AMENDED AND RESTATED SEVERANCE AND CHANGE IN CONTROL AGREEMENT
Exhibit 10.83(a)
AMENDED AND RESTATED
SEVERANCE AND CHANGE IN CONTROL AGREEMENT
SEVERANCE AND CHANGE IN CONTROL AGREEMENT
AMENDED AND RESTATED SEVERANCE AND CHANGE IN CONTROL AGREEMENT executed December 8, 2011 as of
January 3, 2011, by and between XXXXX & WESSON HOLDING CORPORATION, a Nevada corporation
(“Employer”), and XXXXXXX X. XXXXXXXX (“Employee”).
WHEREAS, Employer desires Employee to continue Employee’s services to Employer as Executive
Vice President, Chief Financial Officer, Secretary, and Treasurer of Employer.
WHEREAS, Employer and Employee desire to agree to the results of any termination of Employee’s
employment under certain circumstances.
NOW, THEREFORE, in consideration of the premises and of the mutual covenants set forth in this
Agreement, the parties hereto agree as follows:
1. Definitions.
(a) “Cause” shall mean any termination of Employee’s employment by Employer as a result of
Employee engaging in an act or acts involving a crime, moral turpitude, fraud, or dishonesty;
Employee taking any action that may be injurious to the business or reputation of Employer; or
Employee willfully violating in a material respect Employer’s Corporate Governance Guidelines, Code
of Conduct, or any applicable Code of Ethics, including, without limitation, the provisions thereof
relating to conflicts of interest or related party transactions.
(b) “Change in Control” of Employer shall mean a change in control 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 Securities Exchange Act of 1934 as in effect on the date of this Agreement or, if Item
6(e) is no longer in effect, any regulations issued by the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934 that serve similar purposes; provided that, without
limitation, such a Change in Control shall be deemed to have occurred if and when (i) any person
(as such term is used in Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934)
becomes the “beneficial owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934)
directly or indirectly of equity securities of Employer representing 20 percent or more of the
combined voting power of Employer’s then-outstanding equity securities, except that this provision
shall not apply to any person currently owning at least five percent or more of the combined voting
power of Employer’s currently outstanding equity securities or to an acquisition of up to 20
percent of the then-outstanding voting securities that has been approved by at least 75 percent of
the members of the Board of Directors who are not affiliates or associates of such person; (ii)
during the period of this Agreement, individuals who, at the beginning of such period, constituted
the Board of Directors of Employer (the “Original Directors”), cease for any reason to constitute
at least a majority thereof unless the election or nomination for election of each new director was
approved (an “Approved Director”)
by the vote of a Board of Directors constituted entirely of
Original Directors and/or Approved Directors; (iii) a tender offer or exchange offer is made whereby
the effect of such offer is to take over and control Employer, and such offer is consummated for
the equity securities of Employer representing 20 percent or more of the combined voting power of
Employer’s then-outstanding voting securities; (iv) Employer is merged, consolidated, or enters
into a reorganization transaction with another person and, as the result of such merger,
consolidation, or reorganization, less than 75 percent of the outstanding equity securities of the
surviving or resulting person shall then be owned in the aggregate by the former stockholders of
Employer; or (v) Employer transfers substantially all of its assets to another person or entity
that is not a wholly owned subsidiary of Employer. Sales of Employer’s Common Stock beneficially
owned or controlled by Employee shall not be considered in determining whether a Change in Control
has occurred.
2. Result of Termination Other than for Cause.
In the event that Employer terminates Employee’s employment with Employer other than for
Cause, (a) Employer shall pay Employee’s base salary for a period of 12 months following the
effective date of such termination; and (b) Employer shall pay to Employee, at the same time as
cash incentive bonuses are paid to Employer’s other executives, a portion of the cash incentive
bonus deemed by Employer’s Compensation Committee in the exercise of its sole discretion to be
earned by Employee pro rata for the period commencing on the first day of the fiscal year for which
the cash incentive bonus is calculated and ending on the effective date of termination. The
amounts payable under (a) above shall be paid on Employer’s regular payroll schedule commencing on
the first such payment date coincident with or following Employee’s “separation from service” from
Employer within the meaning of Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”), and shall be treated as a series of separate payments under Treasury Regulations Section
1.409A-2(b)(2)(iii). The amounts payable under (b) above, if any, shall be made by March 15 of the
year following the year to which the bonus applies and would otherwise be earned.
3. Result of Termination Following Change in Control.
In the event of a “Change in Control” of Employer, Employee, at Employee’s option and upon
written notice to Employer, may terminate Employee’s employment effective on the date of the notice
unless (a) the provisions of this Agreement remain in full force and effect as to Employee and (b)
Employee suffers no reduction in Employee’s status, duties, authority, or compensation following
such Change in Control, provided that Employee will be considered to suffer a reduction in
Employee’s status, duties, authority, or compensation, only if, after the Change in Control, (i)
Employee is not the Chief Financial Officer of the company that succeeds to the business conducted
by Employer and its subsidiaries immediately prior to the Change in Control, (ii) such company’s
common stock is not listed on a national stock exchange (such as the New York Stock Exchange, the
Nasdaq National Market, or the American Stock Exchange), (iii) such company terminates Employee or
in any material respect reduces Employee’s status, duties, authority, or base compensation within
one year of the Change in Control, or (iv) as a result of such Change in Control, Employee is
required to relocate out of Springfield, Massachusetts (or surrounding areas). In the event of a
termination following a Change in Control as provided in this Section 3, (A) Employer shall pay
Employee’s base salary for a period of 18 months following the effective date of such termination;
(B) Employer shall
pay to Employee an amount equal to the average of Employee’s cash bonus paid for each of the
two fiscal years immediately preceding Employee’s termination, such amount to be paid and received
upon the effective date of the termination (provided such termination constitutes a “separation
from service” from Employer within the meaning of Section 409A of the Code); and (C) all unvested
stock-based compensation held by Employee in his capacity as Employee on the effective date of the
termination shall vest as of the effective date of termination. The amounts payable under Section
3(A) shall be paid on Employer’s regular payroll schedule commencing on the first such payment date
coincident with or following Employee’s “separation from service” from Employer within the meaning
of Section 409A of the Code and shall be treated as a series of separate payments under Treasury
Regulations Section 1.409A-2(b)(2)(iii).
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4. Competition and Confidential Information.
(a) Interests to be Protected.
The parties acknowledge that Employee will perform essential services for Employer, its
employees, and its stockholders during the term of Employee’s employment with Employer. Employee
will be exposed to, have access to, and work with, a considerable amount of Confidential
Information (as defined below). The parties also expressly recognize and acknowledge that the
personnel of Employer have been trained by, and are valuable to, Employer and that Employer will
incur substantial recruiting and training expenses if Employer must hire new personnel or retrain
existing personnel to fill vacancies. The parties expressly recognize that it could seriously
impair the goodwill and diminish the value of Employer’s business should Employee compete with
Employer in any manner whatsoever. The parties acknowledge that this covenant has an extended
duration; however, they agree that this covenant is reasonable and it is necessary for the
protection of Employer, its stockholders, and employees. For these and other reasons, and the fact
that there are many other employment opportunities available to Employee if his employment is
terminated, the parties are in full and complete agreement that the following restrictive covenants
are fair and reasonable and are entered into freely, voluntarily, and knowingly. Furthermore, each
party was given the opportunity to consult with independent legal counsel before entering into this
Agreement.
(b) Non-Competition.
For the period equal to 12 months after the termination of Employee’s employment with Employer
for any reason, Employee shall not (whether directly or indirectly, as owner, principal, agent,
stockholder, director, officer, manager, employee, partner, participant, or in any other capacity)
engage or become financially interested in any competitive business conducted within the Restricted
Territory (as defined below). As used herein, the term “competitive business” shall mean any
business that sells or provides or attempts to sell or provide products or services the same as or
substantially similar to the products or services sold or provided by Employer during Employee’s
employment, and the term “Restricted Territory” shall mean any state or other geographical area in
which Employer sells products or provides services during Employee’s employment.
(c) Non-Solicitation of Employees.
For a period of 24 months after the termination of Employee’s employment with Employer for any
reason, Employee shall not directly or indirectly, for Employee, or on behalf of, or in conjunction
with, any other person, company, partnership, corporation, or governmental entity, solicit for
employment, seek to hire, or hire any person or persons who is employed by or was employed by
Employer within 12 months of the termination of Employee’s employment for the purpose of having any
such employee engage in services that are the same as or similar or related to the services that
such employee provided for Employer.
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(d) Confidential Information.
Employee shall maintain in strict secrecy all confidential or trade secret information
relating to the business of Employer (the “Confidential Information”) obtained by Employee in the
course of Employee’s employment, and Employee shall not, unless first authorized in writing by
Employer, disclose to, or use for Employee’s benefit or for the benefit of, any person, firm, or
entity at any time either during or subsequent to the term of Employee’s employment, any
Confidential Information, except as required in the performance of Employee’s duties on behalf of
Employer. For purposes hereof, Confidential Information shall include without limitation any
materials, trade secrets, knowledge, or information with respect to management, operational, or
investment policies and practices of Employer; any business methods or forms; any names or
addresses of customers or data on customers or suppliers; and any business policies or other
information relating to or dealing with the management, operational, or investment policies or
practices of Employer.
(e) Return of Books, Records, Papers, and Equipment.
Upon the termination of Employee’s employment with Employer for any reason, Employee shall
deliver promptly to Employer all files, lists, books, records, manuals, memoranda, drawings, and
specifications; all cost, pricing, and other financial data; all other written or printed materials
and computers, cell phones, PDAs, and other equipment that are the property of Employer (and any
copies of them); and all other materials that may contain Confidential Information relating to the
business of Employer, which Employee may then have in Employee’s possession or control whether
prepared by Employee or not.
(f) Disclosure of Information.
Employee shall disclose promptly to Employer, or its nominee, any and all ideas, designs,
processes, and improvements of any kind relating to the business of Employer, whether patentable or
not, conceived or made by Employee, either alone or jointly with others, during working hours or
otherwise, during the entire period of Employee’s employment with Employer or within six months
thereafter.
(g) Assignment.
Employee hereby assigns to Employer or its nominee, the entire right, title, and interest in
and to all inventions, discoveries, and improvements, whether patentable or not, that Employee may
conceive or make during Employee’s employment with Employer, or within six months thereafter, and
which relate to the business of Employer.
(h) Equitable Relief.
In the event a violation of any of the restrictions contained in this Section occurs, Employer
shall be entitled to preliminary and permanent injunctive relief as well as damages and an
equitable accounting of all earnings, profits, and other benefits arising from such violation,
which right shall be cumulative and in addition to any other rights or remedies to which Employer
may be entitled. In the event of a violation of any provision of subsection (b), (c), (f), or (g)
of this Section, the period for which those provisions would remain in effect shall be extended for
a period of time equal to that period beginning when such violation commenced and ending when the
activities constituting such violation shall have been finally terminated in good faith.
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(i) Restrictions Separable.
If the scope of any provision of this Agreement (whether in this Section 4 or otherwise) is
found by a Court to be too broad to permit enforcement to its full extent, then such provision
shall be enforced to the maximum extent permitted by law. The parties agree that the scope of any
provision of this Agreement may be modified by a judge in any proceeding to enforce this Agreement,
so that such provision can be enforced to the maximum extent permitted by law. Each and every
restriction set forth in this Section 4 is independent and severable from the others, and no such
restriction shall be rendered unenforceable by virtue of the fact that, for any reason, any other
or others of them may be unenforceable in whole or in part.
5. Successors and Assigns.
This Agreement shall inure to the benefit of and be binding upon the successors and assigns of the
parties hereto; provided that because the obligations of Employee hereunder involve the
performance of personal services, such obligations shall not be delegated by Employee. For
purposes of this Agreement successors and assigns shall include, but not be limited to, any
individual, corporation, trust, partnership, or other entity that acquires a majority of the stock
or assets of Employer by sale, merger, consolidation, liquidation, or other form of transfer.
Employer 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 Employer
to expressly assume and agree to perform this Agreement in the same manner and to the same extent
that Employer would be required to perform it if no such succession had taken place. Without
limiting the foregoing, unless the context otherwise requires, the term “Employer” includes all
subsidiaries of Employer.
6. Release of Claims and Non-Disparagement.
Employer’s obligations under this Agreement are contingent upon Employee executing (and not
revoking during any applicable revocation period) a valid and enforceable full and unconditional
release of any claims Employee may have against Employer (whether known or unknown) as of the
termination of Employee’s employment. Employer shall present the release to Employee within 10
days of termination, and Employee shall have up to 45 days to consider whether to execute the
release; in the event Employee executes the release, Employee shall have an additional eight
calendar days in which to expressly revoke his execution of the release in
writing. In the event that Employee fails to execute the release within the 45 day period, or in
the event Employee formally revokes his execution of the release within eight calendar days of his
execution of the release, then this Agreement shall be null and void. Employee shall not be
entitled to any payments or benefits under this Agreement after termination of his employment if he
does not execute the release or if he revokes the release during any statutory revocation period,
and to the extent that Employer has made any payments to Employee prior to Employee’s failure to
execute the release within the 45 day period or prior to his revocation, then Employee shall
immediately reimburse Employer for any and all such payments. Employer’s obligations and all
payments under this Agreement shall cease if Employee makes any written or oral statement or takes
any action that Employee knows or reasonably should know constitutes an untrue, disparaging, or
negative comment concerning Employer.
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7. Miscellaneous.
(a) Notices.
All notices, requests, demands, and other communications required or permitted under this
Agreement shall be in writing and shall be deemed to have been duly given, made, and received (i)
if personally delivered, on the date of delivery, (ii) if by facsimile or e-mail transmission, upon
receipt, (iii) if mailed, three days after deposit in the United States mail, registered or
certified, return receipt requested, postage prepaid, and addressed as provided below, or (iv) if
by a courier delivery service providing overnight or “next-day” delivery, on the next business day
after deposit with such service addressed as follows:
| (1) | If to Employer: |
||
0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 Attention: Chief Executive Officer Phone: (000) 000-0000 Facsimile: (000) 000-0000 E-Mail: xxxxxxx@xxxxx-xxxxxx.xxx |
|||
| (2) | If to Employee: 0000 Xxxxxxxxx Xxxxxx Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000 Phone: (000) 000-0000 E-Mail: xxxxxxxxx@xxxxx-xxxxxx.xxx |
Either party may alter the address to which communications or copies are to be sent by giving
notice of such change of address in conformity with the provisions of this Section 7 for the giving
of notice.
(b) Indulgences; Waivers.
Neither any failure nor any delay on the part of either party to exercise any right, remedy,
power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, remedy, power, or privilege preclude any other or further exercise
of the same or of any other right, remedy, power, or privilege, nor shall any waiver of any
right, remedy, power, or privilege with respect to any occurrence be construed as a waiver of such
right, remedy, power, or privilege with respect to any other occurrence. No waiver shall be
binding unless executed in writing by the party making the waiver.
(c) Controlling Law.
This Agreement and all questions relating to its validity, interpretation, performance and
enforcement, shall be governed by and construed in accordance with the laws of the state of
Massachusetts, notwithstanding any Massachusetts or other conflict-of-interest provisions to the
contrary. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the
courts of the state of Massachusetts located in Hampden County and the United States District Court
for the District of Massachusetts for the purpose of any suit, action, proceeding or judgment
relating to or arising out of this Agreement and the transactions contemplated hereby. Service of
process in connection with any such suit, action, or proceeding may be served on each party hereto
anywhere in the world by the same methods as are specified for the giving of notices under this
Agreement. Each of the parties hereto irrevocably consents to the jurisdiction of any such court
in any such suit, action, or proceeding and to the laying of venue in such court. Each party
hereto irrevocably waives any objection to the laying of venue of any such suit, action or
proceeding brought in such courts and irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum. EACH OF THE
PARTIES HERETO WAIVES ANY RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION WITH RESPECT TO THIS
AGREEMENT AND REPRESENTS THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS WAIVER.
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(d) Binding Nature of Agreement.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors, and assigns, except that no party may
assign or transfer such party’s rights or obligations under this Agreement without the prior
written consent of the other party.
(e) Execution in Counterpart.
This Agreement may be executed in any number of counterparts, each of which shall be deemed to
be an original as against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become binding when one or
more counterparts hereof, individually or taken together, shall bear the signatures of the parties
reflected hereon as the signatories.
(f) Provisions Separable.
The provisions of this Agreement are independent of and separable from each other, and no
provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any
reason any other or others of them may be invalid or unenforceable in whole or in part.
(g) Entire Agreement.
This Agreement contains the entire understanding between the parties hereto with respect to
the subject matter hereof and supersedes all prior and contemporaneous agreements and
understandings, inducements, and conditions, express or implied, oral or written, except as herein
contained. The express terms hereof control and supersede any course of performance and/or usage
of the trade inconsistent with any of the terms hereof. This Agreement may not be modified or
amended other than by an agreement in writing.
(h) No Participation in Severance Plans.
Except as contemplated by this Agreement, Employee acknowledges and agrees that the
compensation and other benefits set forth in this Agreement are and shall be in lieu of any
compensation or other benefits that may otherwise be payable to or on behalf of Employee pursuant
to the terms of any severance pay arrangement of Employer or any affiliate thereof, or any other
similar arrangement of Employer or any affiliates thereof providing for benefits upon involuntary
termination of employment.
(i) Paragraph Headings.
The paragraph headings in this Agreement are for convenience only; they form no part of this
Agreement and shall not affect its interpretation.
(j) Gender.
Words used herein, regardless of the number and gender specifically used, shall be deemed and
construed to include any other number, singular or plural, and any other gender, masculine,
feminine, or neuter, as the context requires.
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(k) Number of Days.
In computing the number of days for purposes of this Agreement, all days shall be counted,
including Saturdays, Sundays, and holidays; provided, however, that if the final day of any time
period falls on a Saturday, Sunday, or holiday, then the final day shall be deemed to be the next
day that is not a Saturday, Sunday, or holiday.
(l) Specified Employee. Notwithstanding any provision of this Agreement to the contrary, if
Employee is a “specified employee” as defined in Section 409A of the Code, Employee shall not be
entitled to any payments or benefits the right to which provides for a “deferral of compensation”
within the meaning of Section 409A, and whose payment or provision is triggered by Employee’s
termination of employment (whether such payments or benefits are provided to Employee under this
Agreement or under any other plan, program or arrangement of the Employer), until (and any payments
or benefits suspended hereby shall be paid in a lump sum on) the earlier of (i) the date which is
the first business day following the six-month anniversary of Employee’s “separation from service”
(within the meaning of Section 409A of the Code) for any reason other than death or (ii) Employee’s
date of death, and such payments or benefits that, if not for the six-month delay described herein,
would be due and payable prior to such date shall be made or provided to Employee on such date.
Employer shall make the determination as to whether Employee is a “specified employee” in good
faith in accordance with its general procedures adopted in accordance with Section 409A of the Code
and, at the time of the Employee’s “separation of service” will notify the Employee whether or not
he is a “specified employee.”
(m) Savings Clause. This Agreement is intended to satisfy the requirements of Section 409A of
the Code with respect to amounts subject thereto, and shall be interpreted and construed consistent
with such intent; provided that, notwithstanding the other provisions of this subsection and the
paragraph above entitled, “Specified Employee”, with respect to any right to a payment or benefit
hereunder (or portion thereof) that does not otherwise provide for a “deferral of compensation”
within the meaning of Section 409A of the Code, it is the intent of the parties that such payment
or benefit will not so provide. Furthermore, if either party notifies the other in writing that,
based on the advice of legal counsel, one or more of the provisions of this Agreement contravenes
any regulations or Treasury guidance promulgated under Section 409A of the Code or causes any
amounts to be subject to interest or penalties under Section 409A of the Code, the parties shall
promptly and reasonably consult with each other (and with their legal counsel), and shall use their
reasonable best efforts, to reform the provisions hereof to (a) maintain to the maximum extent
practicable the original intent of the applicable provisions without violating the provisions of
Section 409A of the Code or increasing the costs to the Employer of providing the applicable
benefit or payment and (b) to the extent practicable, to avoid the imposition of any tax, interest
or other penalties under Section 409A of the Code upon Employee or the Employer.
(n) Reimbursements. Except as expressly provided otherwise herein, no reimbursement payable
to Employee pursuant to any provisions of this Agreement or pursuant to any plan or arrangement of
Employer shall be paid later than the last day of the calendar year following the calendar year in
which the related expense was incurred, and no such reimbursement during any calendar year shall
affect the amounts eligible for reimbursement in any other calendar year, except, in each case, to
the extent that the right to reimbursement does not provide for a “deferral of compensation” within
the meaning of Section 409A.
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IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the date first
above written.
| XXXXX & WESSON HOLDING CORPORATION |
||||
| By: | /s/ P. Xxxxx Xxxxxx | |||
| P. Xxxxx Xxxxxx | ||||
| President and Chief Executive Officer | ||||
| /s/ Xxxxxxx X. Xxxxxxxx | ||||
| Xxxxxxx X. Xxxxxxxx | ||||
[Signature Page to Amended and Restated Severance and Change in Control Agreement]
