EXHIBIT 10(e)
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AMENDMENT NO. 1 TO ONE-YEAR CHANGE-IN-CONTROL AGREEMENT
This Amendment No. 1 to Change-in-Control Agreement (this "AMENDMENT"),
dated as of December 29, 2004, is by and between The Xxxxxx & Sessions Co., an
Ohio corporation (the "COMPANY") and _____________________ (the "KEY EMPLOYEE").
WHEREAS, the Company and the Key Employee are parties to an
Change-in-Control Agreement, dated as of December __, 2004 (the "AGREEMENT");
and
WHEREAS, the Company and the Key Employee desire to amend the Agreement
as set forth in this Amendment.
WHEREAS, capitalized terms not defined in this Amendment have the
meanings ascribed to such terms in the Agreement.
NOW THEREFORE, in consideration of the agreements contained herein and
such other consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amendment.
(a) Section 4 of the Agreement is hereby amended and restated in its
entirety as follows:
"CHANGE IN CONTROL" shall be deemed to have occurred if any of the following
events shall occur:
(a) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT")) (a "PERSON") of beneficial ownership (within
the meaning of Rule 13d-3 promulgated under the Exchange Act) of (i) 50% or more
of the then-outstanding shares of common stock of the Company (the "COMPANY
COMMON STOCK") or (ii) 35% or more of the combined voting power of the
then-outstanding voting securities of the Company entitled to vote generally in
the election of directors ("VOTING Stock"); provided, however, that for purposes
of this subsection (a), the following acquisitions shall not constitute a Change
of Control: (1) any acquisition directly from the Company, (2) any acquisition
by the Company, (3) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any Subsidiary of the Company,
or (4) any acquisition by any Person pursuant to a transaction which complies
with clauses (i), (ii) and (iii) of subsection (c) of this Section 4; or
(b) Individuals who, as of the date hereof, constitute the Board of
Directors of the Company (the "INCUMBENT BOARD") cease for any reason (other
than death or disability) to constitute at least a majority of the Board of
Directors of the Company; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board (either by a
specific vote or by approval of the proxy statement of the Company in which such
person is named as a nominee for director, without objection to such nomination)
shall be considered as though such individual were a member of the Incumbent
Board, but excluding for this purpose, any such individual whose initial
assumption of office occurs as a result of an actual or threatened election
contest (within the meaning of Rule 14a-11 of the Exchange Act) with respect to
the election or removal of
directors or other actual or threatened solicitation of proxies or consents by
or on behalf of a Person other than the Board of Directors of the Company; or
(c) Consummation of a reorganization, merger or consolidation or sale
or other disposition of all or substantially all of the assets of the Company (a
"BUSINESS COMBINATION"), in each case, unless, following such Business
Combination, (i) all or substantially all of the individuals and entities who
were the beneficial owners, respectively, of the Company Common Stock and Voting
Stock immediately prior to such Business Combination beneficially own, directly
or indirectly, more than 50% of, respectively, the then-outstanding shares of
common stock and the combined voting power of the then-outstanding voting
securities entitled to vote generally in the election of directors, as the case
may be, of the entity resulting from such Business Combination (including,
without limitation, an entity which as a result of such transaction owns the
Company or all or substantially all of the Company's assets either directly or
through one or more subsidiaries) in substantially the same proportions relative
to each other as their ownership, immediately prior to such Business
Combination, of the Company Common Stock and Voting Stock of the Company, as the
case may be, (ii) no Person (excluding any entity resulting from such Business
Combination or any employee benefit plan (or related trust) sponsored or
maintained by the Company or such entity resulting from such Business
Combination) beneficially owns, directly or indirectly, 50% or more of,
respectively, the then-outstanding shares of common stock of the entity
resulting from such Business Combination, or 35% or more of the combined voting
power of the then-outstanding voting securities of such corporation except to
the extent that such ownership existed prior to the Business Combination and
(iii) at least a majority of the members of the Board of Directors of the
corporation resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement, or of the
action of the Board of Directors of the Company, providing for such Business
Combination; or
(d) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
It is the intention of the Company and the Key Employee that the
foregoing definition complies with the requirements and definitions set forth in
Q&A11, Q&A12, Q&A13 and Q&A14 of Internal Revenue Service Notice 2005-1, and
such definition should be interpreted accordingly.
2. Effect on the Agreement. Except as expressly provided for herein,
this Amendment shall not be construed as, or constitute, a continuing waiver of
such provision, or a waiver of any other breach of, or failure to comply with,
any other provision of the Agreement, and the Agreement shall continue to be in
full force and effect and is hereby in all respects ratified and confirmed.
3. Conditions to Effectiveness. This Amendment shall be effective upon
its execution and delivery by the Key Employee and a duly authorized officer of
the Company.
4. Counterparts. This Amendment may be executed in one or more
counterparts by the parties hereto, each of which shall be deemed an original,
but all of which together constitute one and the same instrument.
5. Governing Law. This Agreement shall be construed and enforced in
accordance with and governed by the Laws of the State of Ohio.
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IN WITNESS WHEREOF, the parties have executed or caused their duly
authorized representatives to execute this Agreement as of the day and year
first above written.
THE XXXXXX & SESSIONS CO.
By:
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Xxxx X. Xxxxxxx
Chairman of the Board, President and
Chief Executive Officer
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Effective Date: December 29, 2004
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