CHANGE OF CONTROL AGREEMENT
Exhibit 10.36
This CHANGE OF CONTROL AGREEMENT (“Agreement”) between and among TechTeam Global,
Inc., a Delaware corporation (the “Company”), and Xxxxxxxxxxx X. Xxxxxxx (the
“Executive”) is entered into on February 11th, 2009.
The Board of Directors of the Company (the “Board”) has determined that it is in the
best interests of the Company and its shareholders to diminish the inevitable distraction to the
Executive from the personal uncertainties and risks created by a pending or potential Change of
Control, and to encourage the Executive’s full attention and dedication to the Company currently
and in the event of any pending or potential Change of Control, and to provide the Executive with a
severance package if the Executive is terminated as a result of a Change of Control. Therefore, in
order to accomplish these objectives, the Board has caused the Company to enter into this
Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. Definitions
(a) “Effective Date” shall mean the date on which a Change of Control occurs.
Notwithstanding anything in this Agreement to the contrary, if a Change of Control occurs and if
the Executive’s employment with the Company is terminated prior to the date on which the Change of
Control occurs, and if it is reasonably demonstrated by the Executive that such termination of
employment (i) was at the request of a third party who has taken steps reasonably calculated to
effect the Change of Control or (ii) otherwise arose in connection with or in anticipation of the
Change of Control, then for all purposes of this Agreement, the “Effective Date” shall mean
the date immediately prior to the date of such termination of employment.
(b) “Change of Control” shall mean the first to occur of the following:
(i) any merger, consolidation, recapitalization of the Company or the sale or other
transfer of greater than 50% of all then outstanding voting shares of the Company entitled
to vote generally in the election of the directors (“Voting Securities”);
(ii) the consummation of the sale, lease, dissolution or other transfer (in one
transaction or a series of transactions contemplated or arranged by any part as a single
plan) or other disposition of all or a majority of the assets or operations of the Company;
or
(iii) a change in composition of the Board of Directors involving a majority of the
then current incumbent directors as a result of either an actual or threatened election
contest.
(c) “Change Period” shall mean the period commencing upon the Effective Date and
ending on the first anniversary of such date.
(d) “Disability” shall mean the absence of the Executive from the Executive’s duties
with the Company on a full-time basis for 180 consecutive business days as a result of incapacity
due to mental or physical illness, which is determined to be total and/or permanent by a physician
selected by the Company or its insurers.
(e) “Cause” shall mean any of the following: (i) Executive’s conviction of or a plea
of no contest to a felony, fraud or a crime involving moral turpitude under any state or federal
statute; (ii) Executive’s continued failure to substantially perform the Executive’s duties
unrelated to a Disability, or any other intentional action or omission by Executive that is
injurious to the Company; or (iii) any material breach of any employee handbook of the Company by
the Executive, which breach is not remedied within fourteen (14) days after written notice thereof.
(f) “Good Reason” shall mean any of the following: (i) the assignment to the Executive
of any duties inconsistent with the Executive’s position, authority, duties or responsibilities
prior to the Effective
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Date, or any other action by the Company or the Company (or any of their successors)
which results in a diminution in such position, authority, duties or responsibilities, and the
continuance of such assignment of duties or other such action for a period of sixty (60) days; (ii)
the requirement of the Executive to be based at any office or location other than the location to
which Executive was assigned prior to the Effective Date, except for short-term assignments (under
three (3) months) where the Company pays all travel or temporary relocation costs incurred by the
Executive; (iii) any failure by the Company to comply with and satisfy Section 9(c) of this
Agreement, or any failure by any successor to assume and offer to perform this Agreement in
accordance with Section 9(c), provided that such successor has received at least ten days prior
written notice from the Company or the Executive of the requirements of Section 9(c).
(g) “Notice of Termination” shall mean a written notice which (i) indicates the
specific termination provision in this Agreement relied upon by the terminating party, and (ii) to
the extent practicable, sets forth in reasonable detail the facts and circumstances relied upon to
form such party’s basis for termination of employment under the operative provisions.
(h) “Termination Date” shall mean (i) if the Executive’s employment is terminated by
the Company for Cause, the date of receipt of the Notice of Termination or any later date specified
therein, as the case may be; (ii) if the Executive’s employment is terminated by the Executive for
Good Reason, the end of the thirty-day cure period described in subsection (d) above or any later
date specified therein (which later date must in all cases be within two years of the initial
existence of the condition constituting Good Reason); (iii) if the Executive’s employment is
terminated by the Company other than for Cause or Disability, the Termination Date shall be the
date on which the Company notifies the Executive of such termination; and (iv) if the Executive’s
employment is terminated by reason of death or Disability, the Termination Date shall be the date
of death of the Executive or the date of Disability, as the case may be.
(i) “Specified Employee” shall have the meaning given in Code Section 409A as
determined in accordance with the methodology established by the Company as in effect on the date
of Executive’s Separation from Service.
(j) “Code” shall mean the Internal Revenue Code of 1986, as amended. Any reference to
a specific provision of the Code shall include any successor provision and/or regulations
promulgated under that provision of the Code.
2. Terms of Employment.
(a) Position and Duties. During the Change Period, Executive agrees to devote
reasonable attention and time during normal business hours to the business and affairs of the
Company and, to the extent necessary to discharge the responsibilities assigned to the Executive
hereunder, to use the Executive’s reasonable best efforts to perform faithfully and efficiently
such responsibilities.
(b) Compensation. During the Change Period, the Executive shall:
(i) receive an annual base salary (“Annual Base Salary”) at least equal to
twelve times the highest monthly base salary paid or payable to the Executive by the Company
in the twelve-month period immediately preceding the month in which the Effective Date
occurs;
(ii) be eligible to participate in any bonus program in force on the Effective Date, or
otherwise adopted by the Company;
(iii) be entitled to participate in all savings and retirement plans, practices,
policies and programs applicable generally to other peer executives of the Company;
(iv) be eligible (and the Executive’s family members shall be eligible) for
participation in and to receive all benefits under welfare benefit plans, practices,
policies and programs provided by the Company (including, without limitation, medical,
prescription, dental, disability, salary continuance, employee life, group life, accidental
death and travel accident insurance plans and programs).
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3. Termination of Employment.
(a) Death or Disability. The Executive’s employment shall terminate automatically
upon the Executive’s death or Disability that continues for 30 days after the Company provides
Executive of notice of its determination of Disability.
(b) Cause. The Company may terminate the Executive’s employment during the Change
Period for Cause.
(c) The Executive’s employment may be terminated during the Change Period by the Executive for
Good Reason.
(d) In the case of any termination of employment under this Agreement, the provisions of
Section 4 of this Agreement shall apply.
(e) Notice of Termination. Any termination by the Company for Cause, or by the
Executive for Good Reason, shall be communicated by written Notice of Termination to the other
party in accordance with this Agreement. In addition, if the Executive is resigning for Good
Reason, the Notice of Termination must be provided to the Company within ninety (90) days of the
existence of the condition that constitutes Good Reason and must provide the Company a period of
thirty (30) days to remedy the condition that constitutes Good Reason. If the Company remedies the
condition that constitutes Good Reason within such thirty (30) day period, then the Executive may
withdraw the Notice of Termination; provided that if the Executive does not withdraw the
Notice of Termination, then the Executive will be considered to have terminated his employment
without Good Reason.
4. Obligations of the Company upon Termination.
(a) Good Reason: Other than for Cause, Death or Disability. If during the Change
Period, either the Company terminates the Executive’s employment other than for Cause, Death or
Disability, or the Executive terminates employment for Good Reason, the Company shall:
(i) pay to the Executive in a lump sum in cash the aggregate of the following amounts:
A. the sum of: (1) the Executive’s Annual Base Salary through the Termination
Date to the extent not theretofore paid; plus (2) any accrued vacation pay to the
extent not already paid; and
B. the Executive’s annual bonus as if earned at the Executive’s target level as
of the Termination Date; and
C. the amount equal to the Executive’s Annual Base Salary as of the Termination
Date;
(ii) grant and immediately vest in favor of the Executive thirty thousand (30,000)
options to purchase Voting Securities of the Company, with an Exercise Price no higher than
the closing market price of such Voting Securities on the Termination Date (“Termination
Options”), which must be exercised within twelve (12) months after the Termination Date,
subject to the remaining terms and conditions of the Company’s Option Grant Policy. If the
Termination Options have already been granted to the Executive before the Termination Date,
then this Section 4(a)(ii) shall be deemed to have been complied with, and shall be of no
further force or effect;
(iii) provide the Executive with reasonable executive outplacement services for a
period of up to twelve (12) months after the Termination Date through a recognized
outplacement provider that is agreed to by the Company and the Executive;
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(iv) continue welfare benefits to the Executive and/or the Executive’s family at least
equal to those which would have been provided to them in accordance with the welfare plans,
programs, practices and policies of the Company as if the Executive’s employment had not
been
terminated for a period of twelve (12) months; provided, however, that if the
Executive becomes re-employed with another employer and is eligible to receive medical or
other welfare benefits under another employer provided plan, the medical and other welfare
benefits described herein shall be secondary to those provided under such other plan during
such applicable period of eligibility (such continuation of such benefits for the applicable
period herein set forth shall be hereinafter referred to as “Welfare Benefit
Continuation”). Any benefits received by the Executive pursuant to this Section shall
not reduce the period of time the Executive is entitled to receive COBRA continuation health
coverage as a result of the Executive’s termination of employment;
(v) immediately upon termination vest any options, restricted stock, or performance
stock granted to Executive, and the Executive will have six (6) months after the Termination
Date to exercise any such options;
(vi) pay to the Executive the proceeds of the Executive Savings Plan, including all
accumulated interest and dividends, as required therein.
The Company shall pay the amounts described in this Section (in the aggregate, the
“Severance”) promptly after the Termination Date, but no more than thirty (30) days
thereafter; provided that if the Executive is a Specified Employee on the Termination Date, then to
the extent the Severance exceeds an amount equal to the lesser of (x) two times the Executive’s
Annual Base Salary for the prior calendar year and (y) two times the dollar limitation in effect
under Code Section 401(a)(17) for the year in which the Termination Date occurs, such excess shall
be paid with interest on such delayed payment at the applicable federal rate provided for in Code
Section 7872(f)(2)(A) on the first business day after the date that is six months after the
Termination Date (the “Delayed Payment Date”). In addition, if the Executive is a
Specified Employee on the Termination Date and if the taxable value of continued life insurance
coverage exceeds the applicable dollar limit under Code Section 402(g)(1)(B) as in effect for the
Termination Date, then the Executive shall pay the Company the premiums for the coverage in excess
of such limit and, on the Delayed Payment Date, the Company shall reimburse such amount to the
Executive.
(b) Death, Retirement or Disability. If during the Change Period, the Executive’s
employment is terminated by reason of the Executive’s death, retirement or Disability, the Company
shall have no further obligations to the Executive’s legal representatives or the Executive, as the
case may be, under this Agreement.
(c) Cause, Other than for Good Reason. If during the Change Period, the Executive’s
employment is terminated for Cause, or if the Executive terminates employment other than for Good
Reason, the Company shall have no further obligations to the Executive, except the Company
shall be obligated to pay the Executive’s Annual Base Salary through the Termination Date plus the
amount of any compensation previously deferred by the Executive, in each case to the extent not
already paid.
5. Limitation on Payment. If the Executive is a “disqualified individual” within the
meaning of Code Section 280G, the parties expressly agree that the payments described in this
Agreement and all other payments to the Executive under any other agreements or arrangements with
any persons that constitute “parachute payments” within the meaning of Section 280G of the Code
shall collectively be subject to an overall maximum limit (the “Code Section 280G Limit”).
In such case, the aggregate amount of any payments under this Agreement shall not exceed the Code
Section 280G Limit. The Code Section 280G Limit shall be One Dollar ($1.00) less than the
aggregate amount that would otherwise cause any such payments to be considered a “parachute
payment” within the meaning of Section 280G of the Code, as determined by the Company.
Accordingly, to the extent that the payments would be considered a “parachute payment” with respect
to the Executive, then the portions of such payments shall be reduced or eliminated in the
following order until the remaining payments with respect to the Executive can be fully paid within
the Code Section 280G Limit.
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(a) First, any cash payment to the Executive;
(b) Second, any “parachute payments” not described in this Agreement; and
(c) Third, any forgiveness of indebtedness of the Executive to the Company.
The Executive expressly and irrevocably waives any and all rights to receive any “parachute
payments” that exceed the Code Section 280G Limit.
6. Confidential Information. The Executive shall hold in a fiduciary capacity for the
benefit of the Company all secret or confidential information, knowledge or data relating to the
Company and its respective businesses, which has been obtained by the Executive during the
Executive’s employment by the Company which shall not be or become public knowledge (other than by
acts by the Executive or representatives of the Executive in violation of this Agreement). After
termination of the Executive’s employment with the Company, the Executive shall not, without the
prior written consent of the Company or as may otherwise be required by law or legal process,
communicate or divulge any such information, knowledge or data to anyone other than the Company and
those designated by it. In no event shall an asserted violation of the provisions of this Section
constitute a basis for deferring or withholding any amounts otherwise payable to the Executive
under this Agreement.
7. Non-Solicitation Covenant. In consideration for entry into this Agreement,
Executive reaffirms his/her agreement with the Company not to compete with, or solicit customers or
employees of the Company as set forth in the Intellectual Property Assignment, Non-Solicitation,
and Confidentiality Agreement.
8. Successors and Assigns.
(a) 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.
(b) This Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.
(c) The Company shall require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or assets of 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. As
used in this Agreement, “Company” shall mean the Company as hereinbefore defined and any
successor to its business and/or assets as aforesaid which assumes and agrees to perform this
Agreement by operation of law, or otherwise.
9. General Provisions.
(a) This Agreement shall be governed by and construed in accordance with the laws of the State
of Michigan, without reference to principles or conflict of laws. All litigation related to this
Agreement shall be brought in a court located in the State of Michigan, and each party, for the
purposes of such litigation, hereby submits to the exclusive jurisdiction and venue of that court.
The captions of this Agreement are not part of the provisions hereof and shall have no force or
effect.
(b) All notices and other communications hereunder shall be in writing and shall be given by
hand delivery to the other party or by registered or certified mail, return receipt requested,
postage prepaid, addressed as follows:
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If to the Executive:
Xxxxxxxxxxx X. Xxxxxxx
00000 Xxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Xxxxxxxxxxx X. Xxxxxxx
00000 Xxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
or to the most current address of record designated in the Executive’s personnel file.
If to the Company:
Chief Executive Officer
TechTeam Global, Inc.
00000 Xxxx 00 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Chief Executive Officer
TechTeam Global, Inc.
00000 Xxxx 00 Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
or to such other address as either party shall have furnished to the other in writing under this
Agreement. Notice and communications shall be effective when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this Agreement shall not affect the
validity or enforceability of any other provision of this Agreement.
(d) The Company may withhold from any amounts payable under this Agreement such federal, state
or local taxes as shall be required to be withheld pursuant to any applicable law or regulation.
(e) The Executive’s or the Company’s failure to insist upon strict compliance with any
provision hereof or any other provision of this Agreement or the failure to assert any right the
Executive or the Company may have hereunder, including, without limitation, the right of the
Executive to terminate employment for Good Reason, shall not be deemed to be a waiver of such
provision or right or any other provision or right of this Agreement.
(f) The Executive and the Company acknowledge that, except as may otherwise be provided under
any other written agreement between the Executive and the Company, the employment of the Executive
by the Company is “at will” and, prior to the Effective Date, may be terminated by either the
Executive or the Company at any time. Moreover, if prior to the Effective Date, the Executive’s
employment with the Company terminates, then the Executive shall have no further rights under this
Agreement. The Executive further acknowledges that this Agreement does not give the Executive any
additional right to participate in any plan, program, etc. The Executive and the Company agree
that this Agreement supercedes any separation policy of the Company.
(g) This Agreement constitutes the entire agreement between the parties concerning the subject
matter hereof. Any prior understandings, representations, promises, undertakings, agreements or
inducements, whether written or oral, concerning the subject matter hereof not contained herein
shall have no force and effect.
(h) This Agreement may not be amended or modified otherwise than by a written agreement
executed by the parties hereto or their respective successors and legal representatives. An
agreement to amend this Agreement can be entered into on behalf of the Company only by the
President of the Company after approval of the Company Board.
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement on the date first
written above.
| TECHTEAM GLOBAL, INC. | EXECUTIVE | |||||||
By:
|
/s/ Xxxx X. Xxxxxxxx | /s/ Xxxxxxxxxxx X. Xxxxxxx | ||||||
| Xxxx X. Xxxxxxxx | Xxxxxxxxxxx X. Xxxxxxx | |||||||
| Its: Chief Executive Officer | ||||||||
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