EXHIBIT 10mm.
Form of Change of Control Agreement executed by the following executive
officers of the registrant:
Xxxxxx X. Xxxxx
Date:
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Employee:
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Dear :
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LoJack Corporation, a Massachusetts corporation (the "Company"),
considers the establishment and maintenance of a sound and vital management to
be essential to protecting and enhancing the best interests of the Company and
its shareholders. In this connection, the Company recognizes that, as is the
case with many publicly held corporations, the possibility of a change in
control may arise and that such possibility, and the uncertainty and questions
which it may raise among management, may result in the departure or distraction
of management personnel to the detriment of the Company and its shareholders.
Accordingly, the Board of Directors of the Company (the "Board") has determined
that appropriate steps should be taken to reinforce and encourage the continued
attention and dedication of members of the Company's management to their
assigned duties without distraction in circumstances arising from the
possibility of a change in control of the Company. In particular, the Board
believes it important, should the Company or its shareholders receive a proposal
for transfer of control of the Company, that you be able to assess and advise
the Board whether such proposal would be in, the best interests of the Company
and its shareholders and to take such other action regarding such proposal as
the Board might determine to be appropriate, without being influenced by the
uncertainties our own situation.
In order to induce you to remain in the employ of the Company, this
letter agreement, which has been approved by the Board, sets forth the severance
benefits which the Company agrees will be provided to you in the event your
employment with the Company is terminated subsequent to a "change in control" of
the Company under the circumstances described below.
1. Agreement to Provide Services: Right to Terminate.
(i) Except as otherwise provided in paragraph (ii) below,
the Company or you may terminate your employment at any time, subject to
the Company's providing the benefits hereinafter specified in accordance
with the terms hereof.
(ii) In the event a tender offer or exchange offer is made by
a Person (as hereinafter defined) for more than 35% of the combined
voting power of the Company's outstanding securities ordinarily having
the right to vote at elections of directors ("Outstanding Company Voting
Securities"), including shares of common stock ($.01 par value) of the
Company (the "Stock"), you agree that you will not leave the employ of
the Company (other than as a result of Disability or upon Retirement, as
such terms are hereinafter defined) and will render the services
contemplated in the recitals to this Agreement until such tender offer
or exchange offer has been abandoned or terminated or a change in
control of the Company, as defined in Section 3 hereof, has occurred.
For purposes of this Agreement, the term "Person" shall mean and include
any individual, corporation, partnership, group, association or other
"person," as such term is defined in Section 3(a)(9) and as used in
Section 14(d) of the Securities Exchange Act of 1934 (the "Exchange
Act"), other than the Company, a wholly-owned subsidiary of the Company
or any employee benefit plan(s) sponsored by the Company or a subsidiary
of the Company.
2. Term of Agreement. This Agreement shall commence on the date
hereof and shall continue in effect until February 28, 2004; provided, however,
that this Agreement shall continue in effect for a period of twenty-four (24)
months after a change in control of the Company, as defined in Section 3 hereof,
if such change in control shall have occurred during the term of this Agreement.
Notwithstanding anything in this Section 2 to the contrary, this Agreement shall
terminate if you or the Company terminates your employment prior to a change in
control of the Company as provided in Section 1 (i) above.
3. Change in Control. For the purposes of this Agreement a "Change
in Control" shall mean:
(i) The acquisition by any Person of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
35% or more of either (i) the then outstanding shares of the Stock or
(ii) the combined voting power of the Outstanding Company Voting
Securities; provided, however, that the following acquisitions shall not
constitute a Change of Control: (A) any acquisition directly from the
Company (excluding an acquisition by virtue of the exercise of a
conversion privilege), (B) any acquisition by the Company or by any
corporation controlled by the Company; (C) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company; or (D) any
acquisition by any corporation pursuant to a consolidation or merger,
if, following such consolidation or merger, the conditions described in
clauses (i), (ii) and (iii) of subsection (c) of this paragraph are
satisfied; or
(ii) Individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") ceasing for any reason to constitute at
least a majority of the Board; provided, however, that any individual
becoming a director (other than a director designated by a Person who
has entered into an agreement with the Company to effect a transaction
described in clauses (a) or (c) of this Section) subsequent to the date
hereof whose election, or nomination for election by the Company's
shareholders, was approved by a vote or resolution of at least a
majority of the directors then composing the Incumbent Board shall be
considered as though such individual were a member of the Incumbent
Board, but excluding, for this purpose, any such individual whose
initial assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-1l of
Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board; or
(iii) Adoption by the Board of a resolution approving an
agreement of consolidation of the Company with or merger of the Company
into another corporation or business entity in each case, unless,
following such consolidation, or merger, (i) more than 60% of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such consolidation or merger and/or the
combined voting power of the then outstanding voting securities of such
corporation or business entity entitled to vote generally in the
election of directors (or other persons having the general power to
direct the affairs of such entity) is then beneficially owned, directly
or indirectly, by all or substantially all of the individuals and
entities who were the beneficial owners, respectively, of the Stock and
Outstanding Company Voting Securities immediately prior to such
consolidation or merger in substantially the same proportions as their
ownership, immediately prior to such consolidation or merger, of the
Stock and Outstanding Company Voting Securities, as the case may be,
(ii) no Person (excluding the Company, any employee benefit plan (or
related trust) of the Company or such corporation or other business
entity resulting from such consolidation or merger and any Person
beneficially owning, immediately prior to such consolidation or merger,
directly or indirectly, 35% or more of the Stock or Outstanding Company
Voting Securities, as the case may be) beneficially owns, directly or
indirectly, 35% or more of, respectively, the then outstanding shares of
common stock of the corporation resulting from such consolidation or
merger and/or the combined voting power of the then outstanding voting
securities of such corporation or business entity entitled to vote
generally in the election of its directors (or other persons having the
general power to direct the affairs of such entity) and (iii) at least a
majority of the members of the board of directors (or other group of
persons having the general power to direct the affairs of the
corporation or other business entity) resulting from such consolidation
or merger were members of the Incumbent Board at the time of the
execution of the initial agreement providing for such consolidation or
merger; provided, that any right to receive compensation pursuant to
Section 5 below which shall vest by reason of the action of the Board
pursuant to this subsection (c) shall be divested upon (A) the rejection
of such agreement of consolidation or merger by the stockholders of the
Company or (B) its abandonment by either party thereto in accordance
with its terms; or
(iv) Adoption by the requisite majority of the whole Board,
or by the holders of such majority of stock of the Company as is
required by law or by the Certificate of incorporation or By-Laws of the
Company as then in effect, of a resolution or consent authorizing (i)
the dissolution of the Company or (ii) the sale or other disposition of
all or substantially all of the assets of the Company, other than to a
corporation or other business entity with respect to which, following
the such sale or other disposition, (A) more than 60% of, respectively,
the then outstanding shares of common stock of such corporation and/or
the combined voting power of the outstanding voting securities of such
corporation or other entity to vote generally in the election of its
directors (or other persons have the general power to direct its
affairs) is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the:
beneficial owners, respectively, of the Stock and Outstanding Company
Voting Securities immediately prior to such sale or other disposition in
substantially the same proportion as their ownership, immediately prior
to such sale or other disposition, of the Stock and/or Outstanding
Company Voting Securities, as the case may be, (B) no Person (excluding
the Company and any employee benefit plan (or related trust) of the
Company or such corporation or other business entity and any Person
beneficially owning, immediately prior to such sale or other
disposition, directly or indirectly, 35% or more of the Stock and/or
Outstanding Company Voting Securities, as the case may be) beneficially
owns, directly or indirectly, 35% or more of, respectively, the then
outstanding shares of common stock of such corporation and/or the
combined voting power of the then outstanding voting securities of such
corporation or other business entity entitled to vote generally in the
election of directors (or other persons having the general power to
direct its affairs), and (C) at least a majority of the members of the
board of directors or group of persons having the general power to
direct the affairs of such corporation or
other entity were members of the Incumbent Board at the time of the
execution of the initial agreement of action of the Board providing for
such sale or other disposition of assets of the Company; provided, that
any right to receive compensation pursuant to Section 5 below which
shall vest by reason of the action of the Board or the stockholders
pursuant to this subsection shall be divested upon the abandonment by
the Company of such dissolution, or such sale of or other disposition of
assets, as the case may be.
Notwithstanding anything in the foregoing to the contrary, no
change in control shall be deemed to have occurred for purposes of this
Agreement by virtue of any transaction which results in you, or a group
of Persons which includes you acquiring, directly or indirectly, 35% or
more of the combined voting power of the Company's Outstanding Voting
Securities.
4. Termination Following a Change in Control. If any of the events
described in Section 3 hereof constituting a change in control of the Company
shall have occurred, you shall be entitled to the benefits provided in Section 5
hereof upon the termination of your employment with the Company within
twenty-four (24) months after such events, unless such termination is (a)
because of your death, or (b) by reason of Disability or Retirement.
(i) Disability. Termination by the company of your
employment based on "Disability" shall mean termination because of your
absence from your duties with the Company on a full time basis for one
hundred twenty (120) consecutive days as a result of your incapacity due
to physical or mental illness, unless within thirty (30) days after
Notice of Termination (as hereinafter defined) is given to you following
such absence you shall have returned to the full time performance of
your duties.
(ii) Retirement. Termination by you or by the Company of your
employment based on "Retirement" shall mean termination on or after your
normal retirement date as defined in the Company's Pension Plan (or any
successor or substitute plan or plans of the Company put into effect
prior to a change in control) (the "Pension Plan").
(iii) Notice of Termination. Any purported termination by the
Company or by you following a change in control shall be communicated by
written Notice of Termination to the other party hereto. 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.
(iv) Date of Termination. "Date of Termination" following a
change in control shall mean (a) if your employment is to be terminated
for Disability, thirty (30) days after Notice of Termination is given
(provided that you shall not have returned to the performance of your
duties on a full-time basis during such thirty (30) day period), (b) if
your employment is to be terminated by you to the date specified in the
Notice of Termination, or (c) if your employment is to be terminated by
the Company, the date specified in the Notice of Termination, which in
no event shall be a date earlier than ninety (90) days after the date on
which a Notice of Termination is given, unless an earlier date has been
expressly agreed to by you in writing either in advance of, or after,
receiving such Notice of Termination.
5. Compensation Upon Termination or During Disability; other
Agreements.
(i) During any period following a change in control of the
Company that you fail to perform your duties as a result of incapacity
due to physical or mental illness, you shall continue to receive your
salary at the rate then in effect and any benefits or awards under any
Plans shall continue to accrue during such period, to the extent not
inconsistent with such Plans, until your employment is terminated
pursuant to and in accordance with paragraphs 4(i) and 4 (iii) hereof.
Thereafter, your benefits shall be determined in accordance with the
Plans then in effect.
(ii) Subject to Section 8 hereof, if, within twenty-four (24)
months after a change in control of the Company, as defined in Section 3
above, shall have occurred, your employment by the Company shall be
terminated (a) by the Company other than for Disability or Retirement,
or (b) by you for any reason, then the Company shall pay to you, no
later than the fifth day following the Date of Termination, without
regard to any contrary provisions of any Plan, the following:
(A) (x) your salary through the Date of Termination at the rate in
effect just prior to the time a Notice of Termination is given (or, if higher,
as in effect immediately prior to the change in control) and (y) any benefits or
awards (including both the cash and stock components) which pursuant to the
terms of any Plans have been earned or become payable, but which have not yet
been paid to you; and
(B) you shall receive an amount equal to 1.5 times your calendar
year earnings from the Company, consisting for the purposes of this Agreement of
average base salary during the period consisting of the five (5) most recent
consecutive calendar years (or fewer than 5, if applicable) ending on or before
the date of the change of control, plus the highest bonus paid for any such
year. For purposes of computing payment under this Agreement, compensation for
any partial calendar year, including the year during which a change of control
occurs, shall be annualized, and any bonus shall be considered compensation for
the year to which it is attributable, if different from the year in which it is
paid.
(iii) if, within twenty-four (24) months after a change in
control of the Company, as defined in Section 3 above, shall have
occurred, your employment by the Company shall be terminated (a) by the
Company other than for Disability or Retirement or (b) by you, then the
Company shall maintain in full force and effect, for the continued
benefit of you and your dependents for a period terminating on the
earliest of (a) thirty months after the Date of Termination, (b) the
commencement date of equivalent benefits from a new employer or (c) your
normal retirement date under the terms of the Retirement Plan, all
insured and self-insured employee welfare benefit Plans in which you
were entitled to participate immediately prior to the Date of
Termination, provided that your continued participation is possible
under the general terms and provisions of such Plans (and any applicable
funding media) and you continue to pay an amount equal to your regular
contribution under such plans for such participation. In the event that
your participation in any such Plan is barred, the Company, at its sole
cost and expense, shall arrange to have issued for the benefit of you
and your dependents individual policies of insurance providing benefits
substantially similar (on an after-tax basis) to those which you
otherwise would have been entitled to receive under such Plans pursuant
to this paragraph (iv) or, if such insurance is not available at a
reasonable cost to the Company, the Company shall otherwise provide you
and your dependents with equivalent benefits (on an after-tax basis).
You shall not be required to pay any premiums or other charges in an
amount greater than that which you would have paid in order to
participate in such Plans. If, at the end of three years after the
Termination Date, you have not reached your normal retirement date, you
are participating in any of such Plans and you have not previously
received or are not then receiving equivalent benefits from a new
employer, the Company shall arrange, at its sole cost and expense, to
enable you to convert your and your dependents' coverage under such
Plans to individual policies or programs upon the same terms as
employees of the Company may apply for such conversions.
(iv) Except as specifically provided in paragraph (iii)
above, the amount of any payment provided for in this Section 5 shall
not be reduced, offset or subject to recovery by the Company by reason
of any compensation earned by you as the result of employment by another
employer after the Date of Termination, or otherwise.
6. Successors; Binding Agreement.
(i) The Company will seek, by written request at least five
business days prior to the time a Person becomes a Successor (as
hereinafter defined), to have such Person assent to the fulfillment of
the Company's obligations under this Agreement. For purposes of this
Agreement, "successor" shall mean any Person that succeeds to, or has
the practical ability to control (either immediately or with the passage
of time), the Company's business directly, by merger or consolidation,
or indirectly, by purchase of the Company's voting securities or
otherwise.
(ii) This Agreement shall inure to the benefit of and be
enforceable by your personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees.
If you should die while any amount would still be payable to you
hereunder if you had continued to live, all such amounts, unless
otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to your devisee, legatee or other designee or, if there
be no such designee, to your estate.
(iii) For purposes of this Agreement, the "Company" shall
include any corporation or other entry which is the surviving or
continuing entity in respect of any merger, consolidation or form of
business combination in which the Company ceases to exist.
7. Fees and Expenses; Mitigation.
(i) The Company shall reimburse you, on a current basis, for
all reasonable legal fees and related expenses incurred by you in
connection with the Agreement following a change in control of the
Company, including, without limitation, (a) all such fees and expenses,
if any, incurred in contesting or disputing any termination of your
employment or incurred by you in seeking advice with respect to the
matters set forth in Section 8 hereof or (b) your seeking to obtain or
enforce any right or benefit provided by this Agreement, in each case,
regardless of whether or not your claim is upheld by a court of
competent jurisdiction; provided, however, you shall
be required to repay any such amounts to the Company to the extent that
a court issues a final and non-appealable order setting forth the
determination that the position taken by you was frivolous or advanced
by you in bad faith.
(ii) You shall not be required to mitigate the amount the
Company becomes obligated to make to you in connection with this
Agreement by seeking other employment or otherwise.
8. Taxes.
(i) All payments to be made to you under this Agreement will
be subject to required withholding of federal, state and local income
and employment taxes.
(ii) Notwithstanding anything in the foregoing to the
contrary, if any of the payments provided for in this Agreement,
together with any other payments which you have the right to receive
from the Company or any corporation which is a member of an "affiliated
group" (as defined in Section 1504 (a) of the Internal Revenue Code of
1986 (the "Code") without regard to Section 1504(b) of the Code) of
which the Company is a member, would constitute a "parachute payment"
(as defined in Section 2BOG (b) (2) of the Code), the payments pursuant
to this Agreement shall be reduced (reducing first the payments under
Section 5 (iii) (B) ) to the largest amount as will result in no portion
of such payments being subject to the excise tax imposed by Section 4999
of the Code; provided, however, that the determination as to whether any
reduction in the payments under this Agreement pursuant to this proviso
is necessary shall be made by you in good faith, and such determination
shall be conclusive and binding on the Company with respect to its
treatment of the payment for tax reporting purposes.
9. Survival. The respective obligations of, and benefits afforded
to, the Company and you as provided in Sections 5, 6 (ii), 7, 8, 13 and 14 of
this Agreement shall survive termination of this Agreement.
10. Notice. For the purposes 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 mail, return receipt requested, postage prepaid and addressed, in the
case of the Company, to the address set forth on the first page of this
Agreement or, in the case of the undersigned employee, to the address set forth
below his signature, provided that all notices to the Company shall be directed
to the attention, of the Vice-President, Human Resources of the Company, with a
copy to Xxxxxx X. Xxxxxxx, Xxxxxxxx & Worcester LLP, 0 Xxxx Xxxxxx Xxxxxx,
Xxxxxx, XX 00000, 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.
11. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such modification, waiver or discharge is agreed to
in a writing signed by you and an officer or other person authorized by the
Board to act on its behalf in this matter. No waiver by either party hereto at
any time of any breach by the other party hereto of, or of 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 provisions or conditions at
the same or at any prior or subsequent 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 Commonwealth of Massachusetts.
12. Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
13. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Boston, Massachusetts by three arbitrators in accordance with the rules of the
American Arbitration Association then in effect, Judgment may be entered on the
arbitrators' award in any court having jurisdiction; provided, however, that you
shall be entitled to seek specific performance of your right to be paid until
the Date of Termination during the pendency of any dispute or controversy
arising under or in connection with this Agreement. The Company shall bear all
costs and expenses arising in connection with any arbitration proceeding
pursuant to this Section 13.
14. Employee's Commitment. You agree that subsequent to your period
of employment with the Company, you will not at any time communicate or disclose
to any unauthorized person, without the written consent of the Company, any
proprietary processes of the Company or any subsidiary or other confidential
information concerning their business, affairs, products, suppliers or customers
which, if disclosed, would have a material adverse effect upon the business or
operations of the Company and its subsidiaries, taken as a whole; it being
understood, however, that the obligations of this Section 14 shall not apply to
the extent that the aforesaid matters (a) are disclosed in circumstances where
you are legally
required to do so or (b) become generally known to and available for use by the
public otherwise than by your wrongful act or omission.
15. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
If this letter correctly sets forth our agreement on the subject matter
hereof, kindly sign and return to the Company the enclosed copy of this letter
which will then constitute our agreement on this subject.
Sincerely,
LOJACK CORPORATION
By:
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Agreed to this ____ day of _____
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Employee
