EXHIBIT 10.28
CHANGE IN CONTROL AGREEMENT
THIS CHANGE IN CONTROL AGREEMENT (the "Agreement") is made and entered into
this 26th day of July, 1999, by and between XXXXXXX & XXXXXX CORPORATION, a
Delaware corporation (the "Company"), and XXXXXX X. XXXX (the "Executive").
Statement of Purpose
The Company wishes to encourage the continued service and dedication of
Executive in the event of any actual or contemplated Change in Control (as
defined below) of the Company. The Company has determined that these objectives
are best accomplished by providing Executive with individual financial security
pursuant to the terms of this Agreement, which the Company believes are fair and
reasonable and consistent with the practices of other major corporations.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the Company and Executive hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
shall have the following meanings:
(a) Change in Control means and shall be deemed to have occurred upon:
(i) the acquisition, directly or indirectly, by any "person" (within
the meaning of Section 13(d) or 14(d) of the Securities Exchange Act of
1934, as amended) within any 12 month period of more than 80% of the
combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors, including,
but not limited to, by merger, consolidation or similar corporate
transaction or by purchase; excluding, however, the following ("Excluded
Transactions"): (A) any acquisition of beneficial ownership by the Company,
any subsidiary of the Company, Xxxxxxxxxxx Xxxxxxx Partners, L.P.,
Blackstone Capital Partners L.P. or an affiliate of any of the foregoing,
(B) any acquisition by an employee benefit plan (or related trust)
sponsored or maintained by the Company or any subsidiary of the Company,
and (C) any merger, consolidation or other form of business acquisition or
combination transaction in which, immediately after the transaction and
giving effect thereto and the issuance of securities therein, holders of
Common Stock of the Company beneficially own or are entitled to receive
equity securities of the acquiring, surviving or resulting entity (or any
parent company or other affiliate thereof) that, in the aggregate,
represent more than 20% of the combined voting power entitled to be cast
generally; or
(ii) the sale of any business, businesses or assets of the Company in
any single transaction or series of related transactions effected within
any 12-month period which, on an aggregate basis, produced at least 80% of
the consolidated net sales of the Company, calculated by giving pro forma
effect to
such transactions, and any acquisitions effected during the relevant
period, for the fiscal year immediately preceding such transaction or, if
applicable, the first such transaction in the 12-month period in which the
transaction or series of related transactions occurred,
excluding, however, any Excluded Transaction.
(b) Change in Control Period means the period commencing three months
prior to the date of a Change in Control and ending on the first anniversary of
such date or if later, the expiration of the 45 day period referred to in
Section 1(d)(3) below.
(c) Code means the Internal Revenue Code of 1986, as amended.
(d) Constructive Termination means a termination of Executive's
employment by Executive during a Change in Control Period which is due to:
(i) the involuntary relocation of Executive to any office or
location more than fifty (50) miles from the office or location at which
Executive is then located;
(ii) a material reduction in Executive's total compensation and
benefit package; or
(iii) a significant reduction in Executive's responsibilities,
position or authority (including changes resulting from the assignment to
Executive of any duties inconsistent with his responsibilities, position or
authority in effect immediately prior to the Change in Control Period);
provided, however, that, notwithstanding any other provision hereof, no event or
circumstance will constitute "Constructive Termination" for purposes of this
Agreement (A) if Termination For Cause exists or (B) unless (1) Executive shall
have given notice to the Company of Executive's determination of the occurrence
of such event, (2) such event constitutes one of the events specified in clauses
(i) - (iii) above, and (3) such event shall be continuing as of the end of 45
days after the giving of such notice.
(e) Date of Termination means the later of (i) the date of receipt of the
Notice of Termination by the Company or Executive, as the case may be, or (ii)
any later date specified therein (which shall be not more than thirty (30) days
after the giving of such notice).
(f) ERISA means the Employee Retirement Income Security Act of 1974, as
amended.
(g) Involuntary Termination means a termination of Executive's employment
by the Company during a Change in Control Period other than a Termination For
Cause. Termination of Executive's employment during a Change in Control Period
by reason of Executive's death or disability shall not be considered an
Involuntary Termination.
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(h) Notice of Termination means a written notice which (i) indicates the
specific termination provision in this Agreement relied upon, (ii) sets forth in
reasonable detail the facts and circumstances claimed to provide the basis for
termination of Executive's employment under the provision so indicated, and
(iii) if the termination date is other than the date of receipt of such notice,
specifies the termination date (which shall be not more than thirty (30) days
after the giving of such notice).
(i) Termination For Cause means a termination of Executive's employment by
the Company as a result of:
(i) Executive's fraud or misappropriation with respect to the
business of the Company or intentional damage to the property or business
of the Company or any substantial asset;
(ii) willful failure by Executive to perform his duties and
responsibilities and to carry out his authority;
(iii) willful malfeasance or misfeasance or breach of fiduciary duty
or misrepresentation to the Company or its stockholders;
(iv) willful failure to act in accordance with any specific lawful
instructions of a majority of the Board of Directors of the Company; or
(v) conviction of Executive of a felony.
2. Benefits Upon Involuntary Termination or Constructive Termination
During Change in Control Period. Subject to the limitations of Section 3, in
the event of an Involuntary Termination or Constructive Termination of Executive
for which the Date of Termination is within a Change in Control Period, the
Company shall pay to Executive the following benefits in a lump sum payment
(without discounting to present value) within 30 days of the Date of
Termination:
(a) to the extent not theretofore paid, Executive's base salary
through the Date of Termination;
(b) a pro rata bonus equal to (1) Executive's target bonus
immediately preceding the Change in Control Period multiplied by (2) a
fraction, the numerator of which is the number of whole months (rounded
for portions of months) elapsed in the relevant bonus year prior to the
Date of Termination, and the denominator of which is 12;
(c) twenty-four (24) months of base salary based on the monthly rate
of base salary in effect immediately preceding the Change in Control
Period, or if greater, the rate of Base Salary in effect immediately
preceding the Date of Termination; and
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(d) Executive's target annual bonus in effect immediately preceding
the Change in Control Period multiplied by two (2).
In addition, (i) the Company shall offer Executive the opportunity to purchase
his Company automobile at its net book value as of the Date of Termination, (ii)
Executive shall be deemed to continue as an employee of the Company for 2 years
following the Date of Termination for purposes of eligibility and vesting (but
not benefit accrual), under any otherwise applicable retirement income plan or
arrangement, and (iii) Executive will be entitled to continue to participate in
all welfare benefit plans for such 2 year period or, if earlier, the period
ending on the date the Executive obtains new full-time employment. Subject to
the limitations of Section 3, the Company shall also reimburse Executive for the
cost of any continued coverage elected by Executive for himself and his eligible
dependents under the Company's group health plan(s) at the end of the welfare
benefit continuation period described in clause (iii) of the immediately
preceding sentence pursuant to Section 4980B of the Code and Section 601 et seq.
of ERISA.
3. Limitation on Benefits.
(a) General. Any benefits payable or to be provided to Executive, whether
pursuant to this Agreement or otherwise, which constitute Parachute Payments (as
defined below) shall be subject to the limitation of this Section 3 so that the
benefits payable or to be provided to Executive under this Agreement, as well as
any payments or benefits provided outside of this Agreement, shall not cause the
Company to have paid an Excess Parachute Payment (as defined below).
Accordingly, anything in this Agreement to the contrary notwithstanding, in the
event that the certified public accountants regularly employed by the Company
immediately prior to a Change in Control (the "Accounting Firm") shall determine
that Executive's receipt of all Parachute Payments would cause the Company to
pay an Excess Parachute Payment, it shall determine the Reduced Amount, and the
aggregate Parachute Payments shall be reduced to such Reduced Amount in
accordance with the provisions of Section 3(c) below.
(b) Definitions. For purposes of this Section 3:
(i) "Excess Parachute Payment" shall have the same meaning as the term
"excess parachute payment" defined in Section 280G(b)(1) of the Code;
(ii) "Parachute Payment" shall mean any payment or distribution in the
nature of compensation to or for the benefit of Executive which is
contingent on a "change" under and within the meaning of Section
280G(b)(2)(A)(i) of the Code, whether paid or payable pursuant to this
Agreement or otherwise;
(iii) "Present Value" shall mean such value determined in accordance
with Section 280G(d)(4) of the Code; and
(iv) "Reduced Amount" shall mean the largest aggregate amount of
Parachute Payments Executive may receive without causing the Company to
have paid an Excess Parachute Payment.
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(c) Limitation. If the Accounting Firm determines that Parachute Payments
should be limited to the Reduced Amount, the Company shall promptly give
Executive notice to that effect and a copy of the detailed calculation thereof,
and Executive may then elect, in Executive's sole discretion, which and how much
of the Parachute Payments, including without limitation Parachute Payments made
outside of this Agreement, shall be eliminated or reduced (as long as after such
election the Present Value of the aggregate Parachute Payments is equal to the
Reduced Amount), and shall advise the Company in writing of such election within
10 days of Executive's receipt of notice. If no such election is made by
Executive within such 10 day period, the Company may elect which of Parachute
Payments, including without limitation Parachute Payments made outside of this
Agreement, shall be eliminated or reduced (as long as after such election the
Present Value of the aggregate Parachute Payments is equal to the Reduced
Amount) and shall notify Executive promptly of such election. All
determinations made by the Accounting Firm under this Section 3 shall be binding
upon the Company and Executive and shall be made within 45 days immediately
following the Date of Termination. As promptly as practicable following such
determination, the Company shall pay to or distribute for the benefit of
Executive such Parachute Payments as are then due to Executive under this
Agreement.
4. Non-Exclusivity of Rights. Nothing in this Agreement shall prevent or
limit Executive's continuing or future eligibility or participation in any
benefit, bonus, incentive or other plan provided by the Company and for which
Executive may qualify, nor shall anything herein limit or otherwise affect such
rights as Executive may have under any stock option or other agreements with the
Company. Amounts which are vested benefits or which Executive is otherwise
entitled to receive under any plan or program of the Company subsequent to the
Date of Termination shall be payable in accordance with such plan or program.
5. Full Settlement. The Company's obligation to make payments provided
for in this Agreement and otherwise to perform its obligations hereunder shall
not be affected by any set-off, counterclaim, recoupment, defense or other
claim, right or action which the Company may have against Executive or other
parties. In no event shall Executive be obligated to seek other employment or
take any other action by way of mitigation of the amounts payable to Executive
under any of the provisions of this Agreement. The Company agrees to pay, to
the full extent provided by law, all legal fees and expenses which Executive may
reasonably incur as a result of any contest by the Company or others of the
validity or enforceability of, or liability under, any provision of this
Agreement or as a result of any contest by Executive about the amount of any
payment pursuant to this Agreement.
6. No Duplication of Benefits. Notwithstanding anything to the contrary
herein, the lump sum payment due to Executive under Section 2 hereof shall be
reduced by the amount of cash severance or salary continuation benefits paid to
Executive pursuant to any other plan or policy of the Company or a written
employment agreement between the Company (or one of its affiliates) and
Executive, it being the intent of the parties that Executive shall not receive
post-employment benefits hereunder and under such other plan, policy or written
employment agreement.
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7. Succession. This Agreement shall inure to the benefit of and shall be
binding upon the Company and its successors and assignees, but, without the
prior written consent of Executive, this Agreement may not be assigned other
than in connection with a merger, sale, consolidation or similar transaction of
all or substantially all of the business and/or assets of the Company in which
the successor or assignee assumes (whether by operation of law or express
assumption) all obligations of the Company hereunder. The Company shall require
any successor to assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform it if no
such succession had taken place. The obligations and duties of Executive
hereunder shall be personal and not assignable otherwise than by the laws of
descent and distribution.
8. Miscellaneous.
(a) Applicable Law. This Agreement shall be governed, construed and
interpreted in accordance with the laws of the State of Michigan.
(b) Notices. All notices and communications hereunder shall be in writing
and shall be given by hand delivery to the other party by registered or
certified mail, return receipt requested, postage prepaid, or by overnight mail,
addressed as follows:
If to Executive:
Xx. Xxxxxx X. Xxxx
00000 Xxxxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
If to the Company:
Xxxxxxx & Xxxxxx Corporation
000 XxXxxxxxxx Xxxxx
X.X. Xxx 00000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Chairman and Chief Executive Officer
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) Validity. The invalidity or unenforceability of any provision of this
contract shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) Tax Withholding. The Company may withhold from any amounts payable
under this Agreement such federal, state and local taxes as shall be required to
be withheld pursuant to any applicable law or regulation.
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(e) Waiver. The waiver of the breach of any term or of any condition of
this Agreement shall not be deemed to constitute the waiver of any other breach
of the same or any other term or condition hereof.
(f) Entire Agreement. This instrument contains the entire agreement of
the parties relating to the subject matter hereof, and it replaces and
supersedes any prior agreements between the parties relating to said subject
matter. No modifications of this Agreement shall be valid unless made in writing
and signed by the parties hereto.
(g) No Right of Employment. Executive and the Company acknowledge that
the employment of Executive by the Company is "at will," and prior to the date
of a Change in Control, may be terminated by either Executive or the Company at
any time. Upon a termination of Executive's employment prior to the date of a
Change in Control, there shall be no further rights under this Agreement and
this Agreement shall terminate and be of no further force and effect.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
EXECUTIVE:
/s/ Xxxxxx X. Xxxx
----------------------------------------
Xxxxxx X. Xxxx
COMPANY:
XXXXXXX & XXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
Chairman and Chief Executive Officer
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