1
EXHIBIT 10(X)
SEVERANCE COMPENSATION AGREEMENT
THIS AGREEMENT made and entered into as of May 29, 1996, by and
between AMRESCO, INC., a Delaware corporation (together with its subsidiaries,
"AMRESCO"), and ______________________ ("Executive").
W I T N E S S E T H:
WHEREAS, AMRESCO recognizes that the current business environment
makes it difficult to attract and retain highly qualified executives unless a
certain degree of security can be offered to such individuals against
organizational and personnel changes which frequently follow Changes of Control
(as defined below) of a corporation; and
WHEREAS, even rumors of acquisitions or mergers may cause executives
to consider major career changes in an effort to assure financial security for
themselves and their families; and
WHEREAS, AMRESCO desires to assure fair treatment of its key
executives in the event of a Change of Control and to allow them to make
critical career decisions without undue time pressure and financial
uncertainty, thereby increasing their willingness to remain with AMRESCO
notwithstanding the outcome of a possible Change of Control transaction; and
WHEREAS, AMRESCO recognizes that its key executives will be involved
in evaluating or negotiating any offers, proposals or other transactions which
could result in Changes of Control of AMRESCO and believes that it is in the
best interest of AMRESCO and its stockholders for such key executives to be in
a position, free from personal financial and employment considerations, to be
able to assess objectively and pursue aggressively the interests of AMRESCO and
its stockholders in making these evaluations and carrying on such negotiations;
and
WHEREAS, the Board of Directors of AMRESCO (the "Board") believes it
is essential to provide the Executive with compensation arrangements upon a
Change of Control which provide the Executive with individual financial
security and which are competitive with those of other corporations, and in
order to accomplish these objectives, the Board has caused AMRESCO to enter
into this Agreement.
NOW, THEREFORE, in consideration of the mutual premises and conditions
contained herein, the parties hereto agree as follows:
1. TERM. This Agreement shall commence on the date hereof, and
shall continue until April 30, 2001; thereafter the term hereof shall be
extended automatically from year-to-year unless (i) there has been no Change of
Control and
2
(ii) no fewer than thirty (30) days prior to April 30, 2001 or the appropriate
April 30 thereafter, AMRESCO shall have given notice that it does not wish to
extend this Agreement; and provided, further, that after a Change of Control of
AMRESCO during the term hereof, this Agreement shall remain in effect until all
of the obligations of the parties hereunder are satisfied.
2. CHANGE OF CONTROL. Except as provided herein, no benefits
shall be payable hereunder unless there shall have been a Change of Control of
AMRESCO, as defined below, and Executive's employment by AMRESCO shall
thereafter have been terminated within two (2) years of the date of such Change
of Control in accordance with Section 3. For purposes hereof, a "Change of
Control" or "Change of Control of AMRESCO" shall mean any one of the following:
(i) Continuing Directors (The term "Continuing Director" means any individual
who is a member of the Board on the date hereof or was nominated for election
as a director by, or whose nomination as a director was approved by, the Board
with the affirmative vote of a majority of the Continuing Directors.) no longer
constitute a majority of the Board; (ii) any person or group of persons (as
defined in Rule 13d-5 under the Securities Exchange Act of 1934, as amended
{"Rule 13d-5"}) (other than Xxxxxxx X. Xxxxxx, CGW Southeast Partners I, L.P.
or CGW Southeast Partners II, L.P. {collectively, the "Control Group"})
together with his or its affiliates, becomes the beneficial owner, directly or
indirectly, of 25% or more of the voting power of AMRESCO's then outstanding
securities entitled generally to vote for the election of AMRESCO's directors;
(iii) the merger or consolidation of AMRESCO with any other entity if AMRESCO
is not the surviving entity and any person or group of persons (as defined in
Rule 13d-5) (other than the Control Group), together with his or its
affiliates, is the beneficial owner, directly or indirectly, of 25% or more of
the surviving entity's then outstanding securities entitled generally to vote
for the election of the surviving entity's directors; or (iv) the sale of all
or substantially all of the assets of AMRESCO or the liquidation or dissolution
of AMRESCO. Notwithstanding the foregoing provisions of this Section 2, if the
Executive's employment with AMRESCO is terminated in accordance with the
provisions of Section 3 prior to the date on which a Change of Control occurs,
and it is reasonably demonstrated that such termination (i) was at the request
of a third party who has taken steps reasonably calculated to effect a Change
of Control or (ii) otherwise arose in connection with a Change of Control, then
for all purposes hereof, such termination shall be deemed to have occurred
immediately following a Change of Control.
3. TERMINATION OF EMPLOYMENT FOLLOWING CHANGE OF CONTROL. If any
of the events described in Section 2 constituting a Change of Control of
AMRESCO shall have occurred, Executive shall be entitled to the benefits
provided in Section 4 upon the subsequent termination of his employment,
provided that such termination occurs within two (2) years of a Change of
Control of AMRESCO and unless such termination is (a) because of his death or
his "Disability" or "Retirement" (as defined in Section 3.1), (b) by AMRESCO
for "Cause" (as defined
2
3
in Section 3.1), (b) by AMRESCO for "Cause" (as defined in Section 3.2), or (c)
by Executive other than for "Good Reason" (as defined in Section 3.3).
3.1 Disability; Retirement.
(a) If, as a result of Executive's incapacity due
to physical or mental illness, Executive shall have been absent from
his duties with AMRESCO on a full time basis for one hundred twenty
(120) consecutive business days, and within thirty (30) days after
written Notice of Termination (as hereinafter defined) is given,
Executive shall not have returned to the full time performance of his
duties, AMRESCO may terminate Executive's employment for "Disability."
(b) Termination by AMRESCO or Executive of his
employment based on "Retirement" shall mean termination in accordance
with AMRESCO's retirement policy, including early retirement,
generally applicable to its salaried employees or in accordance with
any retirement arrangement established with Executive's consent with
respect to him.
3.2 Cause. For the purposes hereof, AMRESCO shall have
"Cause" to terminate Executive's employment hereunder upon (i) the willful and
continued failure by Executive to perform his duties with AMRESCO (other than
any such failure resulting from incapacity due to physical or mental illness),
after a demand for substantial performance is delivered to Executive by the
Board which specifically identifies the manner in which the Board believes that
he has not substantially performed his duties, or (ii) the willful engaging by
Executive in gross misconduct materially and demonstrably injurious to AMRESCO.
For purposes of this Section 3.2, no act, or failure to act, on Executive's
part shall be considered "willful" if, in the Executive's sole judgment, his
action or omission was done, or omitted to be done, in good faith and with a
reasonable belief that his action or omission was in the best interest of
AMRESCO. Notwithstanding the foregoing, Executive shall not be deemed to have
been terminated for Cause unless and until there shall have been delivered to
him a copy of a resolution duly adopted by the affirmative vote of not less
than two-thirds (2/3) of the entire authorized membership of the Board at a
meeting of the Board called and held for the purpose (after reasonable notice
and an opportunity for Executive, together with counsel, to be heard before the
Board), finding that in the good faith opinion of the Board he was guilty of
conduct set forth above in clauses (i) or (ii) of the first sentence of this
Section 3.2 and specifying the particulars thereof in detail.
3.3 Good Reason. Executive may terminate his employment
for Good Reason. For purposes of this Agreement, "Good Reason" shall mean:
3
4
(a) Without his express written consent, the
assignment to Executive of any duties inconsistent with his positions,
duties, responsibilities and status with AMRESCO immediately prior to
a Change of Control, or a change in his reporting responsibilities,
titles or offices as in effect immediately prior to a Change of
Control, or any removal of Executive from or any failure to re-elect
Executive to any of such positions, except in connection with the
termination of his employment for Cause, death, Disability or
Retirement or by Executive other than for Good Reason;
(b) A reduction by AMRESCO in Executive's base
salary as in effect on the date of a Change of Control or as the same
may be increased from time to time thereafter;
(c) A reduction by AMRESCO in the bonus payable
to Executive in any year below a percentage of Executive's then base
salary equal to the average percentage of Executive's base salary
represented by the bonuses received by Executive for the three (3)
years (or, if shorter, the years of Executive's employment by AMRESCO)
immediately preceding the year in which a Change of Control occurs as
percentages of his base salaries in each of such three (3) years (or
shorter number of years). By way of example, but not in limitation of
the provisions of this paragraph (c), assume a Change of Control
occurs in 1998, and Executive received bonuses for each of 1995, 1996
and 1997 as follows: 30% of his base salary for 1995; 50% of his base
salary for 1996; and 50% of his base salary for 1997. If Executive
receives a bonus for 1998 which is less than 43.33% of his 1998 base
salary, Executive shall have "Good Reason" for terminating his
employment under this Section 3.3. If Executive was only employed
during 1996 and 1997, using the same facts as recited herein,
Executive would have "Good Reason" to terminate his employment if his
1998 bonus was less than 50% of his 1998 base salary;
(d) AMRESCO's requiring Executive to be based
anywhere other than either AMRESCO's offices at which he was based
immediately prior to a Change of Control or AMRESCO's offices which
are no more than 75 miles from the offices at which the Executive was
based immediately prior to a Change of Control, except for required
travel on AMRESCO's business to an extent substantially consistent
with his business travel obligations immediately prior to the Change
of Control (excluding, however, any travel obligations prior to the
Change of Control that are associated with or caused by the Change of
Control events or circumstances), or, in the event Executive consents
to any relocation beyond such 75-mile radius, the failure by AMRESCO
to pay
4
5
(or reimburse Executive) for all reasonable moving expenses incurred
by him relating to a change of his principal residence in connection
with such relocation and to indemnify Executive against any loss
(defined as the difference between the actual sale price of such
residence and the higher of (a) his aggregate investment in such
residence or (b) the fair market value of such residence as determined
by a real estate appraiser designated by Executive and reasonably
satisfactory to AMRESCO) realized on the sale of Executive's principal
residence in connection with any such change of residence;
(e) The failure by AMRESCO to continue in effect
any benefit or compensation plan (including but not limited to any
stock option plan, pension plan, life insurance plan, health and
accident plan or disability plan) in which Executive is participating
at the time of a Change of Control of AMRESCO (or plans providing
substantially similar benefits), the taking of any action by AMRESCO
which would adversely affect Executive's participation in or
materially reduce his benefits under any of such plans or deprive him
of any material fringe benefit enjoyed by him at the time of the
Change of Control, or the failure by AMRESCO to provide Executive with
the number of paid vacation days to which he is then entitled on the
basis of years of service with AMRESCO in accordance with AMRESCO's
normal vacation policy in effect immediately prior to the Change of
Control;
(f) Any failure of AMRESCO to obtain the
assumption of, or the agreement to perform, this Agreement by any
successor as contemplated in Section 5;
(g) Any purported termination of Executive's
employment which is not effected pursuant to a Notice of Termination
satisfying the requirements of Section 3.4 (and, if applicable,
Section 3.2); and for purposes hereof, no such purported termination
shall be effective; or
(h) Any termination of employment by Executive
for any reason (other than death, Disability or Retirement) during the
thirty (30)-day period beginning on the first anniversary of the date
on which a Change of Control occurs.
For purposes of this Section 3.3, any good faith determination of "Good Reason"
made by the Executive shall be conclusive and binding on the parties.
3.4 Notice of Termination. Any termination pursuant to
the foregoing provisions of this Section (including termination due to
Executive's death) shall be
5
6
communicated by written Notice of Termination to the other party hereto. For
purposes hereof, a "Notice of Termination" shall mean a notice which shall
indicate the specific termination provision herein relied upon and shall set
forth in reasonable detail the facts and circumstances claimed to provide a
basis for termination of Executive's employment under the provision so
indicated. In the event that Executive seeks to terminate his employment with
AMRESCO pursuant to Section 3.3, he must communicate his written Notice of
Termination to AMRESCO within sixty (60) days of being notified of such action
or actions by AMRESCO which constitute Good Reasons for termination.
3.5 Date of Termination. "Date of Termination" shall
mean (i) if this Agreement is terminated for Disability, thirty (30) days after
Notice of Termination is given (provided that Executive shall not have returned
to the performance of his duties on a full-time basis during such thirty
(30)-day period); (ii) if Executive's employment is terminated pursuant to
Section 3.3, the date specified in the Notice of Termination; and (iii) if
Executive's employment is terminated for any other reason, the date on which a
Notice of Termination is given.
4. COMPENSATION UPON TERMINATION.
4.1 Termination Without Cause or for Good Reason. If
Executive's employment is terminated other than on account of Executive's death
or pursuant to Sections 3.1 or 3.2, or if Executive shall terminate his
employment for Good Reason, then, subject to Section 4.2, Executive shall be
entitled, if such termination occurred within two (2) years of a Change of
Control, to the following benefits:
(a) AMRESCO shall pay to Executive as severance
pay in a lump sum not later than the tenth (10th) day following the
Date of Termination, an amount equal to the greater of (i) or (ii) as
follows:
(i) The product of (A) Executive's Total
Compensation (as defined below) for the calendar year
immediately preceding the calendar year in which the Date of
Termination occurs, multiplied by (B) the number three (3).
(ii) The sum of Executive's Total
Compensation (as defined below) for the three (3) calendar
years immediately preceding the calendar year in which the
Date of Termination occurs.
For purposes of this Section 4.1(a), the Executive's Total
Compensation" for a given calendar year shall mean the total amount
reportable on Form W-2, or the successor Federal income tax wage
reporting form, for
6
7
such given calendar year except that the amount of any bonus
reportable on such W-2 Form shall not be counted as part of Total
Compensation for such given calendar year if such bonus was not
payable for services performed in such given calendar year, and the
amount of any bonus payable to Executive for services performed in
such given calendar year (which may be reportable on a later Form W-2)
shall be counted as part of Total Compensation for such given calendar
year.
(b) Notwithstanding any provision to the contrary
in any stock option agreement or restricted stock agreement that may
be outstanding between Executive and AMRESCO, all stock options then
held by Executive shall immediately become exercisable and Executive
shall become 100% vested in all shares of restricted stock held by or
for the benefit of Executive.
(c) Notwithstanding any provision to the contrary
in any stock option agreement that may be outstanding between
Executive and AMRESCO, Executive's right to exercise any previously
unexercised options under any such stock option agreement shall not
terminate until the latest date on which the option granted under such
agreement would expire under the terms of such agreement but for
Executive's termination of employment.
(d) AMRESCO shall continue to provide Executive
with medical/dental and related benefits and long-term disability
benefits equal to the benefits in effect for Executive at the time of
the Change of Control, and AMRESCO shall provide such benefits at the
same cost to Executive as the cost, if any, charged to Executive for
those benefits prior to termination of employment. AMRESCO shall
provide the foregoing benefits for the period from Executive's
termination of employment until the earlier of (i) three (3) years
from the date of Executive's termination of employment, or (ii) the
date Executive obtains employment which provides him with comparable
medical/dental and related benefits and/or long-term disability
benefits. For purposes of the preceding sentence, benefits will not
be comparable during any waiting period for eligibility for such
benefits or during any period during which there is a preexisting
condition limitation on such benefits.
4.2 Limitation on Payments.
(a) Anything in Section 4.1 to the contrary
notwithstanding, in the event it shall be determined that any payment
or distribution made, or benefit provided, by AMRESCO to or for the
7
8
benefit of Executive (whether paid or payable or distributed or
distributable or provided pursuant to the terms hereof or otherwise)
would constitute a "parachute payment" as defined in Section 280G of
the Internal Revenue Code of 1986, as amended (the "Code"), then the
lump sum severance payment payable pursuant to Section 4.1(a) shall be
reduced so that the aggregate present value of all payments in the
nature of compensation to (or for the benefit of) Executive which are
contingent on a change of control (as defined in Code Section
280G(b)(2)(A)) is One Dollar ($1.00) less than the amount which
Executive could receive without being considered to have received any
parachute payment (the amount of this reduction in the lump sum
severance payment is referred to herein as the "Excess Amount"). The
determination of the amount of any reduction required by this Section
4.2 shall be made by an independent accounting firm (other than
AMRESCO's independent accounting firm) selected by AMRESCO and
acceptable to Executive, and such determination shall be conclusive
and binding on the parties hereto.
(b) Notwithstanding the provisions of Section
4.2(a), if it is established pursuant to a final determination of a
court or an Internal Revenue Service proceeding which has been finally
and conclusively resolved, that an Excess Amount was received by
Executive from AMRESCO, then such Excess Amount shall be deemed for
all purposes to be a loan to Executive made on the date Executive
received the Excess Amount and Executive shall repay the Excess Amount
to AMRESCO on demand (but no less than ten (10) days after written
demand is received by Executive) together with interest on the Excess
Amount at the "applicable Federal rate" (as defined in Section 1274(d)
of the Code) from the date of Executive's receipt of such Excess
Amount until the date of such repayment.
4.3 Mitigation or Set-off of Amounts Payable Hereunder.
Executive shall not be required to mitigate the amount of any payment provided
for in this Section 4 by seeking other employment or otherwise, nor shall the
amount of any payment provided for in this Section 4 be reduced by any
compensation earned by Executive as the result of employment by another
employer after the Date of Termination, or otherwise. AMRESCO's obligations
hereunder also shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which AMRESCO may have against
Executive.
5. SUCCESSORS; BINDING AGREEMENT.
5.1 Successors of AMRESCO. AMRESCO will require any
successor (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or
8
9
substantially all of the business and/or assets of AMRESCO, by agreement in
form and substance satisfactory to Executive, expressly to assume and agree to
perform this Agreement in the same manner and to the same extent that AMRESCO
would be required to perform it if there had been a Change of Control but no
such succession had taken place. Failure of AMRESCO to obtain such agreement
prior to the effectiveness of any such succession shall be a breach hereof and
shall entitle Executive to compensation from AMRESCO in the same amount and on
the same terms as Executive would be entitled hereunder if Executive terminated
his employment for Good Reason, except that for purposes of implementing the
foregoing, the date on which any such succession becomes effective shall be
deemed the Date of Termination. As used herein, "AMRESCO, INC." shall mean
AMRESCO as hereinbefore defined and any successor to its business and/or assets
as aforesaid which executes and delivers the agreement provided for in this
Section 5 or which otherwise becomes bound by all the terms and provisions
hereof by operation of law.
5.2 Executive's Heirs, etc. 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 should die while any amounts would still
be payable to him hereunder as if he had continued to live, all such amounts,
unless other provided herein, shall be paid in accordance with the terms hereof
to his designee or, if there be no such designee, to his estate.
6. NOTICE. For the purposes hereof, notices and all other
communications provided for herein shall be in writing and shall be deemed to
have been duly given when delivered or mailed by United States registered or
certified mail, return receipt requested, postage prepaid, addressed to AMRESCO
at its principal place of business and to Executive at his address as shown on
the records of AMRESCO, provided that all notices to AMRESCO shall be directed
to the attention of the Chief Executive Officer of AMRESCO with a copy to the
Secretary of AMRESCO, or to such other in writing in accordance herewith,
except that notices of change of address shall be effective only upon receipt.
7. MISCELLANEOUS. No provisions hereof may be amended, modified,
waived or discharged unless such amendment, waiver, modification or discharge
is agreed to in writing signed by Executive and such officer as may be
specifically designated by the Board (which shall in any event include
AMRESCO's Chief Executive Officer). 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 hereof 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. No agreements or representations, oral or
otherwise, express or implied, with respect to the subject matter hereof have
been made by either party which are not set forth expressly herein.
9
10
8. VALIDITY. The invalidity or unenforceability of any
provisions hereof shall not affect the validity or enforceability of any other
provision hereof, which shall remain in full force and effect.
9. NON-EXCLUSIVITY OF RIGHTS. Nothing herein shall prevent or
limit the Executive's continuing or future participation in any benefit, bonus,
incentive or other plans, practices, policies or programs provided by AMRESCO
and for which the Executive may qualify, nor shall anything herein limit or
otherwise affect such rights as the Executive may have under any stock option
or other agreements with AMRESCO. Amounts which are vested benefits or which
the Executive is otherwise entitled to receive under any plan, practice, policy
or program of AMRESCO at or subsequent to the Date of Termination shall be
payable in accordance with such plan, practice, policy or program.
10. LEGAL EXPENSES. AMRESCO agrees to pay, upon written demand
therefor by Executive, all legal fees and expenses which Executive may
reasonably incur as a result of any dispute or contest (regardless of the
outcome thereof) by or with AMRESCO or others regarding the validity or
enforceability of, or liability under, any provision hereof (including as a
result of any contest about the amount of any payment pursuant to Section 4.2),
plus in each case interest at the "applicable Federal rate" (as defined in
Section 1274(d) of the Code). In any such action brought by Executive for
damages or to enforce any provisions hereof, he shall be entitled to seek both
legal and equitable relief and remedies, including, without limitation,
specific performance of AMRESCO's obligations hereunder, in his sole
discretion.
11. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same instrument.
12. GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of Texas.
13. CAPTIONS AND GENDER. The use of captions and Section headings
herein is for purposes of convenience only and shall not effect the
interpretation or substance of any provisions contained herein. Similarly, the
use of the masculine
10
11
gender with respect to pronouns herein is for purposes of convenience and
includes either sex who may be a signatory.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as
of the day and year first above written.
AMRESCO, INC.
By:
-----------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Chairman of the Board and
Chief Executive Officer
EXECUTIVE
--------------------------------------
11
