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EXHIBIT 10.54
CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT (the "Agreement") is entered into
effective January 22, 1997, between ADFlex Solutions, Inc., a Delaware
corporation (the "Company"), and Xxxxxxx X. Xxxxxxxxxx (the "Executive").
RECITALS
A. The Company is engaged in the business of designing, manufacturing
and assembling flexible interconnects for the computer, computer peripherals and
high-end consumer markets.
B. The Executive currently serves as the Chairman of the Board,
President and Chief Executive Officer of the Company.
C. The Company and the Executive desire to embody the terms and
conditions relating to compensation to the Executive upon his actual or
constructive termination following a Change in Control (as hereinafter defined)
in a written agreement, which will supersede the provisions of any and all prior
agreements relating to the subject matter hereof, whether written or oral,
pursuant to the terms and conditions hereinafter set forth.
TERMS AND CONDITIONS
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Effective Date; Term. The Effective Date of this Agreement shall be
the date first written above. The term of this Agreement shall commence on the
Effective Date and shall continue, unless sooner terminated, for three years
(the "Initial Term"). Thereafter, the term of this Agreement shall automatically
be extended for successive one year periods ("Renewal Terms") unless either the
Company's Board of Directors (the "Board") or the Executive gives written notice
to the other at least 90 days prior to the end of the Initial Term or any
Renewal Term, as the case may be, of its or his intention not to renew the term
of this Agreement. The Initial Term and any Renewal Terms of this Agreement
shall be collectively referred to as the "Term." This Agreement will terminate
upon the first to occur of (a) the expiration of its Term, or (b) payment of all
sums due by the Company to the Executive hereunder in the event of a Change in
Control.
2. Definitions.
(a) Change in Control. A "Change in Control" shall mean a change in
ownership or control of the Company effected through any of the following
transactions:
(i) the direct or indirect acquisition by any person or related
group of persons (other than a trustee or other fiduciary holding securities
under an employee benefit plan of the Company or a corporation owned directly or
indirectly by the stockholders of the Company in substantially the same
proportions as their ownership of stock of the Company) of beneficial ownership
(within the meaning of Rule 13d-3 of the Securities Exchange Act of 1934, as
amended (the "1934 Act")) of securities possessing more than 50% of the total
combined voting power of the
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Company's outstanding securities pursuant to a tender or exchange offer made
directly to the Company's stockholders or any other transaction, in any case
regardless of whether or not the Board recommends that the Company's
stockholders accept;
(ii) a change in the composition of the Board over a period of 36
consecutive months or less such that a majority of the Board members (rounded up
to the next whole number) ceases, by reason of one or more contested elections
for Board membership, to be comprised of individuals who either (A) have been
Board members continuously since the beginning of such period or (B) have been
elected or nominated for election as Board members during such period by at
least a majority of the Board members described in clause (A) who were still in
office at the time such election or nomination was approved by the Board;
(iii) a merger or consolidation approved by the stockholders of
the Company, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity) at least 80% of the total voting
power represented by the voting securities of the Company or such surviving
entity outstanding immediately after such merger or consolidation; or
(iv) the sale, transfer or other disposition (in one transaction
or a series of transactions) of all or substantially all of the assets of the
Company approved by the stockholders or the complete liquidation or dissolution
of the Company approved by the stockholders.
(b) Good Reason. "Good Reason" shall mean any of the
following if the same shall occur without the Executive's express prior written
consent:
(i) a material change by the Company in the Executive's function,
duties or responsibilities (including any requirement that the Executive report
to any person other than the Board) which would cause the Executive's position
with the Company to become of less dignity, responsibility and importance than
that associated with his functions, duties or responsibilities as of the date of
this Agreement;
(ii) the Executive's Base Salary is reduced by the Company;
(iii) relocation of the Executive's principal place of employment
to a place located outside of Maricopa County, Arizona; or
(iv) the failure by the Company to obtain the assumption by
operation of law or otherwise of this Agreement by any entity which is the
surviving entity in any merger or other form of corporate reorganization
involving the Company or by any entity which acquires all or substantially all
of the Company's assets.
3. Compensation Upon Termination Following Change in Control.
(a) The Executive shall be entitled to the following benefits upon a
termination of his employment (x) by the Company within one year following a
Change in Control or (y) by the Executive for Good Reason within one year
following a Change in Control:
(i) The Company shall pay to the Executive his full base salary
(the "Base Salary") through the date of termination at the greater of the rate
in effect at the time of
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termination or the rate in effect immediately prior to
the Change in Control (collectively, the "Base Rate"). In addition, the Company
shall pay to the Executive an amount (the "Severance Amount") equal to 1.1
multiplied by the sum of (A) one year's base salary at the Base Rate plus (B)
the greater of the Executive's target bonus in effect under the Company's
management bonus plan at the time of termination or the target bonus in effect
under the Company's management bonus plan immediately prior to the Change in
Control. The Company shall pay the Base Salary and the Severance Amount to the
Executive in cash in a lump sum no later than the thirtieth day following the
date of termination;
(ii) The Company shall maintain in full force and effect, for the
continued benefit of the Executive and his eligible beneficiaries, until the
first to occur of (A) his attainment of comparable benefits upon alternate
employment or (B) one year following the date of termination, the benefits
pursuant to Company-sponsored benefit plans, programs or other arrangements in
which the Executive was entitled to participate immediately prior to the Change
in Control, but only to the extent that the Executive's continued participation
is permitted under the general terms and provisions of such plans, programs and
arrangements;
(iii) The Company shall use reasonable efforts to continue in
effect for the benefit of the Executive all insurance or other provisions for
indemnification and defense of officers or directors of the Company which are in
effect on the date of the Change in Control with respect to all of his acts and
omissions while an officer or director as fully and completely as if such Change
in Control had not occurred, and until the final expiration or running of all
periods of limitation against actions which may be applicable to such acts or
omissions; and
(iv) Subject to Section 16 of the 1934 Act, all stock options and
other stock incentive awards which are not vested at the date of termination
shall vest in the Executive as of the date of termination and may be exercised
by the Executive in accordance with the terms of the plans and agreements
pursuant to which such options and other awards were issued.
(b) Notwithstanding anything herein to the contrary, if the
deductibility by the Company of any payments to be made to the Executive under
this Agreement would be limited by Section 280G (or any successor provision
thereto) of the Internal Revenue Code of 1986, as amended (the "Code"), the
payments to be made to the Executive hereunder shall automatically be limited to
an amount equal to the maximum amount that would otherwise be deductible by the
Company under Section 280G of the Code; provided, however, that if pursuant to a
final determination of a court of competent jurisdiction or an Internal Revenue
Service proceeding that, notwithstanding the good faith of the Executive and the
Company in applying the terms of this Agreement, any portion of the aggregate
payments made hereunder would not be deductible by the Company under Code
Section 280G, the Executive agrees to pay to the Company, upon demand, an amount
equal to the sum of (i) the portion of such amount that would not be deductible
by reason of Section 280G of the Code, and (ii) interest on the amount set forth
in clause (i) of this sentence at the Applicable Federal Rate (as defined in
Section 1274(d) of the Code) from the date of receipt of such excess payment
through the date of repayment.
4. No Assignments. This Agreement is personal to each of the parties
hereto. No party may assign or delegate any rights or obligations hereunder
without first obtaining the written consent of the other party hereto, except
that this Agreement shall be binding upon and inure to the benefit of any
successor corporation to the Company.
(a) The Company shall use reasonable efforts to require any
successor (whether
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direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to expressly
assume 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. As used in this Agreement, "Company" shall mean the Company as
defined herein and any successor to its business and/or assets which assumes
this Agreement by operation of law or otherwise.
(b) This Agreement shall inure to the benefit of and be enforceable
by the Executive and his personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If the
Executive should die while any amount would still be payable to him hereunder
had he continued to live, all such amounts, unless otherwise provided herein,
shall be paid in accordance with the terms of this Agreement to his devisee,
legatee or other designee or, if there is no such designee, to his estate.
5. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any provision shall not
affect the validity or enforceability of the other provisions hereof.
6. No Employment Contract. This Agreement shall not constitute an
agreement or promise of employment by the Company.
7. Notices. For the purpose of this Agreement, notices and all other
communications provided for in this Agreement shall be in writing and shall be
deemed to have been duly given when delivered personally or mailed by United
States certified or registered mail, return receipt requested, postage prepaid,
addressed to the respective addresses set forth below, or to such other
addresses as either party may have furnished to the other in writing in
accordance herewith, except that notice of a change of address shall be
effective only upon actual receipt:
To the Company: ADFlex Solutions, Inc.
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxx 00000
Attention: V.P. Human Resources
To the Executive: Xxxxxxx X. Xxxxxxxxxx
00000 X. Xxxxx Xxxxx
Xxxxxxxxxx, XX 00000
8. Amendments or Additions. No amendments or additions to this
Agreement shall be binding unless in writing and signed by each of the parties
hereto.
9. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement, including without limitation any dispute over
whether a Good Reason has occurred, shall be settled exclusively by arbitration,
conducted before a panel of three arbitrators in Phoenix, Arizona in accordance
with the rules of the American Arbitration Association then in effect. The
decision of the arbitrators shall be final and binding on the parties, and
judgment may be entered on the arbitrators' award in any court having
jurisdiction. The costs and expenses of such arbitration shall be borne in
accordance with the determination of the arbitrators. Notwithstanding any other
provision of this Agreement, if any dispute regarding the occurrence of a Good
Reason becomes subject to arbitration, the Company shall not be required to pay
any amounts to the Executive (except those amounts required by law) until the
completion of the arbitration and the rendering of
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the arbitrators' decision. The amounts, if any, determined by the arbitrators to
be owed by the Company to the Executive shall be paid within five days after the
decision by the arbitrators is rendered.
10. Miscellaneous. 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. Any payments
provided for hereunder shall be paid net of any applicable withholding or other
employment taxes required under federal, state or local law.
11. Governing Law. The validity interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
Arizona without regard to its conflicts of laws principles.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement on the date first indicated above.
THE COMPANY: EXECUTIVE:
ADFlex Solutions, Inc.,
a Delaware corporation
By: \s\ Xxxxxxx Xxxxxxx \s\ Xxxxxxx X. Xxxxxxxxxx
---------------------------- ---------------------------------
Its: V. P. Human Resources Xxxxxxx X. Xxxxxxxxxx
