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FINGERHUT COMPANIES, INC.
CHANGE OF CONTROL SEVERANCE AGREEMENT
TABLE OF CONTENTS
Page
ARTICLE I.
PURPOSES 1
ARTICLE II.
CERTAIN DEFINITIONS 1
2.1 Accrued Obligations 1
2.2 Agreement Term 1
2.3 Article 1
2.4 Beneficial owner 2
2.5 Cause 2
2.6 Change of Control 2
2.7 Code 3
2.8 Disability 3
2.9 Effective Date 3
2.10 Good Reason 3
2.11 Gross-up Payment 3
2.12 Imminent Control Change Date 3
2.13 IRS 3
2.14 1934 Act 3
2.15 Notice of Termination 3
2.16 Plans 4
2.17 Policies 4
2.18 Post-Change Period 4
2.19 SEC 4
2.20 Section 4
2.21 Subsidiary 4
2.22 Termination Date 4
2.23 Termination Performance Period 4
2.24 Voting Securities 4
ARTICLE III.
POST-CHANGE PERIOD PROTECTIONS 4
3.1 Position and Duties 4
3.2 Compensation 5
3.3 Stock Options 7
ARTICLE IV.
TERMINATION OF EMPLOYMENT 8
4.1 Disability 8
4.2 Death 8
4.3 Cause 8
4.4 Good Reason 9
ARTICLE V.
OBLIGATIONS OF THE COMPANY UPON TERMINATION 10
5.1 If by the Executive for Good Reason or by
the Company Other Than for Cause or Disability 10
5.2 If by the Company for Cause 11
5.3 If by the Executive Other Than for Good
Reason 12
5.4 If by the Company for Disability 12
5.5 If upon Death 12
ARTICLE VI.
NON-EXCLUSIVITY OF RIGHTS 12
6.1 Waiver of Other Severance Rights 12
6.2 Other Rights 13
ARTICLE VII.
CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY 13
7.1 Gross-up for Certain Taxes 13
7.2 Determination by the Executive 14
7.3 Additional Gross-up Amounts 14
7.4 Gross-up Multiple 15
7.5 Opinion of Counsel 15
7.6 Amount Increased or Contested 15
7.7 Refunds 16
ARTICLE VIII.
EXPENSES AND INTEREST 17
8.1 Legal Fees and Other Expenses 17
8.2 Interest 17
ARTICLE IX.
NO SET-OFF OR MITIGATION 17
9.1 No Set-off by Company 17
9.2 No Mitigation 18
ARTICLE X.
CONFIDENTIALITY AND NONCOMPETITION 18
10.1 Confidentiality 18
10.2 Noncompetition/Nonsolicitation 18
10.3 Remedy 19
ARTICLE XI.
MISCELLANEOUS 19
11.1 No Assignability 19
11.2 Successors 20
11.3 Payments to Beneficiary 20
11.4 Non-alienation of Benefits 20
11.5 Severability 20
11.6 Amendments 20
11.7 Notices 20
11.8 Counterparts 21
11.9 Governing Law 21
11.10 Captions 21
11.11 Tax Withholding 21
11.12 No Waiver 21
11.13 Entire Agreement 21
FINGERHUT COMPANIES, INC.
CHANGE OF CONTROL SEVERANCE AGREEMENT
THIS AGREEMENT dated as of , 1997 is made
between FINGERHUT COMPANIES, INC., a Minnesota corporation
having its principal place of business in Minnetonka, Minnesota
(the "Company"), and (the
"Executive"), a resident of .
ARTICLE I.
PURPOSES
The Board of Directors of the Company (the "Board") has
determined that it is in the best interests of the Company and
its stockholders to assure that the Company will have the
continued service of the Executive, despite the possibility or
occurrence of a change of control of the Company. The Board
believes it is imperative to reduce the distraction of the
Executive that would result from the personal uncertainties
caused by a pending or threatened change of control, to encourage
the Executive's full attention and dedication to the Company, and
to provide the Executive with compensation and benefits
arrangements upon a change of control which ensure that the
expectations of the Executive will be satisfied and are
competitive with those of similarly-situated corporations. This
Agreement is intended to accomplish these objectives.
ARTICLE II.
CERTAIN DEFINITIONS
When used in this Agreement, the terms specified below shall
have the following meanings:
2.1 "Accrued Obligations" -- see Section 5.3.
2.2 "Agreement Term" means the period commencing on the
date of this Agreement and ending on the later of May 31, 2000
or a date which is twelve months after the date the Company
gives Executive notice of expiration (such applicable date called
the "Expiration Date"); provided, however, that if a Change of
Control or an Imminent Control Change Date occurs before the
Expiration Date, then (a) the Agreement Term shall automatically
extend to a date which is twelve (12) months after the date of
the Change of Control or Imminent Change of Control, as further
extended under the terms of this sentence should any Change of
Control or Imminent Change of Control occur prior to the
expiration of the Agreement Term as from time to time so
extended.
2.3 "Article" means an article of this Agreement.
2.4 "Beneficial owner" means such term as defined in Rule
13d-3 of the SEC under the 1934 Act.
2.5 "Cause" -- see Section 4.3(b).
2.6 "Change of Control" means, except as otherwise
provided below, the occurrence of any of the following:
a. any person (as such term is used in Rule 13d-5 of
the SEC under the 0000 Xxx) or group (as such term is
defined in Section 13(d) of the 1934 Act), other than a
Subsidiary or any employee benefit plan (or any related
trust) of the Company or a Subsidiary, becomes the
beneficial owner of 25% or more of the common stock of the
Company or of Voting Securities representing 25% or more of
the combined voting power of all Voting Securities of the
Company, except that no Change of Control shall be deemed to
have occurred solely by reason of any such acquisition by a
corporation with respect to which, after such acquisition,
more than 80% of both the common stock of such corporation
and the combined voting power of the Voting Securities of
such corporation are then beneficially owned, directly or
indirectly, by the persons who were the beneficial owners of
the common stock and Voting Securities of the Company
immediately before such acquisition in substantially the
same proportion as their ownership, immediately before such
acquisition, of the common stock and Voting Securities of
the Company, as the case may be;
b. individuals who, as of the Effective Date,
constitute the Board (the "Incumbent Directors") cease for
any reason to constitute at least a majority of the Board;
provided that any individual who becomes a director after
the Effective Date whose election, or nomination for
election by the Company's stockholders, was approved by a
vote or written consent of at least two-thirds of the
directors then comprising the Incumbent Directors shall be
considered an Incumbent Director, but excluding, for this
purpose, any such individual whose initial assumption of
office is in connection with an actual or threatened
election contest relating to the election of the directors
of the Company (as such terms are used in Rule 14a-11 of the
SEC under the 1934 Act); or
c. approval by the stockholders of the Company of
any of the following:
(1) a merger, reorganization or
consolidation ("Merger") with respect to which the
individuals and entities who were the respective
beneficial owners of the stock and Voting Securities
of the Company immediately before such Merger do not,
after such Merger, beneficially own, directly or
indirectly, more than 80% of, respectively, the common
stock and the combined voting power of the Voting
Securities of the corporation resulting from such
Merger in substantially the same proportion as their
ownership immediately before such Merger, or
(2) the sale or other disposition of all or
substantially all of the assets of the Company.
Despite clauses (a), (b) and (c) of this definition, a Change of
Control shall not occur with respect to the Executive if the
Executive is, by written agreement executed before such Change of
Control, a participant on such Executive's own behalf in a
transaction in which the persons or entities (or their
affiliates) with whom the Executive has the written agreement
Acquire the Company (as defined below) and, pursuant to the
written agreement, the Executive has an equity interest in the
resulting entity or a right to acquire such an equity interest.
"Acquire the Company" means the acquisition of beneficial
ownership by purchase, merger, or otherwise, of either more than
50% of the stock (such percentage to be computed in accordance
with Rule 13d-3(d)(1)(i) of the SEC under the 0000 Xxx) or
substantially all of the assets of the Company or its successors.
2.7 "Code" means the Internal Revenue Code of 1986, as
amended.
2.8 "Disability" -- see Section 4.1(b).
2.9 "Effective Date" means the first date on which a
Change of Control occurs during the Agreement Term. Despite
anything in this Agreement to the contrary, if the Company
terminates the Executive's employment before the date of a Change
of Control, and if the Executive reasonably demonstrates that
such termination of employment (a) was at the request of a third
party who had taken steps reasonably calculated to effect the
Change of Control or (b) otherwise arose in connection with or
anticipation of the Change of Control, then "Effective Date"
shall mean the date immediately before the date of such
termination of employment.
2.10 "Good Reason" -- see Section 4.4(b).
2.11 "Gross-up Payment" -- see Section 7.1.
2.12 "Imminent Control Change Date" means any date on which
occurs (a) a presentation to the Company's stockholders generally
or any of the Company's directors or executive officers of a
proposal or offer for a Change of Control, or (b) the public
announcement (whether by advertisement, press release, press
interview, public statement, SEC filing or otherwise) of a
proposal or offer for a Change of Control, or (c) such proposal
or offer remains effective and unrevoked.
2.13 "IRS" means the Internal Revenue Service.
2.14 "1934 Act" means the Securities Exchange Act of 1934.
2.15 "Notice of Termination" means a written notice given
in accordance with Section 12.7 which sets forth (a) the specific
termination provision in this Agreement relied upon by the party
giving such notice, (b) in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the
Executive's employment under such termination provision and
(c) if the Termination Date is other than the date of receipt of
such Notice of Termination, the Termination Date.
2.16 "Plans" means plans, programs, policies or practices
of the Company.
2.17 "Policies" means policies, practices or procedures of
the Company.
2.18 "Post-Change Period" means the period commencing on
the Effective Date and ending on the second anniversary of such
date.
2.19 "SEC" means the Securities and Exchange Commission.
2.20 "Section" means, unless the context otherwise
requires, a section of this Agreement.
2.21 "Subsidiary" means a corporation as defined in
Section 424(f) of the Code with the Company being treated as the
employer corporation for purposes of this definition.
2.22 "Termination Date" means the date of receipt of the
Notice of Termination or any later date specified in such notice
(which date shall be not more than 15 days after the giving of
such notice), as the case may be; provided, however, that (a) if
the Company terminates the Executive's employment other than for
Cause or Disability, then the Termination Date shall be the date
of receipt of such Notice of Termination and (b) if the
Executive's employment is terminated by reason of death or
Disability, then the Termination Date shall be the date of death
of the Executive or the Disability Effective Date, as the case
may be.
2.23 "Termination Performance Period" -- see Section
3.2(b)(2)(B).
2.24 "Voting Securities" of a corporation means securities
of such corporation that are entitled to vote generally in the
election of directors of such corporation.
ARTICLE III.
POST-CHANGE PERIOD PROTECTIONS
3.1 Position and Duties.
a. During the Post-Change Period, (1) the
Executive's position (including offices, titles, reporting
requirements and responsibilities), authority and duties
shall be at least commensurate in all material respects with
the most significant of those held, exercised and assigned
at any time during the 90-day period immediately before the
Effective Date and (2) the Executive's services shall be
performed at the location where the Executive was employed
immediately before the Effective Date or any other location
less than 40 miles from such former location.
b. During the Post-Change Period (other than any
periods of vacation, sick leave or disability to which the
Executive is entitled), the Executive agrees to devote the
Executive's full attention and time to the business and
affairs of the Company and, to the extent necessary to
discharge the duties assigned to the Executive in accordance
with this Agreement, to use the Executive's best efforts to
perform faithfully and efficiently such duties. During the
Post-Change Period, the Executive may (1) serve on
corporate, civic or charitable boards or committees,
(2) deliver lectures, fulfill speaking engagements or teach
at educational institutions and (3) manage personal
investments, so long as such activities are consistent with
the Policies of the Company at the Effective Date and do not
significantly interfere with the performance of the
Executive's duties under this Agreement. To the extent that
any such activities have been conducted by the Executive
before the Effective Date and were consistent with the
Policies of the Company at the Effective Date, the continued
conduct of such activities (or activities similar in nature
and scope) after the Effective Date shall not be deemed to
interfere with the performance of the Executive's duties
under this Agreement.
3.2 Compensation.
a. Base Salary. During the Post-Change Period, the
Company shall pay or cause to be paid to the Executive an
annual base salary in cash ("Guaranteed Base Salary"), which
shall be paid in a manner consistent with the Company's
payroll practices in effect immediately before the Effective
Date at a rate at least equal to 12 times the highest
monthly base salary paid or payable to the Executive by the
Company in respect of the 12-month period immediately before
the Effective Date. During the Post-Change Period, the
Guaranteed Base Salary shall be reviewed at least annually
and shall be increased at any time and from time to time as
shall be substantially consistent with increases in base
salary awarded to other peer executives of the Company. Any
increase in Guaranteed Base Salary shall not limit or reduce
any other obligation of the Company to the Executive under
this Agreement. After any such increase, the Guaranteed
Base Salary shall not be reduced and the term "Guaranteed
Base Salary" shall thereafter refer to the increased amount.
b. Target Bonus.
(1) In addition to Guaranteed Base Salary,
the Company shall pay or cause to be paid to the
Executive a bonus (the "Guaranteed Bonus") for each
Performance Period which ends during the Post-Change
Period. "Performance Period" means each period of
time designated in accordance with any bonus
arrangement ("Bonus Plan") which is based upon
performance and approved by the Board or any committee
of the Board. The Guaranteed Bonus shall be at least
equal to the product of
(A) the greatest of (i) the On Plan
Percentage (as defined below), or (ii) the Actual
Bonus Percentage (as defined below),
multiplied by
(B) the Guaranteed Annual Salary.
(2) For purposes of this Section 3.2(b):
(A) "On Plan Percentage" means the
percentage of Guaranteed Base Salary to which the
Executive would have been entitled under any
Bonus Plan for the Performance Period for which
the Guaranteed Bonus is awarded ("Current
Performance Period") as if the performance
achieved 100% of performance goals established
pursuant to such Bonus Plan.
(B) "Actual Bonus Percentage" means
the percentage of the rate of Guaranteed Base
Salary for the Current Performance Period which
the Executive would accrue as a bonus under any
Bonus Plan if the performance during the Current
Performance Period were measured by the actual
performance during the Current Performance
Period; provided, however, that for purposes of
calculating the Guaranteed Bonus, "Actual Bonus
Percentage" means the percentage of the rate of
Guaranteed Base Salary for the Performance Period
during which the Termination Date occurred (the
"Termination Performance Period") which the
Executive would accrue as a bonus under any Bonus
Plan if the performance during such Termination
Performance Period were measured by the actual
performance during the Termination Performance
Period before the Termination Date projected to
the last day of such Performance Period.
c. Incentive, Savings and Retirement Plans. In
addition to Guaranteed Base Salary and Guaranteed Bonus
payable as provided in this Section, the Executive shall be
entitled to participate during the Post-Change Period in all
incentive (including long-term incentives), savings and
retirement Plans applicable to other peer executives of the
Company, but in no event shall such Plans provide the
Executive with incentive (including long-term incentives),
savings and retirement benefits which, in any case, are less
favorable, in the aggregate, than the most favorable of
those provided by the Company for the Executive under such
Plans as in effect at any time during the 90-day period
immediately before the Effective Date.
d. Welfare Benefit Plans. During the Post-Change
Period, the Executive and the Executive's family shall be
eligible to participate in, and receive all benefits under,
welfare benefit Plans provided by the Company (including,
without limitation, medical, prescription, dental,
disability, salary continuance, individual life, group life,
dependent life, accidental death and travel accident
insurance Plans) and applicable to other peer executives of
the Company and their families, but in no event shall such
Plans provide benefits which in any case are less favorable,
in the aggregate, than the most favorable of those provided
to the Executive under such Plans as in effect at any time
during the 90-day period immediately before the Effective
Date.
e. Fringe Benefits. During the Post-Change Period,
the Executive shall be entitled to fringe benefits in
accordance with the most favorable Plans applicable to peer
executives of the Company, but in no event shall such Plans
provide fringe benefits which in any case are less
favorable, in the aggregate, than the most favorable of
those provided by the Company to peer executives under such
Plans in effect at any time during the 90-day period
immediately before the Effective Date.
f. Expenses. During the Post-Change Period, the
Executive shall be entitled to prompt reimbursement of all
reasonable employment-related expenses incurred by the
Executive upon the Company's receipt of accountings in
accordance with the most favorable Policies applicable to
peer executives of the Company, but in no event shall such
Policies be less favorable, in the aggregate, than the most
favorable of those provided by the Company for the Executive
under such Policies in effect at any time during the 90-day
period immediately before the Effective Date.
g. Office and Support Staff. During the Post-Change
Period, the Executive shall be entitled to an office or
offices of a size and with furnishings and other
appointments, and to exclusive personal secretarial and
other assistance in accordance with the most favorable
Policies applicable to peer executives of the Company, but
in no event shall such Policies be less favorable, in the
aggregate, than the most favorable of those provided by the
Company for the Executive under such Policies in effect at
any time during the 90-day period immediately before the
Effective Date.
h. Vacation. During the Post-Change Period, the
Executive shall be entitled to paid vacation in accordance
with the most favorable Policies applicable to peer
executives of the Company, but in no event shall such
Policies be less favorable, in the aggregate, than the most
favorable of those provided by the Company for the Executive
under such Policies in effect at any time during the 90-day
period immediately before the Effective Date.
3.3 Stock Options.
In addition to the other benefits provided in this
Section, on the Effective Date, the Executive shall become
fully vested in any and all outstanding stock options
granted to Executive for shares of common stock of the
Company or to the extent that such options are not vested,
shall receive a lump-sum cash payment equal to the spread of
all non-vested, forfeited options as of the date such
options are forfeited.
ARTICLE IV.
TERMINATION OF EMPLOYMENT
4.1 Disability.
a. During the Post-Change Period, the Company may
terminate the Executive's employment upon the Executive's
Disability (as defined in Section 4.1(b))) by giving the
Executive or his legal representative, as applicable,
(1) written notice in accordance with Section 12.7 of the
Company's intention to terminate the Executive's employment
pursuant to this Section and (2) a certification of the
Executive's Disability by a physician selected by the
Company or its insurers and reasonably acceptable to the
Executive or the Executive's legal representative. The
Executive's employment shall terminate effective on the 30th
day (the "Disability Effective Date") after the Executive's
receipt of such notice unless, before the Disability
Effective Date, the Executive shall have resumed the
full-time performance of the Executive's duties.
b. "Disability" means any medically determinable
physical or mental impairment that has lasted for a
continuous period of not less than six months and can be
expected to be permanent or of indefinite duration, and that
renders the Executive unable to perform the duties required
under this Agreement.
4.2 Death. The Executive's employment shall terminate
automatically upon the Executive's death during the Post-Change
Period.
4.3 Cause.
a. During the Post-Change Period, the Company may
terminate the Executive's employment for Cause.
b. "Cause" means any of the following: commission
by the Executive of any felony; or willful breach of duty by
the Executive in the course of the Executive's employment;
except that Cause shall not mean:
(1) bad judgment or negligence;
(2) any act or omission believed by the
Executive in good faith to have been in or not opposed to
the interest of the Company (without intent of the Executive
to gain, directly or indirectly, a profit to which the
Executive was not legally entitled);
(3) any act or omission with respect to which a
determination could properly have been made by the Board
that the Executive met the applicable standard of conduct
for indemnification or reimbursement under the Company's
by-laws, any applicable indemnification agreement, or
applicable law, in each case in effect at the time of such
act or omission; or
(4) any act or omission with respect to which
notice of termination of employment of the Executive is
given more than 12 months after the earliest date on which
any member of the Board, not a party to the act or omission,
knew or should have known of such act or omission.
c. Any termination of the Executive's employment by
the Company for Cause shall be communicated to the Executive
by Notice of Termination.
4.4 Good Reason.
a. During the Post-Change Period, the Executive may
terminate his or her employment for Good Reason.
b. "Good Reason" means any of the following:
(1) the assignment to the Executive of any
duties inconsistent in any respect with the
Executive's position (including offices, titles,
reporting requirements or responsibilities), authority
or duties as contemplated by Section 3.1(a)(1), or any
other action by the Company which results in a
diminution or other material adverse change in such
position, authority or duties;
(2) any failure by the Company to comply
with any of the provisions of Article III;
(3) the Company's requiring the Executive
to be based at any office or location other than the
location described in Section 3.1(a)(2);
(4) any other material adverse change to
the terms and conditions of the Executive's
employment;
(5) any purported termination by the
Company of the Executive's employment other than as
expressly permitted by this Agreement (any such
purported termination shall not be effective for any
other purpose under this Agreement); or
(6) a termination of employment by the
Executive for any reason during the 30-day period
immediately following the first anniversary of the
Effective Date.
Any reasonable determination of "Good Reason" made in good
faith by the Executive shall be conclusive.
c. Any termination of employment by the Executive
for Good Reason shall be communicated to the Company by
Notice of Termination. A passage of time prior to delivery
of Notice of Termination or a failure by the Executive to
include in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason
shall not waive any right of the Executive under this
Agreement or preclude the Executive from asserting such fact
or circumstance in enforcing rights under this Agreement.
ARTICLE V.
OBLIGATIONS OF THE COMPANY UPON TERMINATION
5.1 If by the Executive for Good Reason or by the Company
Other Than for Cause or Disability. If, during the Post-Change
Period, the Company shall terminate Executive's employment other
than for Cause or Disability, or if the Executive shall terminate
employment for Good Reason, the Company shall immediately pay the
Executive, in addition to all vested rights arising from the
Executive's employment as specified in Article III, a cash amount
equal to the sum of the following amounts:
a. to the extent not previously paid, the Guaranteed
Base Salary and any accrued vacation pay through the
Termination Date;
b. the difference between (1) the product of (A) the
Guaranteed Bonus, multiplied by (B) a fraction, the
numerator of which is the number of days in the Termination
Performance Period which elapsed before the Termination
Date, and the denominator of which is the total number of
days in the Termination Performance Period, and (2) the
amount of any Guaranteed Bonus paid to the Executive with
respect to the Termination Performance Period;
c. all amounts previously deferred by or an accrual
to the benefit of the Executive under any nonqualified
deferred compensation or pension plan, together with any
accrued earnings thereon, and not yet paid by the Company;
d. an amount equal to the product of (1) three (3.0)
multiplied by (2) the sum of (A) Guaranteed Base Salary and
(B) the highest Guaranteed Bonus paid (or payable regardless
of whether earned) to the Executive in the two prior years;
e. an amount equal to the sum of the value of the
unvested portion of the Executive's accounts or accrued
benefits under any qualified plan maintained by the Company
as of the Termination Date;
f. an amount equal to the value (determined using
actuarial assumptions consistent with those used by the
Company for financial reporting purposes) of the Executive's
accrued benefits under (1) the Fingerhut Corporation Pension
Excess Plan and (2) the Fingerhut Companies, Inc.
Nonqualified Supplemental Executive Retirement Plan (or any
such successor or similar plans as may be in effect as of
the Termination Date) (the "Excess/Supplemental Plans"
calculated as though the Executive (A) continued to accrue
benefits under the Excess/Supplemental Plans for a period of
three years after the Termination Date, and (B) received
compensation during each year of such three-year period
equal to the sum of the Guaranteed Base Salary and the
highest Guaranteed Bonus paid (or payable) to the Executive
in the two years preceding the Termination Date; and
g. an amount equal to the payment to which the
Executive would be entitled under the Fingerhut Corporation
Profit Sharing Excess Plan (or any such successor or similar
plan as may be in effect as of the Termination Date) for the
plan year in which the Termination Date occurs as if the
Executive were eligible to share in the Company's
contribution to the Fingerhut Corporation Profit Sharing
Plan for such plan years; and
h. pay on behalf of Executive all fees and costs
charged by the outplacement firm selected by the Executive
to provide outplacement services or at the election of the
Executive, cash equal to the fees and expenses such
outplacement firm would charge.
Until the third anniversary of the Termination Date or such later
date as any Plan of the Company may specify, the Company shall
continue to provide to the Executive and the Executive's family
welfare benefits (including, without limitation, medical,
prescription, dental, disability, salary continuance, individual
life, group life, accidental death and travel accident insurance
plans and programs) which are at least as favorable as the most
favorable Plans of the Company applicable to other peer
executives and their families as of the Termination Date, but
which are in no event less favorable than the most favorable
Plans of the Company applicable to other peer executives and
their families during the 90-day period immediately before the
Effective Date. The cost of such welfare benefits shall not
exceed the cost of such benefits to the Executive immediately
before the Termination Date or, if less, the Effective Date.
Notwithstanding the foregoing, if the Executive is covered under
any medical, life, or disability insurance plan(s) provided by a
subsequent employer, then the amount of coverage required to be
provided by the Employer hereunder shall be reduced by the amount
of coverage provided by the subsequent employer's medical, life,
or disability insurance plan(s). The Executive's rights under
this Section shall be in addition to, and not in lieu of, any
post-termination continuation coverage or conversion rights the
Executive may have pursuant to applicable law, including without
limitation continuation coverage required by Section 4980 of the
Code.
5.2 If by the Company for Cause. If the Company
terminates the Executive's employment for Cause during the
Post-Change Period, this Agreement shall terminate without
further obligation by the Company to the Executive, other than
the obligation immediately to pay the Executive in cash the
Executive's Guaranteed Base Salary through the Termination Date,
plus the amount of any compensation previously deferred by the
Executive, plus any accrued vacation pay, in each case to the
extent not previously paid.
5.3 If by the Executive Other Than for Good Reason. If
the Executive terminates employment during the Post-Change Period
other than for Good Reason, Disability or death, this Agreement
shall terminate without further obligations by the Company, other
than the obligation immediately to pay the Executive in cash all
amounts specified in clauses (a), (b) and (c) of the first
sentence of Section 5.1 (such amounts collectively, the "Accrued
Obligations").
5.4 If by the Company for Disability. If the Company
terminates the Executive's employment by reason of the
Executive's Disability during the Post-Change Period, this
Agreement shall terminate without further obligations to the
Executive, other than
(a) the Company's obligation immediately to pay the
Executive in cash all Accrued Obligations, and
(b) the Executive's right after the Disability
Effective Date to receive disability and other benefits at
least equal to the greater of (1) those provided under the
most favorable disability Plans applicable to disabled peer
executives of the Company in effect immediately before the
Termination Date or (2) those provided under the most
favorable disability Plans of the Company in effect at any
time during the 90-day period immediately before the
Effective Date.
5.5 If upon Death. If the Executive's employment is
terminated by reason of the Executive's death during the
Post-Change Period, this Agreement shall terminate without
further obligations to the Executive's legal representatives
under this Agreement, other than the obligation immediately to
pay the Executive's estate or beneficiary in cash all Accrued
Obligations. Despite anything in this Agreement to the contrary,
the Executive's family shall be entitled to receive benefits at
least equal to the most favorable benefits provided by the
Company to the surviving families of peer executives of the
Company under such Plans, but in no event shall such Plans
provide benefits which in each case are less favorable, in the
aggregate, than the most favorable of those provided by the
Company to the Executive under such Plans in effect at any time
during the 90-day period immediately before the Effective Date.
ARTICLE VI.
NON-EXCLUSIVITY OF RIGHTS
6.1 Waiver of Other Severance Rights. To the extent that
payments are made to the Executive pursuant to Section 5.1, the
Executive hereby waives the right to receive severance payments
under any other Plan or agreement of the Company.
6.2 Other Rights. Except as provided in Section 6.1, this
Agreement shall not prevent or limit the Executive's continuing
or future participation in any benefit, bonus, incentive or other
Plans, provided by the Company or any of its Subsidiaries and for
which the Executive may qualify, nor shall this Agreement limit
or otherwise affect such rights as the Executive may have under
any other agreements with the Company or any of its Subsidiaries.
Amounts which are vested benefits or which the Executive is
otherwise entitled to receive under any Plan of the Company or
any of its Subsidiaries and any other payment or benefit required
by law at or after the Termination Date shall be payable in
accordance with such Plan or applicable law except as expressly
modified by this Agreement.
ARTICLE VII.
CERTAIN ADDITIONAL PAYMENTS BY THE COMPANY
7.1 Gross-up for Certain Taxes. If it is determined (by
the reasonable computation of the Company's independent auditors,
which determinations shall be certified to by such auditors and
set forth in a written certificate ("Certificate") delivered to
the Executive) that any benefit received or deemed received by
the Executive from the Company pursuant to this Agreement or
otherwise (collectively, the "Payments") is or will become
subject to any excise tax under Section 4999 of the Code or any
similar tax payable under any United States federal, state, local
or other law (such excise tax and all such similar taxes
collectively, "Excise Taxes"), then the Company shall,
immediately after such determination, pay the Executive an amount
(the "Gross-up Payment") equal to the product of
(a) the amount of such Excise Taxes
multiplied by
(b) the Gross-up Multiple (as defined in Section
7.4).
The Gross-up Payment is intended to compensate the Executive for
the Excise Taxes and any federal, state, local or other income or
excise taxes or other taxes payable by the Executive with respect
to the Gross-up Payment.
The Executive or the Company may at any time request the
preparation and delivery to the Executive of a Certificate. The
Company shall, in addition to complying with Section 7.2, cause
all determinations and certifications under the Article to be
made as soon as reasonably possible and in adequate time to
permit the Executive to prepare and file the Executive's
individual tax returns on a timely basis.
7.2 Determination by the Executive.
a. If the Company shall fail to deliver a
Certificate to the Executive (and to pay to the Executive
the amount of the Gross-up Payment, if any) within 14 days
after receipt from the Executive of a written request for a
Certificate, or if at any time following receipt of a
Certificate the Executive disputes the amount of the
Gross-up Payment set forth therein, the Executive may elect
to demand the payment of the amount which the Executive, in
accordance with an opinion of counsel to the Executive
("Executive Counsel Opinion"), determines to be the Gross-up
Payment. Any such demand by the Executive shall be made by
delivery to the Company of a written notice which specifies
the Gross-up Payment determined by the Executive and an
Executive Counsel Opinion regarding such Gross-up Payment
(such written notice and opinion collectively, the
"Executive's Determination"). Within 14 days after delivery
of the Executive's Determination to the Company, the Company
shall either (1) pay the Executive the Gross-up Payment set
forth in the Executive's Determination (less the portion of
such amount, if any, previously paid to the Executive by the
Company) or (2) deliver to the Executive a Certificate
specifying the Gross-up Payment determined by the Company's
independent auditors, together with an opinion of the
Company's counsel ("Company Counsel Opinion"), and pay the
Executive the Gross-up Payment specified in such
Certificate. If for any reason the Company fails to comply
with clause (2) of the preceding sentence, the Gross-up
Payment specified in the Executive's Determination shall be
controlling for all purposes.
b. If the Executive does not make a request for, and
the Company does not deliver to the Executive, a
Certificate, the Company shall, for purposes of Section 7.3,
be deemed to have determined that no Gross-up Payment is
due.
7.3 Additional Gross-up Amounts. If, despite the initial
conclusion of the Company and/or the Executive that certain
Payments are neither subject to Excise Taxes nor to be counted in
determining whether other Payments are subject to Excise Taxes
(any such item, a "Non-Parachute Item"), it is later determined
(pursuant to the subsequently-enacted provisions of the Code,
final regulations or published rulings of the IRS, final judgment
of a court of competent jurisdiction or the Company's independent
auditors that any of the Non-Parachute Items are subject to
Excise Taxes, or are to be counted in determining whether any
Payments are subject to Excise Taxes, with the result that the
amount of Excise Taxes payable by the Executive is greater than
the amount determined by the Company or the Executive pursuant to
Section 7.1 or 7.2, as applicable, then the Company shall pay the
Executive an amount (which shall also be deemed a Gross-up
Payment) equal to the product of
(a) the sum of (1) such additional Excise Taxes and
(2) any interest, fines, penalties, expenses or other costs
incurred by the Executive as a result of having taken a
position in accordance with a determination made pursuant to
Section 7.1
multiplied by
(b) the Gross-up Multiple.
7.4 Gross-up Multiple. The Gross-up Multiple shall equal
a fraction, the numerator of which is one (1.0), and the
denominator of which is one (1.0) minus the sum, expressed as a
decimal fraction, of the rates of all federal, state, local and
other income and other taxes and any Excise Taxes applicable to
the Gross-up Payment; provided that, if such sum exceeds 0.8, it
shall be deemed equal to 0.8 for purposes of this computation.
(If different rates of tax are applicable to various portions of
a Gross-up Payment, the weighted average of such rates shall be
used.)
7.5 Opinion of Counsel. "Executive Counsel Opinion" means
a legal opinion of nationally recognized executive compensation
counsel that there is a reasonable basis to support a conclusion
that the Gross-up Payment determined by the Executive has been
calculated in accord with this Article and applicable law.
"Company Counsel Opinion" means a legal opinion of nationally
recognized executive compensation counsel that (a) there is a
reasonable basis to support a conclusion that the Gross-up
Payment set forth of the Certificate of Company's independent
auditors has been calculated in accord with this Article and
applicable law, and (b) there is no reasonable basis for the
calculation of the Gross-up Payment determined by the Executive.
7.6 Amount Increased or Contested. The Executive shall
notify the Company in writing of any claim by the IRS or other
taxing authority that, if successful, would require the payment
by the Company of a Gross-up Payment. Such notice shall include
the nature of such claim and the date on which such claim is due
to be paid. The Executive shall give such notice as soon as
practicable, but no later than 10 business days, after the
Executive first obtains actual knowledge of such claim; provided,
however, that any failure to give or delay in giving such notice
shall affect the Company's obligations under this Article only if
and to the extent that such failure results in actual prejudice
to the Company. The Executive shall not pay such claim less than
30 days after the Executive gives such notice to the Company (or,
if sooner, the date on which payment of such claim is due). If
the Company notifies the Executive in writing before the
expiration of such period that it desires to contest such claim,
the Executive shall:
a. give the Company any information that it
reasonably requests relating to such claim,
b. take such action in connection with contesting
such claim as the Company reasonably requests 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,
c. cooperate with the Company in good faith to
contest such claim, and
d. 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 related interest and
penalties, imposed as a result of such representation and payment
of costs and expenses. Without limiting the foregoing, the
Company shall control all proceedings 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. 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 the Executive, on an after-tax basis, for any Excise
Tax or income tax, including related interest or penalties,
imposed with respect to such advance; and further provided 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. The Company's control of the
contest shall be limited to issues with respect to which a
Gross-up Payment would be payable. The Executive shall be
entitled to settle or contest, as the case may be, any other
issue raised by the IRS or other taxing authority.
7.7 Refunds. If, after the receipt by the Executive of an
amount advanced by the Company pursuant to Section 7.6, 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 Section 7.6) promptly pay 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 Section 7.6, 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 determination before the
expiration of 30 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. Any contest of a
denial of refund shall be controlled by Section 7.6.
ARTICLE VIII.
EXPENSES AND INTEREST
8.1 Legal Fees and Other Expenses.
a. If the Executive incurs legal fees or other
expenses in a good faith effort to obtain benefits under
this Agreement (including, without limitation, the fees and
other expenses of the Executive's legal counsel in
connection with the delivery of the Opinion referred to in
Section 7.5), regardless of whether the Executive ultimately
prevails, the Company shall reimburse the Executive on a
current basis for such fees and expenses to the extent not
reimbursed under the Company's officers and directors
liability insurance policy, if any. The existence of any
controlling case or regulatory law which is directly
inconsistent with the position taken by the Executive shall
be evidence that the Executive did not act in good faith.
b. Reimbursement of legal fees and expenses shall be
made monthly upon the written submission of a request for
reimbursement together with evidence that such fees and
expenses are due and payable or were paid by the Executive.
If the Company shall have reimbursed the Executive for legal
fees and expenses and it is later determined that the
Executive was not acting in good faith, all amounts paid on
behalf of, or reimbursed to, the Executive shall be promptly
refunded to the Company.
8.2 Interest. If the Company does not pay any amount
due to the Executive under this Agreement within three days after
such amount became due and owing, interest shall accrue on such
amount from the date it became due and owing until the date of
payment at a annual rate equal to two percent (2.0%) above the
base commercial lending rate announced by Xxxxxx Trust and
Savings Bank in effect from time to time during the period of
such nonpayment.
ARTICLE IX.
NO SET-OFF OR MITIGATION
9.1 No Set-off by Company. The Executive's right to
receive when due the payments and other benefits provided for
under this Agreement is absolute, unconditional and subject to no
set-off, counterclaim or legal or equitable defense. Time is of
the essence in the performance by the Company of its obligations
under this Agreement. Any claim which the Company may have
against the Executive, whether for a breach of this Agreement or
otherwise, shall be brought in a separate action or proceeding
and not as part of any action or proceeding brought by the
Executive to enforce any rights against the Company under this
Agreement.
9.2 No Mitigation. The Executive shall not have any duty
to mitigate the amounts payable by the Company under this
Agreement by seeking new employment following termination.
Except as specifically otherwise provided in this Agreement, all
amounts payable pursuant to this Agreement shall be paid without
reduction regardless of any amounts of salary, compensation or
other amounts which may be paid or payable to the Executive as
the result of the Executive's employment by another employer.
ARTICLE X.
CONFIDENTIALITY AND NONCOMPETITION
10.1 Confidentiality. Executive acknowledges that it is
the policy of the Company and its subsidiaries to maintain as
secret and confidential all valuable and unique information and
techniques acquired, developed or used by the Company and its
subsidiaries relating to their business, operations, employees
and customers, which gives the Company and its subsidiaries a
competitive advantage in the retail catalogue industry and other
businesses in which the Company and its subsidiaries are engaged
("Confidential Information"). Executive recognizes that all such
Confidential Information is the sole and exclusive property of
the Company and its subsidiaries, and that disclosure of
Confidential Information would cause damage to the Company and
its subsidiaries. Executive agrees that, except as required by
the duties of his employment with the Company and/or its
subsidiaries and except in connection with enforcing the
Executive's rights under this Agreement or if compelled by a
court or governmental agency, he will not, without the consent of
the Company, disseminate or otherwise disclose any Confidential
Information obtained during his employment with the Company
and/or its subsidiaries for so long as such information is
valuable and unique.
10.2 Noncompetition/Nonsolicitation.
a. Executive agrees that, during the period of his
employment with the Company and/or its subsidiaries and, if
Executive's employment is terminated for any reason,
thereafter for a period of one (1) year, Executive will not
at any time directly or indirectly, in any capacity, engage
or participate in, or become employed by or render advisory
or consulting or other services in connection with any
Prohibited Business as defined in Section 10.2(d).
b. Executive agrees that, during the period of his
employment with the Company and/or its subsidiaries and, if
Executive's employment is terminated for any reason,
thereafter for a period of one (1) year, Executive shall not
make any financial investment, whether in the form of equity
or debt, or own any interest, directly or indirectly, in any
Prohibited Business. Nothing in this Section 10.2(b) shall,
however, restrict Executive from making any investment in
any company whose stock is listed on a national securities
exchange or actively traded in the over-the-counter market;
provided that (1) such investment does not give Executive
the right or ability to control or influence the policy
decisions of any Prohibited Business, and (2) such
investment does not create a conflict of interest between
Executive's duties hereunder and Executive's interest in
such investment.
c. Executive agrees that, during the period of his
employment with the Company and/or its subsidiaries and, if
Executive's employment is terminated for any reason,
thereafter for a period of one (1) year, Executive shall not
(1) employ any employee of the Company and/or its
subsidiaries or (2) interfere with the Company's or any of
its subsidiaries' relationship with, or endeavor to entice
away from the Company and/or its subsidiaries any person,
firm, corporation, or other business organization who or
which at any time (whether before or after the date of
Executive's termination of employment), was an employee,
customer, vendor or supplier of, or maintained a business
relationship with, any business of the Company and/or its
subsidiaries which was conducted at any time during the
period commencing one year prior to the termination of
employment.
d. For the purpose of this Section 10.2, "Prohibited
Business" shall be defined as any retail catalogue business
or any other type of business, entity and any branch, office
or operation thereof, which is a direct and material
competitor of the Company wherever the Company does
business, in the United States or abroad.
10.3 Remedy. Executive and the Company specifically agree
that, in the event that Executive shall breach his obligations
under this Article X, the Company and its subsidiaries will
suffer irreparable injury and no adequate remedy for such breach,
and shall be entitled to injunctive relief therefor, and in
particular, without limiting the generality of the foregoing, the
Company shall not be precluded from pursuing any and all remedies
it may have at law or in equity for breach of such obligations;
provided, however, that such breach shall not in any manner or
degree whatsoever limit, reduce or otherwise affect the
obligations of the Company under this Agreement, and in no event
shall an asserted breach of the Executive's obligations under
this Article X constitute a basis for deferring or withholding
any amounts otherwise payable to the Executive under this
Agreement.
ARTICLE XI.
MISCELLANEOUS
11.1 No Assignability. This Agreement is personal to the
Executive and without the prior written consent of the Company
shall not be assignable by the Executive otherwise than by will
or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the Executive's
legal representatives.
11.2 Successors. This Agreement shall inure to the benefit
of and be binding upon the Company and its successors and
assigns. The Company will require any successor (whether direct
or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company
to assume expressly and agree to perform this Agreement in the
same manner and to the same extent that the Company would be
required to perform it if no such succession had taken place.
Any successor to the business and/or assets of the Company which
assumes or agrees to perform this Agreement by operation of law,
contract, or otherwise shall be jointly and severally liable with
the Company under this Agreement as if such successor were the
Company.
11.3 Payments to Beneficiary. If the Executive dies before
receiving amounts to which the Executive is entitled under this
Agreement, such amounts shall be paid in a lump sum to the
beneficiary designated in writing by the Executive, or if none is
so designated, to the Executive's estate.
11.4 Non-alienation of Benefits. Benefits payable under
this Agreement shall not be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance, charge, garnishment, execution or levy of any kind,
either voluntary or involuntary, before actually being received
by the Executive, and any such attempt to dispose of any right to
benefits payable under this Agreement shall be void.
11.5 Severability. If any one or more articles, sections
or other portions of this Agreement are declared by any court or
governmental authority to be unlawful or invalid, such
unlawfulness or invalidity shall not serve to invalidate any
article, section or other portion not so declared to be unlawful
or invalid. Any article, section or other portion so declared to
be unlawful or invalid shall be construed so as to effectuate the
terms of such article, section or other portion to the fullest
extent possible while remaining lawful and valid.
11.6 Amendments. Except as provided in Section 2.2 hereof,
this Agreement shall not be altered, amended or modified except
by written instrument executed by the Company and Executive.
11.7 Notices. All notices and other communications under
this Agreement shall be in writing and delivered by hand or by
first class registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
If to the Executive:
If to the Company:
Fingerhut Companies, Inc.
0000 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attention: General Counsel
or to such other address as either party shall have furnished to
the other in writing. Notice and communications shall be
effective when actually received by the addressee.
11.8 Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original,
but all of which together constitute one and the same instrument.
11.9 Governing Law. This Agreement shall be interpreted
and construed in accordance with the laws of the State of
Minnesota, without regard to its choice of law principles.
11.10 Captions. The captions of this Agreement are not
a part of the provisions hereof and shall have no force or
effect.
11.11 Tax Withholding. The Company may withhold from
any amounts payable under this Agreement any federal, state or
local taxes that are required to be withheld pursuant to any
applicable law or regulation.
11.12 No Waiver. The Executive's failure to insist
upon strict compliance with any provision of this Agreement shall
not be deemed a waiver of such provision or any other provision
of this Agreement. A waiver of any provision of this Agreement
shall not be deemed a waiver of any other provision, and any
waiver of any default in any such provision shall not be deemed a
waiver of any later default thereof or of any other provision.
11.13 Entire Agreement. This Agreement contains the
entire understanding of the Company and the Executive with
respect to its subject matter.
IN WITNESS WHEREOF, the Executive and the Company have
executed this Agreement as of the date first above written.
[Executive]
FINGERHUT COMPANIES, INC.
By:
Title:
