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EXHIBIT 10(j)
SIFCO INDUSTRIES, INC.
CHANGE IN CONTROL AGREEMENT
THIS AGREEMENT is made between SIFCO Industries, Inc. (the "Company"),
and Xxxxx Xxxxxxxx (the "Executive"), dated as of the 9th day of November, 2000.
1. PURPOSE OF THIS AGREEMENT. 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 assure that the Company will have the continued dedication
of the Executive, notwithstanding the possibility, threat or occurrence of a
Change in Control (as defined in Section 2(b)) of the Company, and the
uncertainties and risks that a Change in Control would pose for the Executive.
To this end, the Board desires to encourage the Executive's full attention and
dedication to the Company, currently and in the event of any threatened or
pending Change in Control, and to provide the Executive with compensation and
benefits arrangements upon a Change in Control which ensure that the
compensation and benefits expectations of the Executive will be satisfied and
which are competitive with those of other similar corporations.
2. DEFINITIONS. Whenever used herein, the following terms shall have
the meanings set forth below:
(a) "Beneficiary" means the person or entity designated by the
Executive (on Exhibit B hereto) to receive payment of any benefits hereunder
that are or may be payable after the Executive's death. The Executive may change
his or her designation of Beneficiary by filing a revised Exhibit B with the
Company prior to his or her death.
(b) "Change in Control" means any of the following events:
(i) The acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) (a
"Person") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of 50% or more of
either (A) the then-outstanding common shares of the Company
other than those held by the Voting Trust (the "Outstanding
Company Common Shares") or (B) the combined voting power of
the then outstanding voting securities of the Company entitled
to vote. generally in the election of directors other than
that represented by shares held by the Voting Trust (the
"Outstanding Company Voting Securities"); but for purposes of
this subsection (i), the following acquisitions of voting
securities shall not constitute a Change in Control: (A) any
acquisition directly from the Company, (B) any acquisition 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
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(D) any acquisition by any corporation pursuant to a
transaction which complies with clauses (A), (B) and (C) of
subsection (iii) of this Section 2; or
(ii) Individuals who, as of the date of this Agreement, constitute
the Board") cease for any reason to constitute at least a
majority of the Board; but any individual becoming a director
subsequent to the date hereof whose election, or nomination
for election by the Company's shareholders, was approved by a
vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such
individual were a member of the Incumbent Board, but excluding
from the Incumbent Board, for this purpose, any such
individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with
respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or
on behalf of a Person other than the Board; or
(iii) Consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each
case, unless, following such Business Combination, (A) the
individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Shares and
Outstanding Company Voting Securities immediately prior to
such Business Combination beneficially own, directly or
indirectly, more than 50%, respectively, of the
then-outstanding common shares and the combined voting power
of the then-outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of
the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a
result of such transaction owns the Company or all or
substantially all of the Company's assets either directly or
through one or more subsidiaries), (B) no Person (excluding
any corporation resulting from such Business Combination or
any employee benefit plan (or related trust) of the Company or
such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 50% or more of,
respectively, the then-outstanding common shares of the
corporation resulting from such Business Combination, or the
combined voting power of the then-outstanding voting
securities of such corporation except to the extent that such
ownership existed prior to the Business Combination, and (C)
at least a majority of the members of the board of directors
of the corporation resulting from such Business Combination
were members of the Incumbent Board at the time of the
execution of the initial agreement, or of the action of the
Board, providing for such Business Combination; or
(iv) Approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
(c) "Disability" means an illness or injury which, in the opinion of
the Board, renders the Executive unable or incompetent to perform the job
responsibilities which the Executive held or
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the job duties to which the Executive was assigned at the time such illness or
injury was incurred, on a full-time basis for at least six (6) consecutive
months.
(d) "Code" means the Internal Revenue Code of 1986, as amended.
(e) "Voting Trust" means that certain voting trust entered into by
agreement dated as of February 1, 1997, into which Common Shares of the Company
have been deposited and with respect to which, as of November 30, 1999, Xxxxxx
Xxxxxxx and Xxxxxxx X. Xxxxx, III are trustees.
3. NOTICE OF CHANGE IN CONTROL. The Company shall provide the Executive
with written notice of the occurrence of a Change in Control in accordance with
Section 13(b) of this Agreement within two (2) weeks after such Change in
Control.
4. BENEFITS UPON CHANGE IN CONTROL. In the event of a Change in
Control, provided the Executive has not voluntarily terminated his employment or
had his employment terminated involuntarily for cause, prior to a Change, in
Control, the Executive shall receive the benefits described in Exhibit A
attached hereto.
5. DEATH. Notwithstanding any provision of this Agreement to the
contrary, if the Executive's employment is terminated by reason of the
Executive's death, this Agreement shall terminate without further obligations to
the Executive's legal representatives under this Agreement.
6. DISABILITY. Notwithstanding any provision of this Agreement to the
contrary, if the Executive's employment is terminated by reason of the
Executive's Disability, this Agreement shall terminate without further
obligations to the Executive.
7. RETIREMENT. Notwithstanding any provision of this Agreement to the
contrary, if the Executive's employment is terminated by reason of the
Executive's retirement from the Company at or after age 65, this Agreement shall
terminate without further obligations to the Executive.
8. NO TAX GROSS-UP PAYMENT. Notwithstanding anything to the contrary in
this Agreement, if any portion of the compensation under the Agreement, or under
any other agreement with or plan of the Company (in the aggregate "Total
Payments"), would constitute an "excess parachute payment" under Section 280G of
the Internal Revenue Code (the "Code"), then the payments to be made to the
Executive under the Agreement shall be subject to the tax imposed by Section
4999 of the Code or any successor provision thereto unless the Company elects to
reduce the payments to be made to the Executive under the Agreement
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because such reduction will provide a more favorable after-tax result for the
Executive with respect to the excise taxes described in this Section. The
calculation of such potential excise tax liability, as well as the method in
which any compensation reduction is applied, shall be conducted and determined
by the Company's independent accountants, whose determinations shall be binding
on all parties.
9. SUCCESSORS. (a) This Agreement is personal to the Executive and
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 will 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.
10. MISCELLANEOUS. (a) This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio without reference to
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. 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.
(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:
IF TO THE EXECUTIVE: Xxxxx Xxxxxxxx
00000 Xxxxxxxx Xxxxx
Xxxxxxxxxx Xxxxx, XX 00000
IF TO THE COMPANY: SIFCO INDUSTRIES, INC.
000 Xxxx 00xx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxxxxxxx
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communication 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.
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(d) The Company may withhold from any amounts payable under this
Agreement such federal, state, local and/or foreign 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 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
pursuant to Section 2(f) of this Agreement, shall not be deemed to be a waiver
of such provision or right or any other provision or right of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
effective as of the date first written above.
SIFCO INDUSTRIES, INC. EXECUTIVE
By: /s/Xxxxxxx X. Xxxxxxxxx /s/Xxxxx Xxxxxxxx
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Title: President and CEO Signature
Xxxxx Xxxxxxxx
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Printed Name
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EXHIBIT A
TO
CHANGE IN CONTROL AGREEMENT
BENEFITS
In the event the Executive becomes eligible for benefits under Section 4 of the
Agreement, the Company shall pay to the Executive or the Executive's Beneficiary
in a lump sum in cash within thirty (30) days after the date of the Change in
Control, an amount equal to $100,000 Dollars less applicable withholdings and
taxes.
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EXHIBIT B
TO
CHANGE IN CONTROL SEVERANCE AGREEMENT
DESIGNATION OF BENEFICIARY
Executive hereby designates the following individual to receive payment of any
benefits under this Agreement that may be due or payable after the Executive's
death:
Xxxxxxxx Xxxxxxxx
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Name of Beneficiary
Spouse
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Relationship to Executive
/s/Xxxxx Xxxxxxxx
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Signature of Exec
November 22, 2000
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Date
