CHANGE IN CONTROL AGREEMENT BETWEEN
Exhibit 10.41
BETWEEN
X. X. XXXXX CORPORATION
AND
Xxxx Xxxxxx
THIS CHANGE IN CONTROL AGREEMENT (this “Agreement”) is made to be effective as of April 13,
2009 by and between Xxxx Xxxxxx (the “Executive”) and X. X. Xxxxx Corporation, an Ohio corporation
(the “Corporation”).
BACKGROUND
In order to induce the Executive to remain in the employ of the Corporation, the Corporation
wishes to provide the Executive with certain severance benefits in the event his employment with
the Corporation terminates subsequent to a Change in Control of the Corporation under the
circumstances described herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound, agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall have the
following meanings unless otherwise expressly provided in this Agreement:
(i) Change in Control. A “Change in Control” shall be deemed to have occurred
if (A) any “person” (as that term is used in §13(d) and §14(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”) on the date hereof, including any “group” as such term is
used in Section 13(d)(3) of the Exchange Act on the date hereof (an “Acquiring Person”)), shall
hereafter acquire (or disclose the previous acquisition of) beneficial ownership (as that term is
defined in Section 13(d) of the Exchange Act and the rules thereunder on the date hereof) of shares
of the outstanding stock of any class or classes of the Corporation which results in such person or
group possessing more than 50.1% of the total voting power of the Corporation’s outstanding voting
securities ordinarily having the right to vote for the election of directors of the Corporation (a
“Control Acquisition”); or (B) as the result of, or in connection with, any tender or exchange
offer, merger or other business combination, sale of assets or contested election, or any
combination of the foregoing transactions (a “Transaction”), the persons who were directors of the
Corporation immediately before the completion of the Transaction shall cease to constitute a
majority of the Board of Directors of the Corporation or any successor to the Corporation.
(ii) Disability. The Executive’s employment shall be deemed to have been terminated
for “Disability” if, as a result of his incapacity due to physical or mental illness, he
shall have been absent from his duties with the Corporation on a full-time basis for the entire
period of four consecutive months, and within 30 days after written notice of termination is given
(which may occur before or after the end of such four-month period) he shall not have returned to
the full-time performance of his duties.
(iii) Effective Period. The “Effective Period” means the 36-month period
following any Change in Control (even if such 36-month period shall extend beyond the term of this
Agreement or any extension hereof).
(iv) Termination for Cause. The Corporation shall have “Cause” to terminate
the Executive’s employment hereunder upon (A) the willful and continued refusal by the Executive to
substantially perform his duties with the Corporation (other than any such refusal resulting
from his incapacity due to a Disability), (B) failure of the Executive to comply with any
applicable law or regulation affecting the Corporation’s business, (C) the commission by the
Executive of an act of fraud upon or an act evidencing bad faith or dishonesty toward the
Corporation, (D) conviction of the Executive of any felony or misdemeanor involving moral
turpitude, (E) the misappropriation by the Executive of any funds, property, or rights of the
Corporation, or (F) the Executive’s breach of any of the provisions of this Agreement.
(v) Termination For Good Reason. “Good Reason” shall mean, unless the
Executive shall have consented in writing thereto, termination by the Executive of his employment
because of any of the following:
(A) a reduction in the Executive’s title, duties, responsibilities or status, as compared to
such title, duties, responsibilities or status immediately prior to the Change in Control or as the
same may be increased after the Change in Control;
(B) the assignment to the Executive of duties inconsistent with the Executive’s office on the
date of the Change in Control or as the same may be increased after the Change in Control;
(C) a reduction by the Corporation in the Executive’s base salary as in effect immediately
prior to the Change in Control or as the same may be increased after the Change in Control or a
reduction by the Corporation after a Change in Control in the Executive’s total compensation
(including bonus) so that the Executive’s total cash compensation in a given calendar year is less
than 90% of the Executive’s total compensation for the prior calendar year;
(D) a requirement that the Executive relocate anywhere not mutually acceptable to the
Executive and the Corporation or the imposition on the Executive of business travel obligations
substantially greater than his business travel obligations during the year prior to the Change in
Control;
(E) the relocation of the Corporation’s principal executive offices to a location outside the
greater Columbus, Ohio area;
(F) the failure by the Corporation to continue in effect any material fringe benefit or
compensation plan, retirement plan, life insurance plan, health and accident plan or disability
plan in which the Executive is participating at the time of a Change in Control (or plans providing
the Executive with substantially similar benefits), the taking of any action by the Corporation
which would adversely affect the Executive’s participation in or materially reduce his benefits
under any of such plans or deprive him of any material fringe benefit enjoyed by him at the time of
the Change in Control, or the failure by the Corporation to provide him with the number of paid
vacation days to which he is then entitled on the basis of years of service with the Corporation in
accordance with the normal vacation policy in effect immediately prior to the Change in Control; or
(G) any breach of this Agreement on the part of the Corporation.
(vi) Notice of Termination. A “Notice of Termination” shall mean a notice
which shall set forth in reasonable detail the facts and circumstances claimed to provide a basis
for termination of the Executive’s employment.
(vii) Date of Termination. “Date of Termination” shall mean the date on which
the Executive’s employment terminates. For purposes of this Agreement, with regard to the
Executive’s employment, the term “termination” or any form thereof (whether or not capitalized)
shall mean a “separation from service” with the Corporation and all persons with whom the
Corporation would be considered a single employer under Sections 414(b) and (c) of the Internal
Revenue Code of 1986, as mended (the “Code”), within the meaning of Section 409A of the Code and Treasury Regulation
§1.409A-1(h).
2. TERM. Unless sooner terminated as herein provided, the term of this Agreement
shall commence on the date hereof and shall continue through April 13, 2012 (the “Termination
Date”). It is understood that no amounts or benefits shall be payable under this Agreement unless
(i) there shall have been a Change in Control during the term of this Agreement and (ii) the
Executive’s employment is terminated at any time during the Effective Period as provided in Section
5 hereof. It is further understood that the Corporation may terminate the Executive’s employment
at any time before or after a Change in Control, subject to the Corporation providing, if required
to do so in accordance with the terms hereof, the severance payments and benefits hereinafter
specified, which payments and benefits shall only be available if a Change in Control has occurred
prior to such termination. Prior to a Change in Control, this Agreement shall terminate
immediately if the Executive’s employment with the Corporation is terminated for any reason.
3. SERVICES DURING CERTAIN EVENTS. In the event any person (as that term is used in
Section 1(i) above) commences a tender or exchange offer, distributes proxy materials to the
Corporation’s shareholders or takes other steps to effect a Change in Control, the Executive agrees
he will not voluntarily terminate his employment with the Corporation other than by reason of his
retirement at normal retirement age, and will continue to serve as a full-time employee of the
Corporation until such efforts to effect a Change in Control are abandoned or terminated or until a
Change in Control has occurred.
4. TERMINATION FOLLOWING A CHANGE IN CONTROL. Any termination of the Executive’s
employment by the Corporation for Cause, Disability or otherwise or by the Executive for Good
Reason, which, in any case, occurs at any time during the Effective Period, shall be communicated
by written Notice of Termination to the other party.
5. COMPENSATION UPON TERMINATION FOLLOWING A CHANGE IN CONTROL.
(i) For Cause. If, at any time during the Effective Period, the Executive’s
employment shall be terminated for Cause, the Corporation shall pay to the Executive, not later
than 30 days following the Date of Termination, his full base salary through the Date of
Termination at the rate in effect at the time Notice of Termination is given and the Corporation
shall not have any further obligations to the Executive under this Agreement.
(ii) Death or Disability. If, at any time during the Effective Period, the
Executive’s employment is terminated by reason of the Executive’s death or Disability, the
Corporation shall pay to the Executive or his legal representative, not later than 30 days
following the Date of Termination, his full base salary through the Date of Termination, and the
Corporation shall have no further obligation to the Executive or his legal representative under
this Agreement after the Date of Termination.
(iii) For Good Reason or Without Cause. If the Executive’s employment is terminated
at any time during the Effective Period by either: (a) the Corporation for any reason other than
for Cause, Disability, or death, or (b) the Executive for Good Reason, the Corporation shall pay to
the Executive, not later than 30 days following the Date of Termination:
(A) The Executive’s accrued but unpaid base salary through the Date of Termination;
(B) In lieu of any further payments of salary to the Executive after the Date of Termination,
notwithstanding any dispute between the Executive and the Corporation as to the payment to the
Executive of any other amounts under this Agreement or otherwise, a lump sum cash severance payment (the “Severance Payment”) equal to the greater of (i) the total compensation
(including bonus) paid to or accrued for the benefit of the Executive by the Corporation for
services rendered during the fiscal year immediately preceding the fiscal year in which the Change
in Control occurred or (ii) the total compensation (including bonus) paid to or accrued for the
benefit of the Executive by the Corporation for services rendered during the twelve-month period
immediately preceding the Date of Termination.
Notwithstanding any provision contained herein, if the Executive is a “specified employee” within
the meaning of Section 409A of the Code and the Treasury Regulations promulgated thereunder and as
determined under the Corporation’s policy for determining specified employees, on the Date of
Termination, the Severance Payment and any other amount under this Agreement that is subject to
Section 409A of the Code shall not be paid until the first business day of the seventh month
following the Date of Termination (or, if earlier, the Executive’s death). The payment made
following this postponement period shall include the cumulative amount of any amounts that could
not be paid during such period.
(iv) The Executive’s right to receive payments under this Agreement shall not decrease the
amount of, or otherwise adversely affect, any other benefits payable to the Executive under any
plan, agreement or arrangement relating to employee benefits provided by the Corporation.
(v) The Executive shall not be required to mitigate the amount of any payment provided for in
this Section 5 by seeking other employment or otherwise, nor shall the amount of any payment or
benefit provided for in this Section 5 be reduced by any compensation earned by the Executive as
the result of employment by another employer or by reason of the Executive’s receipt of or right to
receive any retirement or other benefits after the date of termination of employment or otherwise.
6. NON-COMPETITION; CONFIDENTIALITY
(i) Period. For a period of one year following the termination of the Executive’s
employment, the Executive shall not, as a shareholder, employee, officer, director, partner,
consultant or otherwise, engage directly or indirectly in any business or enterprise which is in
Competition with the Corporation (as defined below); provided, however, that this Section 6(i)
shall not apply if (A) the Executive’s employment is terminated without Cause, or (C) following a
Change in Control, the Executive’s employment is terminated by the Executive for Good Reason.
(ii) Competition with the Corporation. For purposes of this Agreement, (A) the words
“Competition with the Corporation” shall be deemed to include competition with the Corporation or
any entity controlling, controlled by or under common control with the Corporation (an
“Affiliate”), or their respective successors or assigns, or the business of any of them, and (B) a
business or enterprise shall be deemed to be in Competition with the Corporation if it is engaged
in any business activity which is the same or comparable to any business activity of the
Corporation or any Affiliate from time to time during the Executive’s employment with the
Corporation in any geographic area of the United States in which the Corporation or any Affiliate
conducted such business. Notwithstanding the foregoing, nothing herein contained shall prevent the
Executive from purchasing and holding for investment less than 5% of the shares of any corporation
the shares of which are regularly traded either on a national securities exchange or in the
over-the-counter market.
(iii) Interpretation of Covenant. The parties hereto agree that the duration and area
for which the covenant not to compete set forth in this Section 6 is to be effective are
reasonable. In the event that any court determines that the time period or the area, or both of
them, are unreasonable and that such covenant is to that extent unenforceable, the parties hereto
agree that the covenant shall remain in full force and effect for the greatest time period and in
the greatest area that would not render it unenforceable. The parties intend that this covenant
shall be deemed to be a series of separate covenants, one for each and every county of each and
every state of the United States of America where the covenant not to compete is intended to be
effective.
(iv) Prohibition on Disclosure or Use. The Executive shall at all times keep and
maintain the confidentiality of Confidential Information (as defined below), and the Executive
shall not, at any time, either during or subsequent to his employment with the Corporation, either
directly or indirectly, use any Confidential Information for the Executive’s own benefit or
divulge, disclose, or communicate any Confidential Information to any person or entity in any
manner whatsoever, other than (A) to employees or agents of the Corporation having a need to know
such Confidential Information and only to the extent necessary to perform their responsibilities on
behalf of the Corporation and (B) in the performance of the Executive’s employment duties to the
Corporation.
(v) Definition of Confidential Information. “Confidential Information” shall mean any
and all information (excluding information in the public domain) related to the business of the
Corporation or any Affiliate, including without limitation all processes; inventions; trade
secrets; computer programs; engineering or technical data, drawings, or designs; manufacturing
techniques; information concerning pricing and pricing policies; marketing techniques; plans and
forecasts; new product information; information concerning suppliers; methods and manner of
operations; and information relating to the identity and location of all past, present, and
prospective customers.
(vi) Equitable Relief. The Executive’s obligations contained in this Section 6 are of
special and unique character which gives them a peculiar value to the Corporation, and the
Corporation cannot be reasonably or adequately compensated in damages in an action at law in the
event the Executive breaches such obligations. The Executive therefore expressly agrees that, in
addition to any other rights or remedies which Corporation may possess, the Corporation shall be
entitled to injunctive and other equitable relief in the form of preliminary and permanent
injunctions without bond or other security in the event of any actual or threatened breach of said
obligations by the Executive. The provisions of this Section 6 shall survive any termination of
this Agreement.
7. SUCCESSORS; BINDING AGREEMENT.
(i) The Corporation 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 Corporation and its subsidiaries to expressly assume and agree to perform this Agreement in the
same manner and to the same extent that the Corporation would be required to perform it if no
succession had taken place. Failure of the Corporation to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and the Executive shall be
entitled to termination for Good Reason and shall receive the benefits described in Section 5(iii) of this Agreement. As used
in this Agreement, “Corporation” shall mean the Corporation as defined above and any successor to
its business and/or assets as aforesaid which executes and delivers the agreement provided for in
this Section 7 or which otherwise becomes bound by all the terms and provisions of this Agreement
by operation of law. Nothing contained in this Section 7 shall be construed to modify or affect
the definition of a “Change in Control” contained in Section 1 hereof.
(ii) This Agreement shall inure to the benefit of and be enforceable by the Executive’s
personal or legal representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees.
8. ARBITRATION. Any dispute or controversy arising out of or relating to this
Agreement, or any breach thereof, shall be settled by arbitration in accordance with the rules of
the American Arbitration Association. The award of the arbitrator shall be final, conclusive and
nonappealable and judgment upon such award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. The arbitrator shall be an arbitrator qualified to serve in
accordance with the rules of the American Arbitration Association and one who is approved by both
the Corporation and the Executive. In the absence of such approval, each party shall designate a
person qualified to serve as an arbitrator in accordance with the rules of the American Arbitration
Association and the two persons so designated shall select the arbitrator from among those persons
qualified to serve in accordance with the rules of the American Arbitration Association. The
arbitration shall be held in Columbus, Ohio or such other place as may be agreed upon at the time
by the parties to the arbitration.
9. NOTICES. For the purpose of this Agreement, notices and all other communications
provided for in the Agreement shall be in writing and shall be deemed to have been duly given (i)
on the third day after being mailed by United States registered mail, return receipt requested,
postage prepaid, or (ii) on the following day if sent by a nationally registered overnight courier
service, addressed in the case of the Executive, to
Xxxx Xxxxxx
(address on record in the Corporation)
(address on record in the Corporation)
and in the case of the Corporation, to the principal executive offices of the Corporation, provided
that all notices to the Corporation shall be directed to the attention of the Corporation’s Chief
Executive Officer with copies to the Secretary of the Corporation and to its Board of Directors, or
to such other address as either party may have furnished to the other in writing in accordance
herewith, except that notices of change of address shall be effective only upon receipt.
10. MISCELLANEOUS. No provisions of this Agreement may be modified, waived or
discharged unless such waiver, modification or discharge is agreed to in writing signed by the
Executive and a duly authorized officer of the Corporation. No waiver by either party hereto at
any time of any breach by the other party hereto of, or compliance with, any condition or provision
of this Agreement to be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or subsequent time. No agreement
or representation, oral or otherwise, express or implied, with respect to the subject matter hereof
has been made by either party which is not set forth expressly in this Agreement. The validity,
interpretation, construction and performance of this Agreement shall be governed by the laws (but
not the law of conflicts of laws) of the State of Ohio.
11. VALIDITY. The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability of any other provisions of this Agreement, which
shall remain in full force and effect.
12. ENTIRE AGREEMENT. This Agreement constitutes the entire understanding of the
parties hereto with respect to the subject matter hereof and supersedes all prior negotiations,
discussions, writings, and agreements between them [including, without limitation, the offer letter
effective as of September 14, 2000].
13. SECTION 409A OF THE CODE. It is intended that this Agreement comply with Section
409A of the Code and the Treasury Regulations promulgated thereunder (and any subsequent notices or
guidance issued by the Internal Revenue Service), and this Agreement will be interpreted,
administered and operated accordingly. Nothing herein shall be construed as an entitlement to or
guarantee of any particular tax treatment to the Executive.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be effective as of the
date and year first above written.
| X. X. XXXXX CORPORATION |
||||
| /s/ Xxxx Xxxxxx | ||||
| By: Xxxx Xxxxxx | ||||
| Title: | President, CEO | |||
| /s/ Xxxx Xxxxxx | ||||
| Xxxx Xxxxxx | ||||
