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Exhibit No. 10.47
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CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement ("Agreement") is made as of the 7th
day of December, 1999, between Xxxxxxx Xxxxxxx Jewelers, Inc. (the "Company")
and ___________________ (the "Non-Employee Director").
WHEREAS, the Company considers the establishment and maintenance of a
sound and vital Board of Directors essential to protecting and enhancing its
best interests and the Company's stockholders;
WHEREAS, the Company recognizes that the possibility of a change of
control of the Company at some time in the future exists and that such
possibility and the uncertainty it may raise among Non-Employee Directors of the
Board of Directors may result in the departure or distraction of such
Non-Employee Directors to the detriment of the Company and the Company's
stockholders;
WHEREAS, the Compensation Committee (the "Committee") of the Company's
Board of Directors (the "Board") has determined that appropriate steps should be
taken to reinforce and encourage the continued attention and dedication of the
Non-Employee Directors to their duties without the distraction arising from the
possibility of a change of control.
NOW, THEREFORE, in consideration of the mutual covenants set forth
below and for other good and valuable consideration, the Company and the
Non-Employee Director agree to the following Change of Control Agreement.
ARTICLE I
DEFINITIONS
1.1 "BENEFICIARY" means the Non-Employee Director's estate.
1.2 "BENEFIT AMOUNT" means the cash payment payable pursuant to Article
II, subject to the terms and conditions contained in this Agreement.
1.3 "BOARD" means the Board of Directors of the Company.
1.4 "CODE" means the Internal Revenue Code of 1986, as amended.
1.5 "COMMITTEE" means the Compensation Committee of the Board or any
other committee appointed by the Board which is invested by the Board with
responsibility for the administration of the Plan and whose members meet the
requirements for eligibility to serve as set forth in Exchange Act Rule 16b-3
and in the Plan.
1.6 "COMPANY" means Xxxxxxx Xxxxxxx Jewelers, Inc.
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1.7 "EFFECTIVE DATE" means December 7, 1999.
1.8 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as in
effect at the time of reference, or any successor law which may hereafter be
adopted in lieu thereof, and any reference to any specific provisions of the
Exchange Act shall refer to the corresponding provisions of the Exchange Act as
it may hereafter be amended or replaced.
ARTICLE II
BENEFITS
2.1 PAYMENT OF BENEFIT AMOUNT.
(a) If the Non-Employee Director's service as a member of the Board of
Directors is terminated under the circumstances described in Section 2.1(b)
within 12 months after a Change of Control occurs, the Company will make a lump
sum payment of the Benefit Amount to the Director or his Beneficiary within 15
days after such cessation of services. No benefits shall be payable under the
terms of the Agreement unless a Change of Control occurs and the Non-Employee
Director's services are terminated under the circumstances described in Section
2.1(b).
(b) Termination of services for purposes of this Section 2.1 shall mean
that the services of the Non-Employee Director are no longer required by the
Company.
(c) Definitions:
(i) "CHANGE OF CONTROL" means a Change of Control of the
Company of a nature that would be required to be reported
in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act as in effect on the
date this Agreement is approved by the Board, whether or
not the Company is then subject to such reporting
requirement; provided that, without limitation, a Change
of Control shall be deemed to have occurred if:
(A) any "person" (as defined in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of securities of the Company representing forty-five percent (45%) or
more of the combined voting power of the Company's then outstanding
securities; provided, however, that: (i) the forty-five percent (45%)
threshold of this clause (1) shall be increased to sixty percent (60%)
in the case of any such "person" who, on the date this Agreement is
approved by the Board, is such a "beneficial owner" directly or
indirectly, of securities of the Company representing fifteen percent
(15%) or more of the combined voting power of the Company's then
outstanding securities; and (ii) a Change in Control shall not be
deemed to occur under this clause (1) by reason of the acquisition of
securities by the Company or a Director benefit plan (or any
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trust funding such a plan) maintained by the Company, or by reason of
the new issuance of securities directly by the Company;
(B) during any period (not including any period
prior to the adoption of this Agreement) of one (1) year or, if less,
the period of time elapsed from the date this Agreement was adopted by
the Board, there shall cease to be a majority of the Board comprised of
"Continuing Directors" (hereinafter defined); or
(C) (i) the Board recommends to the Company's
stockholders or approves a merger or consolidation of the Company with
any other corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding
or by being converted into voting securities of the surviving entity)
more than eighty percent (80%) of the combined voting power of the
voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or (ii) the
stockholders of the Company 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.
"Continuing Directors" means individuals who at
the beginning of any period (not including any period prior to the
execution of this Agreement) of one (1) year or, if less, the period of
time elapsed from the date this Agreement was approved by the Board,
constitute the Board, and any new director(s) whose election by the
Board or nomination for election by the Company's stockholders was
approved by a vote of at least a majority of the directors then still
in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved.
2.2 DETERMINATION OF BENEFIT AMOUNT. The Non-Employee Director's
Benefit Amount shall be equal to the sum of the Non-Employees Director's regular
annual compensation at the rate in effect at the time of the Change of Control.
2.3 PAYMENT TO BENEFICIARY. If the Non-Employee Director becomes
entitled to payment of the Benefit Amount pursuant to Section 2.1 and the
Company is notified of the Non-Employee Director's death prior to payment of the
Non-Employee Director's entire Benefit Amount, the remaining Benefit Amount will
be distributed in the form of a lump sum payment to the Non-Employee Director's
Beneficiary.
2.4 MITIGATION NOT REQUIRED. If the Non-Employee Director becomes
entitled to payment of the Benefit Amount as described in Section 2.1, the
payment of such Benefit Amount shall not be affected or reduced in any way by
any compensation to which the Non-Employee Director may be or become entitled to
on account of employment with any other employer.
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ARTICLE III
TAXES
3.1 TAXES AND WITHHOLDING. If the Non-Employee Director or his
Beneficiary becomes entitled to receive cash or recognizes other taxable income
under this Agreement, the Company will have the right to withhold taxes from the
Non-Employee Director's or Beneficiary's payment hereunder or may deduct such
taxes from any other amounts payable to the Non-Employee Director or Beneficiary
at any time thereafter in cash or otherwise. The Company will bear no
responsibility whatsoever for the taxes or tax effects resulting under this
Agreement as to the Non-Employee Director or any Beneficiary.
3.2 CODE SECTION 162(m) LIMITATION. Notwithstanding anything in this
Agreement to the contrary, to the extent that Code Section 162(m) would operate
to limit the Company's federal income tax deduction for remuneration with
respect to the Non-Employee Director, resulting in federal income tax liability
to the Company, payment of the Benefit Amount to the Non-Employee Director shall
be deferred until Section 162(m) no longer operates to result in such federal
income tax liability to the Company. The determination of whether Code Section
162(m) operates to limit the Company's deduction in a manner resulting in
federal income tax liability to the Company will be determined by the Committee.
Payment of the Benefit Amount to the Non-Employee Director shall occur in the
following calendar year (or, if necessary, each subsequent calendar year) to the
extent such payment, when added to other remuneration subject to the Section
162(m) limit for such year, does not result in federal income tax liability to
the Company. In administering the deferral mechanism of this Section 3.2, the
determinations by the Committee shall be final; however, the Committee shall act
promptly in making its determinations hereunder and shall not unnecessarily
delay payment of the Benefit Amount.
3.3 "GROSS-UP" FOR EXCISE TAXES. In the event the Non-Employee Director
becomes subject to the excise tax imposed by Code Section 4999 (the "Excise
Tax"), the Company shall pay in cash to the Non-Employee Director at the time
specified below, an additional amount (the "Gross-Up Payment") such that the net
amount retained by the Non-Employee Director shall be equal to the amount that
would have been retained had such excise tax not applied, as determined below.
The following shall govern the determination of the amount of the cash
payment described above:
(a) any other payments or benefits received or to be
received by the Non-Employee Director in connection with a "change in
control" of the Company (as defined in Code section 280G) shall be
treated as "parachute payments" within the meaning of section
280G(b)(2) of the Code, and all "excess parachute payments" within the
meaning of section 280G(b)(1) shall be treated as subject to the Excise
Tax, unless in the opinion of the Company's independent auditors, such
other payments or benefits (in whole or in part) do not constitute
parachute payments, or such excess parachute payments (in whole or in
part) represent reasonable compensation for services actually rendered
within the meaning of Section 280G(b)(4) of the Code,
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(b) For purposes of determining the amount of the
Gross-Up Payment, the Non-Employee Director shall be deemed to pay
federal income taxes at the highest marginal rate of federal income
taxation in the calendar year in which the Gross-Up Payment is to be
made and state and local income taxes at the highest marginal rates of
taxation in the state and locality of the Non-Employee Director's
residence upon the change in control, net of the maximum reduction in
federal income taxes which could be obtained from deduction of such
state and local taxes.
The amount of any Gross-Up Payment shall be paid to the Non-Employee
Director at the time at which the Non-Employee Director receives payment of the
Benefit Amount pursuant to Section 2.1. In the event that the Excise Tax is
subsequently determined by the Company's independent auditors to be less than
the amount taken into account hereunder at the time of the payment of the
Benefit Amount, the Non-Employee Director shall repay to the Company the excess
portion of the Gross-Up Payment plus interest on the amount of such repayment at
the rate provided in Section 1274(b)(2)(B) of the Code. In the event the Excise
Tax is determined to exceed the amount taken into account hereunder at the time
of the payment of the Benefit Amount (including by reason of any payment the
existence or amount of which cannot be determined at the time of the Gross-Up
Payment), the Company shall make an additional gross-up payment in respect of
such excess (plus any interest payable with respect to such excess) at the time
that the amount of such excess is finally determined.
ARTICLE IV
MISCELLANEOUS
4.1 SPENDTHRIFT CLAUSE. No amount provided under this Agreement will be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or charge, either voluntary or involuntary, and any attempt
to so alienate, anticipate, sell, transfer, assign, pledge, encumber or charge
the same will be null and void. No such amount will be liable for or subject to
the debts, contracts, liabilities, engagements or torts of any person to whom
such amount is or may be payable, except as required under applicable law.
4.2 AMENDMENT AND TERMINATION OF AGREEMENT. The Board, in its sole
discretion, may amend this Agreement at any time; provided, however, that any
amendment which would impair or reduce the Non-Employee Director's Benefit
Amount or affect the terms of payment of the Benefit Amount will be effective
only if the Non-Employee Director consents in writing to the amendment. This
Agreement will terminate upon the earliest of the following: (a) payment of the
Benefit Amount, (b) the Non-Employee Director's cessation of services as a
member of the Board of Directors prior to becoming eligible to receive a benefit
hereunder, or (c) the expiration of the twelve (12) month period following a
Change of Control.
4.3 EMPLOYMENT CONTRACT AND OTHER ARRANGEMENTS. The adoption and
maintenance of this Agreement will neither be deemed to nor will it be an
employment agreement between Company and the Non-Employee Director.
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4.4 TITLES AND HEADINGS. The titles or headings of the Articles and
Sections hereof are included solely for convenience and reference and, in the
event of any conflict between such titles or headings and the text, the text
will control.
4.5 PARTIES TO AGREEMENT. This Agreement will be binding upon and will
operate for the benefit of the Company, its successors and assigns, and the
Non-Employee Director and his or her heirs, estate and personal representatives.
4.6 GOVERNING LAW. This Agreement will be governed and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflicts of laws thereof, but subject to preemption of Federal
law.
4.7 GENDER. Where necessary or appropriate to the meaning hereof, the
singular, plural, masculine, feminine and neuter will be deemed to include each
other.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Non-Employee Director has
executed this Agreement on this _____ day of ______, 1999.
XXXXXXX XXXXXXX JEWELERS, INC.
By:
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NON-EMPLOYEE DIRECTOR
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