets,
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or if the Company ceases to exist as a separate entity as a result of a
merger, spin-off, reorganization or otherwise, then the Company will,
as a condition precedent to any such transaction, cause effective
provision to be made so that the person or entity acquiring such
property and assets or succeeding to the business of the Company as the
surviving entity of a merger, spin-off, reorganization or otherwise, as
applicable, becomes bound by, and replaces the Company under, this
Agreement.
7. Injunctive Relief. Executive acknowledges and agrees that
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irreparable injury will result to the Company in the event Executive breaches
any covenant contained in this Agreement and that the remedy at law for such
breach will be inadequate. Therefore, if Executive engages in any act in
violation of the provisions of this Agreement, the Company shall be entitled, in
addition to such other remedies and damages as may be available to it by law or
under this Agreement, to injunctive or other equitable relief to enforce the
provisions hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first above written.
APW Ltd.
By: /s/ R. G. Sim
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/s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
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