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EXHIBIT 10.3
FORM OF
STRATEGIC MANAGEMENT TEAM
CHANGE OF CONTROL BONUS AGREEMENT
THIS AGREEMENT is made and entered into as of May 9, 2001, by and
between Packaged Ice, Inc., a Texas corporation ("PI"), and ____________
("Executive");
WHEREAS, PI recognizes Executive's expertise in connection with Executive's
employment by PI;
WHEREAS, PI desires to provide a special bonus in the event of a Change of
Control (as hereinafter defined).
NOW, THEREFORE, in consideration of the following promises, mutual agreements
and covenants and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties, intending to be legally
bound hereby, agree as follows:
1. Definition of Terms.
"Cause" shall mean:
(A) conviction for, or guilty plea to, a felony or a crime
involving moral turpitude, which shall include independently verified,
unremedied substance abuse involving drugs or alcohol;
(B) action or inaction, which in the reasonable judgment of a
majority of the Board of Directors of PI, constitutes willful dishonesty,
larceny, fraud or gross negligence by Executive in the performance of
Executive's duties to PI, or willful misrepresentation to shareholders,
directors or officers of PI; or
(C) willful and repeated failure, after 10 business days
notice, to materially follow the written policies of PI.
"Change of Control" shall after the date hereof mean (i) the
sale of all or substantially all of the assets of PI and its subsidiaries; or
(ii) the acquisition, directly or indirectly, by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange
Act of 1933 (the "Exchange Act") of beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act) of securities representing 20 percent or more
of either (a) the then outstanding shares of Common Stock (the "Outstanding
Company Common Stock") or (b) the combined voting power of the then outstanding
voting securities of PI entitled to vote generally in the election of directors
(the "Outstanding Company Voting Securities"); provided however, that the
following acquisitions shall not constitute a Change of Control:
(A) any acquisition of voting securities directly from PI,
(B) any acquisition of voting securities by PI,
(C) any acquisition of voting securities by any employee
benefit plan (or related trust) sponsored or maintained by PI or any corporation
controlled by PI, or
(D) any acquisition of voting securities by any corporation
pursuant to a reorganization, merger or consolidation which does not
substantially change the proportional ownership in the Outstanding Company
Common Stock and Outstanding Company Voting Securities prior to the
reorganization.
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"Change of Control Bonus" shall mean a lump sum payment equal to the
sum of Executive's base salary for four months plus one-third of his Maximum
Bonus Opportunity.
"Good Reason" shall mean:
(A) notice in writing is given to Executive of Executive's
relocation, without Executive's consent, to a place of business outside the
Dallas-Fort Worth, Texas area, or
(B) a substantial diminution of Executive's responsibilities
and compensation from those responsibilities in effect on the date hereof.
"Maximum Bonus Opportunity" shall be calculated as follows: If the
Change of Control occurs in the first half of the fiscal year, the Maximum Bonus
Opportunity will be the greater of the bonus paid for the prior fiscal year or
the bonus which is payable for the year in which the Change of Control takes
place. If the Change of Control takes place in the second half of the fiscal
year, the Maximum Bonus Opportunity will be the bonus which is payable for the
year in which the Change of Control takes place.
2. Change of Control. In the event of a Change of Control, PI shall pay
to Executive the Change of Control Bonus within thirty (30) days of such Change
of Control.
3. Agreement Termination; Employment at Will. Other than the covenant
not to compete set forth in Section 4 hereof which shall survive the termination
of this Agreement, this Agreement shall terminate 90 days after the date of
termination of Executive's employment, except in the case of Executive's
termination for Cause or resignation other than for Good Reason, in which case
this Agreement shall terminate on the last date of Executive's employment.
Nothing in this Agreement is intended to limit PI's right or ability to
terminate Executive's employment with or without Cause at any time or
Executive's ability to resign Executive's employment with or without Good
Reason.
4. Covenant Not to Compete. As an inducement for PI to enter into this
Agreement, and for good and valuable consideration including but not limited to
access to confidential and proprietary information and trade secrets provided to
Executive by PI, the receipt and sufficiency of which is hereby acknowledged,
Executive agrees as follows: during the period commencing on the date of hereof
and ending on the date which occurs twelve months after the termination of
Executive's employment for any reason, Executive shall not, within 150 miles of
any ice manufacturing or cold storage facility owned by PI or its subsidiaries,
(i) be employed by, or render any services to, any person, firm or corporation
engaged in any business which is directly in competition with PI in the ice or
cold storage businesses ("Competitive Business"); (ii) engage in any Competitive
Business for his or its own account; (iii) be associated with or interested in
any Competitive Business as an individual, partner, shareholder, creditor,
director, officer, principal, agent, employee, trustee, consultant, advisor or
in any other relationship or capacity; (iv) employ or retain, or have or cause
any other person or entity to employ or retain, any person who was employed or
retained by PI while Executive was employed by PI; or (v) solicit, interfere
with, or endeavor to entice away from PI, for the benefit of a Competitive
Business, any of its customers or other persons with whom PI has a contractual
relationship. Notwithstanding the foregoing, this provision shall not preclude
Executive from investing his personal assets in the securities of any
corporation or other business entity which is engaged in a Competitive Business
if such securities are traded on a national stock exchange or in the
over-the-counter market and if such investment does not result in his
beneficially owning, at any time, more than 1% of the publicly-traded equity
securities of such Competitive Business.
5. Amendment; Waiver; Assignment. This Agreement may not be modified,
amended or waived in any manner except by an instrument in writing signed by
both parties. Any such modification, amendment or waiver on the part of PI shall
have been previously approved by the Board. The waiver by either party of
compliance with any provision of this Agreement by the other party shall not
operate or be
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construed as a waiver of any other provision of this Agreement, or of any
subsequent breach by such party of any provision of this Agreement. This
Agreement shall be binding upon any successor to PI, by merger or otherwise. PI
may assign this Agreement to any of its affiliates. Executive may not assign the
Agreement.
6. Withholding. Payments to Executive of all compensation contemplated
under this Agreement shall be subject to all applicable legal requirements with
respect to the withholding of taxes and similar deductions. Additionally, if
Executive owes any moneys to PI on the Severance Date, Executive's signature
below constitutes Executive's written consent to deduct from any Severance Pay
amounts that Executive owes PI.
7. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS
APPLICABLE TO CONTRACTS EXECUTED IN AND TO BE PERFORMED ENTIRELY WITHIN SUCH
STATE, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING CONFLICT OF LAWS.
8. Supersedes Previous Agreements. This Agreement supersedes all
previously executed employment agreements, prior or contemporaneous
negotiations, commitments, agreements and writings with respect to the subject
matter hereof. All such other negotiations, commitments, agreements and writings
shall have no further force or effect, and the parties to any such other
negotiation, commitment, agreement or writing shall have no further rights or
obligations thereunder. Notwithstanding the foregoing, the letter agreement
among PI and Executive dated April 19, 2001 shall remain in full force and
effect.
9. Voluntary Agreement. Executive understands the significance and
consequences of this Agreement and acknowledges that PI has not coerced
Executive's acceptance thereof, and has signed this Agreement only after full
reflection and analysis. Executive expressly confirms that the Agreement is to
be given full force and effect according to all of its terms. Executive was
advised to seek legal counsel prior to signing the Agreement.
10. Arbitration. Any controversy or claim arising out of or relating to
(i) this Agreement or the breach thereof, or (ii) the employment of Executive by
PI (including without limitation termination of employment), shall be settled by
binding arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association in Dallas, Texas, and judgment upon the award
rendered by the arbitrator may be entered in any court having jurisdiction
thereof, and shall not be appealable. Judicial proceedings may be commenced only
to enforce this arbitration agreement or to enforce the results of arbitration;
provided that such prohibition shall not apply in the event that a court ordered
injunction is an appropriate remedy for a breach of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by a duly
authorized officer of PI and by Executive in Executive's individual capacity as
of the date first written above.
PI: PACKAGED ICE, INC.
By:
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Name:
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Title:
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Executive:
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