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EXHIBIT 10.2
EMPLOYMENT (CHANGE IN CONTROL) AGREEMENT
AGREEMENT made effective as of this 11th day of January, 2001 by and
between WSI Industries, Inc., a Minnesota corporation with its principal offices
at Wayzata, Minnesota ("WSI") and Xxxx Xxxxxx (the "Executive").
WHEREAS, WSI considers the establishment and maintenance of a sound and
vital management to be essential to protecting and enhancing the best interests
of WSI and its shareholders; and
WHEREAS, the Executive has made and is expected to make, due to
Executive's intimate knowledge of the business and affairs of WSI, its policies,
methods, personnel and problems, a significant contribution to the
profitability, growth and financial strength of WSI; and
WHEREAS, WSI, as a publicly held corporation, recognizes that the
possibility of a Change in Control may exist and that such possibility and the
uncertainty and questions which it may raise among management, may result in the
departure or distraction of the Executive in the performance of the Executive's
duties to the detriment of WSI and its shareholders; and
WHEREAS, Executive is willing to remain in the employ of WSI upon the
understanding that WSI will provide income security if the Executive's
employment is terminated under certain terms and conditions; and
WHEREAS, it is in the best interests of WSI and its stockholders to
reinforce and encourage the continued attention and dedication of management
personnel, including Executive, to their assigned duties without distraction and
to ensure the continued availability to WSI of the Executive in the event of a
Change in Control.
THEREFORE, in consideration of the foregoing and other respective
covenants and agreements of the parties herein contained, the parties hereto
agree as follows:
1. Term of Agreement. This Agreement shall commence on the date hereof
and shall continue in effect until January 11, 2002. After January 11, 2002,
this Agreement shall automatically renew for successive one-year periods unless
WSI notifies the Executive of termination of the Agreement at least sixty (60)
days prior to the end of the initial term or any renewal term. Notwithstanding
the preceding sentence, if a Change in Control occurs, this Agreement shall
continue in effect for a period of 12 months from the date of the occurrence of
a Change in Control. Notwithstanding anything herein to the contrary, the
Executive's employment shall be at all times at the will of WSI, and nothing in
this Agreement shall prohibit or limit the right of WSI or Executive, prior to a
Change in Control, to terminate the employment of Executive for any reason or
for no reason.
2. Change in Control. No benefits shall be payable hereunder unless
there shall have been a Change in Control, as set forth below.
(a) For purposes of this Agreement, a "Change in Control" of
WSI shall be deemed to occur when and if any of the following occur:
(i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) becomes a "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of WSI representing 50%
or more of the combined voting power of WSI's then outstanding
securities;
(ii) there ceases to be a majority of the Board of
Directors comprised of: (A) individuals who on the date hereof
constituted the Board of WSI, and (B) any new director (other
than a director whose initial assumption of office is in
connection with an actual or threatened contest, including but
not limited to a proxy or consent solicitation, relating to
the election of directors of WSI or a settlement of such
contest or consent solicitation) who subsequently was elected
or nominated for election by a majority of the directors who
held such office immediately prior to a Change in Control (the
individuals designated in (A) and (B) shall be referred to as
the "Incumbent Directors"); or
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(iii) WSI disposes of at least 75% of its assets,
other than to an entity owned 50% or greater by WSI or any of
its subsidiaries.
(b) A Change in Control which arises from a transaction or
series of transactions which are not authorized, recommended or
approved by formal action taken by a majority of the Incumbent
Directors shall be referred to as an "Unapproved Change in Control." A
Change in Control which has been authorized, recommended or approved by
a majority of the Incumbent Directors shall be referred to as an
"Approved Change in Control."
3. Termination Following Change in Control. If a Change in Control
shall have occurred during the term of this Agreement and Executive's employment
is thereafter terminated, Executive shall be entitled to the benefits provided
in subsection 4(d) unless such termination is (A) because of Executive's Death
or Retirement, (B) by WSI for Cause or Disability, or (C) by Executive other
than for Good Reason.
(a) Disability; Retirement. If, as a result of incapacity due
to physical or mental illness, the Executive shall have been absent
from the full-time performance of Executive's duties with WSI for six
consecutive months, and within 30 days after written Notice of
Termination is given the Executive shall not have returned to the
full-time performance of the Executive's duties, WSI may terminate
Executive's employment for "Disability". Any question as to the
existence of Executive's Disability upon which Executive and WSI cannot
agree shall be determined by a qualified independent physician selected
by Executive (or, if the Executive is unable to make such selection, it
shall be made by any adult member of the Executive's immediate family),
and approved by WSI. The determination of such physician made in
writing to WSI and to Executive shall be final and conclusive for all
purposes of this Agreement. Termination by Executive of Executive's
employment based on "Retirement" shall mean retirement at or after the
date the Executive has attained age 65.
(b) Cause. Termination by WSI of Executive's employment for
"Cause" shall mean: (i) the willful and continued failure of Executive
to perform his essential duties; (ii) the willful engaging by Executive
in illegal conduct, or (iii) willful misconduct materially injurious to
WSI, which, in the case of clause (i) and (iii), the Executive has not
cured, in the sole opinion of the Board, determined in good faith,
within 10 days of receipt of the Notice of Termination. An act of
Executive shall not be deemed "willful" unless done or omitted to be
done by Executive not in good faith and without reasonable belief that
the act or omission was in WSI's best interests.
(c) Good Reason. Executive shall be entitled to terminate his
employment for Good Reason. For purposes of this Agreement, "Good
Reason" shall mean, without Executive's express written consent, any of
the following:
(i) the assignment to Executive of any duties
inconsistent with Executive's status or position with WSI, or
a substantial reduction in the nature or status of Executive's
responsibilities from those in effect immediately prior to the
Change in Control;
(ii) a reduction by WSI in Executive's annual base
salary in effect immediately prior to a Change in Control;
(iii) the relocation of Executive's principal
executive offices to a location more than fifty miles from
Executive's principal office prior to the Change in Control,
except for required travel on WSI's business to an extent
substantially consistent with Executive's prior business
travel obligations;
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(iv) the failure by WSI to continue to provide
Executive with benefits substantially similar to those enjoyed
by Executive under any of WSI's pension, life insurance,
medical, health and accident, disability, deferred
compensation, incentive awards, incentive stock options, or
savings plans in which Executive was participating at the time
of the Change in Control, the taking of any action by WSI
which would directly or indirectly materially reduce any of
such benefits or deprive Executive of any material fringe
benefit enjoyed at the time of the Change in Control, or the
failure by WSI to provide Executive with the number of paid
vacation days to which Executive is entitled at the time of
the Change in Control, provided, however, that WSI may amend
any such plan or programs as long as such amendments do not
reduce any benefits to which Executive would be entitled upon
termination;
(v) the failure of WSI to obtain a satisfactory
agreement from any successor to assume and agree to perform
this Agreement, as contemplated in Section 7; or
(vi) any purported termination of Executive's
employment which is not made pursuant to a Notice of
Termination satisfying the requirements of subsection (e)
below; for purposes of this Agreement, no such purported
termination shall be effective.
(d) Voluntary Termination Deemed Good Reason. If an Unapproved
Change in Control occurs, Executive may voluntarily terminate his
employment for any reason during the period commencing on the 91st day
following a Change in Control and ending on the 180th day following a
Change in Control. Any such termination shall be deemed "Good Reason"
for all purposes of this Agreement.
(e) Notice of Termination. Any purported termination of
Executive's employment by WSI or by Executive shall be communicated by
written Notice of Termination to the other party hereto in accordance
with Section 8. For purposes of this Agreement, a "Notice of
Termination" shall mean a notice which shall indicate the specific
termination provision in this Agreement relied upon and shall set forth
the facts and circumstances claimed to provide a basis for termination
of Executive's employment.
(f) Date of Termination. For purposes of this Agreement, "Date
of Termination" shall mean:
(i) if Executive's employment is terminated for
Disability, 30 days after Notice of Termination is given
(provided that the Executive shall not have returned to the
full-time performance of the Executive's duties during such 30
day period); and
(ii) if Executive's employment is terminated pursuant
to subsections (b), (c) or (d) above or for any other reason
(other than Disability), the date specified in the Notice of
Termination (which, in the case of a termination pursuant to
subsection (b) above shall not be less than 10 days, and in
the case of a termination pursuant to subsection (c) or (d)
above shall not be less than 10 nor more than 30 days,
respectively, from the date such Notice of Termination is
given).
(g) Dispute of Termination. If, within 10 days after any
Notice of Termination is given, the party receiving such Notice of
Termination notifies the other party in good faith that a dispute
exists concerning the termination, the Date of Termination shall be the
date on which the dispute is finally determined, either by mutual
written agreement of the parties, or by a final judgement, order or
decree of a court of competent jurisdiction in accordance with
subsection 11(a) (which is not appealable or the time for appeal
therefrom having expired and no appeal having been perfected);
provided, that the date of Termination shall be extended by a notice of
dispute only if such notice is given in good faith and the party giving
such notice pursues the resolution of such dispute with reasonable
diligence. Notwithstanding the pendency of any such dispute, WSI shall
continue to pay Executive full compensation in effect when the notice
giving rise to the dispute was given (including, but not limited to,
base salary) and continue Executive as a participant in all
compensation, benefit and insurance plans in which the Executive was
participating when the notice giving rise to the dispute was given,
until the dispute is finally resolved in
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accordance with this subsection. Amounts paid under this subsection are
in addition to all other amounts due under this Agreement and shall not
be offset against or reduce any other amounts under this Agreement.
4. Compensation Upon Termination or During Disability. Following a
Change in Control of WSI, as defined in subsection 2(a), upon termination of
Executive's employment or during a period of Disability, Executive shall be
entitled to the following benefits:
(a) During any period that Executive fails to perform
full-time duties with WSI as a result of a Disability, WSI shall pay
Executive the base salary of the Executive at the rate in effect at the
commencement of any such period, until such time as the Executive is
determined to be eligible for long term disability benefits in
accordance with WSI's insurance programs then in effect.
(b) If Executive's employment shall be terminated by WSI for
Cause or by Executive other than for Good Reason or Retirement, WSI
shall pay to Executive his full base salary through the Date of
Termination at the rate in effect at the time Notice of Termination is
given and WSI shall have no further obligation to Executive under this
Agreement.
(c) If Executive's employment shall be terminated by WSI for
Disability or by Executive for Retirement, or by reason of Death, WSI
shall immediately commence payment to the Executive (or Executive's
designated beneficiaries or estate, if no beneficiary is designated)
any and all benefits to which the Executive is entitled under WSI's
retirement and insurance programs then in effect.
(d) If Executive's employment by WSI shall be terminated (A)
by WSI other than for Cause or Disability or (B) by Executive for Good
Reason, then Executive shall be entitled to the benefits provided
below:
(i) WSI shall pay Executive the Executive's full base
salary through the Date of Termination at the rate in effect
at the time the Notice of Termination is given;
(ii) In lieu of any further salary payments for
periods subsequent to the Date of Termination, WSI shall pay a
severance payment (the "Severance Payment") equal to the
amount described in (A) or (B) below, whichever is applicable:
(A) if an Unapproved Change in Control occurs, 2.99 times the
average of the annual Compensation (as defined below) paid to
Executive by WSI (or any corporation ("Affiliate") affiliated
with WSI within the meaning of Section 1504 of the Internal
Revenue Code of 1986, as amended (the "Code")) for the five
calendar years (or, if Executive has been employed by WSI for
less than five years, the number of complete calendar years of
employment or portions thereof calculated on an annualized
basis) (the "Base Period") preceding the earlier of the
calendar year in which a Change in Control of WSI occurred or
the calendar year of the Date of Termination; or (B) if an
Approved Change in Control occurs, 1.0 times the average of
the annual Compensation (as defined below) for the Base
Period. Such average (including the effect of bonuses paid in
the Base Period) shall be determined in accordance with the
temporary or final regulations promulgated under Section
280G(e) of the Code. For purposes of this Section 4,
"Compensation" payable to Executive by WSI (or an Affiliate)
shall mean every type and form of compensation includable in
Executive's gross income for federal income tax purposes for
each year, shall include any voluntary salary deferral
contributions to WSI's cash or deferred arrangement under the
WSI profit sharing plan (the 401(k) contributions) and the WSI
cafeteria plan, but shall exclude taxable compensation
recognized as the result of the exercise of stock options or
sale of the stocks acquired or any payments actually or
constructively received with respect to a plan of deferred
compensation between WSI and Executive. The Severance Payment
shall be made within 60 days after the Date of Termination, or
such earlier date as any required rescission period in respect
of the release given by Executive under Section 5 has expired.
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(iii) For the period of (A) 12 months following the
Termination Date in the event of an Approved Change in Control
or (B) 36 months following the Termination Date in the event
of an Unapproved Change in Control, Executive shall be
entitled to continue participation in the life, disability,
accident and health insurance benefit plans of WSI
substantially similar to those which the Executive is
receiving or entitled to receive immediately prior to the
Notice of Termination. WSI and Executive shall share the cost
associated with such coverage as if Executive were still
actively employed by WSI. If Executive cannot be covered under
any of WSI's group plans or policies, WSI shall reimburse
Executive for his full cost of obtaining comparable
alternative group or individual coverage elsewhere, less any
contribution that Executive would have been required to make
under WSI's group plans or policies. Benefits otherwise
receivable by Executive pursuant to this paragraph (iii) shall
be reduced to the extent comparable benefits are actually
received by Executive during such period, and any such
benefits actually received by Executive shall be reported to
WSI.
(iv) Notwithstanding the foregoing, the Severance
Payment shall be reduced to that maximum amount permitted such
that no portion of the Severance Payment, together with any
other payment or the value of any benefit received or to be
received by Executive (whether payable pursuant to the terms
of this Agreement, any other plan, agreement or arrangement
with WSI or an Affiliate) that is contingent upon a change in
control of WSI as that term is defined in Section 280G of the
Code would constitute a "parachute payment" within the meaning
of Section 280G(b)(2) of the Code or would be nondeductible
solely by reason of the application of such Section 280G. In
determining the amount of the Severance Payment, in full or as
partially reduced as the case may be, payable pursuant to this
Section 4(d), the opinion of tax counsel selected by WSI and
acceptable to Executive with respect to all issues arising in
connection with the application of Section 280G of the Code to
such payments and benefits shall be final and binding on the
parties. The Executive may elect to have the benefit
continuation under Section 4(d)(iii) reduced or eliminated
prior to any reduction of the Severance Payment.
(v) If it is established pursuant to a final
determination of a court or an Internal Revenue Service
proceeding that, notwithstanding the good faith of Executive
and WSI in applying the terms of this Subsection 4(d), any
portion of the Severance Payment constitutes a "parachute
payments" and would result in part or all of such Severance
Payment being nondeductible by WSI or its Affiliates by reason
of Section 280G of the Code, then Executive shall repay to WSI
upon demand an amount equal to the sum of: (1) that portion of
the Severance Payment in excess of the maximum amount that
could have been paid to or for the Executive's benefit without
any portion constituting a "parachute payment" and being
nondeductible by reason of section 280G of the Code; and (2)
interest on the amount set forth in clause (1) of this
sentence at the applicable Federal rate (as defined in section
1274(d) of the Code) from the date of Executive's receipt of
such excess until the date of such payment.
(vi) The Severance Payment shall be in lieu of and
offset the amount of any payment or other benefits to which
the Executive may be entitled to in connection with the
termination of employment pursuant to the provisions of WSI's
Severance Pay Plan, as amended from time to time, or any
successor to such policy.
(e) Executive shall not be required to mitigate the amount of
any payment provided for in this Section 4 by seeking other employment
or otherwise, nor shall the amount of any payment or benefit provided
for in this Section 4 be reduced by any compensation earned by
Executive as the result of employment by another employer or by
retirement benefits after the Date of Termination, or otherwise except
as specifically provided in this Section 4.
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(f) In addition to all other amounts payable to Executive
under this Section 4, Executive shall be entitled to receive all
benefits payable to the Executive under the WSI, Inc. Employee Savings
Plan and any other plan or agreement relating to retirement benefits or
otherwise generally applicable to executive employees.
5. General Release. Executive agrees that the amounts payable to
Executive under Section 4 shall be contingent upon the execution by Executive of
a release agreement with WSI, which release agreement shall include language
releasing and holding WSI and its affiliates, officers, directors, shareholders,
employees, agents and insurers harmless from any and all claims, comply with all
applicable laws and contain other provisions standard in such agreements.
6. Funding of Payments. In order to assure the performance by WSI or
its successor of its obligations under this Agreement, WSI shall, no later than
immediately prior to the closing of the transaction that constitutes an
Unapproved Change in Control, deposit in a so-called "rabbi trust" or similar
escrow arrangement an amount equal to the maximum payment that will be due the
Executive under the terms hereof. Under a written trust instrument, the Trustee
shall be instructed to pay to the Executive (or the Executive's legal
representative, as the case may be) the amount to which the Executive shall be
entitled under the terms hereof, and the balance, if any, of the trust not so
paid or reserved for payment shall be repaid to WSI. If and to the extent there
are not amounts in trust sufficient to pay Executive under this Agreement, WSI
shall remain liable for any and all payments due to Executive. In accordance
with the terms of such trust, at all times during the term of this Agreement
Executive shall have no rights, other than as an unsecured general creditor of
WSI, to any amounts held in trust and all trust assets shall be general assets
of WSI and subject to the claims of creditors of WSI. With respect to an
Approved Change in Control, WSI's obligations in this Section 6 shall not be
mandatory but rather shall be permissive.
7. Successors; Binding Agreement.
(a) WSI will require any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of WSI to expressly
assume and agree to perform this Agreement in the same manner and to
the same extent that WSI would be required to perform it if no such
succession had taken place. Failure of WSI to obtain such assumption
and agreement prior to the effectiveness of any such succession shall
be a breach of this Agreement and shall entitle Executive to
compensation from WSI in the same amount and on the same terms as he
would be entitled hereunder if he terminated his employment for Good
Reason following a Change in Control, except that for purposes of
implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the Date of Termination.
(b) This Agreement shall inure to the benefit of and be
enforceable by Executive's personal or legal representatives,
successors, heirs, and designated beneficiaries. If executive should
die while any amount would still be payable to Executive hereunder if
the Executive had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this
Agreement to the Executive's designated beneficiaries, or, if there is
no such designated beneficiary, to the Executive's estate.
8. Notice. For the purpose of this Agreement, notices and all other
communications provided for in the Agreement shall be in writing and shall be
deemed to have been duly given when delivered or mailed by United States
registered or certified mail, return receipt requested, postage pre-paid,
addressed to the last known residence address of the Executive or in the case of
WSI, to its principal office to the attention of each of the then directors of
WSI with a copy to its Secretary, or to such other address as either party may
have furnished to the other in writing in accordance herewith, except that
notice of change of address shall be effective only upon receipt.
9. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed to
in writing and signed by the parties. No waiver by either party thereto at
anytime of any breach by the other party to this Agreement of, or compliance
with, any condition or provision of this Agreement to be performed by such other
party shall be deemed a waiver of similar or dissimilar
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provisions or conditions at the same or at any prior or similar time. No
agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement. The validity, interpretation,
construction and performance of this Agreement shall be governed by the laws of
the State of Minnesota.
10. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceablity of any other
provision of this Agreement, which shall remain in full force and effect.
11. Arbitration and Award of Attorneys' Fees.
(a) Any dispute arising between the parties relating to this
Agreement shall be resolved by binding arbitration held in the City of
Minneapolis pursuant to the Rules of the American Arbitration
Association, except as hereinafter expressly modified. If the disputing
and responding parties are unable to agree upon a resolution within
forty-five business days after the responding party's receipt of
written notice from the disputing party setting forth the nature of the
dispute, within the following ten business days the disputing and
responding parties shall select a mutually acceptable single arbitrator
to resolve the dispute or, if the parties fail or are unable to do so,
each shall within the following ten business days select a single
arbitrator, and the two so selected shall select a third arbitrator
within the following ten business days. Such single arbitrator or, as
the case may be, panel of three arbitrators acting by majority
decision, shall resolve the dispute within sixty days after the date
such arbitrator, or the last of them so selected, is selected, or as
soon thereafter as practicable. If either party refuses or fails to
select an arbitrator within the time therefor, the other party may do
so on such refusing or failing party's behalf. The arbitrators shall
have no power to award any punitive or exemplary damages but may
construe or interpret but shall not ignore or vary the terms of this
Agreement and shall be bound by controlling law. The parties
acknowledge the Executive's failure to comply with any confidentiality,
non-solicit, and non-compete provisions of any agreement to which the
Executive is bound will cause immediate and irreparable injury to WSI
and that therefore the arbitrators, or a court of competent
jurisdiction if an arbitration panel cannot be immediately convened,
will be empowered to provide injunctive relief, including temporary or
preliminary relief, to restrain any such failure to comply. The
arbitration award or other resolution may be entered as a judgment at
the request of the prevailing party by any court of competent
jurisdiction in Minnesota or elsewhere.
(b) In the event WSI fails to pay Executive any amounts owing
to Executive under this Agreement or to provide Executive any benefits
to which Executive is ultimately determined, by settlement, mediation,
arbitration, or by any court or other decision making body with
jurisdiction, to be entitled to under this Agreement, WSI shall pay the
legal expenses (including reasonable attorneys' fees, court costs and
other out-of-pocket expenses), incurred by Executive to enforce his
rights under this Agreement and collect or obtain such amounts or
benefits.
12. Confidential Information. Executive will not while this Agreement
is in effect or after its expiration or termination, use, other than in
connection with Executive's employment with WSI, or disclose any confidential
information to any person not employed by WSI or not authorized by WSI to
receive such information without the prior written consent of WSI. Executive
will use reasonable and prudent care to safeguard, protect and prevent the
unauthorized disclosure of confidential information. The obligations contained
in this Section 12 will survive for as long as WSI in its sole judgment
considers the information to be confidential information.
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13. Disclosure and Assignment.
(a) Disclosure. Executive will disclose promptly in writing to
WSI all inventions, improvements, discoveries and writings and other
works of authorship ("works") which are conceived, made, discovered or
written jointly or singly on WSI time or on Executive's time, providing
the invention, improvement, discovery, writing or other work is capable
of being used by WSI in the normal course of business, and all such
inventions, improvements, discoveries, writings and works are hereby
assigned to, and belong solely and exclusively to WSI.
(b) Assignment. Executive will sign and execute all
instruments of assignment and other papers to evidence vestiture of the
entire right, title, and interest in such inventions, improvements,
discoveries, writings, or works in WSI, and will do all acts and sign
all papers that WSI may reasonably request, relating to applications
for patents, to patents, to copyrights, and to the enforcement and
protection thereof. If such acts are requested and performed when
Executive is not a WSI employee, WSI will pay a fee, determined by WSI,
covering authorized time and expenses of Executive but no others.
(c) Limitations. Notwithstanding anything in this Section 13
to the contrary, Executive is hereby given NOTICE that the assignment
and statement of WSI ownership does not apply to any INVENTION for
which no equipment, supplies, facility or trade secret information of
WSI was used and which was developed entirely on Executive's own time,
and (1) which does not relate (i) directly to the business of WSI or
(ii) to WSI's actual or demonstrably anticipated research or
development, or (2) which does not result from any work performed by
Executive for WSI.
(d) Survival of Obligations.
(i) The obligations of this Section 13 survive the
expiration or termination of this Agreement.
(ii) This Agreement, or any termination hereof, has
no effect on any other Employee Agreement previously executed
by Executive which remains in full force and effect. To the
extent there are any conflicts between this Agreement and such
other Agreement, this Agreement prevails.
(iii) Upon termination of employment, Executive will
not take or retain, and will return to WSI all WSI property of
any nature or kind.
14. Prior Agreement. This Agreement supersedes and replaces in its
entirety all prior agreements related to a change in control of WSI.
WSI INDUSTRIES, INC.
By
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Xxxxxxx X. Xxxxx, President
EXECUTIVE
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Xxxx Xxxxxx
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