CHANGE OF CONTROL
SEVERANCE BENEFITS AGREEMENT
THIS AGREEMENT is made and entered into as of the 31st day of March,
1997, by and between Crossmann Communities, Inc. (the "Company") an Indiana
corporation, and Xxxxxxxx X. Xxxxxxx (the "Employee"), an employee of the
Company.
RECITAL
The Board of Directors of the Company (the "Board") have determined that
it is in the best interests of the Company to xxxxxx the continuous employment
of the Employee and that the Company should enter into this Agreement to
reinforce and encourage the continued attention and dedication of the Employee
to his duties, free from distractions which might arise in the event of a
Change of Control (as defined in this Agreement) of the Company or a proposed
Change of Control.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the Company and the Employee agree as follows:
1. Effect. Anything in this Agreement to the contrary
notwithstanding, neither this Agreement nor any provision hereof shall be
operative unless and until there has been a Change of Control of the Company.
Upon a Change of Control of the Company this Agreement shall become operative
immediately. If the Employee's employment with the Company is terminated
(other than as a result of Disability or Retirement or by reason of the
Employee's death) either by the Company (other than for Cause) or by the
Employee with Good Reason (as defined in Section 2(c)(5)) and if such
termination of employment occurs concurrently with or within six months (6)
immediately preceding or thirty-six (36) months immediately following a Change
of Control of the Company, then the Company shall provide to the Employee a
severance benefit (the "Severance Entitlement") in the manner and amount
provided in Section 2 of this Agreement.
2. Termination Benefits.
(a) If, within six (6) months immediately preceding or
thirty-six (36) months following a Change of Control, the Employee's
employment with the Company shall be terminated, the Employee shall be
entitled to the following compensation and benefits (in addition to any
compensation and benefits provided for under any of the Company's employee
benefit plans, policies and practices or as required by law:
(1) If the Employee's employment with the Company shall be
terminated (A) by reason of the Employee's Disability or Retirement, or (B)by
reason of the Employee's death, the Company shall within five (5) days after
the Release Effective Date (as defined in Section 5(a) below) pay the Employee
his full Base Salary through the Dare of Termination at the rate in effect
when the Notice of Termination is given (or the Date of Termination in the
case of the Employee's death), plus any bonuses or incentive compensation
which pursuant to the terms of any compensation or benefit plan have been
earned or have become payable as of the Date of Termination, but which have
not yet been paid.
(2) If the Employee's employment with the Company shall be
terminated by the Company for Cause, the Company shall pay the Employee his
full Base Salary through the Date of Termination at the rate in effect at the
time Notice of Termination is given, and the Company shall have no further
obligations to the Employee under this Agreement.
(3) If the Employee's employment with the Company shall be
terminated by the Company (other than for Cause) or by the Employee for Good
Reason, the Company shall:
(i) within five (5) days after the Release Effective
Date pay the Employee his full Base Salary through the Date of Termination at
the greater of the rate in effect at the time the Change of Control occurs or
Notice of Termination is given, plus any bonuses or incentive compensation
which pursuant to the terms of any compensation or benefit plan have been
earned or have become payable as of the Date of Termination, but which have
not yet been paid;
(ii) within five (5) days after the Release Effective
Date pay the Employee a lump sum cash payment equal to the Severance
Entitlement. The aggregate dollar amount of the Severance Entitlement shall
be equal to three times the highest aggregate amount of base salary bonus and
other cash compensation paid by the Company to the Employee for any full
calendar year during which the Employee was employed by the Company; provided,
however, that if such Severance Entitlement, either alone or together with
other payments which the Employee has the right to receive from the Company or
any affiliate of the Company (the "Total Payments"), would constitute an
"excess parachute payment" within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code"), then the Company shall pay an
additional amount of money (the "Gross-up Payment") to the Employee that will
equal (based upon the Employee's good faith representations of the Employee's
income tax position for the year(s) of payment(s)) the sum of (j) all excise
tax ("Excise Tax") imposed upon the Employee by Section 4999 of the Code and
(ii) all additional state and federal income taxes attributable to the
additional payments to the Employee pursuant to this proviso clause (including
all state and federal taxes on the additional income tax payments) such that
the net amount retained by Employee, after deduction of any Excise Tax on the
Total Payments and any federal, state and local income and employment taxes
and Excise Tax upon the Gross-up Payment, shall be equal to the Total
Payments. The determination of the amounts of such payments pursuant to the
immediately preceding proviso shall be made by the Company in good faith, and
such determination shall be conclusive and binding. The Company may at its
election pay such amount to the Employee in eighteen (18) equal monthly
installments commencing on the fifth day after the Release Effective Date and
on the same day of the next seventeen (17) months thereafter;
(iii) continue to provide for the Employee and his
dependents, for a period of eighteen (18) months following the Date of
Termination, life insurance, medical and hospitalization benefits comparable
to those provided by the Company to the Employee and his dependents
immediately prior to the Change of Control, provided that any coverage
provided pursuant to this subsection (iii) shall terminate to the extent that
the Employee obtains comparable life insurance, medical or hospitalization
benefits coverage from any other employer during such eighteen (18) month
period. The benefits provided under this subsection (iii) shall not be
materially less favorable to the Employee in terms of amounts, deductibles and
costs to him, if any, than such benefits provided by the Company to the
Employee and his dependents as of the date of the Change of Control. This
subsection (iii) shall not be interpreted so as to limit any benefits to which
the Employee or his dependents may be entitled under the Company's life
insurance, medical, hospitalization, dental or disability plans following the
Employee's Date of Termination and shall be in addition to any COBRA rights
under federal law; and
(iv) within five (5) days after the Release Effective
Date pay the Outplacement Assistance Payment to the Employee.
(b) The Employee shall not be required to mitigate the amount of
any payment provided for in this Section 2 by seeking other employment or
otherwise, nor, except as provided in Section 2(a)(3)(iii) above, shall the
amount of any payment or benefit provided for in Section 2 be reduced by any
compensation earned by the Employee or benefit made available to the Employee
as the result of employment by another employer after the Date of Termination
or otherwise.
(c) For purposes of this Agreement, the following definitions
shall apply:
(1) A "Change of Control" shall be deemed to occur (i) when
any person (as such term is used in Sections 13(e) and 14(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")), other than Xxxx
Xxxxxxxxx or Xxxxxxx Xxxxxxx the beneficial owner (as defined in Rule 13d-3
promulgated under the Exchange Act) directly or indirectly of securities of
the Company representing 40% or more of the combined voting power of the
Company's then outstanding securities (assuming conversion of all outstanding
nonvoting securities into voting securities and the exercise of all
outstanding options or other convertible securities); or (ii) upon the
approval by the Company's shareholders of (A) a merger or consolidation of the
Company with or into another Company (other than a merger or consolidation in
which the Company is the surviving corporation and which does not result in
any capital reorganization or reclassification or other change in the
ownership of the Company's then outstanding shares which would be deemed a
Change of Control pursuant to subsection(s) (i) or (ii) hereof), (B) a sale or
disposition of all or substantially all of the Company's assets, or (C) a plan
of liquidation or dissolution of the Company.
(2) "Disability" means the Employee is disabled as defined
in the Joinder Agreement to Crossmann Communities, Inc, 401(k) Profit Sharing
Plan
(3) "Retirement" means the voluntary retirement of the
Employee under the terms of the Joinder Agreement to Crossmann Communities,
Inc. 401 (k) Profit Sharing Plan.
(4) A termination for "Cause" means a termination by reason
of the Board's good faith determination that the Employee (i) willfully
engaging in conduct that constitutes willful gross misconduct in carrying out
the Employees s duties, resulting in either case, in material harm to the
Company, monetarily or otherwise, unless Employee reasonably believed in good
faith that such act or non-act was in (or not opposed to) the best interest of
the Company, (ii) willfully engaged in conduct which constituted a material
breach of Section 7 of this Agreement, (iii) engaged in conduct which
constituted a crime of moral turpitude, (iv) perpetuated a fraud or
embezzlement against the Company, or (v) willfully engaged in conduct which is
demonstrably and materially injurious to the Company, monetarily or otherwise.
No act, or failure to act, on the Employee's part shall be considered
"willful" unless he has acted or failed to act with an absence of good faith
and without a reasonable belief that his action or failure to act was in or at
least not opposed to the best interests of the Company. Notwithstanding the
foregoing, the Employee shall not be deemed to have been terminated for Cause
unless there shall have been delivered to the Employee a copy of a resolution
duly adopted by the affirmative vote of not less than a majority of the entire
membership of the Board at a meeting of the Board.
(5) A termination for "Good Reason" means the voluntary
cessation of employment with the Company by the Employee within 90 days after
(i) the Employee's base salary was reduced to an amount less than the
Employee's base salary as of the date of this Agreement and/or (ii) the amount
of the targeted annual incentives available to the Employee (based on
realization of certain corporate and individual objectives) are materially
decreased from the amount of similar incentives available in prior years
and/or (iii) the nature and scope of the Employee's duties were materially
reduced and/or (iv) a significant adverse reduction or alteration in the scope
or status of the Employee's position, duties or responsibilities or the
conditions of the Employee's employment from those in effect immediately prior
to such Change of Control are effected, and/or (v) the Company fails to
continue this Agreement in effect or to obtain a satisfactory agreement from
any successor to assume and agree to perform this Agreement.
(6) A "Notice of Termination" means a notice which shall
indicate the specific termination provision in this Agreement which is
applicable and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for termination of the Employee's
employment under the provision so indicated. For purposes of this Agreement,
no such purported termination shall be effective without such Notice of
Termination. Any purported termination by the Company or by the Employee
shall be communicated by written notice of termination to the other party
hereto in accordance with Section 6 hereof.
(7) "Date of Termination" means (i) if the Employee's
employment is terminated for Disability, thirty (30) days after Notice of
Termination is given (provided that the Employee shall not have returned to
the performance of his duties on a full-time basis during such thirty (30) day
period), and (ii) if the Employee's employment is terminated for any other
reason, the date specified in the Notice of Termination (which, in the case of
a termination for Cause shall not be less than thirty (30) days from the date
such Notice of Termination is given); provided that within thirty (30) days
after any such Notice of Termination is given the party receiving such Notice
of Termination notifies the other party that a dispute exists concerning the
termination, the Date of Termination shall be the date on which the dispute is
finally determined, either by mutual written agreement of the parties, or by
the final judgment, order or degree of court of competent jurisdiction (the
time for appeal therefrom having expired and no appeal having been taken).
(8) "Outplacement Assistance Payment" means the payment of
$20,000 to the Employee to be used at the Employee's discretion for
outplacement career counseling and job search costs and expenses.
(9) "Base Salary" means the annual base salary of the
Employee from the Company, but determined without regard to any salary
reduction agreement of the Employee under Sections 401(k) and 125 of the
Internal Revenue Code of 1986 (the Code") (or corresponding provisions of
subsequent federal income tax laws) or any salary deferral agreement of the
Employee under any non-qualified deferred compensation program that may be
available to the Employee from time to time, and excludes (i) incentive or
additional cash compensation; (ii) any amounts included in income because of
Sections 79 or 89 of the Code; and (iii) any amounts paid to the Employee for
reimbursement for expenses or discharging tax liabilities.
(10) "Severance Entitlement" is defined in Section 1 of
this Agreement.
3. Successors: Binding Agreement.
(a) This Agreement shall be binding on the Company and any
successor to all or substantially all of its business or assets. Without
limiting the effect of the prior sentence, the Company will require any
successor or assign (whether 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 or assignment had taken place. As used in
this Agreement, "Company" shall mean the Company as hereinbefore defined and
any successor or assign to its business and/or assets as aforesaid which
assumes and agrees to perform this Agreement or which is otherwise obligated
under this Agreement by the first sentence of this Section 3, by oration of
law or otherwise.
(b) This Agreement shall inure to the benefit of and be
enforceable by the Employee's personal and legal representatives, executors,
administrators, successors, heirs, distributees, devisees and legatees. If
the Employee should die while any amounts would still be payable to him
hereunder if he had continued to live, all such amounts, unless otherwise
provided herein, shall be paid in accordance with the terms of this Agreement
to the Employee's devisee, legatee or other designee or if there is no such
devisee, legatee or designee, to the Employee's estate.
4. Fees and Expenses; Acceleration Right. The Company shall pay all
reasonable legal fees and related expenses (including the costs of experts,
evidence and counsel) incurred by the Employee as a result of the Employee
seeking to obtain or enforce any right or benefit provided by this Agreement
or by any other plan or arrangement maintained by the Company under which the
Employee is or may be entitled to receive benefits, unless the Company shall
ultimately prevail in establishing that the Company terminated Employee's
employment for Cause. In the event the Company fails to make any installment
payment due and payable under Section 2(a)(3)(ii) hereof, and such default
continues for a period of more than fifteen (15) days following written notice
from the Employee to the Company of such default, the entire balance of the
amount payable under Section 2(a)(3)(ii) hereof shall immediately become due
and payable to the Employee.
5. Release and Right to Employment.
(a) As a condition of receiving from the Company the payments
and benefits provided for hereunder, which payments and benefits the Employee
is not otherwise entitled to receive, the Employee understands and agrees that
he will be required to execute a release of all claims against the Company in
the form attached hereto as Exhibit 1 (the "Release") on the Date of
Termination. Employee acknowledges that he has been advised in writing to
consult with an attorney prior to executing the Release. The Employee agrees
that he will consult with his attorney prior to executing the Release. The
Employee and the Company agree that Employee has a period of seven (7) days
following the execution of the Release within which to revoke the Release.
The parties also acknowledge and agree that the Release shall not be effective
or enforceable until the seven (7) day revocation period expires. The date on
which this seven (7) day period expires shall be the effective date of the
Release (the "Release Effective Date").
(b) The Employee understands that as used in this Section 5, the
"Company" includes its past, present and future officers, directors, trustees,
shareholders, parent corporations, employees, agents, subsidiaries,
affiliates, distributors, successors, and assigns, and any other persons
related to the Company.
(c) Notwithstanding anything in this Agreement to the contrary,
this Agreement shall not affect the Company's right or ability to terminate
the employment of the Employee, subject to any other written contract between
the Company and the Employee to the contrary.
(d) The Employee agrees that execution and delivery to the
Company of any release or disclaimer agreement requested by the Company which
is consistent with the provisions of this Section 5 and the passage of all
necessary waiting periods in connection therewith shall be a condition to the
receipt of any payment or benefits to be provided by the Company following the
termination of the Employee's employment with the Company.
6. Notices. 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 personally delivered or sent by
certified mail, return receipt requested, postage prepaid, or by expedited
(overnight) courier with established national reputation, shipping prepaid or
billed to sender, in either case addressed to the respective addresses last
given by each party to the other (provided that all notices to the Company
shall be directed to the attention of the Board with a copy to the Secretary
of the Company) or to such other address as either party may have furnished to
the other in writing in accordance herewith. All notices and communication
shall be deemed to have been received on the date of delivery thereof, on the
third business day after the mailing thereof, or on the second day after
deposit thereof with an expedited courier service, except that notice of
change of address shall be effective only upon receipt.
7. Non-Competition. The Employee agrees that during the Employee's
employment with the Company and, in the event of termination of the Employee's
employment with the Company by reason of the Employee's Disability or
Retirement, by the Company for Cause or by the Employee within six (6) months
following a Change of Control, for an additional period of one (1) year
immediately following termination of the Employee's employment with the
Company, the Employee shall not directly or indirectly, as an individual or as
a director, officer, contractor, employee, consultant, partner, investor or in
any other capacity with any corporation, partnership or other person or
entity, other than the Company, engage in the business of homebuilding in
competition with the business of the Company or any of its subsidiaries as
such business are constitutes from time to time during the Employee's
employment with the Company, and thereafter, as such businesses are
constituted at the time of termination of the Employee's employment; provided,
however, in the event of a termination of the Employee's employment within six
(6) months following a Change of Control the foregoing restriction shall only
relate to the business of the Company or any of its subsidiaries as such
business existed immediately prior to the Change of Control. The restrictions
of this Section 7 shall not be deemed to prevent the Employee from owning less
than 5 % of the issued and outstanding shares of any class of securities of an
issuer whose securities are listed on a national securities exchange or
registered pursuant to Section 12(g) of the Exchange Act. The restrictions of
this Section 7, to the extent applicable following termination of the
Employee's employment with the Company, shall only apply within the
geographical area served either by the Company or its subsidiaries during the
two (2) years prior to termination of the Employee's employment with the
Company; provided, however, in the event of a termination of the Employee's
employment within six (6) months following a Change of Control the
geographical area shall only include the geographical area served by the
Company or any of its subsidiaries immediately prior to the Change of Control.
In the event a court of competent jurisdiction determines that the foregoing
restriction is unreasonable in terms of geographic scope or otherwise then the
court is hereby authorized to reduce the scope of said restriction and enforce
this Section 7 as so reduced. If any sentence, word or provision of this
Section 7 shall be determined to be unenforceable, the same shall be severed
herefrom and the remainder shall be enforced as if the unenforceable sentence
work or provision did not exist,
8. Miscellaneous. No provision of this Agreement may be modified,
waived or discharged unless such waiver, modification or discharge is agreed
to in writing and signed by the Employee and such officer as may be
specifically designated by the Board. No waiver by either party hereto at any
time of any breach by the other party hereto of, or compliance with, any
condition or provision of this Agreement to be performed by such other party
shall be deemed a waiver of similar or dissimilar provisions or conditions at
the same or at any prior to subsequent time. No agreement or representations,
oral or otherwise, express or implied, with respect to the subject matter
hereof that have been made by either party which are not expressly set forth
in this Agreement
9. Applicable Law and Forum. This Agreement has been entered into in
the State of Indiana and shall be governed by and construed in accordance with
the laws of the State of Indiana. The parties agree that any action in law or
equity brought by either party arising from or in connection with this
Agreement or arising from or in connection with the performance by either
party of its obligations hereunder shall be brought only in the United States
District Court for the Southern District of Indiana, Indianapolis Division or
the Circuit Court of Xxxxxx County, Indiana, and the parties hereto consent to
the jurisdiction of such forums.
10. 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.
11. Entire Agreement. This Agreement constitutes the entire
agreement between the parties hereto, and supersedes all prior agreements
understandings and arrangements, oral or written, between the parties hereto.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its duly authorized officer and the Employee has executed this Agreement,
each as of the day and year first above written.
COMPANY:
CROSSMANN COMMUNITIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
Title: Chief Executive Officer
ATTEST:
/s/ Xxxxxxxx X. Xxxxxxxx
Secretary
EMPLOYEE:
/s/ Xxxxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxxx
WITNESS
/s/ Xxxxxx X. Xxxxxxx
RELEASE OF ALL CLAIMS
In consideration of receiving from Crossmann Communities, Inc. (the
"Company") the payments and benefits provided for in that certain Severance
Agreement dated as of March 31, 1997 (the Severance Agreement") between the
Company and the undersigned (the "Employee"), which payments and benefits the
Employee was not otherwise entitled to receive, the Employee unconditionally
releases and discharges the Company from any and all claims, causes of action,
demands, lawsuits or other charges whatsoever, known or unknown, directly or
indirectly related to the Employee's employment with the Company, except for
(i) a breach of the Company's obligations under the Severance Agreement, (ii)
any claims relating to, or rights of the Employee appurtenant to, any shares
of stock of, or options for shares of stock of Crossmann Communities, Inc.,
and (iii) the right of the Employee to elect continuation of group medical and
dental benefits for the Employee and his eligible dependents who are qualified
beneficiaries under the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended ("COBRA"), at the Employee's expense, pursuant to COBRA. The
claims or actions released herein include, but are not limited to, those based
on allegations of wrongful discharge, breach of contract, promissory estoppel,
defamation, infliction of emotional distress, and those alleging
discrimination on the basis of race, color, sex, religion, national origin,
age, disability, or any other basis, including, but not limited to, any claim
or action under Title VII of die Civil Rights Act of 1964, the Age
Discrimination in Employment Act of 1967, the Rehabilitation Act of 1973, the
Americans with Disabilities Act of 1990, the Equal Pay Act of 1963, the Civil
Rights Act of 1991, the Employee Retirement Income Security Act of 1974, or
any other federal, state, or local law, rule, ordinance, or regulation as
presently enacted or adopted and as each may hereafter be amended.
With respect to any claim that the Employee might have under the Age
Discrimination in Employment Act of 1967, as amended:
(i) The Employee does not waive rights or claims that may arise after
the date of this Release;
(ii) The Employee's waiver of said rights or claims under the Age
Discrimination Employment Act of 1967 is in exchange for the consideration
reflected in this Release;
(iii) The Employee acknowledges that he has been advised in writing
to consult with an attorney prior to executing this Release and that he has
consulted with his attorney prior to executing this Release;
(iv) The Employee acknowledges that he has been given a period of at
least twenty one (21) days within which to consider this Release; and
(v) The Employee and the Company agree that the Employee has a period
of seven (7) days following the execution of this Release within which to
revoke the Release.
The parties also acknowledge and agree that this Release shall not be
effective or enforceable until the seven (7) day revocation period expires.
The date on which this seven (7) day period expires shall be the effective
date of this Release.
The Employee further agrees, in consideration of receiving the payments
and benefits provided for in the Severance Agreement, not to initiate or
instigate any claims, causes of action or demands against the Company in any
way directly or indirectly related to the Employee's employment with the
Company or the termination of his employment except for a breach of the
Company's obligations under the Severance Agreement or claims or rights of the
Employee relating to any shares of stock of, or options for shares of stock of
Crossmann Communities, Inc., and the Employee agrees to reimburse defend, and
hold harmless the Company against any such claims, causes of action or
demands.
The Employee understands that as used in this Release, the "Company"
includes its past, present and future officers, directors, trustees,
shareholders, parent corporations, employees, agents, subsidiaries,
affiliates, distributors, successors, and assigns, any and all employee
benefit plans (and any fiduciary of such plans) sponsored by the Company, and
any other persons related to the Company.
Date
WITNESS:
212370.WP
