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EXHIBIT 10.36
REEBOK INTERNATIONAL LTD.
CHANGE OF CONTROL AGREEMENT
AGREEMENT, made this 12th day of November, by and between Xxxx X. Xxxxxxxxx
("Executive") and Reebok International Ltd. (the "Company"),
WITNESSETH
WHEREAS, the Board of Directors of the Company (the "Board") has determined
that it is in the best interests of the Company and its shareholders for the
Company to agree to provide benefits under circumstances described below to
Executive; and
WHEREAS, the Board recognizes that the possibility of a change of control
of the Company, followed by a termination of the Executive's employment or a
reduction in his responsibility or compensation, is unsettling to the Executive
and wishes to make arrangements at this time to help assure his continuing
dedication to his duties to the Company and its shareholders, notwithstanding
any attempts by outside parties to gain control of the Company; and
WHEREAS, the Board believes it important, should the Company receive
proposals from outside parties, to enable the Executive, without being
distracted by the uncertainties of his own employment situation, to perform his
regular duties,
NOW, THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto agree as follows:
1. In the event that any individual, corporation, partnership, company, or other
entity (a "Person"), which term shall include a "group" (within the meaning of
section 13(d) of the Securities Exchange Act of 1934 (the "Act")), begins a
tender or exchange offer, circulates a proxy to the Company's shareholders, or
takes other steps to effect a "Change of Control" (as defined in paragraph 3
below), Executive agrees that he will not voluntarily leave the employ of the
Company and will render the services contemplated in the recitals to this
Agreement until such Person has terminated the efforts to effect a Change of
Control or until a Change of Control has occurred.
2. If, within 24 months following a Change of Control, Executive's employment
with the Company terminates other than as a result of the death, total
disability or retirement of the Executive at or after his normal retirement
date, (i) by the Company other than for "Cause" (as defined in paragraph 4
below), or (ii) by Executive for "Good Reason" (as defined in paragraph 4
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below), then:
a. The Company will pay to Executive within 30 days of such termination
of employment a lump-sum cash payment equal to 300% of the aggregate
of (i) his then-current annual base salary (or, if his base salary has
been reduced at any time after the Change of Control, his base salary
in effect prior to the reduction), (ii) his target bonus for the
then-current year or, if higher, his bonus for the most recent
calendar year ended before the Change of Control, (iii) the amount of
his then-current annual automobile allowance and (iv) the annual cost
of life insurance then furnished to him by the Company.
b. All of Executive's outstanding stock options, restricted shares and
other similar incentive interests and rights will become immediately
and fully vested and exercisable.
c. Executive will be treated for purposes of the Company's Supplemental
Executive Retirement Plan (the "SERP") as having three additional
Years of Continuous Service. The Company will, within 30 days of his
termination, pay to him, in a single lump-sum cash payment, the
present value of his benefit under the SERP. Present value will be
determined by applying the "applicable mortality table" and
"applicable interest rate" then in effect for purposes of section
417(e)(3)(A) of the Internal Revenue Code or any successor provision.
d. The Company will pay to Executive, in a single lump-sum cash payment,
an amount equal to the difference, if any, between (i) the total
distribution that he receives following his termination under the
Company's Profit-Sharing and Retirement Plan and its Excess Benefits
Plan and (ii) the total distribution that he would have received under
such plans had he accumulated three additional Years of Service for
Vesting prior to termination. The payment will be made at the same
time that he receives his distribution from those plans.
e. Executive, together with his dependents, will continue following such
termination of employment to participate fully, with no contribution
to the cost required of him or them, in all accident and health plans
maintained or sponsored by the Company immediately prior to the Change
of Control, or receive substantially the equivalent coverage (or the
full value thereof in cash) from the Company, until the third
anniversary of such termination.
f. The Company will promptly reimburse Executive for any and all legal
fees and expenses incurred by him as a result of such termination of
employment, including
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without limitation all fees and expenses incurred in connection with
efforts to enforce the provisions of this Agreement (provided such
efforts result in Executive's recovery of any sum from the Company,
whether through court award or settlement).
3. A Change of Control will occur for purposes of this Agreement if (i) any
Person who does not currently own directly or indirectly 10% or more of the
combined voting power of the Company's outstanding securities becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Act) of securities of the
Company representing more than 30% (or, if higher, the aggregate percentage of
the combined voting power of the Company's then-outstanding securities held by
or for the benefit of Xxxx Xxxxxxx and his family) of the combined voting power
of the company's then-outstanding securities, (ii) there is a change of control
of the Company of a kind which would be required to be reported under Item 6(e)
of Schedule 14A of Regulation 14A promulgated under the Act (or a similar item
in a similar schedule or form), whether or not the Company is then subject to
such reporting requirement, (iii) the Company is a party to a merger,
consolidation, sale of assets or other reorganization, or a proxy contest, as a
consequence of which members of the Board in office immediately prior to such
transaction or event constitute less than a majority of the Board thereafter, or
(iv) individuals who, at the date hereof, constitute the Board (the "Continuing
Directors") cease for any reason to constitute a majority thereof, PROVIDED,
HOWEVER, that any director who is not in office at the date hereof but whose
election by the Board or whose nomination for election by the Company's
shareholders was approved by a vote of at least two-thirds of the directors then
still in office who either were directors at the date hereof or whose election
or nomination for election was previously so approved shall be deemed to be a
Continuing Director for purposes of this Agreement.
Notwithstanding the foregoing provisions of this paragraph 3, a "Change of
Control" will not be deemed to have occurred solely because of (i) the
acquisition of securities of the Company (or any reporting requirement under the
Act relating thereto) by an employment benefit plan maintained by the Company
for its employees or (ii) the occurrence of a leveraged buy-out or
recapitalization of the Company so long as Executive retains all the benefits of
this Agreement following the leveraged buy-out or recapitalization, and
Executive's existing stock options are converted to replacement options or some
other form of equity on a basis no less favorable than that generally adopted
for other senior executives of the Company.
4. a. "Cause" means only: conviction of the Executive for a felony or a
crime involving moral turpitude.
b. "Good Reason" means any one or more of the following:
(i) Failure by the Company to maintain Executive in
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the positions, with the titles, that he held immediately prior to
the Change of Control or downgrading of his responsibilities or
authority.
(ii) Reduction of Executive's base salary or failure in any year to
pay to him a bonus at least equal to his target bonus for the
year in which the Change of Control occurs.
(iii) Material reduction in the health, disability or life insurance
benefits that the Company was providing Executive immediately
prior to the Change of Control.
(iv) Failure by the Company to provide Executive with the opportunity
to participate in any executive compensation or benefit plan or
program that is then generally available to other senior
executives of the Company.
(v) Relocation of Executive's principal place of business more than
30 miles from the its location immediately prior to the Change of
Control.
5. In the event that it is determined that any payment or benefit provided by
the Company to or for the benefit of Executive, either under this Agreement or
otherwise, will be subject to the excise tax imposed by section 4999 of the
Internal Revenue Code or any successor provision ("section 4999"), the Company
will, prior to the date on which any amount of the excise tax must be paid or
withheld, make an additional lump-sum payment (the "gross-up payment") to
Executive. The gross-up payment will be sufficient, after giving effect to all
federal, state and other taxes and charges (including interest and penalties, if
any) with respect to the gross-up payment, to make Executive whole for all taxes
(including withholding taxes) and any associated interest and penalties, imposed
under or as a result of section 4999.
Determinations under this Section 5 will be made by Ernst & Young unless
Executive has reasonable objections to the use of that firm, in which case the
determinations will be made by a comparable firm chosen by Executive after
consultation with the Company (the firm making the determinations to be referred
to as the "Firm"). The determinations of the Firm will be binding upon the
Company and Executive except as the determinations are established in resolution
(including by settlement) of a controversy with the Internal Revenue Service to
have been incorrect. All fees and expenses of the Firm will be paid by the
Company.
If the Internal Revenue Service asserts a claim that, if successful, would
require the Company to make a gross-up payment or an additional gross-up
payment, the Company and Executive will cooperate fully in resolving the
controversy with the Internal
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Revenue Service. The Company will make or advance such gross-up payments as are
necessary to prevent Executive from having to bear the cost of payments made to
the Internal Revenue Service in the course of, or as a result of, the
controversy. The Firm will determine the amount of such gross-up payments or
advances and will determine after final resolution of the controversy whether
any advances must be returned by Executive to the Company. The Company will bear
all expenses of the controversy and will gross Executive up for any additional
taxes that may be imposed upon Executive as a result of its payment of such
expenses.
6. If the Company is at any time before or after a Change of Control merged or
consolidated into or with any other corporation or other entity (whether or not
the Company is the surviving entity), or if substantially all of the assets
thereof are transferred to another corporation or other entity, the provisions
of this Agreement will be binding upon and inure to the benefit of the
corporation or other entity resulting from such merger or consolidation or the
acquirer of such assets, and this paragraph 6 will apply in the event of any
subsequent merger or consolidation or transfer of assets.
In the event of any merger, consolidation, or sale of assets described
above, nothing contained in this Agreement will detract from or otherwise limit
Executive's right to participate or privilege of participation in any stock
option or purchase plan or any bonus, profit sharing, pension, group insurance,
hospitalization, or other incentive or benefit plan or arrangement which may be
or become applicable to executives of the corporation resulting from such merger
or consolidation or the corporation acquiring such assets of the Company.
In the event of any merger, consolidation or sale of assets described
above, references to the Company in this Agreement shall unless the context
suggests otherwise be deemed to include the entity resulting from such merger or
consolidation or the acquirer of such assets of the Company.
7. All payments required to be made by the Company hereunder to Executive or his
dependents, beneficiaries, or estate will be subject to the withholding of such
amounts relating to tax and/or other payroll deductions as may be required by
law.
8. There shall be no requirement on the part of the Executive to seek other
employment or otherwise mitigate damages in order to be entitled to the full
amount of any payments and benefits to which Executive is entitled under this
Agreement, and the amount of such payments and benefits shall not be reduced by
any compensation or benefits received by Executive from other employment.
9. Nothing contained in this Agreement shall be construed as a contract of
employment between the Company and the Executive, or as a right of the Executive
to continue in the employ of the Company, or as a limitation of the right of the
Company to
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discharge the Executive with or without Cause; the Executive may, subject to the
terms and conditions of this Agreement, have the right to receive upon
termination of his employment the payments and benefits provided in this
Agreement and shall not be deemed to have waived any rights he may have either
at law or in equity in respect of such discharge.
10. No amendment, change, or modification of this Agreement may be made except
in writing, signed by both parties.
Payments made by the Company pursuant to this Agreement shall be in lieu of
payments and other benefits, if any, to which Executive may be entitled under
any other severance agreement or severance plan of the Company.
The provisions of this Agreement shall be binding upon and shall inure to
the benefit of Executive, his executors, administrators, legal representatives
and assigns, and the Company and its successors.
The validity, interpretation, and effect of this Agreement shall be
governed by the laws of The Commonwealth of Massachusetts.
The Company shall have no right of set-off or counterclaims, in respect of
any claim, debt, or obligation, against any payments to Executive, his
dependents, beneficiaries or estate provided for in this Agreement.
The invalidity or unenforceability of any provisions of this Agreement
shall not affect the validity or enforceability of any other provision of this
Agreement, which shall remain in full force and effect.
No right or interest to or in any payments or benefits hereunder shall be
assignable by the Executive; PROVIDED, HOWEVER, that this provision shall not
preclude him from designating one or more beneficiaries to receive any amount
that may be payable after his death and shall not preclude the legal
representative of his estate from assigning any right hereunder to the person or
persons entitled thereto under his will or, in the case of intestacy, to the
person or persons entitled thereto under the laws of intestacy applicable to his
estate. The term "beneficiaries" as used in this Agreement shall mean a
beneficiary or beneficiaries so designated to receive any such amount, or if no
beneficiary has been so designated, the legal representative of the Executive's
estate.
No right, benefit, or interest hereunder, shall be subject to anticipation,
alienation, sale, assignment, encumbrance, charge, pledge, hypothecation, or
set-off in respect of any claim, debt, or obligation, or to execution,
attachment, levy, or similar process, or assignment by operation of law. Any
attempt, voluntary or involuntary, to effect any action specified in the
immediately preceding sentence shall, to the full extent
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permitted by law, be null, void, and of no effect.
IN WITNESS WHEREOF, Reebok International Ltd. and Executive have each
caused this Agreement to be duly executed and delivered as of the date set forth
above.
REEBOK INTERNATIONAL LTD.
By: /s/ XXXX XXXXXXX
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Agreed:
/s/ XXXX X. XXXXXXXXX
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