EXHIBIT 99.11
CHANGE OF CONTROL AGREEMENT
This is an Agreement between Xxxxxxxxxx Industries, Inc. ("Xxxxxxxxxx")
and Xxxxxxx Xxxxxx Xxxxxxxx ("Executive").
Executive is or may in the future be the holder of an option to
purchase common shares in Xxxxxxxxxx, granted to Executive as part of
Executive's compensation for employment at Xxxxxxxxxx. The stock option plan
provides for vesting of the stock option exercise rights over a period of
time. The parties wish to provide for immediate vesting of such option
rights, and the payment of severance pay, in the event Executive is
terminated within one year after a Change in Control (defined herein).
This Agreement is not intended to alter the compensation and benefits
that Executive could reasonably expect in the absence a Change in Control.
This Agreement is not intended to change any term of employment of Executive,
and specifically is not intended to change the nature of Executive's
employment from an employee at will.
NOW THEREFORE, for good and valuable consideration, the parties agree as
follows:
1. CHANGE IN CONTROL DEFINED. Change in Control shall mean:
(a) the purchase or other acquisition by any person, entity or group of
persons, within the meaning of section 13(d) or 14(d) of the Securities
Exchange Act of 1934 (the "Act"), or any comparable successor
provisions, of one ownership (within the meaning of Rule 13d-3
promulgated under the Act) of 30 percent or more of either the outstanding
shares of common stock or the combined voting power of Xxxxxxxxxx
outstanding voting securities entitled to vote generally; or
(b) the approval by the Stockholders of Xxxxxxxxxx of a reorganization,
merger, or consolidation, in each case, with respect to which persons
who were stockholders of Xxxxxxxxxx immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter,
own more than 50 percent of the combined voting power entitled to vote
generally in the election of directors of the reorganized, merged or
consolidated Xxxxxxxxxx'x then outstanding securities; or
(c) a liquidation or dissolution of Xxxxxxxxxx or of the sale of all or
substantially all of Xxxxxxxxxx'x assets.
Provided, however, that transfers made by Xxxxxx X. Xxxxxxxxxx for estate
planning purposes, or in the event of his death, shall not constitute a
Change in Control.
PAGE 1--CHANGE IN CONTROL AGREEMENT
2. TERMINATION OF EMPLOYMENT DEFINED. For purposes of this Agreement
only, the following shall constitute Termination of the Executive's employment:
(a) Xxxxxxxxxx terminates the Executive for any reason other than for
"cause." "Cause" includes, but is not limited to, (i) any form of
dishonesty, criminal conduct, or conduct involving moral turpitude
connected with the employment of Executive or which otherwise reflects
adversely on Xxxxxxxxxx'x reputation or operations; (ii) the refusal of
Executive to comply with Xxxxxxxxxx'x instructions, policies, or rules;
(iii) continuing or repeated problems with Executive's performance or
conduct or Executive's inattention to duties; or (iv) any material breach
of Executive's obligations under this Agreement.
(b) Executive terminates his employment with Xxxxxxxxxx because
Xxxxxxxxxx makes a material adverse change in Executive's job title or
responsibilities without Executive's consent;
(c) Executive terminates his employment with Xxxxxxxxxx because
Xxxxxxxxxx reduces Executive's annual base compensation by more than 15%
from Executive's annual base compensation for the 12 month period ending
immediately before the Change in Control; or
Anything herein to the contrary notwithstanding, no stock options shall vest
and no severance pay shall be payable under this Agreement if the Executive
voluntarily terminates his employment with Xxxxxxxxxx.
3. VESTING OF OPTIONS. If, during the term of this Agreement a Change in
Control occurs and Executive's employment is Terminated within one year after
the Change in Control, all options to purchase the common stock of Xxxxxxxxxx
granted to Executive as part of any compensation plan of Xxxxxxxxxx shall
immediately become exercisable; provided, however, that if the change of
control transaction is a pooling transaction, then the stock options shall
not be accelerated. If, during the term of this Agreement a Change in Control
occurs by cash purchase of Xxxxxxxxxx stock, all options to purchase the
common stock of Xxxxxxxxxx granted to Executive as part of any compensation
plan of Xxxxxxxxxx shall immediately become exercisable.
4. SEVERANCE PAY. If, during the term of this Agreement a Change in
Control occurs and Executive's employment is Terminated within one year after
the Change in Control, Xxxxxxxxxx shall pay the Executive a sum equivalent to
six months of his base compensation. This amount shall be paid in a lump sum
within 30 days after the Executive is terminated.
PAGE 2--CHANGE IN CONTROL AGREEMENT
5. TERM OF AGREEMENT. This Agreement shall remain in effect until
terminated by Xxxxxxxxxx. Xxxxxxxxxx may terminate this Agreement upon giving
30 days' written notice to Executive; provided, however, if a Change in
Control occurs prior to the expiration of the 30 day period, this Agreement
will remain in effect until the obligations of Xxxxxxxxxx have been
fulfilled. This Agreement shall terminate automatically on the date
Executive's employment will Xxxxxxxxxx ends for any reason; provided,
however, if a Change in Control occurs and the Executive's employment is
Terminated, this Agreement shall remain in effect with respect to all rights
accruing as a result of the occurrence of the Change in Control.
6. CONFIDENTIALITY. During and after the term of this Agreement,
Executive will not divulge or appropriate to Executive's own use or the use
of others any secret or confidential information or knowledge pertaining to
the business of Xxxxxxxxxx, or any of its subsidiaries, obtained during his
employment by Xxxxxxxxxx or any of its subsidiaries.
7. ARBITRATION OF ALL DISPUTES. Any controversy or claim arising out of
or relating to this Agreement, whether involving rights granted by statute,
torts, or the breach hereof, shall be settled by arbitration in Oregon in
accordance with the laws of Oregon by an arbitrator appointed pursuant to the
rules of the American Arbitration Association, or such other bona fide
arbitration group as may be agreed upon by the parties. Judgment upon the
award rendered by the arbitrators may be entered in any court having
jurisdiction. The prevailing party in any dispute shall be entitled to
reasonable attorney fees, whether incurred before, during or after
arbitration, including on appeal. Any party, however, may apply to a court of
competent jurisdiction for equitable relief.
8. NOTICES. Any notices, requests, demands and other communications
provided for by this Agreement shall be sufficient if in writing and if sent
by certified mail (a) to Executive at the last address Xxxxxxxxxx has on file
for the Executive; or (b) to Xxxxxxxxxx at its principal executive offices.
9. NON-ALIENATION. Executive shall not sell, transfer, pledge,
hypothecate, assign or create a lien upon any benefits provided under this
Agreement; and no benefits payable hereunder shall be assignable in
anticipation of payment either by voluntary or involuntary acts, or by
operation of law.
10. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of Oregon, without regard to choice of
law rules.
PAGE 3--CHANGE IN CONTROL AGREEMENT
11. AMENDMENTS. No amendment, waiver or discharge of any provision
of this Agreement shall be effective unless in writing signed by the
party against whom enforcement is sought.
12. ENTIRE AGREEMENT. This Agreement is subject to all terms of the
Xxxxxxxxxx 1995 Stock Incentive Plan, or any other agreement granting to
Executive options to purchase any shares of Xxxxxxxxxx, not inconsistent with
this Agreement, which agreement is incorporated herein. Otherwise, this
Agreement constitutes the entire agreement between the parties with respect
to the subject matter hereof and supersedes all prior agreements, written or
oral, between the parties with respect to such subject matter. Nothing herein
alters Executive's status as an employee at-will.
XXXXXXXXXX INDUSTRIES, INC.
By: /s/ XX Xxxxxxxxx Date: 4-16-99
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Print Name: XX Xxxxxxxxx
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Title: V.P. Admin
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EXECUTIVE:
/s/ Xxxxxxx X. Xxxxxxxx Date: 4/16/99
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Xxxxxxx Xxxxxx Xxxxxxxx
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