CHANGE IN CONTROL AGREEMENT
EXHIBIT 10.5
This Change in Control Agreement is entered into this 1st day of September 2006,
between Methode Electronics, Inc., a Delaware corporation (the “Company”), and Xxxx X. Xxxxxxx (the
“Executive”).
WITNESSETH:
WHEREAS, Executive is employed by the Company or one of its wholly-owned subsidiaries
(referred to collectively as the “Company”) and the Company desires to provide certain security to
Executive in connection with any potential change in control of the Company; and
NOW, THEREFORE, it is hereby agreed by and between the parties, for good and valuable
consideration the receipt and sufficiency of which are hereby acknowledged, as follows:
1. Payments and Benefits Upon a Change in Control. If within twenty-four (24) months
after a Change in Control (as defined below) or during the Period Pending a Change in Control (as
defined below): (i) the Company shall terminate Executive’s employment with the Company without
Good Cause (as defined below), or (ii) Executive shall voluntarily terminate such employment with
Good Reason (as defined below), the Company shall, within 30 days of Executive’s Employment
Termination (as defined below), make the payments and provide the benefits described below.
(a) Salary Payment. The Company shall make a lump sum cash payment to
Executive equal to two times the Executive’s Annual Salary (as defined below).
(b) Bonuses. The Company shall make a lump sum cash payment to Executive equal
to the sum of the following amounts: (i) a bonus equal to two times the lesser of: (a) the
Executive’s target bonus amount for the fiscal year in which Executive’s Employment
Termination occurs, or (b) the bonus the Executive earned in the prior fiscal year (however,
if the Executive’s Employment Termination takes place in the 2007 fiscal year, this amount
shall be the Executive’s target bonus amount for 2007); provided, however, that if the
target bonus amount for the fiscal year has not yet been determined as of the date of the
Executive’s Employment Termination, then the bonus amount payable hereunder shall be
calculated based on the Executive’s target bonus amount for the previous fiscal year,
regardless of whether such bonus was actually earned; plus (ii) all of Executive’s unpaid,
but accrued matching bonus pursuant to the Longevity Contingent Bonus Plan. Payments made
pursuant to subsection (i) above shall not be subject to matching pursuant to the Longevity
Contingent Bonus Plan.
(c) Welfare Benefit Plans. With respect to each Welfare Benefit Plan (as
defined below), for the period beginning on Executive’s Employment Termination and ending on
the earlier of: (i) twenty-four (24) months following Executive’s Employment Termination,
or (ii) the date Executive becomes covered by a welfare benefit plan or
program maintained by an entity other than the Company which provides coverage or
benefits substantially equivalent to such Welfare Benefit Plan, Executive shall continue to
participate in such Welfare Benefit Plan on the same basis and at the same cost to Executive
as was the case immediately prior to the Change in Control (or, if more favorable to
Executive, as was the case at any time hereafter), or, if any benefit or coverage cannot be
provided under a Welfare Benefit Plan because of applicable law or contractual provisions,
Executive shall be provided with substantially similar benefits and coverage for such
period. Immediately following the expiration of the continuation period required by the
preceding sentence, Executive shall be entitled to continued group health benefit plan
coverage (so-called “COBRA coverage”) in accordance with Section 498OB of the Internal
Revenue Code of 1986, as amended (the “Code”), it being intended that COBRA coverage shall
be consecutive to the benefit and coverage provided for in the preceding sentence.
(d) Employment. This Agreement shall not be construed as creating an express
or implied contract of employment and, except as otherwise agreed in writing between the
Executive and the Company, the Executive shall not have any right to be retained in the
employ of the Company.
2. Definitions. For purposes of this Agreement:
(a) “Annual Salary” shall mean Executive’s salary at the greater of (i) Executive’s
annualized base salary (including Executive’s monthly car allowance) in effect on the date
of the Change in Control, or (ii) Executive’s annualized base salary in effect on
Executive’s Employment Termination.
(b) “Change in Control” shall be deemed to have occurred if:
| (i) | any “person” (as such term is used in Section 13(d) and 14(d)(2) of the Exchange Act, other than any Subsidiary, any employee benefit plan of the Company or a Subsidiary is or becomes a beneficial owner, directly or indirectly, of stock of the Company representing 25% or more of the total voting power of the Company’s then outstanding stock; | ||
| (ii) | a tender offer (for which a filing has been made with the SEC which purports to comply with the requirements of Section 14(d) of the Exchange Act and the corresponding SEC rules) is made for the stock of the Company. In case of a tender offer described in this paragraph (ii), the “Change of Control” will be deemed to have occurred upon the first to occur of: (A) any time during the offer when the person (using the definition in (i) above) making the offer owns or has accepted for payment stock of the Company with 25% or more of the total voting power of the Company’s outstanding stock, or (B) three business days before the offer is to terminate unless the offer is withdrawn first, if the person making the offer could own, by the terms of the offer plus any shares |
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| owned by this person, stock with 50% or more of the total voting power of the Company’s outstanding stock when the offer terminates; or | |||
| (iii) | individuals who were the Board’s nominees for election as directors of the Company immediately prior to a meeting of the shareholders of the Company involving a contest for the election of directors shall not constitute a majority of the Board following the election. |
(c) “Employment Termination” shall mean the effective date of: (i) Executive’s
voluntary termination of employment with the Company with Good Reason, or (ii) the
termination of Executive’s employment by the Company without Good Cause.
(d) “Good Cause” shall mean: (i) Executive’s conviction of a felony; (ii) Executive’s
commission of any act or acts of personal dishonesty intended to result in substantial
personal enrichment to Executive to the detriment of the Company; or (iii) repeated
violations of Executive’s responsibilities which are demonstrably willful and deliberate,
provided that such violations have continued more than ten days after the Board of Directors
of the Company has given written notice of such violations and of its intention to terminate
Executive’s employment because of such violations.
(e) “Good Reason” shall exist if, without Executive’s express written consent:
| (i) | The Company shall materially reduce the nature, scope or level of Executive’s responsibilities from the nature, scope or level of such responsibilities prior to the Change in Control (or prior to the Period Pending a Change in Control), or shall fail to provide Executive with adequate office facilities and support services to perform such responsibilities. | ||
| (ii) | The Company shall require Executive to move Executive’s principal business office more than 25 miles from Executive’s principal business office at the time of this Agreement, or assign to Executive duties that would reasonably require such move; provided, however, that if Executive’s principal business office is not located at the Company’s then current corporate headquarters, and the Company requires Executive to move Executive’s principal business office to such corporate headquarters, or assigns to Executive duties that would reasonably require such move, such actions shall not constitute “Good Reason” under this subsection (ii). | ||
| (iii) | The Company shall require Executive, or assign duties to Executive which would reasonably require Executive, to increase, by more than twenty-four, the number of normal working days (determined at the time of this Agreement) that Executive spends |
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| away from Executive’s principal business office during any consecutive twelve-month period. | |||
| (iv) | The Company shall reduce Executive’s Annual Salary below that in effect as of the date of this Agreement (or as of the Change in Control, if greater). | ||
| (v) | The Company shall materially reduce or fail to continue in effect any cash or stock-based incentive or bonus plan, retirement plan, welfare benefit plan, or other benefit plan, program or arrangement, unless the aggregate value (as computed by an independent employee benefits consultant selected by the Company) of all such incentive, bonus, retirement and benefit plans, programs and arrangements provided to Executive is not materially less than their aggregate value as of the date of this Agreement (or as of the Change in Control, if greater). | ||
| (vi) | If the Board of Directors fails to act in good faith with respect to the Company’s obligations hereunder, or the Company breaches its obligations hereunder. |
(f) “Period Pending a Change in Control” shall mean the period between the time an
agreement is entered into by the Company with respect to a merger or other business
combination of the Company, which would constitute a Change in Control, and the effective
time of such merger or other business combination of the Company.
(g) “Welfare Benefit Plan” shall mean each welfare benefit plan maintained or
contributed to by the Company, including, but not limited to a plan that provides health
(including medical and dental), life, accident or disability benefits or insurance, or
similar coverage, in which Executive was participating at the time of the Change in Control.
3. Salary to Date of Employment Termination. The Company shall pay to Executive any
unpaid salary or other compensation of any kind earned with respect to any period prior to
Executive’s Employment Termination, including, but not limited to a lump sum cash payment for
accumulated but unused vacation earned through such Employment Termination.
4. Other Incentive Plans. Except as otherwise provided herein, nothing in this
Agreement shall impair or impact the vesting of any restricted stock, stock options, cash
incentives or other form of compensation or benefits provided under any other plan, program or
arrangement.
5. Restricted Stock and Cash Awards.
(a) Restricted Stock Award Agreements. The Parties agree that the Restricted
Stock Award Agreements (Executive Award/Performance Based) dated June 18, 2004 and June 15,
2005 between the Executive and the Company (“Restricted Stock Award Agreements”) shall be
amended by replacing the phrase “a fraction, the numerator of
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which is the number of months elapsed since May 1, 2004 [or 2005] (rounded up) and the
denominator of which is 36” in the last sentence of Section 6(c) with the phrase “the
percentage set forth in Exhibit C (Column (d)) corresponding to the number of months elapsed
since May 1, 2004 [2005].” A copy of a revised Exhibit B and Exhibit C are attached hereto.
In all other respects the Restricted Stock Award Agreements remain in full force and
effect.
(b) Cash Award Agreements. The Parties agree that the Cash Award Agreements
dated June 18, 2004 and June 15, 2005between the Executive and the Company (“Cash Award
Agreements”) shall be amended by replacing the phrase “a fraction, the numerator of which is
the number of months elapsed since May 1, 2004 (or 2005] (rounded up) and the denominator of
which is 36” in lines 18 and 19 of Paragraph 3(b) of the Cash Award Agreements with the
phrase “the percentage set forth in Exhibit C (Column (d)) corresponding to the number of
months elapsed since May 1, 2004 [2005].” A copy of a revised Exhibit B and Exhibit C are
attached hereto. In all other respects the Cash Award Agreements remain in full force and
effect.
6. Certain Additional Payments by the Company.
(a) In the event it shall be determined that as a result, directly or indirectly, of
any payment or distribution by the Company to or for the benefit of the Executive, whether
paid or payable or distributed or distributable pursuant to the terms of this Agreement or
otherwise (a “Payment”), the Executive would be subject to the excise tax imposed by Section
4999 of the Code or any interest or penalties are incurred by the Executive with respect to
such excise tax (such excise tax, together with any such interest and penalties, are
hereinafter collectively referred to as the “Excise Tax), then the Executive shall be
entitled to promptly receive an additional payment (a “Gross-Up Payment”) in an amount such
that after payment by the Executive of all taxes (including any interest or penalties
imposed with respect to such taxes), including, without limitation, any income taxes (and
any interest and penalties imposed with respect thereto) and Excise Tax imposed upon the
Gross-Up Payment, but excluding any income taxes on the Payment, the Executive is in the
same after-tax position as if no Excise Tax had been imposed upon the Executive; provided,
however, that the Gross-Up Payment shall be made only to the extent that the total value of
any payments or benefits received by the Executive under this Agreement or any other plan or
agreement with the Company (“Benefits”) exceeds by 10 percent or more the dollar amount that
is three times the Executive’s “base amount” (as defined in Section 280G of the Code). If
the total value of Benefits exceeds by less than 10 percent the dollar amount that is three
times the Executive’s “base amount,” then no Gross-Up Payment shall be made and Benefits
shall be capped at the amount that is $1 less than three times the Executive’s “base
amount.”
(b) Subject to the provisions of Section 5(c), all determinations required to be made
under this Section 5, including whether or when a Gross-Up Payment is required and the
amount of such Gross-Up Payment and the assumptions to be utilized in arriving at such
determinations, shall be made by the Company’s Independent Public Accounting Firm (the
“Accounting Firm”) which shall provide detailed supporting calculations both to the Company
and the Executive within 15 business days of receipt of notice from the
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Executive that there has been a Payment or such earlier time as is requested by the
Company. In the event that the Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change of Control, the Executive shall appoint
another nationally recognized accounting firm to make the determinations required hereunder
(which accounting firm shall then be referred to as the Accounting Firm hereunder). All
fees and expenses of the Accounting Firm shall be borne solely by the Company. Any Gross-Up
Payment, as determined pursuant to this Section 5, shall be paid to the Executive within
five business days of the receipt of the Accounting Firm’s determination. If the Accounting
Firm determines that no Excise Tax is payable by the Executive, it shall furnish the
Executive with a written opinion that failure to report the Excise Tax on the Executive’s
applicable federal income tax return would not result in the imposition of a negligence or
similar penalty. Any determination by the Accounting Firm shall be binding upon the Company
and the Executive. As a result of the uncertainty in the application of Section 4999 of the
Code at the time of the initial determination by the Accounting Firm hereunder, it is
possible that Gross-Up Payments which will not have been made by the Company should have
been made (“Underpayment”), consistent with the calculations required to be made hereunder.
In the event that the Company exhausts its remedies pursuant to Section 5(c) and the
Executive thereafter is required to make a payment of any Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment that has occurred and any such Underpayment
shall be promptly paid by the Company to or for the benefit of the Executive.
(c) The Executive shall notify the Company in writing of any claim by the Internal
Revenue Service that, if successful, would require the payment by the Company of the
Gross-Up Payment. Such notification shall be given as soon as practicable but no later than
ten business days after the Executive knows of such claim and shall apprise the Company of
the nature of such claim and the date on which such claim is requested to be paid. The
Executive shall not pay such claim prior to the expiration of the 30-day period following
the date on which it gives such notice to the Company (or such shorter period ending on the
date that any payment of taxes with respect to such claim is due). If the Company notifies
the Executive in writing prior to the expiration of such period that it desires to contest
such claim, the Executive shall:
| (i) | give the Company any information reasonably requested by the Company relating to such claim, | ||
| (ii) | take such action in connection with contesting such claim as the Company shall reasonably request in writing from time to time, including, without limitation, accepting legal representation with respect to such claim by an attorney reasonably selected by the Company, | ||
| (iii) | cooperate with the Company in good faith in order to effectively contest such claim, and, |
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| (iv) | permit the Company to participate in any proceedings relating to such claim; |
provided, however, that the Company shall bear and pay directly all costs and expenses
(including additional interest and penalties) incurred in connection with such contest and
shall indemnify and hold the Executive harmless, on an after-tax basis, for any Excise Tax
or income tax (including interest and penalties with respect thereto) imposed as a result of
such representation and payment of costs and expenses. Without limitation on the foregoing
provisions of this Section 5(c), the Company shall control all proceedings taken in
connection with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing authority in
respect of such claim and may, at its sole option, either direct the Executive to pay the
tax claimed and xxx for a refund or contest the claim in any permissible manner, and the
Executive agrees to prosecute such contest to a determination before any administrative
tribunal, in a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that if the Company directs the Executive to pay
such claim and xxx for a refund, the Company shall advance the amount of such payment to the
Executive, on an interest-free basis and shall indemnify and hold the Executive harmless, on
an after-tax basis, from any Excise Tax or income tax (including interest or penalties with
respect thereto) imposed with respect to such advance or with respect to any imputed income
with respect to such advance; and further provided that any extension of the statute of
limitations relating to payment of taxes for the taxable year of the Executive with respect
to which such contested amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company’s control of the contest shall be limited to issues with
respect to which a Gross-Up Payment would be payable hereunder and the Executive shall be
entitled to settle or contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority.
(d) If, after the receipt by the Executive of an amount advanced by the Company
pursuant to Section 5(c), the Executive becomes entitled to receive any refund with respect
to such claim, the Executive shall (subject to the Company’s complying with the requirements
of Section 5(c)) promptly pay to the Company the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto). If, after the receipt by
the Executive of an amount advanced by the Company pursuant to Section 5(c), a determination
is made that the Executive shall not be entitled to any refund with respect to such claim
and the Company does not notify the Executive in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such determination, then such
advance shall be forgiven and shall not be required to be repaid and the amount of such
advance shall offset, to the extent thereof, the amount of Gross-Up Payment required to be
paid.
7. Mitigation and Set-Off. Executive shall not be required to mitigate Executive’s
damages by seeking other employment or otherwise. The Company’s obligations under this Agreement
shall not be reduced in any way by reason of any compensation or benefits received (or foregone)
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by Executive from sources other than the Company after Executive’s Employment Termination, or
any amounts that might have been received by Executive in other employment had Executive sought
other employment, except for the termination of benefits under a Welfare Benefit Plan pursuant to
Section 1(c)(ii) hereof. Except as expressly provided in section 1(c) of this Agreement,
Executive’s entitlement to benefits and coverage under this Agreement shall continue after, and
shall not be affected by, Executive’s obtaining other employment after his Employment Termination,
provided that any such benefit or coverage shall not be furnished if Executive expressly waives the
specific benefit or coverage by giving written notice of waiver to the Company.
8. Litigation Expenses. The Company shall pay to Executive all out-of-pocket
expenses, including attorneys’ fees, incurred by Executive in the event Executive successfully
enforces any provision of this Agreement in any action, arbitration or lawsuit.
9. Assignment, Successors. This Agreement may not be assigned by the Company without
the written consent of Executive but the obligations of the Company under this Agreement shall be
the binding legal obligations of any successor to the Company by merger or other business
combination, and in the event of any business combination or transaction that results in the
transfer of substantially all of the assets or business of the Company, the Company will cause the
transferee to assume the obligations of the Company under this Agreement. This Agreement may not be
assigned by Executive during Executive’s life, and upon Executive’s death will inure to the benefit
of Executive’s heirs, legatees and legal representatives of Executive’s estate.
10. Interpretation. The validity, interpretation, construction and performance of
this Agreement shall be governed by the laws of the State of Illinois, without regard to the
conflict of law principles thereof. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
11. Withholding. The Company may withhold from any payment that it is required to
make under this Agreement amounts sufficient to satisfy applicable withholding requirements under
any federal, state or local law.
12. Amendment or Termination. This Agreement may be amended at any time by written
agreement between the Company and Executive. The Company may terminate this Agreement by written
notice given to Executive at least [two years] prior to the effective date of such termination,
provided that, if a Change in Control occurs prior to the effective date of such termination, the
termination of this Agreement shall not be effective and Executive shall be entitled to the full
benefits of this Agreement. Any such amendment or termination shall be made pursuant to a
resolution of the Company’s Board of Directors.
13. Financing. Cash and benefit payments under this Agreement shall constitute
general obligations of the Company. Executive shall have only an unsecured right to payment
thereof out of the general assets of the Company. Notwithstanding the foregoing, the Company may,
by agreement with one or more trustees to be selected by the Company, create a trust on such terms,
as the Company shall determine, to make payments to Executive in accordance with the terms of this
Agreement.
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14. Severability. In the event that any provision or portion of this Agreement shall
be determined to be invalid or unenforceable for any reason, the remaining provisions of this
Agreement shall be unaffected thereby and shall remain in full force and effect.
15. Arbitration. The parties initially shall attempt to resolve by direct negotiation
any dispute, controversy or claim arising out of or relating to this Agreement or its breach or
interpretation (each, a “Dispute”). For purposes of this negotiation, the Company shall be
represented by one or more of its directors appointed by the Board of Directors. If the parties
are unable to resolve the Dispute by direct negotiation within 30 days after written notice by one
party to the other of the Dispute, either party may initiate a confidential, binding arbitration to
resolve the Dispute. All such Disputes shall be arbitrated in Chicago, Illinois pursuant to the
arbitration rules of J.A.M.S. Endispute before a single arbitrator. (If, at the time of any
Dispute, J.A.M.S. Endispute has ceased to exist, all such Disputes shall be arbitrated in Chicago,
Illinois pursuant to the arbitration rules of the American Arbitration Association before a single
arbitrator.) Judgment upon any award rendered by the arbitrator may be entered in any court having
jurisdiction, and both parties consent and submit to the jurisdiction of such court for purposes of
such action. Nothing in this Agreement shall preclude either party from seeking equitable relief
from a court of competent jurisdiction. The statute of limitations, estoppel, waiver, laches and
similar doctrines, which would otherwise be applicable in any action brought by a party shall be
applicable in any arbitration proceeding, and the commencement of an arbitration proceeding shall
be deemed the commencement of an action for those purposes. The Federal Arbitration Act shall
apply to the construction, interpretation and enforcement of this arbitration provision.
16. Other Agreements. This Agreement supersedes and cancels all prior written or oral
agreements and understandings relating to the terms of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year first
written above.
| METHODE ELECTRONICS, INC. | |||||
| By: | /s/ Xxxxxx X. Xxxx | ||||
| Its: | President and Chief Executive Officer | ||||
| EMPLOYEE: | |||||
| /s/ Xxxx X. Xxxxxxx | |||||
| Name: Xxxx X. Xxxxxxx | |||||
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