Exhibit 10.33
CHANGE IN CONTROL AGREEMENT
This Change In Control Agreement is effective as of this 20th day of
August, 2002, by and between Successories, Inc., an Illinois corporation,
("Company") and Xxxxxxx X. XxXxx ("Employee").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Employee is now employed by Company; and
WHEREAS, the Company has initiated a process in which there may be a Change
in Control (as defined below) of the Company; and
WHEREAS, the Company desires to pay Employee additional compensation to
stay with the Company through a Change in Control.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained in this Agreement, it is agreed as follows:
1. TERM. This Agreement shall be effective until the later of (i) June 1,
2003 or (ii) the date of a Change in Control provided the negotiations for such
Change in Control began before June 1, 2003. If Employee's employment is
terminated by the Company for other than Just Cause (as defined below), Employee
shall remain entitled and shall receive any payments hereunder in the event of a
Change in Control during the Term. In the event Employee's employment is
terminated voluntarily or for Just Cause prior to a Change in Control, Employee
shall not be entitled to nor receive any benefits hereunder.
2. PAYMENT AMOUNT. If there is a Change in Control, the Company shall pay
the Employee in cash, in one lump sum, and within five (5) days following such
Change of Control, the Payment Amount (as defined below). The Company may
withhold from the Payment Amount withholding taxes, other normal payroll
deductions and any other amounts required by law to be withheld from the Payment
Amount. Said Payment Amount is in addition to and not in lieu of the
compensation, benefits and/or other bonuses that the Employee earns or is
entitled to receive.
Notwithstanding any language to the contrary, the Company shall first apply
the Payment Amount against (i) any debt owed to the Company by Employee and (ii)
any third party debt owed by the Employee which the Company has guaranteed.
3. FORMULA. The term Payment Amount shall mean an amount equal to the One
Hundred and Fifty Thousand Dollars ($150,000).
4. DEFINITIONS.
The term "Change in Control" shall mean any transaction or series or
combination of transactions whereby, directly or indirectly, control of, or a
material interest in, the Company or any material portion of its businesses or
assets is
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transferred for Consideration, including, without limitation, a sale or exchange
of capital stock or assets, a merger or consolidation, a tender or exchange
offer, a leveraged buy-out, the formation of a joint venture, minority
investment or partnership, or any similar transaction. If a Change in Control is
accomplished whereby the Company's assets shall be sold, leased, conveyed or
otherwise disposed of, the person or entity purchasing the assets of the Company
shall become a party to this Agreement and shall assume all of Company's rights
and obligations under this Agreement. If the person or entity purchasing the
assets of the Company does not become a party to this Agreement and assume the
Company's rights and obligations hereunder, the Company shall not be released of
its obligations hereunder.
The term "Consideration" shall mean the aggregate value of all cash,
securities and other property paid for the Company in connection with the Change
in Control. In the case of a sale of the Company's stock, by merger, tender
offer or other combination, the Consideration shall not include any interest
bearing indebtedness of the Company for borrowed money required to be repaid or
assumed by the Company, directly or indirectly, (by operation of law or
otherwise) in connection with the Change in Control. In the case of the sale of
the Company's assets, the Consideration shall be reduced by the amount of any
interest bearing indebtedness of the Company for borrowed money required to be
repaid by the Company in connection with the Change in Control. In the event
that the Consideration received in a Change in Control is paid in whole or in
part in the form of securities or other property, then, for purposes of
calculating the Employee's bonus hereunder, the value of such securities or
other property shall be the fair market value thereof on the day immediately
preceding the consummation of the Change in Control; provided, however, that if
such securities consist of securities with an existing public trading market,
the value thereof shall be determined by the average of the last sales prices of
such securities on the 30 trading days immediately preceding the consummation of
the Change in Control. Any amounts payable to the Company, any shareholder of
the Company or any affiliate of the Company in connection with a noncompetition,
employment, consulting, licensing, supply or other agreement shall be deemed
Consideration except for payments to employees covered under this form of
Agreement and in the case of an employment or consulting agreement to the extent
such amounts represent the fair value of services to be rendered. If all or a
portion of the Consideration payable in connection with the Change in Control
includes contingent future payments, then the Consideration related to such
payments shall equal the present value of the reasonably expected maximum amount
of such payments (as such amount is determined in good faith between the Company
and Employee) using a discount rate of eight percent (8%). If the Consideration
to be paid is computed in a foreign currency, the value of such foreign
currency, for purposes of calculating Employee's bonus hereunder, shall be
converted into U.S. Dollars at the prevailing exchange rate on the date on which
the Change in Control is consummated or on the date any contingent or escrowee
Consideration is actually paid.
The term "Just Cause" shall mean (a) an act of fraud or dishonesty by
Employee that is intended to result directly or indirectly in gain or personal
enrichment of Employee at Employer's expense; (b) conduct on the Employee's part
which is intended
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to injure the Employer's business or reputation; or (c) a felony crime or an act
of moral turpitude committed by the Employee.
5. ARBITRATION. The Company and Employee agree to settle any controversy
or claim arising out of or relating to this Agreement or the breach thereof by
arbitration in DuPage County, Illinois, in accordance with the rules then
obtaining of the American Arbitration Association, and judgment upon the award
rendered may be entered in any court having jurisdiction thereof.
6. WAIVER OF BREACH. The waiver by the either party of a breach of any
provision of this Agreement by the other party shall not operate nor be
construed as a waiver of any subsequent breach by the other party.
7. BINDING EFFECT. This Agreement shall inure to the benefit of and shall
be binding upon the parties hereto and their respective successors, assigns,
heirs and legal representatives, including the person or entity purchasing the
assets or stock of the Company which causes a Change in Control. Insofar as the
Employee is concerned, this Agreement, being personal, cannot be assigned.
8. HEADINGS. The headings contained in this Agreement are for reference
purposes only and shall not affect the construction or interpretation of this
Agreement.
9. SEVERABILITY. Whenever possible each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
10. COUNTERPARTS. This Agreement shall be executed in any number of
counterparts, each of which shall, when executed, be deemed to be an original,
but all of which together shall constitute one and the same instrument.
11. GOVERNING LAW. This Agreement shall be construed (both as to validity
and performance) and enforced in accordance with and governed by the laws of the
State of Illinois.
12. NOTICE. All notices which are required or may be given under this
Agreement shall be in writing and shall be deemed to have been duly given when
delivered in person or three (3) days after being mailed by registered or
certified first class mail, postage prepaid, return receipt requested, if to the
Employee, at the address listed under his name, or if to the Company, at the
address listed under its name or to such other address as such party shall have
specified by notice to the other party hereto as provided in this Section.
13. ENTIRE AGREEMENT. Except as specifically provided for in this
Agreement, this Agreement constitutes the entire agreement between the parties
hereto and
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supersedes all prior agreements, understandings and arrangements, oral or
written, between the parties hereto with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and date first above written.
EMPLOYEE: SUCCESSORIES, INC.
By:_______________________________
_______________________________________ Name:_____________________________
Xxxxxxx X. XxXxx Its:______________________________
0000 Xxxx Xxxx Address: 0000 Xxxxx Xxxx
Xxxxxx, XX 00000
Xxxxxxx, Xxxxxxxx 00000
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