EXHIBIT 10(b)
CHANGE IN CONTROL AGREEMENT
This AGREEMENT RE: CHANGE IN CONTROL (this "Agreement") is dated as of
_____________, 2001 and is entered into by and between _________________________
("Executive") and Fleetwood Enterprises, Inc., a Delaware corporation (the
"Company").
BACKGROUND
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The Company believes that because of its position in the industry,
financial resources and historical operating results there is a possibility that
the Company may become the subject of a Change in Control (as defined below),
either now or at some time in the future.
The Company believes that it is in the best interest of the Company and
its stockholders to xxxxxx Executive's objectivity in making decisions with
respect to any pending or threatened Change in Control of the Company and to
assure that the Company will have the continued dedication and availability of
Executive, notwithstanding the possibility, threat or occurrence of a Change in
Control. The Company believes that these goals can best be accomplished by
alleviating certain of the risks and uncertainties with regard to Executive's
financial and professional security that would be created by a pending or
threatened Change in Control and that inevitably would distract Executive and
could impair his ability to objectively perform his duties for and on behalf of
the Company. Accordingly, the Company believes that it is appropriate and in the
best interest of the Company and its stockholders to provide to Executive
compensation arrangements upon a Change in Control that lessen Executive's
financial risks and uncertainties and that are reasonably competitive with those
of other corporations.
With these and other considerations in mind, the Compensation Committee
of the Company has authorized the Company to enter into this Agreement with the
Executive to provide the protections set forth herein for Executive's financial
security following a Change in Control.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration the receipt of which is hereby acknowledged, it is
hereby agreed as follows:
AGREEMENT
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1. TERM OF AGREEMENT. This Agreement shall be effective from the
date first written above and, subject to the provisions of Section 4, shall
extend to (and thereupon automatically terminate) one (1) day after Executive's
termination of employment with the Company for any reason. No termination of
this Agreement shall limit, alter or otherwise affect Executive's rights
hereunder with respect to a Change in Control which has occurred prior to such
termination, including without limitation Executive's right to receive the
various benefits hereunder.
2. PURPOSE OF AGREEMENT. The purpose of this Agreement is to
provide that, in the event of a "Change in Control," Executive may become
entitled to receive certain additional benefits, as described herein, in the
event of his termination under specified circumstances.
3. CHANGE IN CONTROL. As used in this Agreement, the phrase
"Change in Control" shall mean:
(i) Except as provided by subparagraph (iii) hereof, the
acquisition (other than from the Company) by any person, 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") (excluding, for this purpose, the
Company or its subsidiaries, or any executive benefit plan of the Company or its
subsidiaries which acquires beneficial ownership of voting securities of the
Company), of beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of twenty-five percent (25%) or more of either the then
outstanding shares of common stock or the combined voting power of the Company's
then outstanding voting securities entitled to vote generally in the election of
directors; or
(ii) Individuals who, as of the date hereof, constitute
the Board of Directors of the Company (as of the date hereof the "Incumbent
Board") cease for any reason to constitute at least a majority of the Board of
Directors of the Company, provided that any person becoming a director
subsequent to the date hereof whose election, or nomination for election by the
Company's stockholders, is or was approved by a vote of at least a majority of
the directors then comprising the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is in connection
with an actual or threatened election contest relating to the election of the
Directors of the Company) shall be, for purposes of this Agreement, considered
as though such person were a member of the Incumbent Board; or
(iii) Approval by the stockholders of the Company of a
reorganization, merger or consolidation with any other person, entity or
corporation, other than
(1) a merger or consolidation which would result
in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of another entity) more than
fifty percent (50%) of the combined voting power of the voting
securities of the Company or such other entity outstanding immediately
after such merger or consolidation, or
(2) a merger or consolidation effected to
implement a recapitalization of the Company (or similar transaction) in
which no person acquires twenty-five percent (25%) or more of the
combined voting power of the Company's then outstanding voting
securities; or
(iv) Approval by the stockholders of the Company of a plan
of complete liquidation of the Company or an agreement for the sale or other
disposition by the Company of all or substantially all of the Company's assets.
4. EFFECT OF A CHANGE IN CONTROL. In the event of a Change in
Control, Sections 6 through 11 of this Agreement shall become applicable to
Executive. These Sections shall continue to remain applicable until the second
anniversary of the date upon which the Change in Control occurs. On such second
anniversary date, and provided that the employment of
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Executive has not been terminated on account of a Qualifying Termination (as
defined in Section 5 below), this Agreement shall terminate and be of no further
force or effect.
5. QUALIFYING TERMINATION. If within twelve (12) months following
a Change in Control Executive voluntarily terminates his employment with the
Company and its affiliated companies, or if following or within ninety (90) days
prior to a Change in Control Executive's employment with the Company and its
affiliated companies is terminated, such termination shall be conclusively
considered a "Qualifying Termination" unless:
(a) Executive voluntarily terminates his employment with
the Company and its affiliated companies on a date that is more than
twelve (12) months after the Change in Control. Executive, however,
shall NOT be considered to have voluntarily terminated his employment
with the Company and its affiliated companies if, following, or within
ninety (90) days prior to, the Change in Control, Executive's overall
compensation is reduced or adversely modified in any material respect
or his authority or duties are materially changed and he elects to
terminate his employment within sixty (60) days following such
reduction, modification or change. For such purposes, Executive's
authority or duties shall conclusively be considered to have been
"materially changed" if, without Executive's express and voluntary
written consent, there is any substantial diminution or adverse
modification in Executive's title, status, overall position,
responsibilities, reporting relationship, general working environment
(including without limitation secretarial and staff support, offices,
and frequency and mode of travel), or if, without Executive's express
and voluntary written consent, Executive's job location is transferred
to a site more than fifty (50) miles away from his place of employment.
In this regard as well, Executive's authority and duties shall
conclusively be considered to have been "materially changed" if,
without Executive's express and voluntary written consent, Executive no
longer holds the same title or no longer has the same authority and
responsibilities or no longer has the same reporting responsibilities,
in each case with respect and as to a publicly held parent company
which is not controlled by another entity or person.
(b) The termination is on account of Executive's death or
Disability. For such purposes, "Disability" shall mean a physical or
mental incapacity as a result of which Executive becomes unable to
continue the performance of his responsibilities for the Company and
its affiliated companies and which, at least three (3) months after its
commencement, is determined to be total and permanent by a physician
agreed to by the Company and Executive, or in the event of Executive's
inability to designate a physician, Executive's legal representative.
In the absence of agreement between the Company and Executive, each
party shall nominate a qualified physician and the two physicians so
nominated shall select a third physician who shall make the
determination as to Disability.
(c) Executive is involuntarily terminated for "Cause."
For this purpose, "Cause" shall be limited to only three types of
events:
(1) the refusal of Executive to comply with a
lawful, written instruction of the Board of Directors or
Executive's immediate or departmental
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supervisor, which refusal is not remedied by Executive within
a reasonable period of time after his receipt of written
notice from the Company identifying the refusal, so long as
the instruction is consistent with the scope and
responsibilities of Executive's position prior to the Change
in Control;
(2) an act or acts of personal dishonesty by
Executive which were intended to result in substantial
personal enrichment of Executive at the expense of the Company
or any of its affiliated companies; or
(3) Executives conviction of any misdemeanor
involving an act of moral turpitude or any felony.
6. SEVERANCE PAYMENT. If Executive's employment is terminated as
a result of a Qualifying Termination, the Company shall pay Executive within
thirty (30) days after the Qualifying Termination a cash lump sum equal to one
(1) times Executive's Compensation, as hereinafter defined (the "Severance
Payment"). Notwithstanding anything to the contrary herein, the sum of the
aggregate present value of (i) such Severance Payment, (ii) any and all
additional amounts or benefits which may be paid or conferred to or on behalf of
Executive in accordance with subsections (a) or (b) of Section 7 hereof, and
(iii) any and all other amounts or benefits paid or conferred to or on behalf of
Executive that constitute a "parachute payment" ("parachute payment," as defined
in Section 280G(b)(2), or any successor thereto, of the Internal Revenue Code of
1986, as amended (the "Code")), shall not exceed an amount equal to one dollar
less than three (3) times Executive's "base amount" ("base amount," as defined
in Section 280G(b)(3), or any successor thereto, of the Code). For the avoidance
of doubt, the purpose and intent of the foregoing sentence is to avoid giving
rise to any obligation of the Company to reimburse the Executive for (or
otherwise pay on Executive's behalf) any Excise Tax (hereinafter defined)
pursuant to Section 8 hereof, to the extent of then-current applicable law. The
Severance Payment payable by the Company to the Executive shall be reduced to
the extent necessary to fulfill the requirement of the two immediately preceding
sentences that payment of amounts includable in Executive's base amount shall
not exceed an amount equal to one dollar less than three (3) times Executive's
base Amount.
(a) For purposes of this Agreement, Executive's
"Compensation" shall equal the sum of (i) Executive's highest annual
salary rate with the Company, or any of its affiliated companies,
within the three (3) year period ending on the date of Executive's
Qualifying Termination, or such shorter period if Executive has been
employed by the Company or any of its affiliated companies for a
shorter period, plus (ii) a "Bonus Increment." The Bonus Increment
shall equal the annualized average of all bonuses and incentive
compensation payments paid to Executive during the two (2) year period
immediately before the date of Executive's Qualifying Termination under
all of the Company's bonus and incentive compensation plans or
arrangements, or during such shorter period if Executive has been
employed by the Company or any of its affiliated companies for a
shorter period.
(b) The Severance Payment hereunder is in lieu of any
severance payment that Executive might otherwise be entitled to from
the Company in the event of a Change in Control under the Company's
applicable severance pay policies, if any, or under any
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other oral or written agreement; PROVIDED, HOWEVER, that Executive
shall continue to be entitled to receive the severance pay benefits
under the Company's applicable policies, if any, or under another
written agreement if and to the extent Executive's termination is not a
Qualifying Termination after, or within ninety (90) days prior to, a
Change in Control.
7. ADDITIONAL BENEFITS.
(a) In the event of a Qualifying Termination, any and all
unvested stock options of Executive shall immediately become fully
vested and exercisable.
(b) In the event of a Qualifying Termination, Executive
shall be entitled to continue to participate in the following executive
benefit programs which had been made available to Executive (including
his family) before the Qualifying Termination: group medical insurance,
group dental insurance, group-term life insurance and disability
insurance. These programs shall be continued at no cost to Executive,
except to the extent that tax rules require the inclusion of the value
of such benefits in Executive's income. The programs shall be continued
in the same way and at the same level as immediately prior to the
Qualifying Termination. The programs shall continue for Executive's
benefit for two (2) years after the date of the Qualifying Termination;
PROVIDED, HOWEVER, that Executive's participation in each of such
programs shall be earlier terminated or reduced, as applicable, if and
to the extent Executive receives benefits as a result of concurrent
coverage through another program.
8. INDEMNIFICATION FOR EXCISE TAX. In the event that Executive
becomes entitled to receive a Severance Payment in accordance with the
provisions of Section 6 above, and notwithstanding the provision for a reduction
in Severance Payment in Section 6, such Severance Payment and any other benefits
or payments (including transfers of property) that Executive receives, or is to
receive, pursuant to this Agreement or any other agreement, plan or arrangement
with the Company in connection with a Change in Control of the Company ("Other
Benefits") shall be subject to the tax imposed pursuant to Section 4999 of the
Code (or any successor thereto) or any comparable provision of state law (an
"Excise Tax"), the following rules shall apply:
(a) The Company shall pay to Executive, within thirty
(30) days after the Executive's Qualifying Termination, an additional
amount (the "Gross-Up Payment") such that the net amount retained by
Executive, after deduction of any Excise Tax with respect to the
Severance Payment or the Other Benefits and any federal, state and
local income tax, FICA tax and Excise Tax upon such Gross-Up Payment,
is equal to the amount that would have been retained by Executive if
such Excise Tax were not applicable. It is intended that Executive
shall not suffer any loss or expense resulting from the assessment of
any Excise Tax or the Company's reimbursement of Executive for payment
of any such Excise Tax.
(b) For purposes of determining whether any of the
Severance Payments or Other Benefits will be subject to an Excise Tax
and the amount of such Excise Tax, (i) any other payments or benefits
received or to be received by Executive in connection with a Change in
Control of the Company or Executive's termination of employment
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(whether pursuant to the terms of this Agreement or any other plan,
arrangement or agreement with the Company, any person whose actions
result in a Change in Control or any person affiliated with the Company
or such person) shall be treated as "parachute payments" within the
meaning of Section 280G(b)(2) of the Code (or any successor thereto),
and all "excess parachute payments" within the meaning of Section
280G(b)(l) of the Code (or any successor thereto) shall be treated as
subject to the Excise Tax, unless in the opinion of tax counsel
selected by the Company's independent auditors and acceptable to
Executive such other payments or benefits (in whole or in part) do not
constitute parachute payments, or such excess parachute payments (in
whole or in part) represent reasonable compensation for services
actually rendered within the meaning of Section 280G(b)(4) of the Code
(or any successor thereto), (ii) the amount of the Severance Payments
and Other Benefits which shall be treated as subject to the Excise Tax
shall be equal to the lesser of (A) the total amount of the Severance
Payments or Other Benefits or (B) the amount of excess parachute
payments within the meaning of Sections 280G(b)(l) and (4) of the Code
(or any successor or successors thereto), after applying clause (i),
above, and (iii) the value of any non-cash benefits or any deferred
payment or benefit shall be determined by the Company's independent
auditors in accordance with the principles of Sections 280G(d)(3) and
(4) of the Code (or any successor or successors thereto).
(c) For purposes of determining the amount of the
Gross-Up Payment, Executive shall be deemed to pay federal income taxes
at the highest marginal rate of federal income taxation in the calendar
year in which the Gross-Up Payment is to be made and state and local
income taxes at the highest marginal rates of taxation in the state and
locality of Executive's residence on the date of the Executive's
Qualifying Termination, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local
taxes.
(d) In the event that the Excise Tax is subsequently
determined to be less than the amount taken into account hereunder at
the time of the Executive's Qualifying Termination, the Executive shall
repay to the Company, at the time that the amount of such reduction in
Excise Tax is finally determined, the portion of the Gross-Up Payment
attributable to such reduction plus interest on the amount of such
repayment at the rate provided in Section 1274(b)(2)(B) of the Code (or
any successor thereto) (the "Applicable Rate"). In the event that the
Excise Tax is determined to exceed the amount taken into account
hereunder at the time of such Qualifying Termination (including by
reason of any payment the existence or amount of which cannot be
determined at the time of the Gross-Up Payment), the Company shall make
an additional Gross-Up Payment in respect of such excess (plus
interest, determined at the Applicable Rate, payable with respect to
such excess) at the time that the amount of such excess is finally
determined.
9. RIGHTS AND OBLIGATIONS PRIOR TO A CHANGE IN CONTROL. Prior to
the date which is ninety (90) days before a Change in Control, the rights and
obligations of Executive with respect to his employment by the Company shall be
determined in accordance with the policies and procedures adopted from time to
time by the Company and the provisions of any written employment contract in
effect between the Company and Executive from time to time. This Agreement deals
only with certain rights and obligations of Executive subsequent, or within
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ninety (90) days prior to, a Change in Control, and the existence of this
Agreement shall not be treated as raising any inference with respect to what
rights and obligations exist prior to the date which is ninety (90) days before
a Change in Control. Unless otherwise expressly set forth in a separate written
employment agreement between Executive and the Company, the employment of
Executive is expressly at-will, and Executive or the Company may terminate
Executive's employment with the Company at any time and for any reason, with or
without cause, provided that if such termination occurs within ninety (90) days
prior to or two (2) years after a Change in Control and constitutes a Qualifying
Termination (as defined in Section 5 above) the provisions of this Agreement
shall govern the payment of the Severance Payment and certain other benefits as
provided herein.
10. NON-EXCLUSIVITY OF RIGHTS. Subject to Section 6(c) hereof,
nothing in this Agreement shall prevent or limit Executive's continuing or
future participation in any benefit, bonus, incentive or other plan or program
provided by the Company or any of its affiliated companies and for which
Executive may qualify, nor shall anything herein limit or otherwise affect such
rights as Executive may have under any stock option or other agreements with the
Company or any of its affiliated companies. Except as otherwise provided in
Section 6(c) hereof, amounts which are vested benefits or which Executive is
otherwise entitled to receive under any plan or program of the Company or any of
its affiliated companies at or subsequent to the date of any Qualified
Termination shall be payable in accordance with such plan or program.
11. FULL SETTLEMENT. The Company's obligation to make the payments
provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counter-claim, recoupment,
defense or other claim, right or action which the Company may have against
Executive or others. In no event shall Executive be obligated to seek other
employment or to take any other action by way of mitigation of the amounts
payable to Executive under any of the provisions of this Agreement. The Company
agrees to pay, to the full extent permitted by law, all legal fees and expenses
which Executive may reasonably incur as a result of Executive's successful
collection efforts to receive amounts payable hereunder, or as a result of any
contest (regardless of the outcome thereof) by the Company or others of the
validity or enforceability of, or liability under, any provision of this
Agreement or any guarantee of performance thereof (including as a result of any
contest by Executive about the amount of any payment pursuant to this Section).
12. SUCCESSORS.
(a) This Agreement is personal to Executive, and without
the prior written consent of the Company shall not be assignable by
Executive other than by will or the laws of descent and distribution.
This Agreement shall inure to the benefit of and be enforceable by
Executive's legal representatives.
(b) The rights and obligations of the Company under this
Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of the Company.
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13. GOVERNING LAW. This Agreement is made and entered into in the
State of California, and the internal laws of California shall govern its
validity and interpretation in the performance by the parties hereto of their
respective duties and obligations hereunder.
14. MODIFICATIONS. This Agreement may be amended or modified only
by an instrument in writing executed by all of the parties hereto.
15. DISPUTE RESOLUTION.
(a) Any controversy or dispute between the parties
involving the construction, interpretation, application or performance
of the terms, covenants, or conditions of this Agreement or in any way
arising under this Agreement (a "Covered Dispute") shall, on demand by
either of the parties by written notice served on the other party in
the manner prescribed in Section 16 hereof, be referenced pursuant to
the procedures described in California Code of Civil Procedure ("CCP")
Sections 638, ET seq., as they may be amended from time to time (or
such procedures as nearly the same as may be available under the laws
of California, the "Reference Procedures"), to a retired Judge from the
superior court of California for the County of Riverside (the "Venue
County") for a decision.
(b) The Reference Procedures shall be commenced by either
party by the filing in the superior court of Venue County a petition
pursuant to CCP Section 638(1) (or such procedures as nearly the same
as may be available under the laws of California, a "Petition"). Said
Petition shall designate as a referee a Judge from the list of retired
superior court Judges from the Venue County who have made themselves
available for trial or settlement of civil litigation under said
Reference Procedures. If the parties hereto are unable to agree on the
designation of a particular retired superior court Judge of the Venue
County, or the designated Judge is unavailable or unable to serve in
such capacity, request shall be made in said Petition that the
Presiding or Assistant Presiding Judge of the superior court of the
Venue County appoint as referee a retired superior court Judge from the
aforementioned list.
(c) Except as hereafter agreed by the parties, the
referee shall apply the internal law of the State of California in
deciding the issues submitted hereunder. Unless formal pleadings are
waived by agreement among the parties and the referee, the moving party
shall file and serve its complaint within fifteen (15) days from the
date a referee is designated as provided herein, and the other party
shall have fifteen (15) days thereafter in which to plead to said
complaint. Each of the parties reserves its respective rights to allege
and assert in such pleadings all claims, causes of action, contentions
and defenses which it may have arising out of or relating to the
general subject matter of the Covered Dispute that is being determined
pursuant to the Reference Procedures. Reasonable notice of any motions
before the referee shall be given, and all matters shall be set at the
convenience of the referee. Discovery shall be conducted as the parties
agree or as allowed by the referee. Unless waived by each of the
parties, a reporter shall be present at all proceedings before the
referee.
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(d) It is the parties' intention by this Section 15 that
all issues of fact and law and all matters of a legal and equitable
nature related to any Covered Dispute will be submitted for
determination by a referee designated as provided herein. Accordingly,
the parties hereby stipulate that a referee designated as provided
herein shall have all powers of a Judge of the superior court
including, without limitation, the power to grant equitable and
interlocutory and permanent injunctive relief.
(e) Each of the parties specifically (i) consents to the
exercise of jurisdiction over his person by a referee designated as
provided herein with respect to any and all Covered Disputes; and (ii)
consents to the personal jurisdiction of the California courts with
respect to any appeal or review of the decision of any such referee.
(f) Each of the parties acknowledges that the decision by
a referee designated as provided herein shall be a basis for a judgment
as provided in CCP Section 644 and shall be subject to exception and
review as provided in CCP Section 645, or such procedures as nearly the
same as may be available under the laws of California.
(g) The Company shall pay all fees and costs incurred by
Executive in connection with the Reference Procedures for a Covered
Dispute other than attorneys' fees incurred by Executive.
16. NOTICES. Any notice or communications required or permitted to
be given to the parties hereto shall be delivered personally or be sent by
United States registered or certified mail, postage prepaid and return receipt
requested, and addressed or delivered as follows, or at such other addresses the
party addressed may have substituted by notice pursuant to this Section:
To the Company: To Executive:
Fleetwood Enterprises, Inc. -------------------------
0000 Xxxxx Xxxxxx Home Address
Riverside, California 92503-5527 City, State, Zip
Attn: General Counsel
17. CAPTIONS. The captions of this Agreement are inserted for
convenience and do not constitute a part hereof.
18. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement shall
be construed as if such invalid, illegal or unenforceable provision had never
been contained herein and there shall be deemed substituted for such invalid,
illegal or unenforceable provision such other provision as will most nearly
accomplish the intent of the parties to the extent permitted by the applicable
law. In case this Agreement, or any one or more of the provisions hereof, shall
be held to be invalid, illegal or unenforceable within any governmental
jurisdiction or subdivision thereof, this Agreement or any such provision
thereof shall not as a consequence thereof be deemed to be invalid, illegal or
unenforceable in any other governmental jurisdiction or subdivision thereof.
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19. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
together constitute one in the same Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered effective as of the day and year first written
above.
--------------------------
[Name of Executive]
FLEETWOOD ENTERPRISES, INC.,
a Delaware corporation
By:
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Name:
------------------------------------------
Title:
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