1
Exhibit No. 10.46
-----------------
CHANGE OF CONTROL AGREEMENT
This Change of Control Agreement ("Agreement") is made as of the 7th
day of December, 1999, between Xxxxxxx Xxxxxxx Jewelers, Inc. (the "Company")
and _____ (the "Employee").
WHEREAS, the Company considers the establishment and maintenance of a
sound and vital management team essential to protecting and enhancing its best
interests and the Company's stockholders;
WHEREAS, the Company recognizes that the possibility of a change of
control of the Company at some time in the future exists and that such
possibility and the uncertainty it may raise among management personnel may
result in the departure or distraction of such personnel to the detriment of the
Company and the Company's stockholders;
WHEREAS, the Compensation Committee (the "Committee") of the Company's
Board of Directors (the "Board") has determined that appropriate steps should be
taken to reinforce and encourage the continued attention and dedication of the
key members of the Company's management team to their assigned duties without
the distraction arising from the possibility of a change of control.
NOW, THEREFORE, in consideration of the mutual covenants set forth
below and for other good and valuable consideration, the Company and the
Employee agree to the following Change of Control Agreement.
ARTICLE I
DEFINITIONS
1.1 "BENEFICIARY" means the Employee's estate.
1.2 "BENEFIT AMOUNT" means the cash payment payable pursuant to
Article II, subject to the terms and conditions contained in this Agreement.
1.3 "BOARD" means the Board of Directors of the Company.
1.4 "CODE" means the Internal Revenue Code of 1986, as amended.
1.5 "COMMITTEE" means the Compensation Committee of the Board or
any other committee appointed by the Board which is invested by the Board with
responsibility for the administration of the Plan and whose members meet the
requirements for eligibility to serve as set forth in Exchange Act Rule 16b-3
and in the Plan.
1.6 "COMPANY" means Xxxxxxx Xxxxxxx Jewelers, Inc.
2
1.7 "EFFECTIVE DATE" means December 7, 1999.
1.8 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
in effect at the time of reference, or any successor law which may hereafter be
adopted in lieu thereof, and any reference to any specific provisions of the
Exchange Act shall refer to the corresponding provisions of the Exchange Act as
it may hereafter be amended or replaced.
ARTICLE II
BENEFITS
2.1 PAYMENT OF BENEFIT AMOUNT.
(a) If the Employee's employment with the Company is terminated under
the circumstances described in Section 2.1(b) within 12 months after a Change of
Control occurs, the Company will make a lump sum payment of the Benefit Amount
to the Employee or his Beneficiary within 15 days after such termination of
employment. No benefits shall be payable under the terms of the Agreement unless
a Change of Control occurs and the Employee's employment is terminated under the
circumstances described in Section 2.1(b).
(b) Termination of employment for purposes of this Section 2.1 shall
include the following:
(i) the Company's actual termination of the Employee's
employment other than "for cause" as defined in
Section 2.1(c)(i);
(ii) the Company's "constructive termination" of the
Employee's employment in as defined in Section
2.1(c)(ii); and
(iii) the Employee's resignation for "good reason" as
defined in Section 2.1(c)(iii).
3
(c) Definitions:
(i) "For cause" means (A) the commission of an act of
fraud, embezzlement, theft or other criminal act
constituting a felony which results in a material
loss, damage or injury to the Company; (B) the
willful and wanton disregard of the rules or policies
of the Company which results in a material loss,
damage or injury to the Company; (C) a breach or
default in any material respect by the Employee of
any material provision of his agreements or
obligations under any provision of a written
employment agreement or competition agreement or
covenant with the Company which is not cured in all
substantial respects within ten (10) days after the
Company gives notice thereof to the Employee or (D)
the repeated failure of the Employee to perform
duties consistent with his position, or to follow or
comply with the reasonable directives of his
superiors, after having been given notice of such
failure.
(ii) "Constructive termination" means the occurrence of
any material reduction in the Employee's duties or
scope of authority, but shall not include termination
"for cause."
(iii) "Good reason" means the occurrence of any reduction
in the Employee's aggregate direct remuneration, any
material reduction in responsibilities or duties, any
material reduction in the aggregate of the Employee's
perquisities, employee or fringe benefits, a change
in the Employee's reporting relationship or position,
or relocation beyond a 25 mile radius of the
Company's Mount Vernon, New York headquarters.
(iv) "CHANGE OF CONTROL" means a Change of Control of the
Company of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Exchange Act as
in effect on the date this Agreement is approved by
the Board, whether or not the Company is then subject
to such reporting requirement; provided that, without
limitation, a Change of Control shall be deemed to
have occurred if:
(A) any "person" (as defined in Sections
13(d) and 14(d) of the Exchange Act) is or
becomes the "beneficial owner" (as defined
in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the
Company representing forty-five percent
(45%) or more of the combined voting power
of the Company's then outstanding
securities; provided, however, that: (i) the
forty-five percent (45%) threshold of this
clause (1) shall be increased to sixty
percent (60%) in the case of any such
"person" who, on the date this Agreement is
approved by the Board,
4
is such a "beneficial owner" directly or
indirectly, of securities of the Company
representing fifteen percent (15%) or more
of the combined voting power of the
Company's then outstanding securities; and
(ii) a Change in Control shall not be deemed
to occur under this clause (1) by reason of
the acquisition of securities by the Company
or an employee benefit plan (or any trust
funding such a plan) maintained by the
Company, or by reason of the new issuance of
securities directly by the Company;
(B) during any period (not including any
period prior to the adoption of this Agreement) of one (1) year or, if
less, the period of time elapsed from the date this Agreement was
adopted by the Board, there shall cease to be a majority of the Board
comprised of "Continuing Directors" (hereinafter defined); or
(C) (i) the Board recommends to the
Company's stockholders or approves a merger or consolidation of the
Company with any other corporation, other than 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 the surviving entity) more than eighty percent (80%) of
the combined voting power of the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, or (ii) the stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the Company's
assets.
"Continuing Directors" means individuals who
at the beginning of any period (not including any period prior to the
execution of this Agreement) of one (1) year or, if less, the period of
time elapsed from the date this Agreement was approved by the Board,
constitute the Board, and any new director(s) whose election by the
Board or nomination for election by the Company's stockholders was
approved by a vote of at least a majority of the directors then still
in office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved.
2.2 DETERMINATION OF BENEFIT AMOUNT. The Employee's Benefit Amount
shall be equal to the sum of the Employee's regular annual salary at the rate in
effect at the time of the Change of Control and any bonus paid or payable to the
Employee for the Company's fiscal year immediately preceding the fiscal year in
which the Change of Control occurs.
2.3 PAYMENT TO BENEFICIARY. If the Employee becomes entitled to payment
of the Benefit Amount pursuant to Section 2.1 and the Company is notified of the
Employee's death prior to payment of the Employee's entire Benefit Amount, the
remaining Benefit Amount will be distributed in the form of a lump sum payment
to the Employee's Beneficiary.
5
2.4 MITIGATION NOT REQUIRED. If the Employee becomes entitled to
payment of the Benefit Amount as described in Section 2.1, the payment of such
Benefit Amount shall not be affected or reduced in any way by any compensation
to which the Employee may be or become entitled to on account of employment with
any other employer.
2.5 CONTINUATION OF MEDICAL AND DENTAL BENEFITS. If the Employee
becomes entitled to payment of the Benefit Amount as described in Section 2.1,
the Company shall continue in effect the medical and dental benefits being
provided to Employee immediately before his termination of employment or
resignation for a period of twelve (12) months, upon the same terms and
conditions as were in effect at such time. The twelve (12) month period shall
begin with the first full calendar month following the Employee's termination as
described in Section 2.1(b) and (c).
6
ARTICLE III
TAXES
3.1 TAXES AND WITHHOLDING. If the Employee or his Beneficiary becomes
entitled to receive cash or recognizes other taxable income under this
Agreement, the Company will have the right to withhold taxes from the Employee's
or Beneficiary's payment hereunder or may deduct such taxes from any other
amounts payable to the Employee or Beneficiary at any time thereafter in cash or
otherwise. The Company will bear no responsibility whatsoever for the taxes or
tax effects resulting under this Agreement as to the Employee or any
Beneficiary.
3.2 CODE SECTION 162(m) LIMITATION. Notwithstanding anything in this
Agreement to the contrary, to the extent that Code Section 162(m) would operate
to limit the Company's federal income tax deduction for remuneration with
respect to the Employee, resulting in federal income tax liability to the
Company, payment of the Benefit Amount to the Employee shall be deferred until
Section 162(m) no longer operates to result in such federal income tax liability
to the Company. The determination of whether Code Section 162(m) operates to
limit the Company's deduction in a manner resulting in federal income tax
liability to the Company will be determined by the Committee. Payment of the
Benefit Amount to the Employee shall occur in the following calendar year (or,
if necessary, each subsequent calendar year) to the extent such payment, when
added to other remuneration subject to the Section 162(m) limit for such year,
does not result in federal income tax liability to the Company. In administering
the deferral mechanism of this Section 3.2, the determinations by the Committee
shall be final; however, the Committee shall act promptly in making its
determinations hereunder and shall not unnecessarily delay payment of the
Benefit Amount.
3.3 "GROSS-UP" FOR EXCISE TAXES. In the event the Employee becomes
subject to the excise tax imposed by Code Section 4999 (the "Excise Tax"), the
Company shall pay in cash to the Employee at the time specified below, an
additional amount (the "Gross-Up Payment") such that the net amount retained by
the Employee shall be equal to the amount that would have been retained had such
excise tax not applied, as determined below.
The following shall govern the determination of the amount of the cash
payment described above:
(a) any other payments or benefits received or to be
received by the Employee in connection with a "change in control" of
the Company (as defined in Code section 280G) shall be treated as
"parachute payments" within the meaning of section 280G(b)(2) of the
Code, and all "excess parachute payments" within the meaning of section
280G(b)(1) shall be treated as subject to the Excise Tax, unless in the
opinion of the Company's independent auditors, 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,
7
(b) For purposes of determining the amount of the
Gross-Up Payment, the Employee 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 the Employee's residence upon the change in
control, net of the maximum reduction in federal income taxes which
could be obtained from deduction of such state and local taxes.
The amount of any Gross-Up Payment shall be paid to the Employee at the
time at which the Employee receives payment of the Benefit Amount pursuant to
Section 2.1. In the event that the Excise Tax is subsequently determined by the
Company's independent auditors to be less than the amount taken into account
hereunder at the time of the payment of the Benefit Amount, the Employee shall
repay to the Company the excess portion of the Gross-Up Payment plus interest on
the amount of such repayment at the rate provided in Section 1274(b)(2)(B) of
the Code. In the event the Excise Tax is determined to exceed the amount taken
into account hereunder at the time of the payment of the Benefit Amount
(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 any interest payable
with respect to such excess) at the time that the amount of such excess is
finally determined.
ARTICLE IV
MISCELLANEOUS
4.1 SPENDTHRIFT CLAUSE. No amount provided under this Agreement will be
subject in any manner to anticipation, alienation, sale, transfer, assignment,
pledge, encumbrance or charge, either voluntary or involuntary, and any attempt
to so alienate, anticipate, sell, transfer, assign, pledge, encumber or charge
the same will be null and void. No such amount will be liable for or subject to
the debts, contracts, liabilities, engagements or torts of any person to whom
such amount is or may be payable, except as required under applicable law.
4.2 AMENDMENT AND TERMINATION OF AGREEMENT. The Board, in its sole
discretion, may amend this Agreement at any time; provided, however, that any
amendment which would impair or reduce the Employee's Benefit Amount or affect
the terms of payment of the Benefit Amount will be effective only if the
Employee consents in writing to the amendment. This Agreement will terminate
upon the earliest of the following: (a) payment of the Benefit Amount, (b) the
Employee's termination or resignation of employment prior to becoming eligible
to receive a benefit hereunder, or (c) the expiration of the twelve (12) month
period following a Change of Control.
4.3 EMPLOYMENT CONTRACT AND OTHER ARRANGEMENTS. The adoption and
maintenance of this Agreement will neither be deemed to nor will it be an
employment agreement between Company and the Employee.
8
4.4 TITLES AND HEADINGS. The titles or headings of the Articles and
Sections hereof are included solely for convenience and reference and, in the
event of any conflict between such titles or headings and the text, the text
will control.
4.5 PARTIES TO AGREEMENT. This Agreement will be binding upon and will
operate for the benefit of the Company, its successors and assigns, and the
Employee and his or her heirs, estate and personal representatives.
4.6 GOVERNING LAW. This Agreement will be governed and construed in
accordance with the laws of the State of New York, without giving effect to the
principles of conflicts of laws thereof, but subject to preemption of Federal
law.
4.7 GENDER. Where necessary or appropriate to the meaning hereof, the
singular, plural, masculine, feminine and neuter will be deemed to include each
other.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officer and the Employee has executed this
Agreement on this _____ day of ______, 1999.
XXXXXXX XXXXXXX JEWELERS, INC.
By:
---------------------------------
EMPLOYEE
------------------------------------
