EXHIBIT 10.30
CHANGE IN CONTROL SEVERANCE AGREEMENT
THIS CHANGE IN CONTROL SEVERANCE AGREEMENT (this "Agreement") is entered
into as of the 1st day of October, 2002 by and between Caraustar Industries,
Inc., a North Carolina corporation (the "Company"), and Xxxxxx X. Xxxxxxxx
("Executive").
BACKGROUND STATEMENT
The Company considers the establishment and maintenance of a sound and
vital management team to be essential to protecting and enhancing the best
interests of the Company and its shareholders. In addition, the Company
recognizes that, as is the case with many publicly held corporations, the
possibility of a change in control may arise, and that such possibility may
result in the departure or distraction of management personnel to the detriment
of the Company and its shareholders. The Board (as defined in SECTION 1(A)) has
therefore determined that it is in the best interests of the Company and its
shareholders to secure Executive's continued services and to ensure Executive's
continued dedication to his duties in the event of any threat or occurrence of a
Change in Control (as defined in SECTION 1(C)) of the Company, and has
authorized the Company to enter into this Agreement.
STATEMENT OF AGREEMENT
NOW, THEREFORE, the Company and Executive hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the respective meanings set forth below:
(a) "Board" means the Board of Directors of the Company.
(b) "Cause" means (i) the willful and continued failure of Executive
substantially to perform his duties with the Company (other than any such
failure resulting from Executive's incapacity due to physical or mental illness
or any such failure subsequent to Executive being delivered a notice of
termination without Cause by the Company or delivering a notice of termination
for Good Reason to the Company) after the Board delivers to Executive a written
demand for substantial performance that specifically identifies the manner in
which the Board believes that Executive has not substantially performed
Executive's duties, (ii) the commission of an act by Executive constituting
dishonesty or fraud against the Company, (iii) Executive's conviction of or
entering of a guilty or no contest plea with respect to a felony, (iv) habitual
absenteeism, chronic alcoholism or any other form of substance abuse by
Executive, or (v) the
commission of an act by Executive involving gross negligence or moral turpitude
that brings the Company or any of its affiliates into public disrepute or
disgrace or causes material harm to the customer relations, operations or
business prospects of the Company or any of its affiliates. For purposes of this
SECTION 1(b), no act or failure to act by Executive shall be considered
"willful"
(c) unless done or omitted to be done by Executive in bad faith and
without reasonable belief that such act or failure to act was in the best
interests of the Company or its affiliates. Any act, or failure to act, based
upon authority given pursuant to a resolution duly adopted by the Board, the
advice of counsel for the Company [or the instructions of the Company's chief
executive officer or another senior officer of the Company] shall be
conclusively presumed to be done, or omitted to be done, by Executive in good
faith and in the best interests of the Company. Cause shall not exist unless and
until (x) there has been a meeting of the Board, held after reasonable notice to
Executive, at which Executive, together with counsel, is afforded a reasonable
opportunity to be heard and (y) the Company has delivered to Executive a copy of
a resolution, duly adopted by three quarters (3/4) of the entire Board
(excluding Executive if Executive is a Board member) at or after such meeting,
finding that an event described in one of clauses (i) through (v) has occurred
and specifying the particulars thereof.
(d) "Change in Control" means the occurrence of any one of the
following events:
(i) individuals who, on the date hereof, constitute the Board
(the "Incumbent Directors") cease for any reason to constitute at least
a majority of the Board, provided that any person becoming a director
subsequent to the date hereof whose election or nomination for election
was approved by a vote of at least two thirds (2/3) of the Incumbent
Directors then on the Board (either by a specific vote or by approval of
the proxy statement of the Company in which such person is named as a
nominee for director, without written objection to such nomination)
shall be an Incumbent Director;
(ii) any "person" (as such term is defined in Section 3(a)(9)
of the Securities Exchange Act of 1934 (the "Exchange Act") and in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing 25% or
more of the combined voting power of the Company's then outstanding
securities eligible to vote for the election of the Board (the "Company
Voting Securities"); provided, however, that such event shall not be
deemed to be a Change in Control by virtue of any acquisition of Company
Voting Securities (A) by the Company or any Subsidiary, (B) by any
employee benefit plan (or related trust) sponsored or maintained by the
Company or any Subsidiary, (C) by any underwriter temporarily holding
securities pursuant to an offering of such securities, (D) pursuant to a
Non-Qualifying Transaction (as defined in SECTION 1(c)(iii)), (E)
pursuant to any acquisition by Executive or any group of persons
including Executive (or any entity controlled by Executive or by any
group of persons including Executive); or (F) pursuant to or in
connection with a transaction (other than a Business Combination) in
which Company Voting Securities are acquired from the Company, if a
majority of the Incumbent Directors approve a resolution providing
expressly that such transaction does not constitute a Change in Control
under this SECTION 1(c)(ii);
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(iii) the consummation of a merger, consolidation, statutory
share exchange or similar form of corporate transaction involving the
Company or any of its Subsidiaries that requires the approval of the
Company's shareholders, whether for such transaction or for an issuance
of securities in or in connection with the transaction (a "Business
Combination"), unless immediately following such Business Combination
(A) more than 50% of the total voting power of the ultimate parent
corporation that directly or indirectly has beneficial ownership of 100%
of the voting securities eligible to elect directors of the Surviving
Corporation (the "Parent Corporation") or, if there is no Parent
Corporation, the corporation resulting from such Business Combination
(the "Surviving Corporation"), is represented by Company Voting
Securities that were outstanding immediately prior to such Business
Combination (or, if applicable, is represented by shares into which such
Company Voting Securities were converted pursuant to such Business
Combination), and such voting power among the holders thereof is in
substantially the same proportion as the voting power of such Company
Voting Securities among the holders thereof immediately prior to the
Business Combination, (B) no person (other than any employee benefit
plan or related trust sponsored or maintained by the Surviving
Corporation or the Parent Corporation), is or becomes the beneficial
owner, directly or indirectly, of 25% or more of the total voting power
of the outstanding voting securities eligible to elect directors of the
Parent Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) and (C) at least a majority of the members of the board of
directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation) following the consummation of
the Business Combination were Incumbent Directors at the time of the
Board's approval of the execution of the initial agreement providing for
such Business Combination (any Business Combination that satisfies all
of the criteria specified in clauses (A), (B) and (C) above shall be
deemed to be a "Non-Qualifying Transaction"); or
(iv) the Company acts upon a plan of complete liquidation or
dissolution of the Company approved by the shareholders of the Company
or effects a sale of all or substantially all of the Company's assets
approved by the shareholders of the Company.
Notwithstanding the foregoing, a Change in Control of the Company shall not be
deemed to occur solely because any person acquires beneficial ownership of more
than 25% of the Company Voting Securities as a result of an acquisition or a
series of acquisitions of Company Voting Securities by the Company that reduces
the number of Company Voting Securities outstanding; however, if such person
thereafter becomes the beneficial owner of additional Company Voting Securities
that increase the percentage of outstanding Company Voting Securities
beneficially owned by such person, a Change in Control of the Company shall then
be deemed to occur.
(e) "Date of Termination" means, subject to SECTION 1(J), (i) the
effective date on which Executive's employment by the Company terminates as
specified in a prior written notice by the Company or Executive, as the case may
be, to the other, delivered pursuant to SECTION 9 or (ii) if Executive's
employment by the Company terminates by reason of death or Disability, the date
of death or Disability of Executive.
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(f) "Disability" means termination of Executive's employment by the
Company due to Executive's absence from Executive's duties with the Company on a
full-time basis for at least 180 consecutive days as a result of Executive's
incapacity due to physical or mental illness.
(g) "Good Reason" means the occurrence of any of the following
events, without Executive's express written consent, after a Change in Control:
(i) any change in the duties or responsibilities (including
reporting responsibilities) of Executive that is materially and
adversely inconsistent with Executive's position(s), duties,
responsibilities or status with the Company immediately prior to such
Change in Control (including any material and adverse diminution of such
duties or responsibilities), or a material and adverse change in
Executive's titles or offices with the Company as in effect immediately
prior to such Change in Control;
(ii) a reduction by the Company in Executive's rate of annual
base salary as in effect immediately prior to such Change in Control or
as it may be increased from time to time thereafter, except for any
reduction as part of across-the-board salary reductions similarly
affecting all management personnel of the Company;
(iii) any requirement of the Company that Executive be based
anywhere more than 50 miles from the office where Executive is located
at the time of the Change in Control;
(iv) any purported termination of Executive's employment that
is not effectuated pursuant to SECTION 9(b) (and that therefore will not
constitute a termination hereunder); or
(v) the failure of the Company to obtain any assumption (and,
if applicable, guarantee) agreement from the Surviving Corporation (and
the Parent Corporation) required by SECTION 8(b).
An action taken in good faith and remedied by the Company within thirty days
after receipt of notice thereof given by Executive shall not constitute Good
Reason. Executive's right to payment pursuant to SECTION 4(a) upon termination
of employment for Good Reason shall not be affected by Executive's incapacities
due to mental or physical illness, nor shall Executive's continued employment
constitute consent to, or a waiver of rights with respect to, any event or
condition constituting Good Reason except that no event shall constitute Good
Reason unless Executive provides notice of termination of employment within 90
days following Executive's knowledge of the occurrence thereof.
(h) "Qualifying Termination" means a termination of Executive's
employment (i) by the Company other than for Cause or on account of death,
Disability or Retirement or (ii) by Executive for Good Reason.
(i) "Retirement" means Executive's mandatory retirement (not
including any mandatory early retirement) in accordance with the Company's
retirement policy generally applicable to its salaried employees as in effect
immediately prior to the Change in Control, or in
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accordance with any retirement arrangement established with respect to Executive
with Executive's written consent.
(j) "Subsidiary" means any corporation or other entity of which the
Company has a direct or indirect ownership interest in 50% or more of the total
combined voting power of the then outstanding securities or interests entitled
to vote generally in the election of directors or of which the Company has the
right to receive 50% or more of the distribution of profits or 50% of the assets
upon liquidation or dissolution.
(k) "Termination Period" means the period of time beginning with a
Change in Control and ending on the second anniversary of such Change in
Control. Notwithstanding anything in this Agreement to the contrary, if (i)
Executive's employment is terminated prior to a Change in Control under
circumstances that would have constituted a Qualifying Termination if they had
occurred following a Change in Control, (ii) Executive reasonably demonstrates
that such termination (or the Good Reason event for which Executive gives notice
of termination) was at the request of a third party who had indicated an
intention or taken steps reasonably calculated to effect a Change in Control,
and (iii) a Change in Control involving such third party (or a party competing
with such third party to effectuate a Change in Control) does occur, then a
Change of Control shall be deemed to have occurred on the date immediately prior
to the date of such termination of employment or event constituting Good Reason
for all purposes of this Agreement. For purposes of determining the timing of
payments and benefits to Executive under SECTION 4 and the required notice
period under SECTION 9(b), the date of the actual Change in Control shall be
treated as Executive's Date of Termination under any of the circumstances
described in clauses (i) through (iii) above.
2. Obligation of Executive. In the event of a tender or exchange
offer, proxy contest, or the execution of any agreement that, if consummated,
would constitute a Change in Control, Executive agrees not to voluntarily leave
the employ of the Company, other than as a result of Disability, Retirement or
an event that would constitute Good Reason if a Change in Control had occurred,
until the Change in Control occurs or, if earlier, such tender or exchange
offer, proxy contest, or agreement is terminated or abandoned.
3. Term of Agreement. This Agreement shall be effective on the date
hereof and shall continue in effect until the Company shall have given one
year's written notice of cancellation; provided that, notwithstanding the
delivery of any such notice, this Agreement shall continue in effect for a
period of two years after a Change in Control if such Change in Control occurs
prior to the effective date of such cancellation. Notwithstanding anything in
this SECTION 3 to the contrary, this Agreement shall terminate, except as
provided in SECTION 1(J), if Executive or the Company terminates Executive's
employment prior to a Change in Control.
4. Payments Upon Termination of Employment.
(a) Qualifying Termination. If the employment of Executive terminates
pursuant to a Qualifying Termination during the Termination Period, then the
Company shall provide to Executive:
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(i) within ten days following the Date of Termination, a
lump-sum cash amount equal to the sum of (A) Executive's base salary
through the Date of Termination and any bonus amounts that have become
payable, to the extent not theretofore paid or deferred, plus (B) any
compensation previously deferred by Executive other than pursuant to a
tax-qualified plan (together with any interest and earnings thereon) and
any accrued vacation pay, in each case to the extent not theretofore
paid; and
(ii) a cash amount equal to the lesser of (A) product of (1) 2
multiplied by (2) Executive's annual rate of base salary as in effect
immediately prior to the Date of Termination, and (B) the product of (1)
2.99 multiplied by (2) Executive's "Base Amount," as defined in Section
280G(b)(3) of the Internal Revenue Code of 1986, as amended (the
"Code"), such amount to be paid, at the Company's option, in a lump sum
within 30 days following the Date of Termination or in equal monthly
installments over the 24-month period following the Date of Termination.
(b) Non-Qualifying Termination. If during the Termination Period the
employment of Executive terminates other than by reason of a Qualifying
Termination, then the Company shall pay to Executive, within 30 days following
the Date of Termination, the lump-sum cash amount described in SECTION 4(a)(i).
The Company may make such additional payments, and provide such additional
benefits, to Executive as the Company and Executive may agree in writing.
5. Limitation on Payments by the Company.
(a) Notwithstanding anything in this Agreement to the contrary, in
the event it is determined pursuant to SECTION 5(b) that any payment, award,
benefit or distribution (or any acceleration of any payment, award, benefit or
distribution) by the Company (or any of its affiliated entities) or any entity
that effectuates a Change in Control (or any of its affiliated entities) to or
for the benefit of Executive (whether pursuant to the terms of this Agreement or
otherwise) (collectively, the "Payments") would be subject to the excise tax
(the "Excise Tax") under Section 4999 of the Code, then the amounts payable to
Executive under SECTION 4 shall be reduced (reducing the payments under SECTION
4(a)(ii) first unless an alternative method of reduction is elected by
Executive) to the maximum amount as will result in no portion of the Payments
being subject to such excise tax (the "Safe Harbor Cap").
(b) Upon a Change in Control, the public accounting firm that is
retained by the Company as of the date immediately prior to the Change in
Control (the "Accounting Firm") shall determine whether the Payments would be
subject to the Excise Tax absent reduction pursuant to SECTION 5(a) and, if so,
shall determine the Safe Harbor Cap; provided that in the event that the
Accounting Firm is serving as accountant or auditor for the individual, entity
or group effecting the Change in Control, the Company may appoint another
nationally recognized public accounting firm to make such determinations (which
accounting firm shall then be referred to as the Accounting Firm). If amounts
payable pursuant to SECTION 4 are reduced to the Safe Harbor Cap, the Accounting
Firm shall provide a reasonable opinion to Executive that Executive is not
required to report any Excise Tax on Executive's federal income tax return. All
fees, costs and expenses (including without limitation the costs of retaining
experts) of the Accounting Firm shall be borne by the Company. Determinations by
the Accounting Firm
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hereunder shall be binding upon the Company and Executive except as provided in
SECTION 5(c) below.
(c) If it is established, pursuant to a final determination of a
court or an Internal Revenue Service ("IRS") proceeding that has been finally
and conclusively resolved, that any amount has been paid to Executive by the
Company pursuant to this Agreement in excess of the Safe Harbor Cap, such excess
amount shall be deemed for all purposes to be a loan to Executive made on the
date Executive received such amount, and Executive shall repay such amount to
the Company on demand, together with interest thereon at the applicable federal
rate (as defined in Section 1274(d) of the Code) from the date of Executive's
receipt thereof until the date of such repayment. As a result of the uncertainty
in the application of Section 4999 of the Code at the time of the Accounting
Firm's determinations pursuant to SECTION 5(b), it is possible that an amount
will not have been paid by the Company hereunder that should have been paid in
accordance with SECTIONS 4 AND 5(a). In the event that the Accounting Firm, the
Company (which shall include the position taken by the Company, or together with
its consolidated group, on its federal income tax return), the IRS or any court
determines that this has occurred, the Company shall pay such amount to
Executive within ten days of such determination, together with interest thereon
at the applicable federal rate from the date such amount would have been paid to
Executive until the date of payment.
6. Withholding Taxes. The Company may withhold from all payments due
to Executive (or his beneficiary or estate) hereunder all taxes that, by
applicable federal, state, local or other law, the Company is required to
withhold therefrom.
7. Scope of Agreement. Nothing in this Agreement shall be deemed to
entitle Executive to continued employment with the Company or its Subsidiaries,
and if Executive's employment with the Company shall terminate prior to a Change
in Control, Executive shall have no further rights under this Agreement (except
as otherwise provided hereunder); provided, however, that any termination of
Executive's employment during the Termination Period shall be subject to all of
the provisions of this Agreement.
8. Successors; Binding Agreement.
(a) This Agreement shall not be terminated by any Business
Combination. In the event of any Business Combination, the provisions of this
Agreement shall be binding upon the Surviving Corporation, and such Surviving
Corporation shall be treated as the Company hereunder.
(b) The Company agrees that in connection with any Business
Combination, it shall cause the Surviving Corporation unconditionally to assume
(and any Parent Corporation of the Surviving Corporation to guaranty), by
written instrument delivered to Executive (or his beneficiary or estate), all
obligations of the Company hereunder. Failure of the Company to obtain such
assumption and guaranty, prior to the effectiveness of any such Business
Combination that constitutes a Change in Control, shall be a breach of this
Agreement and shall constitute Good Reason hereunder.
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(c) This Agreement shall inure to the benefit of and be enforceable
by Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive dies while
any amounts would be payable to Executive hereunder had he continued to live,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to such person or persons appointed in writing
by Executive to receive such amounts or, if no person is so appointed, to
Executive's estate.
9. Notice.
(a) For purposes of this Agreement, all notices and other
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given when delivered or five days after deposit in the
United States mail, certified and return receipt requested, postage prepaid,
addressed as follows:
If to Executive: Xxxxxx X. Xxxxxxxx
0000 Xxxxx Xxxx Xxxxx, X.X.
Xxxxxxx, XX 00000
If to the Company: Caraustar Industries, Inc.
X.X. Xxx 000
0000 Xxx Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Chairman
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.
(b) If Executive's employment is terminated during the Termination
Period for any reason other than death, the Company or Executive, as applicable,
shall provide to the other written notice of Executive's Date of Termination.
Such notice shall (i) set forth in reasonable detail the facts and circumstances
on which such termination is based, (ii) indicate whether such termination is
for Cause, Good Reason or Disability or is other than for Cause, and (iii)
specify the Date of Termination, which shall be not less than 15 nor more than
60 days after the giving of such notice except as specified in SECTION 1(e) with
respect to Disability or unless, pursuant to SECTION 1(j), fewer than 15 days
remain before the date of the actual Change in Control. The failure by Executive
or the Company to set forth in such notice any fact or circumstance that
contributes to a showing of Good Reason or Cause shall not waive any right of
Executive or the Company hereunder or preclude Executive or the Company from
asserting such fact or circumstance in enforcing Executive's or the Company's
rights hereunder.
10. Full Settlement; Resolution of Disputes. The Company's obligation
to make any payments provided for in this Agreement and otherwise to perform its
obligations hereunder shall be in lieu and in full settlement of all other
severance payments to Executive under any other severance or employment
agreement between Executive and the Company and any severance plan of the
Company. In no event shall Executive be obligated to seek other employment or
take other action by way of mitigation of the amounts payable to Executive under
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any of the provisions of this Agreement, and such amounts shall not be reduced
as a result of Executive's obtaining other employment.
11. Employment with Subsidiaries. Employment with the Company for
purposes of this Agreement shall include employment with any Subsidiary.
12. Survival. The respective obligations and benefits afforded to the
Company and Executive as provided in SECTIONS 4 (to the extent that payments or
benefits are owed as a result of a termination of employment that occurs during
the term of this Agreement), 5 (to the extent that Payments are made to
Executive as a result of a Change in Control that occurs during the term of this
Agreement), 6, 8(c) and 10 shall survive the termination of this Agreement.
13. GOVERNING LAW; VALIDITY. THE INTERPRETATION, CONSTRUCTION AND
PERFORMANCE OF THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NORTH CAROLINA WITHOUT REGARD
TO ITS PRINCIPLES OF CONFLICTS OF LAWS. THE INVALIDITY OR UNENFORCEABILITY OF
ANY PROVISION OF THIS AGREEMENT SHALL NOT AFFECT THE VALIDITY OR ENFORCEABILITY
OF ANY OTHER PROVISION OF THIS AGREEMENT, WHICH OTHER PROVISIONS SHALL REMAIN IN
FULL FORCE AND EFFECT.
14. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original and all of which together shall
constitute one and the same instrument.
15. Miscellaneous. No provision of this Agreement may be modified or
waived unless such modification or waiver is agreed to in writing and signed by
Executive and by a duly authorized officer of the Company. 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. Failure by Executive
or the Company to insist upon strict compliance with any provision of this
Agreement or to assert any right Executive or the Company may have hereunder,
including without limitation the right of Executive to terminate employment for
Good Reason, shall not be deemed to be a waiver of such provision or right or
any other provision or right of this Agreement. Except as otherwise specifically
provided herein, the rights of, and benefits payable to, Executive, his estate
or his beneficiaries pursuant to this Agreement are in addition to any rights
of, or benefits payable to, Executive, his estate or his beneficiaries under any
other employee benefit plan or compensation program of the Company.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by a duly authorized officer of the Company and Executive has executed this
Agreement as of the day and year first above written.
CARAUSTAR INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxx /s/ Xxxxxx X. Xxxxxxxx
___________________________ ____________________________________
XXXXXX X. XXXXXXXX
Its: President and CEO
__________________________
Dated: October 1, 2002 Dated: October 1, 2002
________________________ _____________________________
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